The Texas SLAPP:
Motions to Dismiss Under the TCPA
By J. Brison Bursey
Have you been sued? Are you
considering filing a lawsuit or
counterclaim? If so, you need
to consider the potential rami-
fications of Texas’s anti-SLAPP
statute, officially known as the
Texas Citizens Participation Act
(“TCPA”), codified as Chapter
27 of the Texas Civil Practice
and Remedies Code. In 2011,
Texas enacted the TCPA to deter
Strategic Lawsuits Against Public
Participation, hence the acronym
SLAPP.
The TCPA’s 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.”
T ex . C iv . P rac . & R em . C ode §
27.002. It is a powerful tool that
can be used to quickly dispose
of claims affecting the exercise
of free speech, the right to peti-
tion, or the right of association.
Since 2011, courts have applied
the TCPA in numerous contexts,
including various commercial liti-
gation matters.
In response to a TCPA motion
to dismiss, a non-movant must
prove its claims by “clear and
specific” evidence—a new stan-
dard of evidence under Texas
law. Id. at § 27.005(c). Clear and
specific evidence requires that the
evidence produce, in the mind of
the trier of fact, a firm belief or
conviction as to the truth of the
allegations. Parties should assem-
ble any available evidence before
filing a lawsuit or counterclaim.
If a party fails to timely present its
clear and specific evidence, the
court may dismiss the claim. This
is true even if a party could have
gathered the evidence with addi-
tional time.
Win—the Non-Movant Pays.
Lose—the Movant May Pay
If a TCPA motion to dismiss
is granted, a court shall award
court costs, reasonable attorneys’
fees, and other expenses incurred
in defending against the legal
action. A court is also required
to grant at least nominal sanc-
tions against the non-movant. The
amount of the sanction award
is based on how much a court
believes is necessary to deter
parties from filing similar lawsuits
in the future. On the other hand,
if a court finds that the movant’s
motion to dismiss is frivolous or
solely intended to delay, the court
may award court costs and attor-
neys’ fees to the non-movant, and
may also grant sanctions against
the movant.
The TCPA is a powerful litiga-
tion tool. If you are considering
filing a lawsuit or counterclaim,
or if you have been sued, you and
your attorney should discuss the
TCPA and its potential effect on
your claims. You must be proac-
tive to comply with the TCPA’s
strict deadlines. Failure to do so
may result in a court dismissing
your claim, ordering you to pay
the opposing party’s attorney fees,
or sanctions.
This article is for informational
purposes only and not for the
purpose of providing legal advice.
You should contact an attorney to
obtain advice with respect to any
particular legal issue.
J. Brison Bursey is an attorney
with Harris, Finley & Bogle, P.C.
His practice focuses on civil and
commercial litigation involving
issues related to business disputes,
contracts, intellectual property,
product liability, and personal
injury/wrongful death. He can be
reached at [email protected]
or at 817.550.6294.
Under the TCPA, a party may
file a motion to dismiss within 60
days after the date of service of a
lawsuit. A motion to dismiss must
be heard within 60 days after
the date of service of the motion
unless the docket conditions of
the court require a later hearing,
upon a showing of good cause, or
Clear and Specific Evidence
J. Brison Bursey
Time is of the Essence
by agreement of the parties. If a
court permits discovery, the hear-
ing must occur within 120 days
after the service of the motion.
And the court must rule on the
motion within 30 days after the
hearing.
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