The Texas Legislature has passed House Bill 2730, which revises the Texas Citizens Participation Act (TCPA) to limit the act’s broad applicability and its impact in Texas civil litigation. The legislation now awaits action by Gov. Greg Abbott.
The TCPA was enacted in 2011. Its stated purpose is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”1
The TCPA is frequently described as an “anti-SLAPP” law intended to deter “strategic lawsuits against public participation.” Because of the TCPA’s broad definitions of protected rights and its similarly broad language applying those definitions, however, Texas courts have found the act applicable in almost every type of civil lawsuit. In the words of one court of appeals justice, “It seems that any skilled litigator could figure out a way to file a motion to dismiss under the TCPA in nearly every case.”2
As a result, the TCPA has had significant consequences for civil litigation in Texas. When it applies, the act requires plaintiffs, at the very beginning of a lawsuit, to present clear and specific evidence establishing a prima facie case for every element of their claims.3 Failure to do so results in dismissal and a mandatory award of attorney’s fees and sanctions against the plaintiff.4 Moreover, if a court denies a TCPA motion to dismiss, the moving party can seek an immediate interlocutory appeal that stays the entirety of the underlying case until the appeal is finally decided.5
House Bill 2730 appears aimed at reducing the TCPA’s scope and impact. If it becomes law, HB 2730 would:
- add to the definition of “right of association” the requirement that the collective activity “relat[e] to a governmental proceeding or a matter of public concern”;
- redefine “legal action” to include suits for “declaratory” relief and exclude procedural actions and motions, alternative dispute resolution proceedings, and post-judgment enforcement actions;
- limit the definition of a “matter of public concern” to “a statement or activity regarding” a public official or person, a matter of political, social, or other interest to the community, or “a subject of concern to the public,” and to remove broad “related to” language;
- exempt certain types of cases, including employment disputes involving misappropriation of trade secrets and corporate opportunities and non-disparagement and covenant-not-to-compete claims, claims under the Deceptive Trade Practices Act, and all common-law fraud claims;
- require 21 days’ notice of hearing and response to be filed seven days before hearing; and
- make sanctions awards discretionary if a movant prevails on a TCPA motion to dismiss.
The overall effect of these revisions is to limit the TCPA’s scope and use in Texas civil litigation.
HB 2730 now goes to Gov. Abbott for action. If the bill becomes law, it will be effective September 1, 2019, and apply only to actions filed on or after that date.
1 Tex. Civ. Prac & Rem. Code § 27.002.
2 Neyland v. Thompson, 03-13-00643-CV, 2015 WL 1612155, at *12 (Tex. App.—Austin Apr. 7, 2015, no pet.) (Field, J., concurring)
3 Tex. Civ. Prac. & Rem. Code § 27.005(c).
4 Tex. Civ. Prac. & Rem. Code §§ 27.005(b), 27.009(a).5 Tex. Civ. Prac. & Rem. Code § 27.008.