Truong v. Nguyen

Truong v. Nguyen, 14-26-00129-CV, March 03, 2026.

On appeal from the County Civil Court at Law No. 2, Harris County, Texas.

Synopsis

To invoke the jurisdiction of an appellate court for a TCPA denial by operation of law, the movant must strictly adhere to the statutory requirement of setting and holding a hearing. Failure to ensure a hearing occurs results in the forfeiture of the motion’s protections, leaving no appealable order and depriving the appellate court of jurisdiction.

Relevance to Family Law

In the increasingly common "crossover" environment where domestic torts—such as assault, wiretapping, or breach of fiduciary duty—are pleaded alongside a petition for divorce, the Texas Citizens Participation Act (TCPA) is often used as a strategic tool to freeze discovery. This ruling clarifies that the TCPA’s interlocutory appeal mechanism is not self-executing. Family law practitioners must proactively manage the trial court’s docket; if a movant fails to secure a hearing, they lose the ability to halt the trial court proceedings via interlocutory appeal, effectively neutralizing the motion’s tactical advantage in high-conflict litigation.

Case Summary

Fact Summary

Appellants Truong and Tran filed a TCPA motion to dismiss on August 1, 2025, in response to claims filed by the Appellee. While the Appellants made a nominal attempt to set the motion for a hearing on August 26, 2025, the hearing never actually took place, and the motion was never formally set on the trial court's docket. Several months later, in February 2026, the Appellants filed notices of appeal, asserting that their motion had been denied by operation of law due to the trial court's inaction. The Appellee moved to dismiss the appeal, arguing that the court lacked jurisdiction because the statutory triggers for a "denial by operation of law" were never pulled.

Issues Decided

• Does an appellate court have jurisdiction over an interlocutory appeal when the TCPA movant fails to hold a hearing on the motion?
• Does the failure to set a TCPA hearing result in a "denial by operation of law" or a forfeiture of the motion?

Rules Applied

• Tex. Civ. Prac. & Rem. Code § 27.004(a): Requires that a TCPA motion to dismiss be set for a hearing not later than the 60th day after the date of service, subject to specific extensions.
• Tex. Civ. Prac. & Rem. Code § 27.008(a): Specifies that a motion is considered denied by operation of law only if the court does not rule within 30 days after the hearing on the motion.
• Tex. Civ. Prac. & Rem. Code § 51.014(a)(12): Provides for an interlocutory appeal from an order that denies a motion to dismiss under Section 27.003.
• Braun v. Gordon, 2017 WL 4250235: Holding that the date of the hearing is the essential event that triggers the timeline for a denial by operation of law.

Application

The court’s analysis centered on the mandatory sequence of events prescribed by Chapter 27. For a motion to be "denied by operation of law," there must be a starting point for the 30-day countdown. Under Section 27.008(a), that starting point is the date of the hearing. The Appellants argued that the passage of time since their filing constituted a denial, but the court rejected this, noting that the burden lies solely on the movant to ensure a hearing is set and held. Because no hearing occurred, the 30-day period never began, and thus, no "denial" ever existed. The court characterized this procedural failure not as a denial, but as a forfeiture of the TCPA’s protections. Without a signed order or a statutory denial by operation of law, there is no "order" to appeal under Section 51.014(a)(12).

Holding

The court held that it lacked jurisdiction and dismissed the appeal. Because the Appellants failed to hold a hearing, the motion was forfeited rather than denied, meaning there was no appealable order for the court to review.

The court further clarified that a TCPA motion is not denied by the mere passage of 90 days from filing (as the Appellee had alternatively argued for timeliness purposes); rather, without a hearing, the statutory mechanism for denial by operation of law is never triggered at all.

Practical Application

For family law litigators, this case emphasizes that filing a TCPA motion is only the first step. To maintain the threat of an interlocutory appeal—and the accompanying stay of trial court proceedings—you must be the "aggressor" in scheduling. If a trial court is unresponsive to a request for a hearing date, the movant should file a formal motion for a hearing and, if necessary, seek mandamus relief to compel the trial court to set the hearing within the statutory window. Simply letting the motion sit on the clerk's desk will result in a total loss of appellate rights.

Checklists

Securing the TCPA Appeal

• Verify Service Date: Calculate the 60-day deadline for the hearing from the date of service of the motion.
• Request Hearing Early: File a written request for a hearing simultaneously with the motion to dismiss.
• Monitor the 60-Day Clock: If the court cannot hear the motion within 60 days, ensure a Rule 11 agreement or court order is entered to extend the deadline to the 90-day or 120-day maximums permitted by Section 27.004.
• Confirm the Hearing: Ensure the hearing is actually held (whether evidentiary or by submission, if permitted) to trigger the Section 27.008(a) clock.
• Docket the 30-Day Ruling Deadline: Mark 30 days from the hearing date; if no order is signed, the notice of appeal must be filed within 20 days of that date.

Defending Against Forfeited TCPA Motions

• Audit the Record: Check if the movant actually obtained a hearing date within the Section 27.004 window.
• Object to Delays: If the movant fails to set a hearing, do not waive the 60-day requirement.
• Move to Dismiss the Appeal: If the opponent attempts to appeal a "denial" where no hearing occurred, immediately file a motion to dismiss for want of jurisdiction in the Court of Appeals.
• Resume Discovery: Once the hearing deadline passes without a hearing, treat the TCPA motion as forfeited and move the trial court to lift any stays and proceed with discovery.

Citation

Truong v. Nguyen, No. 14-26-00129-CV, 2026 WL [Pending] (Tex. App.—Houston [14th Dist.] Mar. 3, 2026, no pet. h.) (mem. op.).

Full Opinion

Full Opinion Link

Family Law Crossover

This ruling can be weaponized to defeat "stalling tactics" in divorce litigation. When a spouse uses a TCPA motion to block discovery into hidden assets or abusive behavior (under the guise of protecting "free speech" or "association"), the responding party should not just fight the motion on the merits. By simply monitoring the calendar and ensuring the movant fails to meet their burden of scheduling a hearing, the non-movant can effectively "trap" the movant. Once the hearing deadline passes, the motion is forfeited, the automatic stay is extinguished, and the movant is barred from taking the issue to the Court of Appeals, thereby preventing months or years of appellate delay.

~~3c893caa-25ed-41d7-a037-2a5a32617dba~~