Texas Anti-SLAPP Law: New Procedure Allows for Early Dismissal
by Leslie P. Fisher
On June 17, 2011, Texas joined 29 other states in adopting what are memorably referred to as “anti-SLAPP” statutes, or “strategic lawsuits against public participation.” The laws provide a procedure to counter meritless lawsuits filed by plaintiffs who attempt to silence their critics’ protected First Amendment rights. SLAPP plaintiffs file lawsuits with no expectation of winning; rather, the goal is to eventually silence the defendant’s speech or other protected activity with overwhelming legal fees and burdensome discovery and paperwork.
The Anti-SLAPP jurisdictions are inconsistent in the protection schemes afforded to litigants, with some allowing for dismissal only under limited circumstances. On the other hand, the Texas Citizens Participation Act (TCPA) is among the broadest. It allows a movant (usually the defendant) to seek dismissal of the non-movant’s (usually the plaintiff’s) “legal action [that] is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.”
All of these concepts are broadly defined. For example, the “exercise of the right to petition” includes “any…communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.”
Notwithstanding the statute’s broad application, there are three general categories of exempt actions: government enforcement actions; suits for bodily injury, wrongful death, or survival; and actions brought against “a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product or a commercial transaction in which the intended audience is an actual or potential buyer or customer.”
A motion to dismiss under the TCPA must be brought within 60 days after the date of service of the legal action, although the court may extend the time to file the motion on a showing of good cause. A hearing on the motion must be set within 30 days after the date of service, “unless the docket conditions of the court require a later hearing.” There is no provision in the statute to delay the hearing for good cause or on leave of court.
The filing stays discovery until the court rules on the motion to dismiss. But the trial court may, on motion of the parties on a showing of good cause or sua sponte, allow “specified and limited discovery” relevant to the motion to dismiss.
At the hearing, the court considers the pleadings and supporting and opposing affidavits. If the defendant establishes by a preponderance of the evidence that the plaintiff’s legal action is “based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association,” the burden shifts to the plaintiff to establish by “clear and specific evidence a prima facie case” for each essential element of its claim.
“Clear and specific evidence” is undefined in the TCPA and without precedent in Texas law. Legislative history suggests it was derived from the standard used in “reporter’s privilege” cases, in which situations it falls in significance somewhere between preponderance of the evidence and clear and convincing evidence. However, the courts have yet to issue guidance on this burden of proof in the TCPA setting.
If the plaintiff fails to prove by clear and specific evidence each essential element of its claim, the trial court has no discretion but to dismiss the legal action brought against the defendant. The TCPA also mandates that the trial court shall award to the defendant both attorneys’ fees, costs, and other expenses and sanctions against the plaintiff. The largest known sanctions to date—$15,000, and $15,000 in attorneys’ fees—were awarded by a Dallas judge in April 2012 in the case of a homeowner sued by his mortgage company for comments critical of its services that he posted on the Internet.
Finally, if the court fails to rule on the motion within thirty days after the hearing, the moving party may appeal as the motion is considered to have been denied by operation of law. The scope of TCPA appeals is currently under review by the courts, notably in Jennings v. Wallbuilder Presentations, Inc., 378 S.W.3d 519.
Leslie P. Fisher is a commercial litigation associate at Greenberg Traurig, LLP and a Vice Chair of the DBA Pro Bono Activities Committee. She can be reached at firstname.lastname@example.org.