What You Need to Know from Texas’s New TCPA Legislation

By T.J. Jones, Crawford, Wishnew & Lang PLLC

Litigators may bemoan the Texas Citizens Participation Act (“TCPA”)[1] a little less come September 1, 2019. The Texas Legislature recently passed, and Governor Abbott signed, an amendment to the much maligned Anti-Slapp statute on June 2, 2019 in what appears to be an attempt to curb the unintended consequences of the statute’s over application.[2] The amendment comes on the heels of several opinions attempting to narrow the expansive application of the TCPA.[3] However, those courts will have new language to interpret now, and this article highlights a few notable changes to the statute’s current construction:

The Narrowing of Association: The following is the newly enacted revision to 27.001(2) of the TCPA: “‘Exercise of the Right of Association’ means to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern.[4] While the TCPA institutes protections against suits aimed at stifling the exercise of the right to free speech, the right to petition and the right to freely associate, it was the protections for association that became arguably the most overused, and over applied. This was likely because the prior language of the statute only required a “communication” between two individuals who “join together to collectively express, promote, pursue, or defend common interests.”[5] This led to the TCPA’s application to areas of litigation like employment agreements and trade secret disputes that were outside the statute’s intended purpose. The new definition of “Exercise of the Right of Association” will hopefully, in part, tame the application of the TCPA’s association protections.

Re-defining “Public Concern”: The statute previously included a definition of “Public Concern” in Section 27.001(7) but its use was limited to supplementing the definition of the “Exercise of the Right of Free Speech.” However, with more of the statute relying on “Public Concern,” the Legislature opted to modify the “Public Concern” definition as well.[6] The new definition in Section 27.001(7) is:

“Matter of public concern” means a statement or activity regarding: (A) public official, public figure, or other person who has drawn substantial public attention due to the person ’s official acts, fame, notoriety, or celebrity; (B) matter of political, social, or other interest to the community; or (C) a subject of concern to the public.

Careful readers will note that 27.001(7)(C)’s definition of a “Public Concern” as “a subject of concern to the public” is more than a little circular,  and has the potential to have a catch-all effect in litigation.

Changing Implication Standard: The recent amendment also changes the standard used for implicating the TCPA by the movant. Under the current 27.005(b), the standard for implication of the TCPA is as follows:

“…a court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1)  the right of free speech; (2)  the right to petition; or (3)  the right of association.”[7]

That standard changes on September 1, 2019 to the following:

“a court shall dismiss a legal action against the moving party if the moving party demonstrates that the legal action is based on or is in response to: (1) the party ’s exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of association; or (2) the act of a party described by Section 27.010(b)”[8]

This change from a preponderance of the evidence standard to merely “demonstrates” is curious, and undefined. A lack of definition here will undoubtedly spur activity on the appellate level on what is necessary to implicate the TCPA.

Laundry List of Exemptions: Arguably, the big-ticket item of the recent amendment is the laundry list of exclusions to the new and improved TCPA. Section 27.010 of the TCPA which contains the exclusions is now amended to state:

Sec. 27.010. EXEMPTIONS. (a)This chapter does not apply to:

(1) an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney;

(2) a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer;

(3) a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action;

(4) a legal action brought under the Insurance Code or arising out of an insurance contract;

(5) a legal action arising from an officer-director, employee-employer, or independent contractor relationship that:

(A) seeks recovery for misappropriation of trade secrets or corporate opportunities; or

(B) seeks to enforce a non-disparagement agreement or a covenant not to compete;

(6) a legal action filed under Title 1, 2, 4, or 5, Family Code, or an application for a protective order under Chapter 7A, Code of Criminal Procedure;

(7) a legal action brought under Chapter 17, Business & Commerce Code, other than an action governed by Section 17.49(a) of that chapter;

(8) a legal action in which a moving party raises a defense pursuant to Section 160.010, Occupations Code, Section 161.033, Health and Safety Code, or the Health Care Quality Improvement Act of 1986 (42 U.S.C. 11101 et seq.);

(9) an eviction suit brought under Chapter 24, Property Code;

(10) a disciplinary action or disciplinary proceeding brought under Chapter 81, Government Code, or the Texas Rules of Disciplinary Procedure;

(11) a legal action brought under Chapter 554, Government Code; or

(12) a legal action based on a common law fraud claim.

This laundry list excludes many of the classic Anti-Slapp abuse scenarios, like suits to enforce non-disparagement agreements, covenants not to compete and trade secret cases. However, the legislature created a separate list of exceptions to these exceptions in the new Section 27.010(b)(1)-(2) for certain legal actions the TCPA was originally intended to cover like suits based on consumer opinions or commentary (e.g. Yelp) or legal actions against media or television defendants.[9]

In all, the amendment is a step in the right direction. Unfortunately, this amendment is not a cure-all to the Texas litigator’s TCPA woes, and it will likely continue to be the subject of a substantial subsection of litigation. One thing is certain however, with this level of structural change to the statute, the Texas appellate courts will have plenty to unpack in the coming years.

Resources:

[1] Codified in Chapter 27 of the Texas Civil Practice and Remedies Code.

[2] Texas Citizens Participation Act, 86th Leg., R.S., HB 2730 eff. Sept. 1, 2019.

[3] See, e.g., Dyer v. Medoc Health Servs., LLC, No. 05-18-00472-CV, 2019 WL 1090733, at *6 (Tex. App. Mar. 8, 2019)(refusing to apply the TCPA’s right of association to private communications).

[4] Texas Citizens Participation Act, 86th Leg., R.S., HB 2730 eff. Sept. 1, 2019 (emphasis added).

[5] Tex. Civ. Prac. Rem. Code 27.001(2) (as presently enacted).

[6] Texas Citizens Participation Act, 86th Leg., R.S., HB 2730 eff. Sept. 1, 2019.

[7] Tex. Civ. Prac. Rem. Code 27.005(b)(as presently enacted).

[8] Texas Citizens Participation Act, 86th Leg., R.S., HB 2730 eff. Sept. 1, 2019.

[9] Texas Citizens Participation Act, 86th Leg., R.S., HB 2730 eff. Sept. 1, 2019.

 

T.J. Jones is an associate at Crawford, Wishnew & Lang PLLC and practices commercial litigation. He can be reached at tjjones@cwl.law.

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