Texas’ Anti-SLAPP law: As It Stands Now, and Changes on the Horizon

A Primer on the TCPA, as it stands now:

Short for strategic lawsuits against public participation, SLAPPs are the unfortunate reflection of the economic realities of litigation. Recognizing that disparate resources in litigation has led to lawsuits being used as an all-too-common tool for intimidating and silencing individuals, many states have passed so-called anti-SLAPP laws, meant to provide a remedy from SLAPP suits.

On June 17, 2011, the Texas Citizens Participation Act — Texas’ anti-SLAPP statute — was signed into law and codified at Texas Civil Practices & Remedies Code, Chapter 27. It stands as one of the strongest anti-SLAPP statutes in the nation.

The TCPA provides a special procedure for expedited dismissal of such suits. A two-step process begins when the movant files a motion to dismiss on the basis that the lawsuit responds to the Defendant’s valid exercise of First Amendment rights.In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015). Initially, the burden is on the movant to show, by a preponderance of the evidence, that the Plaintiff’s claim is “based on, relates to, or is in response to [the movant’s] exercise of: […] the right to free speech”.Tex. Civ. Prac. & Rem. Code § 27.005(b).

The “right to free speech” refers to communications related to “a matter of public concern,” which is defined expansively in the statute to include an issue related to:

(a) health or safety;
(b) environmental, economic, or community well-being;
(c) the government;
(d) a public official or public figure; or
(e) a good, product, or service in the marketplace.Id. § 27.001(3), (7)(A)-(E).

The TCPA does not require that the statements specifically “mention” health, safety, or community concerns, nor does it require more than a “tangential relationship” to the same; rather, “TCPA applicability requires only that the Defendant’s statements are ‘in connection with’ ‘issue[s] related to’ health, safety, environmental, economic, and other identified matters of public concern chosen by the Legislature.”Exxonmobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017), citing Tex. Civ. Prac. & Rem. Code § 27.001(3), (7). The statute itself specifically instructs that the chapter “shall be liberally construed to effectuate its purpose and intent fully.”Tex. Civ. Prac. & Rem. Code § 27.011. As the Texas Supreme Court recently ruled, “We must construe the TCPA liberally to effectuate its purpose and intent fully. Construing the TCPA liberally means construing its exemptions narrowly.”State ex rel. Best v. Harper, No. 16-0647, 2018 WL 3207125 at *6 (Tex. June 29, 2018).

Several factors continue to make the TCPA a particularly powerful example of anti-SLAPP legislation, such as:

  • The Court must rule on a TCPA motion within 60-days after service.
  • If the Court rules in the movant’s favor, it *shall* award court costs, attorney’s fees and other expenses, as well as sanctions against the party who brought the legal action.
  • If the Court rules in favor of the party who brought the underlying legal action, it has the discretion to award court costs and attorney’s fees only when it finds that the TCPA motion was filed frivolously or solely to delay proceedings.
  • The statute creates a stay of discovery in the lawsuit while the TCPA motion is pending, unless a Court orders specific discovery.
  • The statute provides an immediate right to an expedited appeal if the anti-SLAPP motion is denied.

Put simply, the TCPA is a powerful example of an anti-SLAPP statute. Yet, proposed legislation before the 86th Legislature stand to drastically undermine the TCPA.

Legislative Changes on the Horizon

The 2019 session of the Texas legislature is currently considering sweeping changes of the TCPA which will severely weaken the anti-SLAPP laws. These changes include Texas House Bill 2730 and Texas Senate Bill 2162. A review of the proposed legislation, which is still being hammered out and discussed on the legislative floor, highlights significant changes:

  • House Bill 2730 and SB 2162 would allow the entity accused of filing a meritless lawsuit to drop their case just days before a hearing.
  • The legislation drops the definitions of those categories of public speech and deletes anti-SLAPP protections for communications between parties on matters of public concern.
  • The proposed language contains a significant scaling back of issues considered a “subject of concern to the public, and, on the contrary, will limit ,matters of public concern to statements or activities contained public officials, matters of political/social/other interest to the community, or subject of concern to the public.
  • An increase in exemptions to include actions for misappropriation of trade secrets or enforcement or non-disparagement, non-disclosure or non-compete agreements.
  • Further exemptions for: certain family law matters; protective orders; fraud claims; certain cases under the business and commerce code; eviction suits; State Bar of Texas lawyer discipline lawsuits; and more.

HB 2730 has flared the House and is now being heard before the Texas Senate. It must beat upcoming deadlines to advance through a Senate committee hearing, pass committee, and reach the Senate for passage. If senators change the bill, the House may have to reconsider it. And, of course, Governor Greg Abbott would have to approve the bill before it comes law. Nevertheless, it appears the bill will pass and the TCPA will be effectively changed.

Endnotes