The consequences of a judge’s failure to rule on a motion to dismiss are different between the Texas anti-SLAPP, TCPA, statute and Rule 91a. Under the TCPA, a failure to rule is considered a denial of the motion from which an interlocutory appeal may be filed. Under Rule 91a, a failure to rule is just that, a non-ruling. There is no appealable order if the trial court hasn’t ruled on the Rule 91a motion. A petition for writ of mandamus may be filed to force the trial court to rule but until he rules, there is no appealable order.
Rule 91a of the Texas Rules of Civil Procedure.
San Jacinto River Authority v. Lewis, 14-19-00137-CV, (Tex. App. – Houston [14th] April 16, 2019, no pet. h.)
Contrast Between Rule 91a And The Texas anti-Slapp Statute
Rule 91a stands in contrast to the Texas Citizen’s Participation Act (TCPA), which, like Rule 91a, requires a trial court to rule within a specified time period, but which, unlike Rule 91a, expressly provides that if “a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal.” Tex. Civ. Prac. & Rem. Code Ann. § 27.008(a). In light of the act’s clear text, this court has held that automatic denial of a motion filed under the TCPA follows when the trial court misses the deadline.
Unlike the TCPA, Rule 91a does not state that a court’s failure to rule within the 45-day deadline constitutes a denial of the motion. See Tex. R. Civ. P. 91a.3(c). Additionally, the absence of any jurisdictional ramifications signals that the 45-day deadline is not jurisdictional…Therefore, unlike under the TCPA, the trial court’s failure to rule within the 45-day deadline does not convert the “non-ruling” into a denial by operation of law.
Because the trial court has not ruled on SJRA’s plea to the jurisdiction and motion to dismiss under Rule 91a, no ruling exists over which this court may exercise its interlocutory appellate jurisdiction.
Conclusion and Disposition
Plaintiff, Lewis, filed suit against San Jacinto River Authority (SJRA). SJRA filed a motion to dismiss under Rule 91a. Lewis filed a motion to dismiss the appeal. The court granted Lewis’ motion to dismiss the appeal because there is no appealable order.