Texas Citizens Participation Act: Motion, Deadlines, and Appeal

The Texas Citizens Participation Act is the state’s anti-SLAPP law. It gives a defendant who has been sued over protected speech, petitioning, or associational activity a fast way to get the case thrown out: file a motion to dismiss within 60 days of being served, and the court has to stop discovery, hold a hearing on a compressed schedule, and rule. If the motion is granted, the plaintiff pays the defendant’s attorney’s fees and can be sanctioned on top. The statute was enacted in 2011 and significantly narrowed in 2019 so it applies to genuine public-participation disputes rather than ordinary commercial or personal-injury cases.¹

What Activity the Act Protects

The Act reaches lawsuits that are “based on” or filed “in response to” a defendant’s exercise of three constitutional rights: free speech, the right to petition, and the right of association. Before 2019, the statute also covered suits merely “related to” those rights. Removing that phrase was one of the Legislature’s most consequential changes, and it means the lawsuit now has to more directly target the protected activity.²

Free speech, for these purposes, means a communication made in connection with a matter of public concern, including statements about health, safety, environmental, economic, or community well-being, or about public officials or public figures. The right to petition covers statements connected to legislative, executive, or judicial proceedings, or made in a public forum about issues before a governmental body. The right of association covers communications between people who have joined together to pursue shared interests.³

Government entities, agencies, and government officials or employees acting in their official capacity cannot use the Act to dismiss suits filed against them. It exists to protect private citizens and organizations participating in public discourse, not government actors defending their own conduct.²

When the Act Does Not Apply

The 2019 amendments added a long list of lawsuits that are simply off-limits for a TCPA motion, whether or not any protected speech is involved. If your case falls into one of these categories, the motion-to-dismiss process is not available. The exemptions most likely to affect a defendant considering the Act include:

Government enforcement actions brought by the attorney general or a district or county attorney on behalf of the state or a political subdivision.
Commercial speech: suits against a business arising from the sale or lease of goods, services, or insurance products aimed at actual or potential customers.
Claims seeking recovery for bodily injury, wrongful death, or survival.
Insurance Code claims and claims arising from an insurance contract.
Claims arising from an employer-employee, officer-director, or independent contractor relationship that involve trade secret misappropriation, corporate opportunity theft, or enforcement of non-compete or non-disparagement agreements.
Actions filed under the Family Code, including divorce, custody, support, and protective orders.
Deceptive Trade Practices Act claims under Chapter 17 of the Business and Commerce Code, with a narrow exception.
Eviction suits.
Attorney discipline proceedings.
Government employee whistleblower claims.
Common law fraud claims.
Legal malpractice claims brought by a current or former client against their attorney.

That last one catches people off guard. Before 2019, attorneys facing malpractice suits sometimes filed TCPA motions arguing the underlying work involved protected petitioning activity. The Legislature closed that door.⁴

Filing the Motion: The 60-Day Deadline

You must file the motion no later than the 60th day after you are served with the lawsuit. The parties can agree to extend the deadline, and the court can grant more time for good cause, but a defendant who misses the window without an extension loses the right to use the Act entirely.²

The motion has to identify the specific communications or conduct the lawsuit targets and explain why those fall within the Act’s protection of free speech, petition, or association. File it in the court where the lawsuit is pending. Give the other side written notice of the hearing date at least 21 days in advance. The plaintiff’s opposition is due seven days before the hearing, unless the parties agree otherwise or the court orders a different schedule.²

Discovery Stops Automatically

Filing the motion immediately suspends all discovery. Depositions, document requests, interrogatories, and other investigative procedures stop until the court rules. This is one of the statute’s most powerful features, because it prevents a plaintiff from running up the defendant’s costs while the threshold question of whether the lawsuit even belongs in court is unresolved.³

The stay is not absolute. Either party can ask the court for narrow, specified discovery directly relevant to the motion, and the court can order limited discovery on its own. Good cause is required, and the court will permit only what is necessary to resolve the dismissal question.³

Hearing and Ruling Deadlines

The court must set a hearing within 60 days after the motion is served. A congested docket, agreement of the parties, or good cause can push that to 90 days, but not further.³

After the hearing closes, the judge has 30 days to issue a written ruling. If the judge fails to rule in that window, the motion is denied by operation of law and the defendant can immediately appeal. That built-in consequence keeps courts from sitting on the motion indefinitely.³

How the Hearing Plays Out

The hearing follows a three-step burden. The defendant carries the initial load, the plaintiff responds, and the defendant may get a final shot depending on what the plaintiff shows.

First, the defendant has to demonstrate that the lawsuit targets activity protected by the Act, meaning the claims are based on or filed in response to the defendant’s exercise of free speech, petition, or association. Fail this threshold, and the motion fails with it.⁵

Second, the burden shifts to the plaintiff. The plaintiff must present clear and specific evidence establishing a prima facie case for every essential element of the claim. This is a higher bar than ordinary pleading. Allegations in a petition are not enough; the plaintiff needs actual evidence.⁵

Third, even if the plaintiff meets that burden, the court must still dismiss the case if the defendant establishes an affirmative defense or other grounds showing entitlement to judgment as a matter of law. That is essentially the same standard used in summary judgment.⁵

The court considers the pleadings along with any evidence that would be admissible under the summary judgment rules.

If the Motion Is Denied: Immediate Appeal

A defendant whose TCPA motion is denied does not have to wait until the end of the lawsuit to challenge that ruling. Texas law specifically authorizes an immediate interlocutory appeal.⁶

Filing the appeal also automatically stays every proceeding in the trial court, not just the trial itself but depositions, motions, and every other activity, until the appeal is resolved. Courts of appeals have no authority to lift the stay for limited purposes. It holds until the appellate court decides or both parties agree to waive it.⁶

Fees, Costs, and Sanctions

If the court grants a TCPA dismissal, the financial consequences for the plaintiff are mandatory. The court must award the defendant court costs and reasonable attorney’s fees incurred in defending the suit. The judge has no discretion on whether to make the award.⁴

Beyond the fee award, the court may also impose sanctions on the plaintiff. The amount is discretionary, but the statute directs courts to set it high enough to deter that party from filing similar suits. A plaintiff who sues over protected speech risks paying both sides’ legal bills plus a penalty on top.⁴

The fee-shifting cuts the other way, too. If the court finds a TCPA motion was frivolous or filed solely to delay the case, it can award court costs and reasonable attorney’s fees to the plaintiff. The standard is high, but it gives plaintiffs a meaningful remedy when the statute is misused as a delay tactic.⁴

1
Texas Legislature Online. Texas House Bill 2973 – 82nd Legislature
2
State of Texas. Texas Civil Practice and Remedies Code 27.003 – Motion to Dismiss
3
State of Texas. Texas Civil Practice and Remedies Code Chapter 27 – Actions Involving the Exercise of Certain Constitutional Rights
4
State of Texas. Texas Civil Practice and Remedies Code 27.009 – Damages and Costs
5
State of Texas. Texas Civil Practice and Remedies Code 27.005 – Ruling
6
State of Texas. Texas Civil Practice and Remedies Code 51.014 – Appeal from Interlocutory Order