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.

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