Since 2011, lawyers have successfully won dismissal of a wide range of case types, then collected attorney fees, using a motion to dismiss under the Texas Citizens Participation Act, the state's anti-SLAPP law.

This might change soon as the Texas House on Tuesday voted 143-1 to pass a bill that would narrow and limit the anti-SLAPP law only to legal actions that implicate free speech, free association and freedom to petition the government.

“The TCPA has sometimes been applied in ways the legislature never intended,” Rep. Jeff Leach, R-Plano, told lawmakers April 29 when the House debated House Bill 2730. “Corrections need to be made to fix unintended consequences.”

Jeff Leach Rep. Jeff Leach, R-Plano

The 2011 law was originally meant to protect Texans' First Amendment rights by curbing strategic lawsuits against public participation by allowing quick dismissal of these claims and awarding costs and attorney fees to prevailing parties.

Leach said his bill would keep those protections for the media and regular Texans. But he also told lawmakers that lawyers have argued to use the law well past that to dismiss family law and trade secrets cases.

Plus, recent appellate court rulings show the anti-SLAPP law invoked to toss out breach-of-contract actions and attorney-discipline cases.

But the proposed law would curb this.

HB 2730 adds a long list of exempted case types that can't use the anti-SLAPP motion to dismiss. It would exempt: employment law cases involving theft of trade secrets of corporate opportunities; disputes over the enforcement of nondisparagement or noncompete agreements; certain family law matters; protective orders; fraud claims; certain cases under the business and commerce code; eviction suits; State Bar of Texas lawyer discipline lawsuits; and more. The bill also limits the definition of speech on a “matter of public concern” so it can't be so widely interpreted.

Rich Robins, an attorney and the editor of TexasBarSunset.com in Houston, said he opposes the provision that exempts lawyer discipline cases.

“The bar is fond of filing intimidation lawsuits that are groundless so they can distract people from policing the bar,” Robbins said. “It's something the anti-SLAPP statute can help protect us from.”

But Laura Prather, a First Amendment lawyer who participated in negotiations on HB 2730, said that most stakeholders felt the law shouldn't dismiss attorney discipline cases, or suits involving trade secrets or noncompete agreements. She added that the law was being abused by “gamesmanship by lawyers” who did things like file anti-SLAPP motions on other anti-SLAPP motions, or motions for sanctions.

“That will be addressed as well in the bill,” said Prather, partner in Haynes and Boone in Austin. “I feel the legislation strikes a nice balance. I think it will protect citizens and the media.”

Mark Walker, a business litigator who represents plaintiffs and defendants, said he's filed and defended against anti-SLAPP motions to dismiss and also written and spoken on the topic. The 2011 law had language that was so broad that smart lawyers who wanted to represent their clients well could find arguments to make the law work for them. Appellate courts interpreted the law's language very broadly, he noted.

“If you can get a case dismissed and get a reward of fees, then by all means, for your client, you want to try to do that,” he explained, adding that if HB 2730 passes, it means lawyers will have to proceed with discovery and arguing the merits of their cases, which he favors.

Christopher Kratovil, managing member of the Dallas office of Dykema, said that anti-SLAPP motions have been used in any type of civil litigation involving any aspect of human communications.

“The TCPA is a procedural freak show,” Kratovil said. “It creates a tremendous amount of upfront expense and upfront delay for plaintiffs who are pursuing meritorious claims, far removed from the First Amendment.”

Kratovil typically represents defendants and has filed anti-SLAPP motions to dismiss, which typically helped his clients.

“That doesn't make it a good law or wise law or well-drafted law,” he explained. “It needs to be reformed.”

Now that it's cleared the House, HB 2730 will head to the Texas Senate. Within the last four weeks of the legislative session, it must beat upcoming deadlines to advance through a Senate committee hearing, pass committee and reach the Senate for passage. If senators change the bill, the House may have to reconsider it. At the end, Gov. Greg Abbott would have to approve the bill before it becomes law.

Prather said she thinks the bill will pass as long as the Senate does not tinker with provisions that all the stakeholders agreed upon after lengthy negotiations.

She said, “If it changes form in any way, so it's no longer agreed upon, then it will be much more difficult.”

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