SUBSTITUTE OPINION We deny appellees’ motion for rehearing, withdraw our prior opinion dated June 2, 2022, and issue this substitute opinion in its stead. Appellees sued Union Pacific for claims related to Union Pacific’s contamination of residential neighborhoods in Houston with creosote, a probable carcinogen. The trial court denied Union Pacific’s motion to dismiss appellees’ “property-damage claims” under the Texas Citizens Participation Act (TCPA).[1] In a single issue, Union Pacific contends that the trial court erred by denying the motion. We affirm in part, reverse in part, and remand for further proceedings. TCPA Legal Principles The TCPA was designed to protect a defendant’s rights of speech, petition, and association while protecting a claimant’s right to pursue valid legal claims for injuries caused by the defendant. Montelongo v. Abrea, 622 S.W.3d 290, 295 (Tex. 2021) (citing Tex. Civ. Prac. & Rem. Code § 27.002)). To accomplish this objective, the TCPA provides for a multi-step process for the dismissal of a legal action to which it applies. See id. First, the movant must demonstrate that the legal action is “based on or is in response to” their exercise of the right of free speech, petition, or association. Id. If the movant meets this burden, the claimant may avoid dismissal by establishing by clear and specific evidence a prima facie case for each essential element of the claim in question. Id. Moreover, a claimant may avoid dismissal by establishing that the legal action is exempt from the TCPA under a specific statutory exemption. Hieber v. Percheron Holdings, LLC, 591 S.W.3d 208, 210–11 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (citing Tex. Civ. Prac. & Rem. Code § 27.005(d)). A “legal action” means a “lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief.” Tex. Civ. Prac. & Rem. Code § 27.001(6). An “exercise of the right of free speech” means a communication made in connection with a matter of public concern. Id. § 27.001(3). An “exercise of the right to petition” means, among other things, (1) a communication in or pertaining to “an executive or other proceeding before a department of the state or federal government,” or (2) “a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding.” Id. § 27.001(4).[2] An “exercise of the right of association” means to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern. Id. § 27.001(2).
