The Texas Citizens Participation Act (TCPA) commonly known as Texas’ Anti-SLAPP Statute, found in Chapter 27 of the Texas Civil Practice and Remedies Code, functions as a constitutional safeguard that protects the rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law. TCPA allows defendants to file a motion to dismiss (within 60 days of being served) alleging that the causes of action asserted against them are based on the defendants’ exercise of his/her First Amendment rights. A TCPA motion to dismiss stays discovery automatically while a decision from the court is pending.
The Scope of the TCPA
The scope of TCPA is very broad as it applies to any legal action that is based on, relates to, or is in response to the party’s exercise of:
(1) the right of free speech
(2) the right to petition
(3) the right of association
As such, a TCPA motion can apply to virtually any cause of action alleged. Once the defendant establishes that the cause of action against them triggers the protection of the act, the motion to dismiss must be granted unless the plaintiff can produce “clear and specific evidence” to support each element of the Cause of Action asserted in the complaint against the defendant. This means the plaintiff is now tasked with having to bring about evidence without a chance of discovery (unless the court grants limited discovery upon a finding of good cause) to avoid the entire case getting dismissed.
Dismissal of a TCPA Suit
If the suit does in fact get dismissed, the plaintiff can incur substantial legal fees as a result of the collection of evidence through means outside of the purview of the court and the filing of a response to the TCPA motion at the outset of the case. In addition, according to the current TCPA statute, the court must award the defendant reasonable attorneys fees even if the motion is only partially granted. Notwithstanding a denial of a TCPA motion in the lower court, the prospects of a reversal in the appellate court are exceedingly low.
This has led to a substantial reduction of frivolous lawsuit filings and forces attorneys to carefully consider the merits of a case prior to filing suit. Thus, a plaintiff who wants to pursue a cause of action against a party for an act related to that party’s incidental practice of their First Amendment rights must find an attorney that is willing to risk sanctions and dismissal in order to file suit.
Meritorious Lawsuits
Although the TCPA tends to better serve defendants in cases involving their exercise of their First Amendment rights, its promulgation has resulted in providing potential plaintiffs with a big advantage of their own – the right to not become a plaintiff at all. Citizens often lack the sophistication to know whether their case lacks merit or if they can or should pursue a cause of action against another party at all. Some attorneys can take advantage of this ignorance and pursue these cases knowing they lack substantial merit. People have the right to file suit against others for their alleged wrongs, but they often forget that what they are entitled to is actually only the right to file a meritorious lawsuit, and not one out of anger or spite because of what someone says or who they associate with. The Texas Civil Practice and Remedies Code, Chapter Ten titled “Sanctions for Frivolous Pleadings and Motions,” provides for sanctions against a party who files a lawsuit violating Section 10.001. See Tex. Civ. Prac. & Rem. Code § 10.001 This section states, in the relevant part, that the signing of pleadings and motions “constitutes a certificate by the signatory” that to the signatory’s knowledge, the pleading is not presented for an improper purpose, including to harass or cause delay or increase the costs of litigation. See Tex. Civ. Prac. & Rem. Code § 10.001(1).
TCPA protects all parties from these meritorious filings. More importantly, it protects plaintiffs from the trouble of paying someone to commence a case that would never have held water, to begin with. This reduction in lawsuit filings also helps the judicial system in reducing its already immense workload which inherently results in more time spent weighing cases with actual merit.
Although a TCPA suit can be tedious and may apply to a broad spectrum of actions, it is a very valuable tool. It not only protects a citizen’s First Amendment rights but a citizen’s right to file a meritorious lawsuit. Thus when looking at it in its entirety, the Texas Citizen’s Participation Act is an Act you should acquaint yourself with and always be prepared to either file a suit based on or defend against. It’s a double-edged sword you should carry in your arsenal.
Written by:
Kimberly Cruz
Law Clerk
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500
Frank Guerra
Board Certified – Personal Injury Law
Texas Board of Legal Specialization
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500
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