Framework
A motion to dismiss pursuant to the Texas Citizen’s Participation Act (TCPA), Tex. Civ. Prac. & Rem Code §§27.001 et. seq., often called the Texas Anti-SLAPP law, involves a three-step process. The burden of proof is shifted at each step.
Burden of proof in a Texas Anti-SLAPP case
Step One Burden on Movant
The movant bears the burden of establishing by a preponderance of the evidence that the nonmovant’s claim is a legal action in response to the movant’s exercise of his right of association, his exercise of his right of free speech or his exercise of his right to petition. §27.003.
(To meet this burden, the movant need show no more than the nonmovant’s pleadings if the pleadings show that the action is covered by the Act. Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017).)
Step Two Burden on Nonmovant
Once the movant has shown that the nonmovant’s legal action is covered by the act, the burden shifts to the nonmovant to demonstrate a prima facie case for each essential element of a cause of action by “clear and specific evidence.” §27.005 (c).
Step Three Burden on Movant
If the nonmovant meets his burden of establishing a prima facie case for each essential element of a cause of action by “clear and specific evidence”, the court must still grant the motion to dismiss if the movant establishes a valid defense by a “preponderance of evidence”. §27.005 (d).
Deadlines
Filing motion
1. A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the legal action. The court may extend the time to file a motion under this section on a showing of good cause. Discovery is suspended until the court rules on the motion to dismiss. On a motion by a party or on the court’s own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion. §27.003.
Hearing
2. A hearing must be set not later than the 60th day after the date of service of the motion; unless,
3. A hearing can be held not later than the 90th day after the date of service of the motion if the docket conditions of the court require a later hearing or upon a showing of good cause or by agreement of the parties; unless
4. A hearing can be held not later than the 120th day after the date of service of the motion if court has allowed discovery in which case the hearing can take place no later than the 120th day after service of the motion. §27.oo4.
Ruling
5. The court must rule on the motion not later than the 30th day following the hearing or it is overruled by operation of law. §27.005.
Evidence
(a) In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based. §27.006 (a).
(b) On a motion by a party or on the court’s own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion. §27.006 (b).
Damages and Costs
(a) 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;
(as “justice and equity may require” only applies to “other expenses” not attorney’s fees. see Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016) “A `reasonable’ attorney’s fee` is one that is not excessive or extreme, but rather moderate or fair.’” While the determination is within the trial court’s discretion, under the TCPA, that discretion does not include considerations of justice and equity.”)
(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.
(b) If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney’s fees to the responding party. §27.009.
Appeal
(a) If a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal. §27.008 (a).
(b) An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court’s failure to rule on that motion in the time prescribed by Section 27.005. §27.008 (b).
Definitions §27.001
1. “Communication” includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.
2. “Exercise of the right of association” means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.
3. “Exercise of the right of free speech” means a communication made in connection with a matter of public concern.
4. “Exercise of the right to petition” means any of the following:
A. a communication in or pertaining to:
i. a judicial proceeding;
ii. an official proceeding, other than a judicial proceeding, to administer the law;
iii. an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;
iv. a legislative proceeding, including a proceeding of a legislative committee;
v. a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;
vi. a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;
vii. a proceeding of the governing body of any political subdivision of this state;
viii. a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or
ix. a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;
B. a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;
C. a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;
D. a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and
E. any other 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.
5. “Governmental proceeding” means a proceeding, other than a judicial proceeding, by an officer, official, or body of this state or a political subdivision of this state, including a board or commission, or by an officer, official, or body of the federal government.
6. “Legal action” means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.
7. “Matter of public concern” includes 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.
8. “Official proceeding” means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.
9. “Public servant” means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for office or assumed the person’s duties:
(A) an officer, employee, or agent of government;
(B) a juror;
(C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy;
(D) an attorney or notary public when participating in the performance of a governmental function; or
(E) a person who is performing a governmental function under a claim of right but is not legally qualified to do so.
Exemptions §27.010
(a) This chapter does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.
(b) This chapter does not apply to a legal action 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, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.
(c) This chapter does not apply to a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action.
(d) This chapter does not apply to a legal action brought under the Insurance Code or arising out of an insurance contract.
CONSTRUCTION §27.011
(a) This chapter does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.
(b) This chapter shall be construed liberally to effectuate its purpose and intent fully.
