Volume 52 |  Number 1

Targeting the Texas Citizen Participation Act: The 2019 Texas Legislature’s Amendments to a Most Consequential Law

     Amy Bresnen, Bresnen Associates, Inc.
     Lisa Kaufman, Davis Kaufman, PLLC
     Steve Bresnen, Bresnen Associates, Inc.

Few laws enacted by the Texas Legislature in recent decades have had a
greater impact on civil litigation than the Texas Citizen’s Participation Act
(“TCPA”).  The original statute’s seemingly boundless application confounded judges obligated to apply the law as written.  Although the original TCPA legislation passed through the Legislature unanimously, after eight years in existence, the desire to narrow the statute’s scope united a wide array of legal, business, and even medical groups—including organizations frequently at odds with each other. During the Texas 86th Legislature Regular Session (2019), those groups put aside their traditional differences toward one goal: fixing the TCPA in order to save the statute from itself.  In response to widespread calls for change, the bill passed with only one vote against it. The new law became effective September 1, 2019 and now applies to actions filed on or after September 1, 2019.

The 2019 revisions fell into four broad categories: (1) Narrowing key definitions, including, most importantly, the definition of “matter of public concern;” (2) Increasing the number of exemptions; (3) Broadening protections for the media, consumer review platforms, domestic violence, and sexual assault survivors; and (4) Changing the procedures for resolving motions to dismiss.

Enacted in 2011, the TCPA is an “anti-SLAPP” statute—a species of law currently found in thirty-one states. “SLAPP” stands for “strategic lawsuits against public participation.” This Article provides a brief overview of the wide variety of state anti-SLAPP statutes and how they are typically intended to work. The authors also discuss some concerns with the original TCPA by describing significant cases which led to the demand for legislation.

With respect to Texas’s 2019 changes, this Article will cover the statute’s legislative history, including how legislators and stakeholders contributed to those changes.

Two areas of change will receive substantial additional focus: (1) the
narrowing effects of key definitions, especially the origin and meaning of “matter of public concern,” perhaps the most debated and controversial
change;10 and (2) broad protections for the media. We specifically focus on these two areas so lawyers will understand what informed the legislative changes to the “public concern” definition when litigating a TCPA motion and the reasons for expressly protecting the media—often the targets of SLAPP suits.

Finally, the Article will address new exemptions to the application of the TCPA, the operation of several “exceptions-to-exemptions,” and procedural changes which will affect how TCPA motions to dismiss are resolved.

Amy Bresnen, Lisa Kaufman & Steve Bresnen, Targeting the Texas Citizen Participation Act: The 2019 Texas Legislature’s Amendments to a Most Consequential Law, 52 ST. MARY’S L.J. 101 (2020).
Available at:  https://commons.stmarytx.edu/thestmaryslawjournal/vol52/iss1/1 

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