Chapter 28-4 Texas Anti-SLAPP Act

• Jurisdiction: United States

28-4 Texas Anti-SLAPP Act

The Texas Citizens Participation Act (an Anti-SLAPP "strategic lawsuits against public participation" act) authorizes a party to make a motion to dismiss an action that is "based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association."⁴⁰ The Texas Supreme Court has explained that the purpose of the Act is to "identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits."⁴¹ Motions to dismiss under the Act are routine in cases involving defamation claims,⁴² but the law reaches beyond such suits as well.⁴³ The Act is not limited to public communications, but can apply to private ones, such as emails,⁴⁴ and to any case involving statements connected to a "matter of public concern."⁴⁵ The act defines a "matter of public concern" to include an issue related to health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace.

The movant bears the burden to establish applicability of the Act by a preponderance of the evidence.⁴⁶ To avoid dismissal in actions to which the Act applies, the non-movant must establish "by clear and specific evidence a prima facie case for each essential element of the claim in question."⁴⁷ This requires evidence sufficient "as a matter of law to establish a given fact if it is not rebutted or contradicted" as to each essential element.⁴⁸ The Act does not elevate the burden of proof the plaintiff must meet at trial, and the Texas Supreme Court has rejected the line of cases in the court of appeals that required direct evidence of each essential element of the claim.⁴⁹ The motion to dismiss must be filed within 60 days of service of the legal action, unless the court finds good cause for extending the time.⁵⁰ The filing of the motion suspends all discovery in the action until the court has ruled on the motion,⁵¹ unless the court finds good cause to allow for limited discovery relevant to the motion to dismiss.⁵² Generally, the hearing on the motion must occur within 60 days of the filing of the motion, but may occur no later than 90 days after the filing of the motion if the court's docket conditions require a later hearing, or upon a showing of good cause, or by agreement of the parties.⁵³ If the court grants limited discovery related to the motion, the hearing must...