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Texas Anti-Slapp Motion Against An Anti-Slapp Motion

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. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar Computer & Technology Section. I was appointed by the Chief Justice to serve one year as and ex-officio member on the Judicial Committee on Information Technology.


In PAULSEN v. YARRELL, No. 01-16-00061-CV, (Tex. App. Houston[1st] October 12, 2017) the Houston court was asked to decide if the Texas Anti-Slapp statute, Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq., permitted a TCPA claim against a TCPA claim. It ruled such a claim was not permitted.

Paulsen sued Yarrell for defamation. Yarrell filed a motion to dismiss under the TCPA. Paulsen then filed a TCPA motion to dismiss Yarrell’s TCPA claim. “Paulsen argues that the trial court erred by denying his TCPA motion to dismiss Yarrell’s TCPA motion to dismiss. The trial court denied Paulsen’s motion on the grounds that “TCPRC § 27.003 does NOT give rise to a motion to dismiss in response to a TCPRC § 27.003 motion to dismiss.””


The court held that the Texas Anti-Slapp statute was passed to “encourage and safeguard the constitutional rights” of people to “petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law” while simultaneously protecting an individual’s right “to file meritorious lawsuits for demonstrable injury.” And that motions filed against TCPA motions were not permitted. “We hold that the TCPA’s dismissal mechanism does not authorize a countermotion to dismiss as a substitute for a standard response in opposition. As such, the trial court correctly denied Paulsen’s motion to dismiss Yarrell’s TCPA motion to dismiss.”

Amended Petitions and Counterclaims

The court likened this case to cases in which a TCPA motion was filed after an amended petition or counterclaim was filed. In several cases cited by the court, other courts of appeal had held that an amended petition was not a “legal action” against which a TCPA motion could be filed unless it raised new claims. The San Antonio court of appeals focused on the Legislature’s purpose of expediting dismissals early in the process of litigation.  By the court’s reasoning, applying the TCPA dismissal procedures to motions such as motions for sanctions and motions for summary judgment would restart continually the timetables and push the dismissals later in the lawsuits, contrary to the intent of the Legislature. In re Estate of Check, 438 S.W.3d 829 (Tex. App.-San Antonio 2014, no pet.)


In Roach v. Ingram, 14-16-00790-CV, 14-16-01016-CV, (Tex. App. – Houston [14th] June 5, 2018), a Texas Anti-SLAPP case, the 14th court of appeals followed the 1st court of appeals and held that you can’t file a Texas Anti-Slapp motion to dismiss based on your opponent filing a Texas Anti-SLAPP motion to dismiss because a motion to dismiss is not a legal action.

In Deepwell Energy Services, LLC v. Aveda Transportation and Energy Services, 11-18-00265-CV, (Tex. App. – Eastland April 19, 2019, no pet. h.), the Eastland court of appeals also held that you can’t file an anti-SLAPP motion to dismiss against an anti-SLAPP motion to dismiss.

Plainly, a motion to dismiss is not a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.

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