Texas Citizens Participation Act
Texas's anti-SLAPP statute, Chapter 27 of the Civil Practice and Remedies Code. It lets a party sued over speech on a matter of public concern, or over petitioning or association, move for early dismissal, suspends discovery, and in most cases requires the court to award fees to a party who wins dismissal.
The TCPA (Tex. Civ. Prac. & Rem. Code ch. 27) lets a party sued over speech, petitioning or association move to dismiss within 60 days after service. If the movant shows the claim rests on that activity, dismissal follows unless the claimant shows by clear and specific evidence a prima facie case for each element.
The TCPA, enacted in 2011, is Texas's version of an anti-SLAPP law (SLAPP standing for strategic lawsuit against public participation). Its stated purpose is to safeguard the rights to petition, speak freely and associate while protecting the right to file meritorious lawsuits for demonstrable injury (§ 27.002). It works through a single procedural device: a motion to dismiss with short deadlines, a pause in discovery and mandatory fee-shifting.
The Act reaches any "legal action", a defined term that covers lawsuits, counterclaims and other pleadings requesting legal, declaratory or equitable relief (§ 27.001(6)). Defamation and business disparagement claims are the most familiar targets, but the motion is available against any claim based on protected communication unless an exemption applies.
- Governing law
- Tex. Civ. Prac. & Rem. Code §§ 27.001-27.011
- Motion deadline
- 60 days after service of the legal action, (§ 27.003(b))
- Hearing
- Within 60 days after the motion is served; 90 at most, or 120 with discovery, (§ 27.004)
- Ruling
- Within 30 days after the hearing, or denied by operation of law, (§§ 27.005(a), 27.008(a))
- Fees
- Mandatory costs and reasonable attorney's fees to a movant who wins dismissal, except of a compulsory counterclaim, (§ 27.009(a), (c))
What the Act protects
The motion is available when a legal action is based on or in response to a party's exercise of the right of free speech, the right to petition or the right of association (§ 27.003(a)). Free speech has a statutory meaning: a communication made in connection with a matter of public concern. That phrase covers statements about a public official or public figure, a matter of political, social or other interest to the community, or a subject of concern to the public (§ 27.001(3), (7)). The right to petition extends to communications in or about judicial, legislative and administrative proceedings (§ 27.001(4)).
Government entities and officials acting in an official capacity cannot file the motion (§ 27.003(a)).
The 2019 amendments
House Bill 2730, effective September 1, 2019, narrowed the Act. The earlier text allowed dismissal of claims that were "based on, relate[d] to, or [were] in response to" protected activity. The words "relates to" were removed. The amendments also rewrote the definition of a matter of public concern, excluded alternative dispute resolution proceedings and post-judgment enforcement from "legal action", and added exemptions, including claims arising from an employment, officer-director or independent-contractor relationship that seek to enforce a noncompete or non-disparagement agreement or to recover for misappropriation of trade secrets (§ 27.010(a)(5)). Lipsky and other opinions from before the amendment applied the older text.
Exemptions
Section 27.010(a) lists thirteen categories the Act does not reach. For businesses the main ones are claims against a seller arising from the sale or lease of goods or services where the audience is an actual or potential customer, claims under the Insurance Code, bodily injury claims, DTPA claims (with one exception), common-law fraud claims, eviction suits and legal malpractice claims. Section 27.010(b) then restores coverage for two kinds of activity regardless of the commercial, DTPA and fraud exemptions: creating and distributing journalistic, literary, artistic or other expressive works, and posting or processing consumer reviews, ratings or commentary about businesses.
Fees, sanctions and appeal
When the court dismisses a legal action other than a compulsory counterclaim, it must award the movant court costs and reasonable attorney's fees, and it may impose sanctions sufficient to deter similar suits (§ 27.009(a)). Fee-shifting runs the other way only if the court finds the motion frivolous or solely intended to delay (§ 27.009(b)). A denial, including a denial by operation of law, may be taken up by interlocutory appeal, and that appeal stays all other proceedings in the trial court while it is pending (§ 51.014(a)(12), (b)).
How a TCPA motion is decided
- The movant shows the legal action is based on or in response to its exercise of the right of free speech, petition or association, or an act described in § 27.010(b) (§ 27.005(b)).
- The claimant must then establish by clear and specific evidence a prima facie case for each essential element of each challenged claim (§ 27.005(c)).
- Even if the claimant meets that burden, the court dismisses if the movant establishes an affirmative defense or other grounds entitling it to judgment as a matter of law (§ 27.005(d)).
Is the Texas Citizens Participation Act an anti-SLAPP law?
Yes. The TCPA is the Texas anti-SLAPP statute, aimed at retaliatory suits that seek to intimidate or silence people who speak or petition on matters of public concern (In re Lipsky, 460 S.W.3d 579 (Tex. 2015)). It reaches most kinds of civil claims, not only defamation, subject to the exemptions in Tex. Civ. Prac. & Rem. Code § 27.010. A movant who wins dismissal recovers costs and reasonable attorney's fees as a matter of course, except on dismissal of a compulsory counterclaim, where fees require a finding that the counterclaim was frivolous or filed for delay (§ 27.009(a), (c)).
What does "clear and specific evidence" mean under the TCPA?
It means evidence detailed enough to show the factual basis for each element of the claim. Bare notice pleading is not enough. The Supreme Court of Texas held that relevant circumstantial evidence counts, and that conclusory affidavits do not (In re Lipsky, 460 S.W.3d 579 (Tex. 2015)). The court considers the pleadings, evidence it could consider on summary judgment, and supporting and opposing affidavits (§ 27.006(a)). Discovery is suspended unless the court allows limited discovery for good cause (§§ 27.003(c), 27.006(b)).
What happens if a TCPA motion is not ruled on in time?
It is treated as denied by operation of law, and the movant may appeal. The court must rule within 30 days after the hearing concludes (§ 27.005(a)); if it does not, § 27.008(a) deems the motion denied. The appeal is expedited (§ 27.008(b)), and an interlocutory appeal from the denial stays all trial-court proceedings until it is resolved (§ 51.014(b)).
For a business, the Act cuts both ways. A company sued by a competitor or former employee over something it said publicly may have a fast route to dismissal and a fee award. A company that sues over a public statement, or files a counterclaim in response to one, can expect the motion, a pause in discovery and possible liability for the other side's fees. Because the 60-day filing deadline runs from service, the question of whether the TCPA applies usually has to be answered before much else is known about the case. Counterclaims are covered too, though fees on dismissal of a compulsory counterclaim require a finding that it was frivolous or filed for delay (§ 27.009(c)).
- Deadline first: a TCPA motion must be filed within 60 days after the date of service of the legal action, unless the parties agree or the court extends the time for good cause (§ 27.003(b)).
- Filing the motion suspends discovery until the court rules, except limited discovery the court allows for good cause (§§ 27.003(c), 27.006(b)).
- Notice of the hearing must be given at least 21 days before it, and any response is due at least 7 days before it, absent agreement or court order (§ 27.003(d)-(e)).
- The party opposing the motion typically assembles affidavits and documents showing each element of its claim, because conclusory proof does not meet the clear-and-specific standard.
- A Texas lawyer who handles defamation and business litigation can assess whether the Act or one of its exemptions applies.