A recent Texas appellate decision serves as a stark reminder of the procedural pitfalls that can doom a case before the merits are ever considered. In In re Kinney, issued on May 15, 2025, the Thirteenth Court of Appeals in Corpus Christi-Edinburg dismissed an appeal on purely procedural grounds, highlighting a critical timing requirement that practitioners must understand when navigating Texas Citizens Participation Act (TCPA) cases. This case underscores how even experienced attorneys can fall victim to the TCPA’s unique procedural framework.
Case Summary: In re Kinney
Chadwick R. Kinney filed a Rule 202 petition seeking pre-suit depositions of Patrick Tyler and Melissa Murphy in anticipation of filing a libel and slander lawsuit against them. Rule 202 of the Texas Rules of Civil Procedure allows potential litigants to petition the court for an order authorizing depositions to investigate potential claims before filing suit.
In response, Tyler and Murphy filed a motion to dismiss under the TCPA, arguing that Kinney’s petition implicated their right to free speech. The 197th District Court of Willacy County granted their motion and awarded attorney’s fees.
When Kinney sought to appeal this ruling, he followed the standard appellate timeline, filing a motion for new trial on October 18, 2024, and a notice of appeal on December 9, 2024. This proved fatal to his case.
The Procedural Trap: Accelerated Appeals Under the TCPA
The appellate court never reached the substantive issues because it lacked jurisdiction to hear the appeal at all. Why? Because Kinney missed a critical procedural deadline stemming from a unique aspect of TCPA litigation.
Under Section 27.008(b) of the TCPA, “an appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003.” This statutory requirement for expedition means that appeals from TCPA dismissals are classified as accelerated appeals under Texas Rule of Appellate Procedure 28.1(a).
The significance cannot be overstated: accelerated appeals operate under much shorter timelines than regular appeals. Specifically:
- A notice of appeal in an accelerated appeal must be filed within 20 days after the judgment or order is signed (compared to 30 days in regular appeals).
- With a timely motion to extend, this deadline can only be extended to 35 days after the judgment.
- Most critically, filing post-trial motions (such as a motion for new trial) does not extend the appellate deadline in accelerated appeals, unlike in regular appeals where such motions extend the deadline to 90 days.
In In re Kinney, the trial court signed the order granting the TCPA motion to dismiss on September 24, 2024. This gave Kinney until October 14, 2024, to file his notice of appeal. His notice of appeal filed on December 9, 2024—almost two months later—was therefore untimely.
The Court’s Ruling
The Thirteenth Court of Appeals of Texas in Corpus Christi-Edinburg was clear and direct in its May 15, 2025 ruling. Despite Kinney’s argument that the regular appellate deadlines should apply because the trial court erred in applying the TCPA to his Rule 202 petition in the first place, the court emphasized a fundamental principle: jurisdictional questions must be resolved before any consideration of the merits.
As the court explained, “Whether or not the trial court ultimately applied the TCPA correctly does not change the nature of this accelerated appeal or the attendant deadline to invoke our jurisdiction.” The court cited the U.S. Supreme Court’s seminal language from Ex parte McCardle: “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”
Key Legal Holdings
The court’s decision establishes or reinforces several important principles:
- Appeals from TCPA dismissals are accelerated appeals subject to expedited timelines.
- The 20-day deadline to file a notice of appeal in TCPA cases is strict and cannot be extended by filing a motion for new trial.
- Jurisdictional requirements supersede consideration of the merits—even if the underlying TCPA ruling might have been incorrect.
- The accelerated nature of TCPA appeals applies regardless of whether the underlying application of the TCPA was correct.
Legal Context: The TCPA and Rule 202 Petitions
The court’s decision left unresolved an important question that has divided Texas appellate courts: Does the TCPA apply to Rule 202 petitions in the first place?
Following the 2019 amendments to the TCPA, Texas courts of appeal have reached different conclusions on this question:
- The Second District Court of Appeals in Fort Worth recently held in Frazier v. Maxwell that a Rule 202 petition is not a “legal action” subject to the TCPA. The court reasoned that “a Rule 202 petition is a procedural step that does not seek a merits-based adjudication and that does not amend or add a claim for legal, equitable, or declaratory relief.”
- The Fourteenth District Court of Appeals in Houston reached a similar conclusion in Houston Tennis Association v. Thibodeaux.
- However, the Seventh District Court of Appeals in Amarillo took the opposite position in Clark v. Ogle, holding that the TCPA does apply to Rule 202 petitions.
Unfortunately, because In re Kinney was dismissed on procedural grounds, the Thirteenth Court of Appeals did not have the opportunity to address this substantive split among Texas appellate courts.
Implications for Potential Defamation Plaintiffs
This case serves as a cautionary tale for potential plaintiffs in defamation actions and their counsel:
- Know the Timeline: If you’re involved in TCPA litigation, calendar the crucial 20-day deadline for filing a notice of appeal from the date the order is signed. This deadline cannot be extended by filing post-judgment motions.
- Understand the Scope: Be aware that defendants may attempt to invoke the TCPA in response to pre-suit discovery petitions under Rule 202, particularly if your contemplated lawsuit involves speech-related claims like defamation.
- Anticipate Procedural Complexity: The TCPA creates a procedural framework significantly different from standard litigation, with unique deadlines, burdens of proof, and appellate considerations.
- Prepare for Early Dismissal Risk: Defendants in potential defamation cases often use the TCPA as an early-stage mechanism to dismiss claims and recover attorney’s fees, so preparation must be thorough from the outset.
Conclusion
The In re Kinney decision highlights how critical procedural knowledge is when navigating TCPA litigation. As an experienced attorney might note, the TCPA is indeed a “unique animal” in Texas jurisprudence, requiring meticulous attention to its distinctive procedural requirements.
For potential defamation plaintiffs, understanding these requirements is not merely an academic exercise but a practical necessity. A single procedural mistake—like missing the accelerated appeal deadline—can preclude any consideration of the substantive merits of your case, regardless of how strong those merits might be.
As courts continue to wrestle with the scope of the TCPA’s application to pre-suit discovery mechanisms like Rule 202 petitions, plaintiffs must proceed with an abundance of caution and with counsel who understand the procedural intricacies of this complex statute.
This article provides general legal information and analysis and should not be considered legal advice. Readers should consult with qualified legal counsel regarding their specific situations.