Texas legislators are considering changes to the state's anti-SLAPP statute, known as the Texas Citizens Participation Act ("TCPA"), that could significantly increase litigation costs.

The TCPA provides a mechanism for litigants to seek dismissal of claims that impede their First Amendment rights. Currently, if a party's TCPA motion to dismiss is denied, the party has an immediate right to appeal. In turn, all discovery and proceedings in the trial court are automatically stayed. The newly proposed legislation would eliminate the automatic stay when the motion to dismiss is denied for three reasons:

1.  It was not timely filed;
2.  It is determined to be frivolous or solely intended to cause delay; or
3.  The action is exempt under Texas Civ. Prac. & Rem. Code Section 27.010(a), such as when "a legal action [is] brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer."

While this change may seem insignificant, the potential ramifications could be drastic. Eliminating the automatic stay in certain instances would prevent parties from using the stay as a litigation tactic, but it could require parties to litigate the same case simultaneously in both the trial court and the appellate court.