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Whether And To What Extent May The Court Of Appeals Lift The Statutory Stay During The Appeal In A Texas Anti-SLAPP Case.

Texas anti-SLAPP, TCPA

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.



Whether And To What Extent May The Court Of Appeals Lift The Statutory Stay During The Appeal In A Texas Anti-SLAPP Case.

The underlying suit was for trade secret misappropriation, breach of fiduciary duty, and related claims. The defendants filed a Texas anti-SLAPP, TCPA, motion to dismiss. Meanwhile, the plaintiff moved for contempt and for a temporary injunction to preserve their trade secrets.

All parties signed a scheduling order continuing the contempt and temporary injunction hearings in case of an interlocutory appeal of defendants TCPA motion to dismiss. The trial court denied the motion to dismiss and defendants filed an interlocutory appeal. During the appeal, the plaintiffs asked the appeals court to lift the stay so that they could ask the trial court to hear their contempt motion. The court of appeals granted the motion to lift the stay “for the limited purpose of allowing the trial court to conduct a hearing on … (the) request for temporary injunction and motion for contempt.” The defendants filed a mandamus petition with the Supreme Court. 

Conclusion and Disposition

Supreme Court

(W)e conclude that the court of appeals’ order violates the statutory stay and that the relator has no adequate remedy by appeal. We therefore conditionally grant the mandamus petition.

Neither section 51.014 nor any other statute to which we are directed authorizes a Court of Appeals to lift the stay, whether altogether or for limited purpose. It is not our place to “judicially amend the statute to add an exception not implicitly contained in the language of the statute.”

In a Texas anti-SLAPP case, the appeals court cannot lift the stay to allow the trial court to conduct further proceedings. Although, as pointed out by the Supreme Court, the appeals court can issue orders to protect the parties interest during the appeal, it cannot lift the stay for further proceedings in the trial court

In footnote 1, the court says that the stay can be waived by the parties and in footnote 2 it sated:

As explained above, Rule 29.4, which authorizes the court of appeals to refer certain matters to the trial court for findings and recommendations, did not apply in this case because EMR sought enforcement of an order other than the order being appealed. Rule 29.3, however, authorizes “any temporary orders necessary to preserve the parties’ rights.” This broad authority to issue “any order” would seem to include the authority to refer a motion to the trial court for findings and recommendations, if such an order is lawful and the court deems it necessary. TEX. R. APP. P. 29.3. Whether such an order under Rule 29.3 referring a motion to the trial court for findings and recommendations would violate the statutory stay “of all trial court proceedings” is a question the parties have not briefed and that we need not decide. It could be argued that, when the trial court acts under the supervision of the court of appeals, which retains the decision-making authority, the trial court is not conducting its own “proceeding” but is assisting in an appellate proceeding. The distinction is fine, but it would be necessary given section 51.014(b)’s clear prohibition on further trial court “proceedings.” While we reserve the question for another time, we recognize the possibility that a referral to the trial court for findings and recommendations under which the court of appeals retains decision-making authority may not authorize a “proceeding in the trial court” prohibited by the statutory stay.


Agilex Supply Chain, LLC v. Baker Hughes Oilfield Operations, LLC, 14-18-01112-CV (Tex. App. – Houston [14th] July 18, 2019)

The appeals court can lift the stay if the parties agree. (Citing footnote 1 of In re Gromet)

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