Two Anti-SLAPP Clean-Up Bills Filed with the Texas Legislature

The Texas Citizens Participation Act (TCPA or Texas Anti-SLAPP statute), Chapter 27 of the Civil Practice & Remedies Code, is intended to protect the exercise of First Amendment rights from harassing and chilling lawsuits. It permits defendants to quickly and easily dismiss a lawsuit based on, related to, or in response to a party's exercise of the right of free speech, right to petition, or right of association.  Enacted in 2011 and updated in 2013, the breadth of the definitions in this statute, as interpreted by Texas state courts, has resulted in unintended consequences, such as cutting off legitimate claims of trade secret misappropriation.

Now, two bills have been filed to try and clean up this statute. While both bills propose several amendments to the procedure for the motion to dismiss, the first, by Representative Jeff Leach (R-Plano), HB 2730 (Leach) /SB 2162 (Paxton), addresses the unintended consequences and over-broadness of the statute’s defined term “exercise of the right of association,” which the Leach bill proposes to amend to, “the exercise of the constitutional right to petition, speak freely, or associate freely.” More importantly, the definition of this defined term is changed from the broad, “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests” to the more pointed definition, “the exercise of the right to petition, speak freely, or associate freely as those rights are provided by the constitutions of this state and the United States, as applied by the courts of this state and the United States.”

This new definition is used in another section proposed to be revised by the Leach bill, Section 27.005(b), where it states: “a court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, or is in response to the party's exercise of the constitutional right to petition, speak freely, or associate freely.”

The second bill by HB 3547 (Moody), retains the statute’s original definition, the “exercise of the right of association means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests,” but clearly states that this “does not include a communication that is the basis of a claim asserting a misappropriation of a trade secret or a breach of a covenant not to compete.”