2019 Legislature Narrows Texas Citizens Participation Act to Clean Up Eight-Year Mess

Posted on Jun 12, 2019

On June 2, 2019, Governor Abbott signed a bill amending the Texas Citizens Participation Act (“TCPA” or “Act”) to clarify and narrow its scope. The changes will help slow a years-long torrent of litigation over the meaning and reach of the legislation.  

In 2011, the 82nd Legislature passed the TCPA to protect citizens’ rights to petition, speak, associate, and otherwise participate in government. To that end, the Act introduced an expedited dismissal procedure for claims related to a defendant’s exercise of such rights. In short, once a defendant established a nexus between a claim asserted against him and his statutorily protected right(s), the plaintiff had to present clear and specific evidence of the claim to avoid dismissal. It seemed like a good idea at the time.

Eight years and over 270 appellate decisions later, the TCPA has spawned far more litigation than it has prevented. The culprit was nebulous drafting in the 2011 bill. For instance, the TCPA’s dismissal procedure was originally available against any claim “relate[d] to” the “[e]xercise of the right of association,” which the Act defined as any “communication between individuals who join together to collectively express, promote, pursue, or defend common interests.” But the Act gave no meaningful guidance as to the intended meaning of “common interests,” which could hardly be any fuzzier. As a result, the Act’s dismissal procedure was facially available against any claim related to any communication by or to any individual defendant about any interest he or she held in common with the other communicant. The legislation appeared to embrace nearly every cause of action imaginable, arguably including claims arising from co-defendants’ conspiracies to commit unlawful acts. Defense counsel started filing TCPA dismissal motions left, right, and center. Appeals ensued. Splits in authority appeared, then widened. TCPA jurisprudence became an unmanageable mess.    

The Legislature has now cleaned up the Act by, among other things: (1) tightening the nexus required between a legal action and a defendant’s protected right(s) in order to invoke the dismissal procedure; and (2) narrowing the “common interest[s]” that qualify for right of association protection. The new changes also explicitly exempt certain causes of action from the Act’s scope, including employment claims over misappropriation of trade secrets, non-compete agreements, and usurpation of corporate opportunities.

While the Act still isn’t perfect, these amendments will increase stability and predictability in future TCPA litigation. Branscomb has handled numerous cases under the old TCPA regime and is prepared to tackle disputes under the new one as well. Contact Clinton Twaddell at (512) 735-7809.