Texas

Amendments to the Texas Citizens Participation Act went into effect September 1, 2019. The amended law provides a remedy against lawsuits (1) based on, or in response to the defendant’s rights of association, free speech, or petition or (2) arising from a party’s “communication or conduct,” including, among other things, “gathering . . . information for communication to the public.” Tex. Civ. Prac. & Rem. §§ 27.003(a), 27.010(b) (2019). The law broadly defines these rights. Right of association means to “join together to collectively express, promote, pursue, or defend common interests relating to a government proceeding or a matter of public concern.” § 27.001(2). Right of free speech means communication made in connection with a matter of public concern. §27.001(3). Right of petition means a wide range of communications relating to governmental proceedings or issues under consideration by governmental bodies. § 27.001(4). A matter of public concern is also broadly defined to encompass statements about a public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity; a matter of political, social, or other interest to the community; or a subject of concern to the public. § 27.001(7).

The law gives defendants the ability to file a motion to dismiss claims that are based on, or arise from, the protected activities set forth above. § 27.003(a). The court must hear the motion within 60 days of its filing, unless the docket is overbooked, there is good cause for a delay, or the parties agree otherwise. § 27.004(a). The court must rule on the motion within 30 days of the hearing. § 27.005(a).

Discovery activities are automatically suspended from the time the motion is filed until the judge has ruled on it, § 27.003(c), although a court may permit “specified and limited discovery” relevant to the motion, on a showing of good cause, § 27.006(b).

The court must dismiss the lawsuit if the defendant’s motion shows that the legal action is based on, or in response to, the protected activities set forth above. § 27.005(b). The court may not dismiss a lawsuit if the plaintiff establishes by “clear and specific evidence a prima facie case for each essential element of the claim.” § 27.005(c). However, the court may nevertheless dismiss the case if the defendant establishes an affirmative defense to this claim or other grounds entitling the defendant to judgment as a matter of law. § 27.005(d).

Once the court rules on the motion—or if it fails to decide the motion within the requisite 30 days of the hearing, § 27.008(a)—a party is entitled to expedited review in the appellate court. § 27.008(b).

If the court grants the defendant’s motion to dismiss, it must impose attorney’s fees and costs on the plaintiff. § 27.009(a)(1). In addition, the court may sanction the plaintiff “as the court determines sufficient to deter [the plaintiff] from bringing similar actions.” § 27.009(a)(2). Conversely, if the court finds that the motion to dismiss was “frivolous” or brought solely to delay the proceedings, it may—but is not required to—order the defendant to pay the plaintiff’s attorney’s fees and costs. §27.009(c).