The Texas Citizens Participation Act – To SLAPP or Anti-SLAPP That is the Question?

This week’s political turmoil in Washington and the heated discussion it has caused, makes a discussion of the Texas Citizens Participation Act (“TCPA”), as set out in Chapter 27 of the Texas Civil Practice and Remedies Code, an appropriate topic. Before giving a general overview to wet your appetite, I recommend that you get a copy of the State Bar Litigation Section Report The Advocate, Volume 84, Fall 2018 as an excellent primer on the TCPA, its exemptions, and procedural hurdles. It is an excellent resource, a great place to start and the articles are exceptionally well-written.

For many years prior to the passage of the TCPA in 2011, frequent lawsuits were being filed against political participants by parties who had opposing views in order to silence the individual or group as opposed to genuinely seeking to recover for injuries caused by tying up the opposing party or group in expensive and time-consuming litigation. This litigation was called “strategic lawsuits against public participation” or SLAPP.

The TCPA, also known as the Anti-SLAPP statute, was enacted to protect the constitutional rights of persons to speak freely, associate freely and to petition and otherwise engage in government activities to the maximum extent of the law and to protect the rights of a person to file meritorious lawsuits for a demonstrable injury. It is also significant that the TCPA mandate is that it be construed liberally to effectuate its purpose and intent fully and it is very broadly construed. The TCPA has a built in Motion to Dismiss process to dismiss a SLAPP legal action filed against a person that requires the motion to dismiss to be filed no later than 60th day after the date of service of the legal action and hearing must be set the 60th day after service of the motion to dismiss. While there can be an short extension for hearing the motion to dismiss upon a showing of a crowded docket or good cause, the motion and hearing must still occur within 120 days after service of the motion to dismiss.

The TCPA also requires the Court to dismiss a legal action against the moving party that, under a preponderance of the evidence standard, is based on, relates to or is in response to a person’s right of free speech, right to petition the government, or the right of association. If the motion to dismiss is granted, the court must award court costs and reasonable attorneys’ fees relating to defending the legal action and may also award other expenses, as justice and equity may require. Tex. Civ. Prac. & Rem. Code 27.009(a)(1). There is a flip side of the coin when filing a motion to dismiss. If the court finds that a motion to dismiss is frivolous or solely intended to delay, the court may award court costs and reasonable fees to the other side.Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016).

Our country is blessed that we are able to actively participate in our government. While things that are said may cause your blood to stir and general gnashing of your teeth, the right to participate in or make petitions to our government and for the freedom to speak and associate are amazing freedoms not enjoyed by everyone in the world. The Texas Citizens Participation Act along with the United States and Texas Constitutions help define the limits of those rights and a way to protect them when someone is trying to unlawfully silence your public participation. The opinions in this blog are solely the author’s and any comments, suggestions or replies are welcome at john@jrjoneslaw.com.

 

 

 

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