The Texas Citizens Participation Act (TCPA), or anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, is a heavily litigated topic in Texas. The TCPA is designed “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002. It “protects citizens. . . . from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015).
But is a TCPA motion a proper vehicle to challenge standing and, thus, the subject-matter jurisdiction of the court ab initio and, if so, how does it work? Despite the girth of Texas caselaw regarding the TCPA, there are few Texas cases specifically addressing this important issue. On Tuesday however, the Houston [1st Dist.] Court of Appeals issued a detailed opinion discussing this issue and concluded that—even when standing is challenged in a TCPA motion—it does not mean that a court must analyze that challenge using the TCPA’s burden-shifting procedure. See Reynolds v. Sanchez Oil and Gas Corp., No. 01-18-00940-CV, 2023 WL 3311116, at *5 (Tex. App.—Houston [1st Dist.] May 9, 2023, no pet. h.) (“Reynolds”).
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