Back in June 2011, Governor Perry signed into law the Texas
Citizen Participation Act (codified as Chapter 27 of the Texas
Civil Practice and Remedies Code). The act, also as known as the
Anti-SLAPP (Strategic Lawsuits Against Public Participation)
statute, gives significant protections to citizens who speak out on
"matters of public concern," as specifically defined by
the statute. This protection applies broadly to individuals as well
as companies and other groups or associations.
The Anti-SLAPP act does this by setting out a clear procedure for
the dismissal of suits shown to suppress free speech. If the party
bringing the motion (usually the defendant) can show by a
preponderance of the evidence that the lawsuit relates to the right
to free speech, petition, or associate, the burden then shifts to
the nonmovant (usually the plaintiff) to show by clear and
convincing evidence a prima facie case for each element of its
claim. If the plaintiff can't meet this higher standard of
proof, then the suit gets dismissed.
Parties have generally made effective use of this procedure. But a
conflict arose among the courts of appeal as to whether an
interlocutory appeal was available when the trial court denied an
Anti-SLAPP motion to dismiss.
HB 2935 resolved this conflict by adding subpart (12) to TCPRC
51.014(a). Effective June 14, 2013, an interlocutory appeal is
available for the denial of a Chapter 27 motion to dismiss. An
interlocutory appeal for a section 27.003 motion to dismiss also
automatically stays all trial court proceedings under TCPRC
51.014(b) until the appeal is resolved.
HB 2935 also extended the original hearing deadlines on Anti-SLAPP
dismissal motions filed under TCPRC 27.003. Previously, the hearing
deadline was 30 days after service of the motion, with some ability
to extend depending on docket conditions. Under HB 2935, as of June
14, 2013, a dismissal motion must be heard within 60 days after
service of the motion (or 90 days with a 30 day agreed extension)
and within a maximum of 120 days if the court permits
discovery.
Another change in HB 2935 also recognizes the ability of the
defendant to prevail on its motion to dismiss by showing it has a
valid defense to the plaintiff's claim. Now, if the plaintiff
can show clear and convincing evidence of a prima facie case on all
the elements of its claims, the defendant can still save its motion
to dismiss with a showing by a preponderance of the evidence on
each element of its defense.
A final tweak in HB 2935 also adds an exemption from Chapter 27 to
lawsuits involving insurance services (§ 27.010(b)) and
lawsuits brought under the Insurance Code or arising out of an
insurance contract (§ 27.010(d)).
The takeaway: There is no question that the denial of an
Anti-SLAPP motion to dismiss is the proper subject of an
interlocutory appeal; parties have more time to prepare for their
Anti-SLAPP hearing, but with a maximum limit; defendants can save
their motion by proving their defenses; and the insurance
industry's exemption from the Anti-SLAPP statute has
expanded.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.