The Texas Citizens Participation Act (the “TCPA” and also known as the Texas Anti-SLAPP Statute) underwent a lot of changes this legislative session. See Tex. Civ. Prac. & Rem. Code 27.001 et seq. These changes were signed into law in June 2019 and are effective September 1, 2019. The purpose of the TCPA is to protect constitutional rights to free speech, right to petition and right of association. So essentially, think about First Amendment type rights. Before briefly listing some of the changes, let’s get the good news out of the way first.
In Wayne M. Klocke v. Nicholas Matthew Watson, ___ F.3d ____ (5th Cir. August 29, 2019), the United States Court of Appeals for the Fifth Circuit held that the TCPA does not apply to diversity suits in federal court. As a word of caution, this decision was based on the older TCPA, not the revised TCPA.
The Texas Legislature attempted to limit the TCPA this session and did in fact do that to some degree. Because TCPA litigation was truly getting out-of-control, the TCPA was changed to more narrowly define what constitutes a “legal action” to take out procedural actions, dispute resolution proceedings and post-judgment enforcement. Also, the exercise of the right of association section of the TCPA was limited to governmental proceedings or public concerns. Matters of public concern was also limited from a non-exclusive list to a more generalized approach of activities or statements about public officials or essentially famous people or celebrities. The new TCPA also changes the exemptions to the TCPA and specifically includes trade secret issues, family law cases and protective orders, claims under the Deceptive Trade Practices Act, grievance cases, and common law fraud cases. The TCPA also expressly states now that governmental actors, agencies, officials or employees acting in an official capacity do not qualify as someone who can invoke the TCPA.
The Anti-SLAPP motion procedure under the TCPA is now more akin to the procedures used for a motion for a summary judgment and sets out very specific deadlines for notice (21 days) and response (7 days before the hearing). It also allows parties to agree to file the Anti-SLAPP motion beyond the sixty-day limit. Also, the burden of proof is no longer by a preponderance of evidence. The new TCPA simply requires a movant to demonstrate that the legal action is covered by the TCPA.
If you have not taken a course on the TCPA, I recommend that you do so because whether you represent a plaintiff or a defendant, the TCPA is something that should be talked about upfront before the first demand is sent or pleading filed. To make things worse, and at least for the next couple of years, courts are going to have to apply the old TCPA and the revised TCPA depending on when the actions occurred.
Today’s blog does not even begin to scratch the surface. There are a number of good courses out there and most of the larger law firms have papers on their websites that discuss the TCPA. I also recommend a blog written by Sean Lemoine at Wick Phillips entitled the Texas ANTI-SLAPP Blog. It is very helpful. The opinions in this blog are solely the author’s and any comments, suggestions or replies can be sent to email@example.com.