Holly Corporation, Navajo Refining Company and Black Eagle, Inc. v. Longhorn Partners Pipeline, L. P.--Appeal from 120th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

HOLLY CORPORATION, NAVAJO REFINING CO., AND BLACK EAGLE, INC.,

Appellants,

v.

LONGHORN PARTNERS PIPELINE, L.P.,

Appellee.

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No. 08-02-00186-CV

Appeal from the

120th Judicial District Court

of El Paso County, Texas

(TC# 98-2991)

O P I N I O N

Pending before the Court is the motion of Appellee, Longhorn Partners Pipeline, L.P., to dismiss this appeal pursuant to Tex. R. App. P. 42.3, which states:

Under the following circumstances, on any party=s motion--or on its own initiative after giving ten days= notice to all parties--the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:

(a) for want of jurisdiction;

(b) for want of prosecution; or

(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.

Appellants, Holly Corporation, Navajo Refining Co., and Black Eagle, Inc., filed their notice of appeal on April 26, 2002. Appellants seek this interlocutory appeal under Section 51.014(a)(6) of the Texas Civil Practice and Remedies Code, which provides that a person may appeal from an interlocutory order of a district court that:

denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article 1, Section 8, of the Texas Constitution, or Chapter 73;

Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(6) (Vernon 2002). Appellee argues that the Order Denying Summary Judgment is not appealable because Appellants= Amended Motion for Summary Judgment was not Abased in whole or in part upon a . . . defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment . . . .@ Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(6). We agree.

First, Appellants= Amended Motion for Summary Judgment was not Abased in whole or in part upon a . . . defense by a member of the electronic or print media, acting in such capacity, . . . arising under the free speech or free press clause of the First Amendment . . . .@ Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(6). Appellants are not members of the electronic or print media and the only First Amendment-related defenses asserted by Appellants are the Arights of association and petitioning protected by the Constitutions of Texas and the United States.@ In their motion, Appellants argued that their efforts in lobbying, in persuading a court or other governmental agency to create or enforce a legal duty, and in supporting, encouraging, and sponsoring litigation are protected under the petitioning and association clauses of the First Amendment. There is no mention of a defense arising under the free speech or free press clause.[1]

Given the above, we dismiss the instant appeal for want of jurisdiction.

August 21, 2002

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

[1] We note that the rights to petition and associate are separate and distinct from the rights of free speech and a free press. The First Amendment of the United States Constitution states, ACongress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.@