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Rule 91a Motions and Motions to Transfer are not Legal Actions under the TCPA

Texas Anti-SLAPP, TCPA law

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.


The appeals court ruled that the Texas Anti-SLAPP, TCPA, statute did not apply to a motion to transfer and a motion to dismiss under Rule 91a because they are not legal actions as defined in the statute. In the Guardianship of James E. Fairley, 04-19-00196-CV (Tex. App. – San Antonio 2020, no pet. h).


In this case, a daughter of Fairley, filed a wrongful death suit against her sister and Fairley’s widow shortly after he died. The wife and sister moved to transfer the case to the Probate court where the guardianship had not been closed. Once in the probate court, they filed a motion to dismiss under Rule 91a (a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact.) The daughter then filed a Texas Anti-SLAPP, TCPA motion to dismiss based on the motion to transfer and the Rule 91a motion.

The trial court denied the Texas Anti-SLAPP motion.

Conclusion and Disposition

Neither the motion to transfer pursuant to section 1022.007 of the Estates Code nor the motion to dismiss pursuant to rule 91a is “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(6) (definition of “legal action”).

…(W)e conclude Mauricette’s motion to transfer Juliette’s claims to the probate court pursuant to section 1022.007 is not a legal action under the TCPA. Instead, it is a procedural vehicle relating to which court should decide the underlying matter; it was not an adjudication of the merits of Juliette’s claims. See TEX. EST. CODE ANN. § 1022.007 (permitting the judge of a statutory probate court to “transfer to the judge’s court from a district, county, or statutory court a cause of action that is a matter related to a guardianship proceeding pending in the statutory probate court” and “consolidate the transferred cause of action with the guardianship proceeding to which it relates and any other proceedings in the statutory probate court that are related to the guardianship proceeding”).

The court also determined that the Rule 91a motion was not a legal action.

It makes no sense that the 2011 Legislature would direct the supreme court to adopt rule 91a in an effort to expedite the dismissal of causes of action that have no basis in law or fact, and at the same time would intend to permit a litigant to file a TCPA motion to dismiss in response to a motion to dismiss filed under rule 91a. In essence, Juliette’s proposed interpretation of “legal action” allows her to circumvent her obligation of responding to the rule 91a motion to dismiss simply by filing her own motion to dismiss pursuant to the TCPA. Such an interpretation leads to absurd results.

We therefore conclude that Mauricette and Dorothy’s motion to dismiss pursuant to rule 91a is not a “legal action” for purposes of the TCPA.

What Could Have Been Done

This case shows the broad reach of the Texas Anti-SLAPP, TCPA law. Even in guardianship cases, the average attorney may run into its broad reach.

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