The Texas Citizens Participation Act (TCPA), also known as the Texas Anti-SLAPP law, is a must-read for Texas litigators and their clients. The purpose of the law is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” A defendant may move to dismiss a lawsuit if he or she establishes by a preponderance of evidence that it is “based on, relates to, or is in response to [his or her] exercise of the right to free speech, right to petition, or right of association.” If defendant meets its burden, the case must be dismissed unless plaintiff presents clear and specific evidence of each element of his or her claims, in which case the defendant can seek dismissal by proving each element of a valid defense.
Since its enactment in 2011, the Act has been utilized defensively in a growing number of cases. The breadth of the statute’s application to civil litigation is significant, ranging from traditional free expression to employment and other disputes. The Act does not preclude libel, defamation, or tortious interference claims but instead fast-tracks such cases to the merits. Further, its attorneys’ fees and sanctions provisions are powerful deterrents to lawsuits that are brought to intimidate or silence a defendant’s exercise of First Amendment rights.
Key decisions by the Texas Supreme Court and appellate courts illustrate the reach of the statute.
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015)
This decision addressed whether the TCPA applied to allegedly defamatory statements made between two administrators at First Surgery Suites, LLC about a nurse anesthetist contracted by First Surgery. The statements concerned whether the nurse provided appropriate medical services to patients and included allegations that he falsified records, violated a sterile protocol policy, improperly administered narcotics, and other deficiencies. The defendants moved to dismiss the claims under the TCPA. The lower court ruled against the defendants on the basis that the communications were not in a “public form.” The Texas Supreme Court reversed and held that when construing the TCPA’s right to free speech prong, “the plain language of the Act merely limits its scope to communications involving a public subject—not communications in public form.” The case was remanded to determine whether the plaintiff met his burden to establish a prima facie case for each essential element of his claims.
- Hersh v. Tatum, 526 S.W.3d 462, 463 (Tex. 2017)
Hersh involved a lawsuit against the Dallas Morning News, one of its writers, and an author/advocate who allegedly provided a story to the News writer concerning the death of the plaintiffs’ son. The author/advocate moved to dismiss on the basis that the claims involved her exercise of free speech regarding suicide prevention, a matter of public concern. She denied that she ever spoke to the News writer but even if she had, it would not have been extreme and outrageous conduct sufficient for a claim of intentional infliction of emotional distress. The Court framed the issue as follows:
The Texas Citizens Participation Act (“the Act”) provides a procedure for expeditiously dismissing a non-meritorious legal action that “is based on, relates to, or is in response to the party’s exercise of … the right of free speech”, defined as “a communication made in connection with a matter of public concern.” May a defendant obtain dismissal of a suit alleging such a communication if she denies making it? We hold that she may.
The Court held that the defendant, by relying on the language used in the plaintiffs’ pleadings, established that the Act applied and further that plaintiffs did not meet their burden to show that the communication was extreme and outrageous to support an action for intentional infliction of emotional distress. The case was remanded to the court of appeals to determine whether the trial court erred in denying attorney’s fees and sanctions.
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017)
A former employee of ExxonMobil Pipeline Company was terminated for allegedly failing to gauge the storage tanks as required but reporting he had done so. Preparatory to the termination, EMPCo supervisors communicated concerning the incident via email and meetings at the facility. The former employee sued EMPCo and his two former supervisors for defamation, alleging that their statements concerning his termination were untrue. EMPCo moved to dismiss based on the TCPA. The Texas Supreme Court determined that the TCPA applied because the statements “were made in connection with a matter of public concern” (i.e., safety and environmental risks). However, the case was remanded to allow the former employee to present “by clear and specific evidence a prima facie case for each essential element of his claim.”
Communications concerning goods, products, or services in the marketplace
- Camp v. Patterson, 2017 Tex. App. LEXIS 7258 (Tex. Ct. App.—Austin Aug. 3, 2017, no pet.).
A contractor who provided interior design services to a business sued for defamation, business disparagement, tortious interferences with prospective business relations, and intentional infliction of emotional distress based on emails the business owner sent to vendors. At issue was whether the private email and text messages involved a matter of public concern related to “a good, product, or service in the marketplace.” The Court held they did:
The email messages, on which Patterson’s claims for defamation, business disparagement, and tortious interference were based, expressly concern Patterson’s and Tara’s alleged fraud in connection with invoices for Revival’s goods and products, Revival’s account activity in purchasing goods and products from vendors . . . and the suspension of Revival’s account activity/orders for goods and products with [vendors] . . . The text messages, on which Patterson’s intentional infliction of emotional distress claim was factually predicated, were made in connection—some directly and some tangentially—with issues related to invoices for goods and products bought by Revival for resale in the marketplace, Patterson’s and Tara’s alleged creation of fraudulent invoices for those goods and products, and their intent to sell goods similar to those sold by Revival.
The appellate court then conducted an inquiry into the competing evidence on the merits, and concluded that the plaintiff failed to establish a prima facie case on all claims except defamation, and remanded to the trial court for adjudication of that claim as well as a determination of attorney’s fees under the TCPA. Note, however, that the Act does not apply to suits concerning goods and services brought against a defendant who is primarily engaged in selling or leasing goods or services and arising out of communications or conduct in which the intended audience is an actual or potential customer—see below.
Communications pertaining to a “Judicial proceeding”
- Quintanilla v. West, 534 S.W. 3d 34, 46 (Tex. App.—San Antonio 2017, no pet.) (filing of financing statements in public records made in anticipation of litigation qualified as communication regarding judicial proceeding within definition of right to petition).
- Diamond Consortium, Inc. v. Hammervold, 2018 U.S. App. LEXIS 11492 (5th May 3, 2018) (holding civil conspiracy claims against lawyers allegedly engaged in extortion scheme not barred by TCPA because conspiracy not based on, related to, or in response to lawyer’s communications in or pertaining to actual, pending judicial proceeding).
Exemptions from the TCPA
The following categories of cases are exempt from the TCPA:
- certain enforcement actions;
- legal actions against a seller or lessor “if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer”;
- legal actions for bodily injury, wrongful death, or survival or to statements made concerning such suits;
- legal actions brought under the Insurance Code or arising out of an insurance contract.
Fees can be awarded against an unsuccessful defendant
An unsuccessful movant may be liable for the other side’s attorney’s fees but only if the trial court finds that the motion to dismiss was frivolous or solely intended to delay the action.
The TCPA has proven an effective tool to expedite and potentially eliminate litigation in a variety of contexts where First Amendment rights are involved. Application of the TCPA is, of course, fact-specific and even if it applies, the suit may not be dismissed based on the evidence presented. Nonetheless, Texas litigants should be aware of the protections and procedural mechanisms contained in the statute.
 Strategic Lawsuits Against Public Participation.
 Tex. Civ. Prac. & Rem. Code § 27.002. The full statute includes sections 27.001-27.011.
 Id., § 27.003.
 Tex. Civ. Prac. & Rem. Code §§ 27.003(a), 27.005(b); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017).
 “If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:
(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and
(2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.” Tex. Civ. Prac. & Rem. Code § 27.009(a),
 462 S.W.3d at 508.
 Id. at 510. A prima facie case “refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted. It is the ‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’” In re Lipsky, 460 S.W. 3d 579 (Tex. 2015) (internal citations omitted).
 Id. at 463.
 Id. at 467-78.
 Coleman, 512 S.W.3d at 902 (citing Tex. Civ. Prac. & Rem. Code 27.005(c)).
 Tex. Civ. Prac. & Rem. Code § 27.001(7)(E).
 Camp, 2017 Tex. App. LEXIS 7258, *15 (internal citation omitted).
 Id. at *36 (citing Tex. Civ. Prac. & Rem. Code § 27.009(a)).
 Tex. Civ. Prac. & Rem. Code § 27.010.
 Id., § 27.009; Apple Tree Café Touring, Inc. v. Levatino, 2017 Tex. App. LEXIS 7405, *25 (Tex. App.—Dallas 2017, pet. denied).