Swicegood v. Clemishire
Dallas Court of Appeals, No. 05-26-00159-CV (May 20, 2026)
Chief Justice Koch (Opinion linked here) and Justices Goldstein and Garcia
The hearing on a TCPA motion to dismiss ordinarily must be
held within 60 days after the motion is served, and the trial court must rule
within 30 days after the hearing. Tex. Civ. Prac. & Rem. Code §§ 27.004,
27.005(a). If the trial court doesn’t timely rule, the motion is deemed denied
by operation of law and the movant may immediately appeal. Id. §§ 27.005(a),
27.008(a). But failure to timely hold a hearing is not the same as failure to
timely rule.
Here, the trial court did not conduct a hearing on
Swicegood’s TCPA motion to dismiss within the prescribed 60-day period.
Swicegood appealed, equating that failure to hold a timely hearing with a
failure to rule, which would result in the motion being denied by operation of
law and give rise to a right of appeal. The Dallas Court dismissed the appeal
for want of jurisdiction. “Without a hearing,” the Court explained, “the
deadline for the trial court to rule on a motion to dismiss is never triggered,
and no denial by operation of law can occur.” Therefore, the Court held, “because
appellant’s dismissal motion was not heard, it was not denied by operation of
law, and no basis for an appeal exists.” In so ruling the Court followed its
earlier decision in Braun v. Gordon, No. 05-17-00176-CV, 2017 WL 4250235
(Tex. App.—Dallas Sept. 26, 2017, no pet.), in which it cautioned litigants
that it is the TCPA movant’s “responsibility to obtain a timely hearing on the
motion to dismiss.”
