“We filed and had a TCPA Motion heard on August 25, 2022. That motion will be overruled by operation of law by this Friday, September 23 if not ruled upon.”
That was the message that attorney J. Mitchell Little sent to Judge Angela Tucker late in the afternoon on Monday, September 19, 2022. Note that the date is underlined, suggesting that Mitch wanted to stress the importance of the date to the judge, to whom the case had been assigned only ten minutes earlier.
Judge Tucker did indeed rule on Friday, September 23, the date that Mitch had suggested was her deadline. But the very next day, as I tried to figure out my own deadline for filing an appeal, I realized that the deadline that Mitch had supplied to the judge was simply not accurate.
In Texas, the Civil Practice and Remedies Code describes the legal actions you can take to legally “remedy” a wrong you believe you have suffered. And so, for example, if you feel that someone has violated your right to petition, you would scan down to Title 2 (“Trial, Judgment, and Appeal”) and proceed to Subtitle B (“Trial Matters”), where you would find Chapter 27 (“Actions Involving the Exercise of Certain Constitutional Rights”). This chapter is typically called the Texas Citizens Participation Act – or, more commonly, the TCPA.
Section 27.003 The operative paragraph of the TCPA is Section 27.003, which states that “if a legal action is based on 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.”
So that’s what Mitch had done: Claiming that I had violated his clients’ right to petition, he filed what is commonly known as a “TCPA Motion to Dismiss.”
Section 27.004 According to Section 27.004, the next thing Mitch needed to do was to schedule a hearing: “A hearing on a motion under Section 27.003 must be set not later than the 60th day after the date of service of the motion.” So Mitch scheduled the hearing, which was held on August 25, 2022.
Section 27.005 After the hearing, according to Section 27.005, we had to wait up to a month for the judge to issue a ruling: “The court must rule on a motion under Section 27.003 not later than the 30th day following the date the hearing on the motion concludes.”
That should not have been a problem. At the hearing, Judge Bouressa said that she’d issue a ruling within a week. But instead, she recused herself nearly two weeks later. And then Judge Wheless appointed Judge Flint, who recused himself as quickly as he could. And then Judge Wheless waited another week and a half before he appointed Judge Tucker, by which time the 30-day deadline was just around the corner.
But why was Mitch so anxious about the deadline that he had to remind the new judge about it ten minutes after she had been appointed to the case?
Section 27.008 For the answer to that question, all we have to do is proceed to Section 27.008: “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.”
In other words, if Judge Tucker did not rule on Mitch’s motion to dismiss before the 30-day deadline, Mitch’s motion would automatically be denied. So if the judge didn’t rule in his favor by the deadline, it would be exactly as if she had ruled against him.
But what was the date of that 30-day deadline? Was it Friday, September 23, as Mitch had led the judge to believe?
It’s a Date
In a legal context, deadlines are incredibly important. If, for example, my driver’s license is suspended, I have to request a hearing within 15 days. If I get evicted from my home, I must respond within 20 days. And if a judge is going to issue a ruling that grants a TCPA motion to dismiss, the judge must do that within 30 days of the hearing.
Because deadlines are so important, it’s not surprising that a rule specifying every detail of the “Computation of Time” is one of the first rules in the Texas Rules of Civil Procedure:
Rule 4: “In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.”
So, Judge Tucker had to rule on Mitch’s motion within 30 days of the TCPA hearing on August 25, 2022. What date would that be?
According to Rule 4, the day of the event itself (in his case, the hearing date) does not count in the computation of time. So “Day One” would have been August 26, 2022. Extrapolating into the future, we can calculate that the “30th day following the date [of] the hearing” would be September 26, 2022. So, according to Section 27.005 (as quoted above), Judge Tucker “must rule” on Mitch’s motion by that date.
As it happened, September 26, 2022, fell on a Saturday, and the courts aren’t open on Saturdays.
Fortunately, Rule 4 anticipated this exact situation. If the last day of a time period falls on a Saturday, Rule 4 says, the time period is extended until the following Monday. So in this case, despite Mitch’s confident assertion that the 30-day ruling period would expire on Friday, September 23, 2022, the ruling period wouldn’t actually expire until Monday, September 26, three days later.
Coincidentally or otherwise, Judge Tucker ruled on Friday, September 23, 2022, the exact day that Mitch told her was her deadline.
Why It Matters
Normally, judges are allowed up to 30 days after the hearing to rule on a TCPA motion to dismiss. However, due to various actions by various judges, Judge Angela Tucker was assigned the case with only a week to familiarize herself with the case and issue a ruling. And as if that weren’t bad enough, Mitch misinformed her that she didn’t actually have a week; he told her that she had only a few days.
Would the additional time have made a difference to Judge Tucker?
Six years earlier, Judge Tucker certainly seemed to think so.
In a memorandum in an previous case over which she had presided, Judge Tucker had noted that, because she did “not have time to read voluminous documents during the normal workday,” she had to spend “nights, weekends, and vacation time to review over 300 pages of documents submitted, my case file, my notes, and applicable case law.” And she concluded that she “can only be fair to both sides in this case if I read and carefully deliberate on all of the information submitted to the Court in written documentation and oral presentation.”
Judge Tucker had explained that she needed nights and weekends to review extensive documents. But if she accepted Mitch’s false contention that she had to issue a ruling by Friday, September 23, she would have been denied the use of that valuable weekend time, even though the law actually said that she didn’t have to rule until the following Monday.
Applying Judge Tucker’s statements in that memorandum from her earlier case to my own case, I can only conclude that she was denied the time she needed to, in her own words, “be fair.”
Fairness is, of course, one of the most essential components of justice. So, by definition, I was not treated justly by the Texas system of “justice.” Instead, I was denied the fundamental right that every American takes for granted: The right to a fair trial.
I had become a victim of Tex Abuse.
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