Rep. Jeff Leach, Judiciary & Civil Jurisprudence (Chair), had introduced HB 2730 which makes major changes to the Texas anti-SLAPP, TCPA, law. The bill as introduced would gut the TCPA. You can read about his original amendment here.
After a hearing where he and other members heard from individuals and groups who oppose his revisions, Leach said he wanted to keep the protections of the bill and agreed to tone down his changes. The amended bill was passed and signed by the governor on June 2, 2019. It is effective September 1, 2019 for cases filed after that date.
The bill makes the following changes:
- §27.001 (2) Changes the definition of association to: “Exercise of the right of association” means to [a communication between individuals who] join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern.
- §27.001 (6) Changes Legal action to include “legal, declaratory, or equitable relief”. States what is not a legal action including, procedural actions or motions, mediation or arbitration, and post-judgment enforcement actions.
- §27.001 (7) Changes “matter of public concern.” Removes from the definition “includes an issue related to…” and replaces it with “means a statement or activity regarding…” then list definitions that include public figures, “a matter of political, social or other interest to the community or a subject of concern to the pubic.
- §27.003 (a) Deletes “relates to” from the following definition “If a legal action is based on, relates to, or is in response to…” and adds “or arises from any act of that party in furtherance of the party ’s communication or conduct described by Section 27.010(b)(1)” and A party under this section does not include a government entity, agency, or an official or employee acting in an official capacity.
- §27.003 (b) Adds that parties may agree to extend the time to file a motion to dismiss.
- §27.003 (d) Adds moving party shall provide notice of hearing not less than 21 days before.
- §27.003 (e) Adds responding party to file response 7 days before hearing.
- §27.005 (a) Adds that time runs from when the hearing “concludes“.
- §27.005 (b) Makes these changes “a court shall dismiss a legal action against the moving party if the moving party demonstrates [[ shows by a preponderance of the evidence] that the legal action is based on,[relates to,] or is in response to:” a parties exercise of the right of free speech, petition or association.
- §27.005 (d) Makes these changes “Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the moving party establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law [[by a preponderance of the evidence each essential element of a valid defense to the nonmovant ’s claim].“
- §27.006 (a) Makes these changes “In determining whether a legal action is subject to [[should be dismissed under] this chapter, the court shall consider the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or defense is based.”
- §27.007 (a) Makes these changes “If the court awards sanctions under Section 27.009(b) [[At the request of a party making a motion under Section 27.003],” the court shall issue findings “regarding whether the legal action was brought to deter or prevent the moving party from exercising constitutional rights and is brought for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost of litigation.”
- §27.0075 Adds new section “EFFECT OF RULING. Neither the court ’s ruling on the motion nor the fact that it made such a ruling shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by the ruling.“
- §27.009 (a) Makes award of sanction discretionary and deletes “and other expenses” and “as justice and equity may require“.
- §27.010 (a) Excludes government actions from the act as well as trade secrets, employee-employer cases, non-disparagement agreements, the family code, criminal cases, DTPA cases, whistle blower cases, a compulsory counterclaim, pre-trial depositions and common law fraud claims.
- §27.010 (b) Not withstanding the above, the act does apply to persons gathering or reporting information on newspapers, radio, TV, movies, etc. And ,the act also does apply to a legal action based on or in response to a private communication by a victim or alleged victim of family violence or dating violence as defined in Chapter 71, Family Code, or an offense under Chapter 20, 20A, 21, or 22, Penal Code.