Where do one person’s constitutional rights end and another’s begin?

That’s the fundamental question the Legislature must answer as it looks to fix Texas’ dysfunctional anti-SLAPP statute, also known as the Texas Citizens Participation Act (TCPA).

As a refresher, the TCPA was passed in 2011 to protect two constitutional rights: freedom of speech and access to the courts. The Legislature specifically wanted to ensure the TCPA was used only in First Amendment cases and went so far as to list 12 kinds of cases in the statute that it is not supposed to apply to.  

So why, then, has the TCPA been used in:

• cases for fraud and barratry
• a water well contamination suit
• a dispute between neighbors over a fence
• defamation claims in an employment dispute
• suits about social media discussions between horse breeders

Because the statute itself is flawed.

Here’s how it is supposed to work: John sues Jane in response to exercising her First Amendment rights. Jane moves to dismiss the lawsuit under the TCPA, which essentially freezes the lawsuit until the court rules on the motion. A hearing must be held within 60 days after the motion is filed, and the court has to rule within 30 days after the hearing. Some accommodations are made if a court’s docket is exceptionally busy.  

But here’s the problem: if the trial court denies Jane’s motion to dismiss for any reason, she has a right to immediately appeal that decision, which automatically stays all proceedings in the trial court until the appeal is resolved—which can take many months to several years.

It doesn’t matter why the trial court denied the motion—whether it was deemed frivolous, or because the motion was filed after the statutory deadline, or even if it was denied because the lawsuit is one of the 12 exemptions listed in the statute. Jane can appeal in every single instance.

In other words, in any civil action filed in a Texas court, the defendant can unilaterally stop proceedings by filing a TCPA motion to dismiss and appealing the denial of that motion. 

An unscrupulous defendant can stop a divorce case, a personal injury case, a fight over trade secrets, a lawsuit to be free of a non-compete covenant, an election contest, and any other kind of case you can think of.  

That’s not all. Nothing in the TCPA prohibits serial motions to dismiss. So the cycle of moving to dismiss, having the motion denied, and pursuing an appeal can go on indefinitely—blocking John’s constitutional right to have his case heard by the court, even if his case has nothing to do with the First Amendment.

Clearly, this is not how the Legislature intended for this law to work. But last session’s effort to tighten up the language to prevent misuse of the TCPA fell victim to a false narrative that doing so would somehow infringe on First Amendment rights.

Nothing could be further from the truth. 

Texas can and should find an appropriate way to balance First Amendment rights with another equally important constitutional right: access to the courts. 

The solution is simple: if a TCPA motion to dismiss is deemed frivolous, untimely, or related to one of the 12 items on the list of exceptions, an appeal should not stop proceedings in the case without the consent of the court of appeals. TLR will work with the Legislature next session to achieve the critical balance required by the Texas Constitution.