You may have seen that HB 2730 was among the bills Governor Abbott signed into law this week. This bill makes some much-needed changes to the Texas Citizens Participation Act.
The TCPA applies to “legal actions” that are “based on, relate[d] to, or in response to exercise of “the right of free speech,” “the right to petition,” or “the right of association.” The statute’s stated purpose is to “safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government” against infringement by meritless lawsuits. Using a “plain language” interpretation, however, courts have broadly applied the TCPA to situations having nothing to do with constitutionally protected conduct. As a result, claimants who fail to present “clear and specific evidence” of their prima facie case—even at an early stage of the litigation— have faced dismissal and the possibility of having to pay the movant’s attorney fees.
HB 2730 narrows the definition of “legal action” to exclude procedural actions or motions “that do not amend or add a claim for legal, equitable, or declaratory relief.” It also eliminates “relates to” as a sufficient statutory trigger. The latter revision is especially significant, as courts had interpreted “relates to” as denoting merely “some sort of connection, reference, or relationship” between the protected communication and the legal claims and thus had concluded that the TCPA applied to almost anything.
Among other things, the amendment also clarifies the evidence a court may consider when deciding a TCPA motion to dismiss and requires a defendant seeking to prevail on an affirmative defense to establish the defense as a matter of law.
HB 2730 is a welcome effort to rein in what one of my fellow appellate lawyers has described as “a procedural freak show.” Does it go far enough? I don’t know, but the scope has plainly been narrowed. It will be interesting to see how these changes affect the number of TCPA motions being brought and how the appellate courts apply the amendments when they go into effect September 1.