Texas State Capitol building in downtown Austin, Texas, USA.
The Texas Legislature is back in session. That means a continuation of the effort to significantly scale back the effect of the Texas Citizens Participation Act (“TCPA”), which is the Lone Star State’s Anti-SLAPP law. Bills have been filed or re-filed that seek to do away with parts of the TCPA which give that law its teeth. The Bills are SB336, HB 2459 and HB 2988. As will be discussed below, the Bills all fail to address the real problem confronting Texas courts and litigants ― the judicial pink elephant in the room.
For instance, and despite research from the Institute for Free Speech which indicates that lower court judges very frequently commit error in hearing Anti-SLAPP motions, one Bill introduced in the Texas legislature would do away with the stay of a case while the denial of a motion is appealed, compounding the impact of abusive litigation filed in derogation of free speech rights. This means that a defendant faced with abusive litigation to stifle their free speech rights who has received a bad ruling from a Texas district court judge would have to continue to fight off the abusive litigation even if the ruling is later reversed.
Similarly, another Bill would change the award of attorney fees from mandatory to only discretionary for the defendant who has fought off abusive litigation to stifle their free speech rights. This removes what has proven to be a powerful deterrent to abusive litigants who bring SLAPP (“Strategic Lawsuits Against Public Participation”) suits in the first place. In fact, it would create a bounty for SLAPP plaintiffs. The court would have unlimited discretion to award fees if the lawsuit is covered by the TCPA.
Numerous court opinions not just from Texas, but nationwide over several decades, have amply demonstrated why it is important that folks defending against SLAPP suits need immediate appeal rights coupled with a stay and mandatory attorney fee awards against wrongdoers. Nonetheless, legislative attempts to pare back the TCPA arise every session, usually cite bad information ― such as the claim that Anti-SLAPP motions are clogging the Texas Courts of Appeals, when the truth is that they constitute only about 1/2 of one percent (0.5%) of all appeals according to a detailed study of the Reporters Committee for Freedom of the Press for the years 2011 to 2023.
If the existing provisions of the TCPA are necessary to give that law its teeth, and the information used to justify proposed changes to that law is somewhere between sketchy and outright false, then why do these legislative efforts to change the TCPA persist?
To find the answer to that question, you have to go back to 1941. In that year, the Texas Supreme Court entered an order which adopted new civil procedure rules, including the Rules of Practice in District and County Courts. These new rules substantially updated Texas procedure to bring it into the 20th Century while more closely aligning Texas law with the new Federal Rules of Civil Procedure (FRCP) which had been adopted in 1938 ― with one exception that would continue to plague the Texas courts to this day.
The FRCP, which was adopted by most states as the model for their own civil procedure rules, allows for a defendant to bring an early summary judgment motion, known as a Rule 12(b)(6) motion to dismiss, to attempt to kick out claims that have neither legal merit or factual basis. The Rule 12(b)(6) motion to dismiss does not weigh the evidence that is presented by the parties, but it does look to see whether the plaintiff’s case as at least a minimally-sufficient factual basis that a jury verdict based on that evidence could be sustained ― the very same standard employed in determining a summary judgment motion. Thus, lawsuits that are devoid of legal or factual merit can be quickly poured out by the federal courts and states courts operating under the FRCP.
This bring us back to the pink elephant in the TCPA room. The pink elephant is that Texas does not have an effective analog to the Rule 12(b)(6) motion to dismiss. This means that every time somebody in Texas receives a lawsuit that they believe is devoid of merit and should be immediately dismissed, there is nothing that they can normally do about it. So the defendant then starts thinking of using a TCPA motion, even though the underlying lawsuit isn’t about protected speech. The result is that in Texas, a lot of Anti-SLAPP motions are filed in cases having utterly nothing to do with free speech. Or, stated otherwise, the abuse of the TCPA motion is no more than a symptom of a disease, with the disease being Texas’ lack of a Rule 12(b)(6) analog.
What this means is that if the Texas legislature really wanted to fix the perceived problems of abuse of the TCPA motion, then the real solution is to create a Rule 12(b)(6) analog in the Texas civil procedure rules. For completeness, I note that Texas does have Rule 91(a) which provides for a motion to dismiss of “Baseless Causes Of Action”, but that rule has no teeth because ― totally unlike Rule 12(b)(6) ― it does not permit a court to determine whether the minimum evidence is present to survive a motion to dismiss, and the fee award is merely discretionary. As a result, the Rule is seldom used.
I presume, without knowing, that the Texas legislature does not want to come up with its own analog to Rule 12(b)(6) because there would be stiff opposition from the trial lawyer’s bar, but that’s not a problem of the TCPA either. Barring a Rule 12(b)(6) analog, the other thing that the Texas legislature could do would be to make it easier for the Texas district and county courts to levy significant sanctions against the counsel who abuse Texas’ Anti-SLAPP laws on behalf of their clients. This may be treating the symptom but it is vastly preferable to neutering the TCPA and the protections it provides to all Texas citizens as the present proposed Bills seek to do.
Whether any of these Bills will gain broader traction within the Texas legislature this session remains to be seen, but they are all just bad ideas arising both from flawed data and the larger failure of the legislature to address the lack of a Rule 12(b)(6) analog.
Stay tuned.