The Texas Citizens Participation Act (TCPA)—also known as the anti-SLAPP statute—was passed in 2011 to protect two constitutional rights: freedom of speech and access to the courts. 

To ensure the law is used only in free speech cases, the statute specifically lists 12 kinds of cases that it is not supposed to apply to, like personal injury lawsuits or those for late payment of an insurance claim.  

The Legislature clearly had a specific goal in mind with this statute. But it’s application in the real world is creating serious problems.

Here’s how it is supposed to work: if a person is sued in response to exercising her First Amendment rights, she can move to dismiss the lawsuit under the TCPA, which essentially freezes the lawsuit until the court rules on the motion. A hearing has to 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.  

Let’s play out an example:

John (the plaintiff) serves Jane (the defendant) with a lawsuit. Jane files a TCPA motion to dismiss 50 days after she’s initially served. The case is automatically stayed for up to 90 days from that point, and potentially more if the trial court’s docket is crowded. So, Jane has unilaterally delayed proceedings in the case for 140 days by filing a one-sentence general denial and a perfunctory motion to dismiss under the TCPA. 

So what’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.

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 exceptions 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. Of course, the appellate process could take months to complete, and possibly more than a year. 

As you’ll read in our latest issue of The Advocate, an Austin Court of Appeals decision noted that the TCPA had been applied “in cases for fraud and barratry, a suit for contamination of a water well, a dispute between neighbors over a fence, defamation claims arising from an employment dispute, a snarl of competing claims arising from discussions among horse breeders on social media, and a host of other types of claims.”

But it gets worse.

Nothing in the TCPA prohibits serial motions to dismiss. So this cycle of moving to dismiss, denial and 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 in the first place.

If John was seriously injured in an accident with Jane, she could delay the case indefinitely by filing a TCPA motion to dismiss and appealing after each motion is denied. That same motion to dismiss/rejection/appeal cycle could also extend John and Jane’s custody dispute in a divorce proceeding.

Clearly, this is not how the Legislature intended for this law to work. But numerous efforts to tighten up the language to prevent misuse of the TCPA have fallen victim to a false narrative that doing so would somehow infringe on First Amendment rights.

Nothing could be further from the truth. We’ve seen similar arguments used time and time again by those who oppose common-sense lawsuit reforms because they benefit from abusing the system.

Texas can and should find an appropriate way to balance First Amendment rights with another equally important constitutional right: access to the courts. And TLR intends to work with the Legislature next session to achieve this balance.