Petition for Writ of Mandamus Conditionally Granted and Memorandum 

Opinion filed March 24, 2020.

In The

Fourteenth Court of Appeals

NO. 14-19-01018-CV

IN RE FRANCI NEELY, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

152nd District Court

Harris County, Texas

Trial Court Cause No. 2019-18862

MEMORANDUM OPINION

On December 27, 2019, relator Franci Neely filed a petition for writ of 

mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. 

P. 52. In the petition, Neely asks this court to compel the Honorable Robert Schaffer, 

presiding judge of the 152nd District Court of Harris County, to set aside his August 

24, 2019 order granting the motion to dismiss Neely’s claims under the Texas 
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Citizen’s Participation Act (“TCPA”)1as void because the trial court granted the 

motion more than 30 days after the hearing. We conditionally grant mandamus 

relief.

I BACKGROUND

Real parties in interest Isaiah Allen and Keylin Allen were having professional 

photographs taken of their daughter on the esplanade in the Broadacres subdivision 

in Houston. An altercation ensued when Neely, a resident of the subdivision, 

approached the Allens and told them that they needed to leave because it was private 

property. The parties dispute each other’s actions during the altercation. The Allens 

sued Neely for assault and battery, negligence, gross negligence, negligent 

misrepresentation, conversion, intentional infliction of emotional distress, and 

bystander claims. Neely filed a counterclaim for defamation, asserting that the 

Allens called her “racist” and reported false accounts of the incident. 

On May 29, 2019, the Allens filed a motion to dismiss Neely’s counterclaim 

pursuant to the TCPA, and, on June 5, 2019, Neely filed a motion to dismiss the 

Allens claims against her pursuant to the TCPA. The trial court held a hearing on 

the motions to dismiss on July 19, 2019, but did not rule on the motions at that time.

1 The Texas Legislature amended the TCPA effective September 1, 2019. Those 

amendments apply to “an action filed on or after” that date. Act of May 17, 2019, 86th Leg., R.S., 

ch. 378, § 11, 2019 Tex. Sess. Law Serv. 684, 687. Because the underlying lawsuit was filed 

before September 1, 2019, the law in effect before September 1, 2019 applies. See Act of May 21, 

2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961–64, amended by Act of May 24, 

2013, 83d Leg., R.S., ch. 1042, 2013 Tex. Gen. Laws 2499–2500. All citations to the TCPA are 

to the version before the 2019 amendments took effect.
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On August 24, 2019, the trial court signed the order (1) granting the Allen’s 

motion to dismiss Neely’s counterclaim against the Allens with prejudice; (2) 

granting Neely’s motion to dismiss in part as to the Allens’ claims for negligence, 

gross negligence, negligent misrepresentation, conversion, and intentional infliction 

of emotional distress with prejudice; and (3) denying Neely’s motion to dismiss as 

to the Allens’ assault and battery and bystander claims. 

Neely filed this original proceeding, seeking to compel the trial court to set 

aside the August 24, 2019 order granting the Allens’ motion to dismiss as void. 

Neely asserts that the trial court lacked authority to rule on the Allen’s motion to 

dismiss because the motion had been previously overruled by operation of law 30 

days after the hearing. 

II. STANDARD OF REVIEW

Ordinarily, to be entitled to a writ of mandamus, the relator must show that 

the trial court clearly abused its discretion, and that the relator lacks an adequate 

remedy by appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original 

proceeding) (per curiam). A trial court clearly abuses its discretion if it reaches a 

decision so arbitrary and unreasonable as to amount to a clear and prejudicial error 

of law or if it clearly fails to analyze the law correctly or apply the law correctly to 

the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016) 

(orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 

379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The relator need not show 

that the lack of an adequate remedy by appeal when the order is void. In re Sw. Bell 

Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam).
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III. ANALYSIS

Neely contends that the trial court lacked authority to rule on the Allens’ 

motion to dismiss because the motion had been previously overruled by operation 

of law 30 days after the July 19, 2019 hearing, thereby rendering the August 24, 

2019 order granting the Allens’ motion to dismiss void. 

The purpose of the TCPA is to identify and summarily dispose of lawsuits 

designed only to chill First Amendment rights, not to dismiss meritorious lawsuits. 

In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding). “If a legal action 

is based, relates to, or is in response to a party’s exercise of the right of free speech, 

right to petition, or right of association, that party may file a motion to dismiss the 

legal action.” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a).

The Texas Legislature included several specific deadlines in the TCPA. 

Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398, 401 

(Tex. App.—Houston [14th Dist.] 2013, no pet.). The first deadline in the TCPA 

concerns the time during which a party may move to dismiss the action. Id. A 

motion to dismiss under the TCPA “must be filed” within 60 days after service of 

the legal action, but upon a showing of good cause, the trial court may extend the 

time to file the motion. Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b). 

The second deadline concerns the date of the hearing. Direct Commercial 

Funding, Inc., 407 S.W.3d at 401. A hearing on the motion “must be set” within 60 

days after the motion was served “unless docket conditions of the court require a 

later hearing, upon a showing of good cause, or agreement by the parties, but in no 

event shall the hearing occur more than 90 days after service of the motion under 
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Section 27.003, except as provided by Subsection (c).” Tex. Civ. Prac. & Rem. Code 

Ann. 27.004(a). Section 27.004(c) provides that, “[i]f the court allows discovery 

under that Section 27.006(b) the court may extend the hearing date to allow 

discovery under that subsection, but in no event shall the hearing occur more than 

120 days after the service of the motion under Section 27.003.” Id. § 27.004(c). 

The next deadline concerns the date by which the trial court must rule on the 

motion to dismiss after the hearing: “The court must rule on a motion under Section 

27.003 not later than the 30th day following the date of the hearing on the motion.” 

Id. § 27.005(a). In contrast to the first and second deadlines, this deadline is 

mandatory. Direct Commercial Funding, Inc., 407 S.W.3d at 401. The legislature 

gave the trial court no discretion to extend this deadline, but instead provided that if 

the trial court does not rule on the motion within 30 days after the hearing, then the 

motion is overruled by operation of law. Id. (citing Tex. Civ. Prac. & Rem. Code 

Ann.§ 27.008(a)). “The distinction drawn by the legislature between extendable 

deadlines and firm deadlines—and more particularly, the mandatory deadline that 

applies to the trial court’s authority to rule on a motion to dismiss—would be 

meaningless if the trial court, acting sua sponte, could reverse the consequences 

imposed by statute for the failure to timely act.” Id.

The Allens argue that the hearing did not occur on just one day, July 19, 2019, 

but continued over multiple days and cite a number of actions that took place after 

July 19, 2019. On July 11, 2019, Neely filed a motion to strike Keylyn Allen’s June 

21, 2019 affidavit and noticed the hearing on the motion to strike for July 26, 2019. 

At the July 19, 2019 hearing, the trial court requested additional briefing:
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MR. MONTHY: Only thing, your Honor, would be submission 

for attorney’s fees and costs. Would you like that now?

THE COURT: No. No. You see these people right here behind 

you now?

MR. MONTHY: I do, your Honor.

THE COURT: They have been waiting a half an hour. Y’all 

decide to submit a Request for Attorney’s Fees and then I will take it 

up then.

MR. MONTHY: Thank you, your Honor.

MR. MCCONNELL: And, your Honor, on the Briefing, what is 

the deadline?

THE COURT: I want you to -- say by Wednesday to provide me 

with a case.

MS. JENNINGS: Yes.

MS. DICKENS-FULLER: A case.

THE COURT: And any Briefing.

MS. JENNINGS: Yes, your Honor.

THE COURT: All I want to know if there is a case relating to 

you accusing someone of being a racist.

MS. JENNINGS: Yes, your Honor.

THE COURT: Okay. Thank you very much.

On July 24, 2019, the Allens filed supporting case law, to which Neely

responded on July 25, 2019. That day, Neely also noticed her motion to strike Kelyn 

Allen’s affidavit for August 5, 2019. On July 31, 2019, the Allens set their special 
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exceptions for a hearing dated August 16, 2019. On August 5, 2019, the Allens filed 

a response to Neely’s motion to strike the affidavit testimony.

On August 6, 2019, the Allens a filed their response to Neely’s TCPA motion 

to dismiss, although they had previously filed their response in a misnamed

document. On August 9, 2019, Neely filed a reply to the Allens’ response to her 

TCPA motion to dismiss. On August 12, 2019, the trial court granted Neely’s 

motion to strike parts of Kelyn Allen’s June 21, 2019 affidavit. 

The Allens’ counsel states, based on his recollections at the August 16 hearing 

on the special exceptions, the motions to dismiss were discussed. Because no 

reporter’s record of the August 16, 2019 hearing has been provided to this court, 

there is nothing to show that the motions to dismiss were addressed at that hearing. 

On August 24, 2019, the trial court signed the order ruling on the TCPA 

motions to dismiss. The order reads, in relevant part: 

Pending before the Court is Plaintiff’s Motion to Dismiss Defendant, 

Franci Neely’s Counterclaim and Defendant, Franci Neely’s Motion to 

Dismiss Pursuant to the Texas Citizens Participation Act. After 

considering the pleadings, evidence, and arguments of counsel, the 

Court finds that the Plaintiffs’ motion should be granted and the 

Defendant’s motion should be granted in part an denied in part. 

The Allens point out that the order does not state that that the hearing had been 

held on July 19, 2019, but that the motions to dismiss were “[p]ending before the 

Court” and that it had considered “the pleadings, evidence and arguments of 

counsel,” which the Allens assert had been submitted and made long after the July 

19, 2019 hearing. The Allens contend that the hearing was ongoing at the request of 

Neely and the Allens and with the acquiescence and agreement of the trial court. 
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Therefore, according to the Allens, the July 19, 2019 hearing was the starting date 

of the hearing and the hearing did not end on that date. 

The Allens rely on Clinton v. Araguz, in support of their position that the 

hearing did not conclude on July 19, 2019. See No. 13-18-00526-CV, 2019 WL 

5793127 (Tex. App.—Corpus Christi Nov. 7, 2019, pet. denied) (mem. op.). 

However, the Allens’ reliance on Clinton is misplaced. In Clinton, the trial court 

reset the hearing on the defendants’ motion to dismiss, without discussing the merits 

of the motion, after the plaintiff’s counsel did not appear at the hearing or respond 

the motion. Id. at *2. Before the reset hearing could take place, the defendant filed 

a notice of appeal, contending that their motion to dismiss was denied by operation 

of law because the trial court had failed to rule on it within 30 days of the original 

hearing date. Id. at *3. Based on the record, the court of appeals concluded that the 

trial court intended to postpone the hearing and held that the original hearing date 

did not constitute the actual date of the hearing. Id. at *4; see also Summersett v. 

Jaiyeola, 438 S.W.3d 84, 89 (Tex. App.—Corpus Christi 2013, pet. denied) (“The 

trial court held a hearing on the motion to dismiss that began on May 21, 2012, but 

was recessed and concluded on June 6, 2012.”). 

Here, the parties argued the merits of the motions to dismiss at the July 19, 

2019 hearing and there was no intent expressed by the trial court at that hearing to 

continue or reset the hearing. This was recognized by the Allens, when, on August 

15, 2019, they requested that the trial court rule on their motion to dismiss and 

reminded the trial court that it must rule on their motion to dismiss within 30 days 

of the July 19, 2020 hearing: 
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Plaintiffs’ request for ruling on PLAINTIFFS’ MOTION TO 

DISMISS DEFENDANT’S COUNTERCLAIM which was heard on 

July 19, 2019 and was taken under advisement. Pursuant to the Texas 

Rules of Act [sic], once the hearing occurs, the trial court will rule 

within 30 days of the Hearing under section 27.005(a).

The Allens further argue that Neely’s motion to strike affidavit testimony had 

the same effect as a request for discovery, and Neely suggested that the evidence 

before the court was incomplete or inaccurate. See Tex. Civ. Prac. & Rem. Code 

Ann. § 27.006. Section 27.006 provides:

(a) In determining whether a legal action should be dismissed under this 

chapter, the court shall consider the pleadings and supporting and 

opposing affidavits stating the facts on which the liability or defense is 

based. 

(b) On a motion by a party or on the court’s own motion and on a 

showing of good cause, the court may allow specified and limited 

discovery relevant to the motion.

Id. If the court allows discovery, the court may extend the hearing date, but no more 

than 120 days after the date of service of the motion to dismiss. Tex. Civ. Prac. & 

Rem. Code Ann. § 27.004(c); In re SSCP Mgmt., Inc., 573 S.W.3d 464, 470 (Tex. 

App.—Fort Worth 2019, orig. proceeding). The 30-day timeline for ruling on the 

motion to dismiss is reset in accordance with the extended hearing date. Jones v. 

Heslin, 587 S.W.3d 134, 136 (Tex. App.—Austin 2019, no pet.). The trial court 

may allow post-hearing discovery. In re Bandin, 556 S.W.3d 891, 896 (Tex. App.—

Houston [14th Dist.] 2018, orig. proceeding) (Busby, J., concurring). To be 

considered, any allowed discovery must be received before the trial court rules on 

the motion, which it must do within 30 days after the hearing. Id. Thus, while 
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allowing the parties to conduct discovery may extend the hearing date, it does not 

extend the 30-deadline for the trial court to rule on a TCPA motion to dismiss. 

There is nothing in the record to establish that the trial court extended the 

hearing after July 19, 2019, or recessed and reconvened the hearing at a later date. 

Indeed, there is no date in the record showing the specific date the hearing concluded

other than the July 19, 2019 hearing, setting the 30-day deadline. 

Therefore, we conclude that the trial court abused its discretion by granting 

the Allens’ motion to dismiss more than 30 days after the hearing on the motion, and 

the August 24, 2019 order purporting to grant the motion to dismiss is void.2 

Moreover, because the challenged order is void, relator is not required to show that 

she does not have an adequate remedy by appeal. See Sw. Bell Tel. Co., 35 S.W.3d 

at 605. 

Accordingly, we conditionally grant Neely’s requested relief and direct the 

trial court to set aside its August 24, 2020 order to the extent that it grants the Allens’ 

motion to dismiss. The writ will issue only if the trial court fails to act in accordance 

with this opinion.

2

See Inwood Forest Cmty. Improvement Ass’n v. Arce, 485 S.W.3d 65, 72 (Tex. App.—

Houston [14th Dist.] 2015, pet. denied) (holding that, because TCPA places 30-day deadline on 

trial court’s authority to grant dismissal, court erred in signing untimely written orders granting 

dismissal after 30-day deadline and orders “were of no effect”); Dallas Morning News, Inc. v. 

Mapp, No. 05-14-00848-CV, 2015 WL 3932868, at *1 (Tex. App.—Dallas June 26, 2015, no pet.) 

(mem. op.) (holding that “the trial court was without authority to grant the motion to grant the 

[TCPA] motion outside the time allowed by statute; thus, the trial court’s order granting the motion 

is void”); Direct Commercial Funding, Inc., 407 S.W.3d at 402 (holding that trial court erred in 

granting motion to dismiss because it was not authorized to do so more than 30 days after hearing 

on motion).
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PER CURIAM

Panel consists of Justices Zimmerer, Spain, and Hassan.