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If a Texas anti-SLAPP, TCPA, Motion to Dismiss Could Have Been Filed but was not, do the Courts Lack Subject Matter Jurisdiction?

Texas anti-SLAPP, TCPA

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.

Legal Action

Diogu never proved a legal action.


Not discussed.

Right Involved

Right to petition, attorney immunity.



Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq.


Diogu v. Aporn, No. 01-17-00392-CV, 2018 WL 3233596, at *5 (Tex. App.-Houston [1st Dist.] July 3, 2018, no pet.) (mem. op.).


Texas anti-SLAPP and subject matter jurisdiction

Diogu, a Texas attorney, filed suit against his wife and Aporn claiming that his marriage to his wife was induced by fraud. Aporn filed a counterclaim. Diogu dismissed his claims and the case proceeded to trial on Aporn’s counterclaims. She obtained judgment against Diogu. Diogu appealed but lost his appeal. After losing the appeal, Diogu filed a bill of review claiming that he could have filed a Texas anti-SLAPP, TCPA, motion to dismiss and therefore, the trial court did not have subject matter jurisdiction. He also claimed in the bill of review that he had attorney privilege.

He argued that the Texas Citizen’s Participation Act barred Aporn’s claims against him and that he had absolute immunity from suit because he is an attorney. He contended that both defenses implicated the prior trial court’s subject-matter jurisdiction, leaving its judgment…void. Aporn answered and filed a combined plea to the jurisdiction and motion to dismiss the bill of review. The trial court held a hearing on Aporn’s motion, granted the motion, and entered an order dismissing Diogu’s bill of review.

Diogu argues that he “is entitled to a Bill of review setting aside the prior judgment by the Trial or an Order declaring that judgment void by this court for lack of subject matter Jurisdiction.” We construe his argument to be that the trial court erred by dismissing his bill of review because the trial court that entered the judgment against him…lacked subject-matter jurisdiction.

The Texas Anti-SLAPP law or TCPA has a three step process. In step one, 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 (a).

Diogu’s position was that just because he had the right to file a Texas anti-SLAPP, TCPA, motion to dismiss, that was sufficient to show that the trial court lacked subject matter jurisdiction. He did not have to prove step one. The trial court and the appeals court disagreed.

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-two was never reached because step-one was not met.

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).

The court never reached the third step.

Conclusion and Disposition

Texas anti-SLAPP and subject matter jurisdiction

A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment…Ordinarily, a bill-of-review petitioner must plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the petitioner was prevented from making by (a) the fraud, accident, or wrongful act of the opposing party or (b) official mistake, (3) unmixed with any fault or negligence on the petitioner’s own part…To invoke the equitable powers of the court, the bill-of-review petitioner’s pleading must allege these elements factually and with particularity. 

With regard to the meritorious defense element, the petitioner must allege sworn facts with particularity sufficient to constitute the defense and present prima facie proof to support the contention at a pretrial hearing…A petitioner meets the requirement of presenting prima facie proof of a meritorious defense by establishing that his defense is not barred as a matter of law and that he will be entitled to judgment on retrial if no evidence to the contrary is offered.

Prima facie proof may include documents, answers to interrogatories, admissions, and affidavits as well as “other evidence that the trial court may receive in its discretion.” “This preliminary showing is essential in order to assure the court that valuable judicial resources will not be wasted by conducting a spurious ‘full-blown’ examination of the merits.”

 If the court determines that a prima facie meritorious defense has not been made, the trial court dismisses the case and the bill-of-review proceeding terminates. An inquiry whether a bill-of-review petitioner has presented prima facie proof of a meritorious defense is a question of law that we review de novo.

In addition to the three elements discussed above, a bill-of-review petitioner also must prove that he exercised due diligence in pursuing all adequate legal remedies after the challenged judgment was entered, or show good cause for failing to exhaust those remedies.

The law places a heavy burden on a bill-of-review petitioner to set aside a judgment because it is fundamentally important that judgments be accorded some finality.

The trial court held a hearing, at which Diogu argued that a lack of subject-matter jurisdiction can be argued at any time, including through a bill of review, and that the trial court… lacked subject-matter jurisdiction for two independent reasons: (1) the TCPA barred Aporn’s claim and (2) he held absolute immunity from suit because he is an attorney.

 Diogu relied solely on his pleading to meet his initial burden to support his bill of review with prima facie proof. He did not offer any documents or other prima facie proof before or at the hearing. See Baker v. Goldsmith, 582 S.W.2d 404, 409 (Tex. 1979) (stating that prima facie proof can include documents, discovery responses, and affidavits, as well as other evidence that trial court receives in its discretion). Nor did he address the due-diligence requirement to obtain bill-of-review equitable relief.

Whether the TCPA afforded Diogu an avenue for expedited dismissal of Apron’s claims does not raise an issue of subject-matter jurisdiction. Compare Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 500 S.W.3d 26, 40 (Tex. App.-Houston [1st Dist.] 2016, pet. denied) (stating that dismissal under TCPA “constitutes a final determination on the merits”) and Scarbrough v. Metro. Transit Auth. of Harris Cty., 326 S.W.3d 324, 339 (Tex. App.-Houston [1st Dist.] 2010, pet. denied) (stating that dismissal for lack of subject-matter jurisdiction is not adjudication on merits).

Moreover, Diogu failed to present prima facie proof in support of his defense, which under the TCPA, places the burden on him to show “by a preponderance of the evidence” that Aporn has asserted a “legal action” against him that is “based on, relates to, or is in response to” his exercise of one of the rights delineated in the statute. See Tex. Civ. Prac. & Rem. Code § 27.005(b). An unsupported allegation invoking the TCPA merits does not support Diogu’s assertion in his bill of review that the trial court lacked subject-matter jurisdiction to enter the judgment against him.

The appeals court went on to rule that the attorney immunity doctrine only applies when an attorney is representing a client not when he is representing himself as in this case. Attorney immunity is just an affirmative defense that has to be pled. It is not a jurisdictional issue.

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