Texas Anti-Slapp And Pre-Suit Depositions Under Rule 202

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar Computer & Technology Section. I was appointed by the Chief Justice to serve one year as and ex-officio member on the Judicial Committee on Information Technology.

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Court of Appeals

Hearing required

In Puig et. al. v. Hejtmancik, ,(Tex. App. – Houston [14^th] November 14, 2017), the court ruled that it did not have jurisdiction because there was no record that the trial court ever had a hearing. The Texas Anti-Slapp statute, Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq. allows an appeal of the trial court denial of a motion under the statute. However, the statute requires that the trial court have a hearing on the motion before an appeal.

Facts

The appellee filed a motion to take a pre-suit deposition under Tex. R. Civ. P., 202. The appellants filed an anti-slapp motion to the motion to take a pre-suit deposition. The appeals court presumed without deciding that the Rule 202 motion was a “legal action” defined under the anti-slapp statute. The anti-slapp motion was filed 3 days before the hearing on the Rule 202 motion. The hearing on the anti-slapp motion was set a month after the Rule 202 motion. After the hearing on the Rule 202 motion, which was granted, the appellants filed an appeal.

Discussion

I have written before about the need for a hearing before someone can appeal the denial of a Texas anti-slapp motion. If you don’t have the hearing, there is no right to appeal. In this case since the record did not show that the trial court ever had a hearing on the Texas anti-slapp motion, the court held that it did not have jurisdiction to hear the appeal.