The Texas Citizens Participation Act, which went into effect June 17, 2011, provides a remedy against lawsuits based on statements, made or submitted in any form or medium, in connection with the defendant’s rights of association, free speech or petition. The act broadly defines these rights. Right of association means communication between individuals “who join together to collectively express, promote, pursue, or defend common interests.” Right of free speech means communication made in connection with a matter of public concern. Right of petition means a wide range of communications relating to governmental proceedings or issues under consideration by governmental bodies. A matter of public concern is also broadly defined to encompass the topics of health and safety, environmental, economic and community well-being, the government, public officials and public figures and goods, products or services in the marketplace.

The act gives defendants the ability to file a motion to dismiss claims that infringe the exercise of these constitutional rights. The court must hear the motion within 30 days of its filing, unless the docket is overbooked, and rule on it within 30 days of the hearing. If it fails to decide within 30 days of the hearing, the motion is deemed to have been denied, and the defendant is entitled to seek expedited review in the appellate court. Discovery activities are placed on hold from the time the motion is filed until the judge has ruled on it, although the court, at the request of a party or on its own, may order “specified and limited discovery relevant to the motion” to be conducted if the requesting party can show good cause for it.

In ruling on the motion to dismiss, a Texas court will first determine whether the defendant established that, more likely than not, the lawsuit arose from a protected association, free speech or petition activity. If that is the case, the judge will grant the motion unless the plaintiff can establish by “clear and specific” evidence, a higher standard than the “more likely than not” one required of the defendant, that the claim is likely to succeed on its merits. In making this determination, a Texas court will consider the plaintiff’s complaint, the SLAPP defendant’s motion to dismiss and any sworn statements containing facts on which the assertions in those documents are based.

If the court grants the motion to dismiss, it will impose costs, attorney fees “and other expenses . . . as justice and equity may require” on the other party. Moreover, the court must sanction the plaintiff “as the court determines sufficient to deter [him] from bringing similar actions.” Conversely, if the court finds that the motion to dismiss was frivolous or brought solely to delay the proceedings, it may — but is not required to — order the defendant to pay the plaintiff’s costs and attorney fees. Either party is entitled to expedited review of the court’s decision on the motion to dismiss.