TALP 27 | TCPA Amendments

 

In 2011, Texas adopted the Texas Citizens Participation Act,  one of the broadest anti-SLAPP statutes in the nation. Since then, TCPA motions to dismiss and the resulting interlocutory appeals have proliferated, and both trial and appellate courts have struggled to reconcile the statute’s far-reaching language with just and fair results. Joining Todd Smith and Jody Sanders to talk about the TCPA is Amanda Taylor, a civil appellate specialist at Butler Snow and an expert on the subject. Amanda discusses the TCPA’s initial impact on the civil justice system, recent statutory amendments, and strategies for advising clients on TCPA motions and appeals. Listen in to learn about trends in this area and what they mean for present and future appellate law practice.

Listen to the podcast here:

The TCPA’s Impact on Civil Appellate Practice | Amanda Taylor

Our guest is Amanda Taylor from Butler Snow in Austin. She’s an appellate lawyer there. If you have seen any CLE presentations on the TCPA, the anti-SLAPP statute in Texas, you probably heard Amanda speaking about it. She’s one of the experts on that statute. That’s one of the things we’re going to talk to her about. Welcome, Amanda. Thanks for joining us.

Thank you for having me. It’s a pleasure to be here with you.

For those people that don’t know you, can you give us a little bit of your background and how you got into law?

I have been in Austin practicing law since 2003. I went to Baylor Law School and had my sights set on Austin as the only place that I wanted to practice. It was a weird time, not quite like the pandemic we’re in, but I had big notions of being a trial lawyer and was graduating law school when House Bill 4 was passed, which was the court reform bill back in the day. My job offer was to go and be a plaintiff’s trial lawyer. That was put on hold due to the passage of House Bill 4. I ended up taking a job at the Court of Appeals at the Third Court, which shaped the trajectory of my career in a way that I had never anticipated, but I’m so thankful for. I spent a few years at the Court of Appeals and then went into private practice at a small firm boutique litigation firm, where I was the only lawyer that knew anything about appeals. I was quickly given the opportunity to start handling the appeals as lead counsel, even as a young associate. I jumped on that opportunity and had handled about 40 in my first few years of practice as a young associate and built my practice from there.

Did you do a staff attorney job at the Court of Appeals for your first few years?

I did. I started as a one-year law clerk. That was back when the Court of Appeals used to have first year law clerks. They don’t do that anymore. In fact, I think I might’ve been the last class of first year, baby lawyer law clerks, because many of my friends that I started with as a clerk are still there as staff attorneys. The court shifted to having permanent staff attorneys due to budget constraints, and those lawyers have so many years of experience they’re invaluable to the court. I did one year as a law clerk and then stayed on for two more years as a staff attorney to then Chief Justice Ken Law.

We’ve talked about that a number of times on the show. In addition to getting that one year term, I’m sure that that gave you a broad overview of what an appellate practice was all about, especially appellate judging, seeing the insider’s view of the court.

Before that, I worked for Bonnie Sudderth, who is now the Chief Justice of the Second Court of Appeals. I had the opportunity to work with her when she was on the district bench. She told me that law school tries to teach you to think like a lawyer, but the best lawyers will learn to think like a judge. Chief Justice Sudderth was correct about that and some of the best advice I’ve ever had in my career.

The extra two years of time being on the court as a staff attorney and talk about a place to hone your writing skills and learn how to separate the wheat from the chaff in terms of arguments, that had to be a great experience.

You learned that a snarky tone is not going to take you very far.

I worked for a state district judge for a couple of years in law school. The thing that surprised me, even as a law student, when I was doing it, is you start to see the work product that comes into the court, and it’s surprising because in law school you think, “Everybody that’s gotten out and passed the bar must be good and effective.” You start to see the things that get filed and realize, “I can do this after all.”

It does give you a little confidence boost.

TALP 27 | TCPA Amendments

TCPA Amendments: Courts realized that, unless the interpretation was significantly narrowed, every case was going to have a TCPA motion, adding time and expense.

 

You mentioned your early jobs in your career, but tell us about where you are now and what you’re doing there at Butler Snow?

I am at Butler Snow. I changed firms. I was with Beck Redden, an excellent firm and I have lots of friends and they’re based out of Houston. I moved over to Butler Snow a couple of years ago, with the appeal, to use the pun. The appeal to me was the opportunity to expand my practice beyond Texas. Butler Snow is based out of Jackson, Mississippi or Ridgeland, Mississippi. We have about 400 lawyers primarily through the Southeast, but also in other states in New York, Southwest and even Singapore.

It was an opportunity to grow my practice beyond Texas. That was very exciting to me. I’ve been named by the firm as the Practice Group Leader for our appellate practice group. That is something that we’ll be rolling out here. I’m very excited to lead that new practice group for the firm. We previously had an appellate and written advocacy group that we then folded back into commercial litigation. We are going to put our emphasis back on a standalone appellate practice and we get to build that out of Austin and through the Southeast.

What is moving your practice beyond Texas look like for a board-certified Texas civil appellate lawyer?

At Butler Snow, we do things a little bit differently than at most firms because we are based on practice groups. It’s not necessarily a jurisdictional division between cases. I’ve now had the opportunity, if there is a case, an insurance matter, for example, that’s going on in one of our other states, but they need a law lawyer. That’s what we all do is we come in on issues of law, procedure and jurisdiction. I can apply those skills to any jurisdiction, just as I’m sure the two of you have done in other states and it’s not confined to Texas. I had the opportunity earlier this year to go argue a case in the Ninth Circuit Court of Appeals, which I don’t think I would have had not having been at Butler Snow, but that was a great opportunity.

There are other cases where I’m working with lawyers in New Orleans or Mississippi or Tennessee. I have the opportunity to start understanding what appellate practice looks like in some of those other states. Texas has such a sophisticated appellate bar. It’s a model for other states to follow. I know you had Kevin Dubose on the show who was talking about our standards of appellate practice and Texas is the only state that has those. I’d like to see us advance the ball and other states to look more like Texas on the appellate front.

I’ve done some work in other states too and the rules that do or don’t exist in other states and the differences. We have a very comprehensive framework here that a lot of states don’t have. Due in part is the size and the number of appellate courts we have.

I’ve started to think about why Texas has a different form of appellate practice and there are a number of things. I think the way our interlocutory appeals statute is structured under CPRC 51.014, in fact, where the TCPA finds its basis for an interlocutory appeal that we’re going to talk about. The vast numbers of interlocutory appeals that we have in Texas because our legislature has made that choice, provide so much more opportunity for people to handle appeals. That, by statute, it’s different than other states.

I did a statistical analysis of interlocutory appeals in Texas a few years ago. The numbers are overwhelming because you look at 51.014 and you see appeals about all kinds of things, but mostly pleased to the jurisdiction in certain cases, the TCPA, obviously is huge. We have another statute that allows for interlocutory appeals of arbitration, motions to compel arbitration, if denied. Those things impact our appellate dockets and therefore create an opportunity for appellate lawyers.

Having one high court that’s devoted to civil only makes a difference, too. It seems like in a lot of states when you’re fighting for review at a high court with discretionary review, often there are so many criminal issues that take precedence over that. Here, we don’t. It is a limited jurisdiction court, but they still, every case they take has a civil component to it.

We sometimes forget how good we have it as lawyers. When I tell people from out of state that we have fourteen intermediate appellate courts, their minds get blown. Usually, there are plenty of states that just have one. We are fortunate and the legislature has done us appellate lawyers a favor by enacting and continuing to amend and add to the Section 51.014. With that, the expansion of mandamus practice, it’s definitely being a Texas civil appellate lawyer is a niche that’s very fulfilling on top of that. It’s interesting what you say about the skills translating out into other jurisdictions. I’m sure that’s true. I tend to get confined in my little Texas niche.

Don’t get me wrong. I still love Texas.

The TCPA is a game-changer for Texas appellate law practice. Click To Tweet

We do want to talk to you about reappeals, but as Jody suggested, we want to talk with you about the Texas Citizens Participation Act. If anyone is reading this and doesn’t know what that is, you’re in for an education, but most people who are going to fall within our audience are going to know what the TCPA is.

I’ve heard it called The Appellate Lawyer Full Employment Act. I feel like that checks out for the last few years.

That’s true, but my other nickname for it is Stealth Tort Reform. Certainly, I’ve handled TCPA cases. I’m familiar with the statute, but my level of knowledge doesn’t approach yours, Amanda. You’ve spent a lot of time over the last several years becoming one of a handful of people that come to mind off the top of my head for people who do this on a regular basis. How did you get to be so embedded in TCPA work?

It was inadvertent. I was asked to give a CLE presentation at the appellate 101 Course that we used to have in person every September and it’s now coming up on Zoom. It’s a great conference where all of us appellate lawyers across the state like to come together and, especially for the younger lawyers, the 101 Course is a great introduction to start building that appellate network. I was asked to give a presentation on Interlocutory Appeals, generally not limited to the TCPA. This was back when TCPA jurisprudence was still developing. The statute had been passed originally in 2011, amended to expand for interlocutory appeals in 2013. This was shortly after that. I was still telling lawyers what the statute was.

Many had never even heard of it at that time. As I was preparing to give that presentation, although it was supposed to, and it did cover all types of interlocutory appeals, I saw the writing on the wall that the TCPA was about to have a huge impact on Texas litigation because of the plain language of the statute. The Supreme court quickly picked up on how broad that plain text was. It allows for a motion to dismiss certain types of legal actions, but especially as it was drafted back then, that was a pretty all-encompassing standard. Bob Pemberton said, as a Justice on the Third Court of Appeals, it is a game changer and there’s no better quote for the TCPA than that.

I like the quote where he said, “If a certain justice on the Court of Appeals woke up one morning and decided that something related to something to that,” and he would probably be right. That’s a big paraphrase. It certainly has been a game changer. In fact, I was telling Jody when we were talking about this show that I got approached about a TCPA case probably in 2013 or 2014. When the statute was still pretty new, it was about an appeal. I looked at it and thought, “I don’t want to touch this. This is terrible. This is a complete loser. Look at the statutory language and it’s taken all this time of people litigating the granting of these motions to dismiss, to clarify that the statute, we didn’t take that long for the Supreme Court even to say it means what it says. I’m going to like the scope of the way that we interpret this.” Certainly, we’ll get to the recent amendment of the statute, but it seems over time that the appellate courts, the pendulum started to swing back the other way, particularly since we’ve had a big change in the makeup of our courts, some of our major metropolitan courts, in the last election cycle.

The pendulum started the swing at the very end of 2018. A few opinions came out of our more urban courts in Houston and Dallas. One or two out of Forth Worth also began to pull back on the breadth of the TCPA, but it was 2019 that we saw an absolute flip of movements. Winning on appeal versus movements losing on appeal. Statistically, the numbers, they simply reversed from 2018 to 2019 and now that shift has continued into the first half of 2020. It’s a remarkable change. I’ve identified four reasons for that change. One of which was the election. I’m happy to talk about each of those if you’re interested. The election in 2018, what we saw was 26 new Democratic intermediate appellate judges, big Democrat judges, nineteen of those replaced Republican incumbents.

I don’t think it is the fact that they were blue. It’s the fact that they were new. Regardless of party, the fact that you had new blood on the court, opened them up to be willing to adopt a revised interpretation, opened judges up to hearing arguments from non-movements against the breadth of the statute that perhaps their incumbent predecessors were more willing to say, “The Supreme Court has said, we’ve got to give the plain text. It’s ordinary.” Meaning, it’s very broad. Our hands are tied. When you got such a big crop of new justices, they were more willing to break from that pattern.

My personal experience supports that because even in Fort Worth and Eastland where you have all Republican judges, they still started to rain in the scope right around that same time. It was some of the newer justices that were writing those opinions. Regardless of party, I think you’re right. They were more willing to listen and maybe even having seen what had happened over the last few years with the broad expansion of the scope.

The volume of opinions is another reason for the shift, because the first year of enactment, the first year that there were opinions, there were only 1 or 2. In 2020, we already have 110 opinions as of August 12th. We’re looking at over 200 opinions. We’re talking about the difference of 2012 to 2020. Think about what that means for the appellate justices and their dockets. How many appeals are clogging their dockets, taking their time? They finally said, “Enough is enough,” and realized that unless the interpretation wasn’t narrowed, every single case was going to have a TCPA motion and it adds time and expense to civil matters.

You overlay within that same timeframe, the legislative amendments to the statute, which scale it back somewhat in terms of application, some would say that they didn’t go far enough, but the Bob Pemberton relate to language has been scaled way back. In fact, that phrase was struck from the statute if I remember correctly. Existing in the same room, as something no longer is necessarily sufficient to trigger the TCPA. I don’t want to jump too far ahead because I want to come back to the other reasons that you’ve observed for the pendulum swinging, but are we seeing any suits coming out now under the new statute?

We got the first opinion under the new text. I’m always one day behind because it takes Westlaw a day to get them out to me, but we’ve now had two opinions under the new text in odd coincidence. They’re almost exactly the same issue. They both presented declaratory judgment claims, which is now under the 2019 version expressly considered illegal action, meaning it’s subject to dismissal under the TCPA. In both cases, the movement argued that the declaratory judgment claim implicated its right to petition, meaning the case should be dismissed. In both cases, the courts of appeals said, “No, it is a legal action. It’s a declaratory judgment action, but it does not implicate your right to petition. You have not satisfied your step one burden and the claim goes on.” Almost exactly the same issue in two cases under the new text.

TALP 27 | TCPA Amendments

TCPA Amendments: The 2019 amendments changed the landscape such that Rule 91a or motions for summary judgment may take the place of TCPA motions in some cases.

 

I know that was an unsettled issue before, and I know there was some law in the Third Court of Appeals on that in a different direction that one might have thought. There’s a ton of actions filed in the state. It’s nice that we’ve got some early opinions out there that hopefully will offer people some clarity and we’ll see if those take hold or some of the other appellate districts go a different direction.

Which courts were this from?

It was San Antonio and Houston First Court of Appeals.

Before we move on, I do want to come back and hit at least the highlights of the four reasons you said for the pendulum swinging back and the election was won. Walk us through the others.

The volume of opinions and the election and then you mentioned the 2019 amendment. The effective date of those amendments was not until September 1, 2019, but the legislature lit the path. As of May 2019, we knew what changes had been made. The appellate justices knew the changes that had been made. It allowed them again, remember, you’ve got this largely new crop of appellate justices. The legislature has already told us that we intend to pull this back and some courts have interpreted the amendments as instructive about the original intent under the prior language.

They’ve used the amendments even prior to the effective date to say, the legislature clarified what it meant originally. It cannot be overlooked, even though we haven’t had a lot of appellate opinions decided under the amended texts, those amendments very much have shaped the interpretations from May 2019 on. That’s reason number three. Reason number four is the Texas Supreme Court’s opinion in Creative Oil versus Lona Hills that came down December 2019. It has been cited so many times, probably 80 times since December of 2019.

In that case, the Texas Supreme Court did a pivot in its interpretation of the free speech component of the TCPA and what it means to be related to a matter of public concern. The Texas Supreme Court said that, “A business dispute between two parties that affects only their own pecuniary interest does not under any sense of the word, have a broader impact on an issue of public concern.” Breaches of contract between two parties that don’t otherwise implicate the public or a publicly debated issue in society is not going to satisfy free speech. That shifted what so many courts had previously been holding under the plain text, interpreted by the Texas Supreme Court and some prior opinions, primarily the ExxonMobil vs Coleman opinion, which was an employment that’s viewed.

The communications in the employee file about the employee’s performance at work were deemed to satisfy the public concern component because it was in the oil and gas industry. Many courts of appeals took that and ran with it on a very broad basis. Up until the Supreme Court issued Creative Oil, although they did not overrule Coleman and some of their other prior broad interpretations, the court did distinguish those cases and the courts of appeals have since cited Lona Hills, as a shorthand reference to, “This is a business dispute. It’s not getting dismissed under the TCPA.” That’s been a huge change.

They’ve got that gap between the time the amendment was announced and the time it went into effect. As you point out, the amendment coloring arguably at least a statutory interpretation argument. Then you’ve got the issue of, “We’re not going to fool around with these things anymore.” It seems like the courts of appeals were getting beaten down, and still are, with these cases. It’s like, “Stop bringing this nonsense to me that somebody’s private conversation in a business context can be a matter of public concern.”

To me, that Exxon case showed how crazy this statute was because if you think about anti-SLAPP, the whole idea is you’ve got some blogger who’s getting money, whipped by some big company to kill whatever free speech they’ve got online. Now, you’ve got a case where Exxon is the one who’s saying that they’re aggrieved and their free speech is being stifled. You think, “What a 180 degree turn under the statute.”

To the extent that some people thought at the time of enactment, that this was a David and Goliath scenario, that is not the statute that our Texas legislature enacted. Texas has the broadest anti-SLAPP statute of 26 states that have similar statutes. Texas’ is the broadest and then Oklahoma adopted our same language. Texas always wants to beat Oklahoma. We have the same breadth, but we were first.

Did they adopt the old language or the new language?

The broad language of the old TCPA has been abused to include cases that are not necessarily of public concern. Click To Tweet

They adopted the old language. It was many years ago that Oklahoma adopted that.

You mentioned statistics, are you going and looking at OCA data to determine the numbers that are coming out of the fourteen courts of appeals? We’ve had Kent Rutter on the show talk about reasons for reversal on the major statistical exercise that Haynes and Boone is constantly going through. Are you doing something like that geared specifically to the TCPA?

Yes. The OCA does not publish this data. This is a result of me reading every single TCPA opinion that comes down from our courts. As I mentioned so far in 2020, that’s 110 opinions and I read them. I analyze them into categories based on the outcomes. I provide those statistics to the members of our bar as a learning tool, because I think it’s important. It’s important for the courts to understand the impact on the dockets and for budgeting. I find it fascinating, honestly. I spend a lot of time reading and analyzing TCPA opinions and it helps my clients and me in my practice because I am up to speed on what’s happening under the statute at all times.

Give a little plug for your upcoming Advanced Appellate presentation and paper in which you do lay out some of the statistics that you’re talking about. For the folks who are reading, who aren’t attending the seminar, you can go back and read later, get all the materials in Amanda’s paper with the stats, and all her observations will be included in that. We’ve held true to that schedule and the pandemic, even though it’s remote, the timing is still the same. I’d encourage anybody to get that and look at it because it’s immensely helpful.

You were mentioning the stats that you’ve been tracking. You hinted at it, but what have you seen in the last couple of years versus the earlier years with the stats?

I mentioned that there had been a complete flip from 2018 into 2019. Taking a thousand-foot view of ,categorically, do movements win when following an appeal or do they lose. In 2018, movements were winning on appeal. Meaning the court of appeals said, “Yes, dismissal should be granted and you are entitled to monetary relief movement in 61% of the cases.” That’s a great statistic. If you were advising a client about whether or not to file a TCPA motion, you can say, “Even if the trial court denies it. On appeal, we’ve got a good chance of winning 61%.” Those are great odds and they were losing only 26% of the time with 13% in what I call not applicable category. It’s an opinion that either is dismissed for want of jurisdiction or something else, but you’ve got 61% winning, 26% losing.

You get to 2019. By the end of 2019, and we’ve talked about all the things that happened in the interim, that flips. Now movements our winning only 25% of the time from 61% to 25 and they’re losing 57% of the time. It’s a complete reversal. In 2020, those statistics continue. Movements this year are winning only 23% of the time. It’s gone down to 25% in 2019. Now, only 23%. As practitioners, we are called upon to advise our clients about what is worth their time, their money. When a client has an adverse legal action filed against it and says, “How can we get rid of this? Can we move to dismiss?” You’re thinking about the TCPA, summary judgment and Rule 91a, which was also amended in 2019. You have to tell your client, what are the best chances of success? What will be the most expensive?

Practitioners have to understand that while there might still be reasons to utilize the TCPA in any given case over Rule 91a or motion for summary judgment, the landscape is very different. It’s a hard place to be in for those of us who filed motions prior to the shift and they still haven’t been decided. Now, we have a different type of jurisprudence. There’s some client counseling involved about what’s happened, and I hope this program and the CLE will help clients, help lawyers advise their clients in explaining what happened. Now, you’ve got ethical duties to be on top of this law and telling your client what their next best steps are. I mentioned Rule 91a because the important change there is that it’s no longer a mandatory attorney’s fee loser pays provision. Attorney’s fees under Rule 91a are now discretionary, which makes that motion much more attractive to a practitioner, to a client.

I anticipate, I think most of us who practice in this area do, that parties will start utilizing Rule 91a more so than the TCPA because the courts are pulling back on the TCPA while at the same time, the door has been opened. That’s the trend that I am looking to see if it comes true, but the TCPA still offers the benefits. If you want to consider them, that have of a stay of discovery, an automatic stay on appeal and the immediate right to an interlocutory appeal. The TCPA is not going away, but your balance is a little bit different now.

They also have changed the sanctions and fees, provisions of the TCPA, a little bit too, which may be a disincentive to some that they would have had earlier when you had mandatory sanctions, mandatory fees and all that.

That’s the point I was coming to was the two big hammers in this statute, aside from dismissal or the idea of mandatory sanctions, and then also in the part of illusion, mandatory attorney’s fees. You think about how that affects people appealing a dismissal or the sanctions being there or not, this may be kind of neutral, but the idea of a progressive attorney fee perspective, appellate attorney’s fee being proved up and having to spend, or at least tacking on another, Amanda and I will agree on this, at least $20,000, if not more. I know Jody agrees with that too, for the chance to find out if you’re right and if the other side and the court was wrong.

Having that be discretionary is a nice change. The idea of having to base coming back to the statistics, if you can show the client, “At least, statistically your chances of getting relief when it has gone and completely flipped in the last couple of years, maybe you can justify rolling the dice on being exposed to that conditional appellate fee.” It’s a little more palatable, whereas before, with the reversal rates low, it was like, “If you want to throw good money after bad, that’s up to you as a client.”

TALP 27 | TCPA Amendments

TCPA Amendments: The TCPA has been amended to more closely mirror summary-judgment practice.

 

It also gives non-movements, which remember that can be a plaintiff or it can be a defendant with a counterclaim, but it gives anybody asserting the legal claim, more leverage, maybe that settlement leverage, or we all know any number of things that can happen, but to be armed with the truth about what is happening on appeal in TCPA cases is powerful for both sides.

In light of that, Geo made a decision that came out from the Supreme Court in 2019. It is hard. Once a TCPA case goes up on appeal, nothing can happen in the trial court. All you can do is go to the Court of Appeals and hope that they’ll help you out. If something comes up in the interim, whatever it is, whether it’s a need for injunctive relief, you now have to go directly to the Court of Appeals and ask them to do maybe some fact-finding, which they’re not going to want to do and that creates a whole other layer of complication that you need to think about, no matter which side you’re on.

The Supreme court in 2020 has issued another case that I think will continue to change the procedural practice, which is the in Panchakarla case. The Texas Supreme Court has now held that a trial court has the ability to reconsider a prior TCPA order, either granting or denying. Typically, it will be a grant because if it’s a denial, there usually is an intermediate, interlocutory appeal right away. Think about what that means, if the trial court granted a TCPA motion and dismissed 2 of the 4 claims early in the litigation, the lawyer can come back nine months, a year later and ask the court to reconsider that ruling and potentially deny the TCPA motion. That to me is a very interesting change procedurally.

It becomes more a summary judgment practice.

It just brings the TCPA orders in line with any other interlocutory order.

That underlies the court’s ruling. Also, the 2019 amendments made a number of changes to the TCPA to align it with summary judgment practice in terms of the evidentiary requirements, the deadlines, there are a lot of things about the TCPA that now mirror summary judgment practice. The statute references Rule 166a, specifically. The case law that we’ve had for decades about summary judgment practice in terms of the notice of hearing deadline, the response deadline and the evidentiary considerations are all now incorporated by reference into the TCPA practice.

It’s nice to have those certainties ironed out because in the early days of the statute, there were so many uncertainties. In their cases telling us how to read this and cases where the courts have held the trial court lost jurisdiction to change its order under the statute, even though it was an interlocutory order or tough. It’s nice that the Supreme Court has brought that right TCPA in line with other interlocutory orders there.

The big procedural trap under the TCPA is still the hearing and ruling deadline. There were three cases out of Dallas, split opinions, all three on what happens when the trial court begins to conduct the TCPA hearing. There’s some discussion on the record. Sometimes off the record, something happens, the hearing is continued. All the parties come back later and a ruling is made, is that ruling timely? Is it not timely? The Dallas court has issued three opinions that are completely split in the outcomes. They’re covered in my paper. I won’t bore you with more details, but there are definitely still traps for the unwary under the TCPA.

We’ve covered the recent amendments, but considering how plugged into this statute you are, are there any other trends that you can identify or things that we should be on the lookout for as far as the statutes’ future are concerned? Do you think, for example, that the legislature is going to be back in the next session, tweaking it some more because it resisted before?

It did. There was a lot of push from practitioners and industry groups in 2017 to make amendments in the legislature. Those bills never made it out of committee. Finally, there was momentum in 2019. I would like to see the legislature come back and correct a few things. There are even some typographical errors, weird things in the 2019 amendments that need correcting, but given the number of important issues that the legislature is going to have on its plate in the next session, I’m not going to hold my breath to think that they’re going to come back and make TCPA amendment the next time around. They’re probably going to give this new version a few years on the books to see what happens, to see if practitioners do shy away and turn to Rule 91a instead and determine how necessary amendments might be. If anybody in the legislature is reading, I would like to make some corrections if you want to email me.

If you know them off the top of your head, this is a good forum to get that out there.

The weirdest thing under the 2019 amendment is section 27.007, which requires findings of fact if the court makes a certain monetary award, but I believe that they referred to the wrong section number when describing what that monetary award is. The way the statute is written, it says that if the court makes a sanctions award in favor of the non-movement, then the court has to find whether or not the legal action was brought for an improper purpose. That’s backwards in so many ways because a non-movement wouldn’t need a finding that it’s legal action was improper. It would want the opposite finding and there is no award of sanctions to a non-movement under the TCPA. There’s only award of cost of fees.

Because of recent changes, we can anticipate parties utilizing Rule 91a more than the TCPA. Click To Tweet

I think they referred to the wrong section number and it needs to be corrected to say that if the court awards sanctions to a prevailing movement, as opposed to awards fees and costs to a non-movement, but my hope is that trial court and courts of appeal will simplify and that would be an absurd result to read it as written, but we live in the state that we adhere to the plain text and there is a lot of value in doing that in many cases. I don’t know what the courts are going to do. I also wish that legislator would have clarified the effective date of the statute because it just says to an action filed on or after September 1, 2020 and we don’t know, is an action, a legal action, is an action a lawsuit, is an action something different? I think that we are about to see a whole croak of opinions dealing with what the effective date means. If the legislator amends the statute in the future, I would hope they’d be more clear.

I hope if someone reading that would consider to tack those on to anything that might be a flip as far as future amendments. We thought we might pick your brain on some substantive issues. We won’t spend a long time talking about this. I’ll throw one out there. I’ve got two. The first one that I have found interesting in my dealings with the statute, this is like stump, the TCPA expert, Jody.

Do I need to clear conflicts first?

I don’t think so. I’ve seen a few opinions on sanctions that basically have said, “There’s no need for deterrence here. This was a one-time thing. I’m going to award either, a dollar nominal sanctions or zero.” Is there a trend to find on that or it’s going to be, make your best argument if you’re the party being sanctioned or this is completely against the statute or what are you thinking about that based on what you’ve seen?

We’ve had about eight opinions that hold, you can do a nominal award. There’s one opinion that says a $0 award isn’t reversible error unless you prove harm. It’s the same standard as always, you have to prove harm to get a reversal. It’s totally fine to give the trial judge discretion, even under a mandatory sanctions’ statute. If the trial judge has seen or smelled the evidence and that’s their job, and they don’t believe that any further sanction is necessary to deter a party from filing a similar legal action, that awarding a $1 nominal sanction is fine. Under the new statute, they have full discretion not to award any sanctions.

That issue has been resolved, but under the old text, I think that’s the trial judge’s determination and it’s reviewed for abuse of discretion. As the movement, if you want sanctions, this is true under the old or new statute, you have an evidentiary burden to put forward some evidence to explain to the trial court, what is going on in this case, why are sanctions needed to prevent further SLAPP actions from being filed by that particular party? In some cases, there has been robust evidence about why you need to sanction a party to prevent further SLAPP actions and you can look at those opinions for ideas on what type of evidence to put forward in the trial court. The movements have to remember, they have an evidentiary burden. It’s not just, “Give me.”

The thing that I’ve always thought was interesting is 27.011 about construction, how it says, this doesn’t aggregate or lessen any other defense or remedy. I haven’t seen courts use that as a way around the statute. Have there been opinions where courts have said, “There is a conflict here and we’re going to go with this other statute?” I know non-compete preemption was a hot topic on that subject, but I haven’t been following it in the last year or so on what’s going on. Have there been any findings or rulings on that issue?

No, not really. There are very few cases that even cite that provision. It’s a very interesting question about whether sovereign immunity would prevent a monetary award against a governmental party when the governmental party is the non-movement. Meaning the party that brought the claim and a private party says, “The government’s claim against me should be dismissed and I should get fees and sanctions against the government.” The sovereign immunity prevents that award that has not been answered because it’s a rare circumstance that you have a party seeking to dismiss a claim by a government, but it has happened in cases I’ve been involved in. There is no answer on the sovereign immunity question.

The second thing that I wanted to bring up was the whole idea of supersedeas of a TCPA order. The trial 24.2 in an ordinary context, you have to put up the actual damages, interests and costs. I haven’t seen any cases on this, sent it to the TCPA that I can remember. It seems like there’s some room to argue if you’re the non-movement and you’re the recipient of the bad order that says, $100,000 in sanctions and $100,000 in attorney’s fees that you might get a free pass on superseding that order under the traditional methods like bond or a cash deposit, they don’t fall within the 24.2 context.

I agree with you that the Texas Supreme court has been abundantly clear that a judgment debtor is not required to post supersedeas bond or deposit to cover the amount of attorney’s fees or sanctions. Those are not compensatory damages. Sanctions, of course, are punitive in nature and there’s nothing under the TCPA that would make the award of monetary attorney’s fees any different than any other statutory award of attorney’s fees that is not an award of damages. There is a carve out for a narrow type of case. In Ray Nalley plastics, the example, the Supreme court talked about what was a claim by an attorney going after a client for a failure to pay a prior fee bill and when you’re being awarded “fees” those are damages. That’s not true with a fee award under the TCPA. That is a statutory fee shifting provision. I don’t think that judgment debtors, non-movements who’ve been hit with a fee award, are required to bond around it.

It seems like there’s still an open question about how, if you need to do something to supersede the TCPA order while you’re taking your interlocutory appeal. There’s some gray area in there that may need to be developed through some further case law, but I’m not anxious to be the one to develop that law.

I love that we’re talking about this because early in my career, before I started speaking about the TCPA, you and I had a great little paper on supersedeas practice and it was fun to go around and give that presentation with you. Maybe we’ll pair back up on this.

TALP 27 | TCPA Amendments

TCPA Amendments: There are some things in the 2019 TCPA amendment that still need correcting, but the legislature has other priorities right now.

 

It’s time that we update that paper, but I don’t know when you’re going to have time.

All kinds of spare time.

We’re coming to the end of the time that we generally have allotted for conversations with our guests. We want to say, thank you, Amanda, for being with us. It’s been super informative. I always learn something about the TCPA and many other topics when you and I get the chance to visit.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.

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About Amanda Taylor

TALP 27 | TCPA AmendmentsAmanda serves as Practice Group Leader for Butler Snow’s Appellate Group. As a Board-Certified Civil Appellate specialist, Amanda helps to shape successful case strategy from the outset of litigation through the end of an appeal.  Amanda is a detail-oriented lawyer who represents her clients with passion, stays current on emerging trends and issues, and brings a practical perspective to problem solving.  She has a broad range of experience handling complex civil disputes regarding contracts, fraud, tax, insurance, products, employment, real property, and trust and estates.  Amanda is also committed to community service through a number of positions in her State and Local Bar Associations.