Motion to Dismiss Pursuant to the Texas Citizens Participation Act in Texas

What Is a Motion to Dismiss Pursuant to the Texas Citizens Participation Act?

Background

The Texas Citizens Participation Act (TCPA) protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them. (Tex. Civ. Prac. & Rem. Code §§ 27.001 –.011.)

The protection consists of a special motion for an expedited consideration of any suit that appears to stifle the defendant's communication on a matter of public concern. (Id. § 27.003.)

In reviewing this motion, the trial court is directed to dismiss the suit unless “clear and specific evidence” establishes the plaintiffs' “prima facie case.” (Id . § 27.005(c).) When applying the Act's requirement for clear and specific evidence, however, the courts of appeals disagree about the role of circumstantial evidence. (In re Lipsky (2015) 460 S.W.3d 579, 580-81.)

How to Structure the Motion

The Act provides a special procedure for the expedited dismissal of such suits. A two-step process is initiated by motion of a defendant who believes that the lawsuit responds to the defendant's valid exercise of First Amendment rights. (Id.)

Procedural Step One

Under the first step, the burden is initially on the defendant-movant to show “by a preponderance of the evidence” that the plaintiff's claim “is based on, relates to, or is in response to the [movant's] exercise of:

the right of free speech;
the right to petition; or
the right of association.”

(Tex. Civ. Prac. & Rem. Code § 27.005(b).)

Procedural Step Two

If the movant is able to demonstrate that the plaintiff's claim implicates one of these rights, the second step shifts the burden to the plaintiff to “establish ... by clear and specific evidence a prima facie case for each essential element of the claim in question.” (Id., § 27.005(c).)

If the nonmovant fails to satisfy its burden under section 27.005(c) to present a prima facie case, the trial court must dismiss the action within the TCPA's expedited time frame. (Morrison v. Profanchik (2019) 578 S.W.3d 676, 680 citing id. § 27.005(c)–(d); see also id. §§ 27.003(b), .004, .005(a), .007(b), .008 [establishing deadlines.])

If the nonmovant establishes the required prima-facie case, the movant may still obtain dismissal by establishing “by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim.” (Id. § 27.005(d).) In determining whether TCPA motions to dismiss should be granted, courts are to consider the pleadings and supporting and opposing affidavits on which the claim or defense is based. (Id. § 27.006(a).)

Timeline

The TCPA sets deadlines for the filing of a motion to dismiss, hearings on the motion, and the time in which the trial court must rule. (Mesquite Servs. v. Standard E&S, LLC (2020) No. 07-19-00440-CV, Tex. App. Ct. 1, *6 citing §§ 27.003(b), .004 (West 2015), .005(a).)

Discovery and Ruling by Court

The filing of a motion to dismiss suspends discovery unless the trial court orders specific and limited discovery upon the showing of good cause. (Id., citing §§ 27.003(c), .006(b) [West Supp. 2019].) If the trial court does not rule on the motion to dismiss within thirty days after it holds the hearing mandated by section 27.004, the motion is overruled by operation of law. (Mesquite Servs., id., citing § 27.005(a).)

“The court may allow specified and limited discovery relevant to the motion on a showing of good cause, but otherwise all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.” (Serafine v. Blunt (2015) 466 S.W.3d 352, 357.)

The Court’s Decision

In deciding on the breadth of judicial interpretation of the statute, reviewing courts have held that “[a] court may not judicially amend a statute by adding words that are not contained in the language of the statute. Instead, it must apply the statute as written.” (Lippincott v. Whisenhunt (2015) 462 S.W.3d 507.)

In reversing the appeal court's decision in Lippincott, the Texas Supreme Court went on to explain that:

“The court of appeals held that the Act [Texas Citizens Participation Act] only applies to communications that are public in form. But the plain language of the Act merely limits its scope to communications involving a public subject—not communications in public form. Accordingly, we reverse the court of appeals' judgment and remand to that court for further proceedings consistent with this opinion.”

(Id.)

In discussing how exactly to construe the statute, appeal courts have held that “[the] objective is to determine and give effect to legislative intent. (See Nat'l Liab. & Fire Ins. v. Allen (2000) 15 S.W.3d 525, 527 (Tex. 2000). In elaborating further on statutory interpretation, courts have also held that “[a]lthough the plain meaning of the text is the best expression of legislative intent," this is not true when "a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.” (Molinet v. Kimbrell (2011) 356 S.W.3d 407, 411.) And finally, in reiterating the limits to interpretation of the statute, at least one court has held that on appeal has stated that “ courts must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous.” (Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue (2008) 271 S.W.3d 238, 256.)

Documents for Motion to Dismiss Pursuant to the Texas Citizens Participation Act in Texas

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RETRACTABLE TECHNOLOGIES, INC vs. LOCKE LORD, LLP, et al document preview

PROPOSED ORDER GRANTING OBJECTION AND MOTION TO STRIKE - Motion - Exclude

5 pages

FILED 3/10/2023 3:49 PM FELICIA PITRE DISTRICT CLERK DALLAS CO.,…

Case Name RETRACTABLE TECHNOLOGIES, INC vs. LOCKE LORD, LLP, et al