Updated Version "The Texas Anti-SLAPP Statute: Issues for Business Tort Litigation," by Mark C. Walker, 7th Annual Bill of Rights Course: Litigating the Constitution


In this issue:

- Table Of Contents

- Table Of Authorities

- I. Introduction.

- II. Texas Citizens Participation Act: What is it?

- A. Background and Enactment of the TCPA.

- 1. What is a SLAPP lawsuit?

- 2. Stated Purpose: Prevent Frivolous Suits.

- 3. Underlying Purpose: Protection of Media Defendants.


- A. What claims are covered?

- B. Exceptions to the TCPA.

- C. Procedure.

- 1. A New Form of Dispositive Motion.

- 2. Deadline to File the Motion.

- 3. Deadline for Hearing and Decision: "Set," "Rule," and


- 4. Discovery Stay - for "Good Cause"

- D. Standards and Burdens of Proof/Actions by Court.

- 1. What evidence may be considered?

- 2. Burden of Proof on the Movant

- 3. Burden of Proof on the Respondent.

- i. “Clear and specific evidence” is undefined in Texas civil

litigation burden of proof

- ii. If "clear and specific evidence" is meant to be a higher standard of proof than "preponderance of the evidence," it may very well violate the Open Courts provision of the Texas Constitution

- iii. What is a "prima facie case?"

- iv. What about non-communication claims joined in the same lawsuit?

- 4. Ruling by the Court – Dismissal Mandatory.

- E. Mandatory, Not Discretionary, Award of Fees and Sanctions for Movant Upon Dismissal of Legal Action

- F. Award of Fees, Not Sanctions, for Respondent/Plaintiff – Predicated on Frivolous Motion.

- G. Appellate Review.

- 1. Interlocutory Appeal: What is Reviewable?

- i. Denial of motion to dismiss by operation of law: interlocutory appeal is clearly available

- ii. Timely written denial of motion to dismiss - split of authority on whether interlocutory appeal available.

- a. Cases finding no jurisdiction to hear interlocutory appeal from untimely written order denying motion to dismiss.

- b. Cases finding there is jurisdiction to hear interlocutory appeal from untimely written order denying motion to dismiss

- iii. Timely written denial of motion to dismiss - mandamus may be available

- 2. Motion to Dismiss Timely Granted

- i. May be appealable noninterlocutory order

- ii. May be appealable interlocutory order

- 3. Deadlines for Chapter 27 Appeal or Writ.

- 4. Any Appeal or Writ From An Order On A Chapter 27 Motion to Dismiss Shall be Expedited.

- 5. Standard of Review of Interlocutory Appeal.

- i. De novo review - statutory construction

- ii. Legal sufficiency review

- iii. Factual sufficiency review

- H. Does the TCPA Apply in Federal Court?

- I. Does the Act Conflict with the Supreme Court’s Rule-Making Authority?

- J. Does the Statute Conflict With Texas’ Constitutional Protection of Rights to Sue for Reputational Torts?

- IV. Unintended Consequences.

- A. Overbroad Application and Chilling Effect on Meritorious Business Tort Actions.

- B. Justice Delayed is Justice Denied.

- C. When The Texas Attorney General Must Be Invited to the Party.

- D. Appendices.

- V. Conclusion.

- Excerpt of Introduction:

On June 17, 2011, Texas Governor Rick Perry affixed his neat signature to Texas’ new anti-SLAPP1 law, entitled the Texas Citizens Participation Act (the “TCPA”), and in so doing Texas joined 28 states and the District of Columbia in enacting various forms of legislation purportedly aimed at preventing frivolous lawsuits from stifling free speech activities and the rights of petition and association.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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