What to Do When You Receive a Subpoena or Rule 202 Petition: One Defense May be Filing a TCPA Motion to Dismiss

Chris Hanslik, Kasi Chadwick

May 5, 2017

The Texas Citizens Participation Act (“TCPA”) is the statute du jour in Texas courts.

The TCPA is an anti-SLAPP statute that allows for early case dismissal if the lawsuit is related to a party’s exercise of certain constitutional rights. Anti-SLAPP statutes are laws designed to curb “strategic lawsuits against public participation.” Legislatures in many states have passed anti-SLAPP laws in an effort to stop the filing of lawsuits brought to drown dissenters in litigation (and legal fees.) At their core, anti-SLAPPs are designed to protect citizens’ constitutional rights and typically are aimed to protect citizens’ freedom of speech, right to petition the government (including the courts), and freedom to association.

When a TCPA motion is successful, the TCPA movant is statutorily entitled to an award of their attorney’s fees—that’s one reason the TCPA is so popular. For more on the basics of the TCPA, click here and here.

Lately, Texas courts have grappled with the limitations of the TCPA. Does the TCPA apply to legal proceedings that aren’t quite full-fledged lawsuits? The answer appears to be yes—for now.

In addition to formal lawsuits, Texas courts regularly consider Rule 202 petitions (pre-suit deposition designed to investigate a potential lawsuit) and subpoenas (discovery tool typically sent to third parties in effort to collect information.) The TCPA’s broad definitions—and Texas courts’ recent interpretations of those definitions—suggest that the TCPA may be applicable to these non-petition filings.

First, the TCPA has a rather robust set of definitions and provisions. The TCPA allows dismissal of a “legal action” that is based on certain constitutional rights. In the TCPA context, “legal action” is broadly defined. Further, per the statute, the TCPA should be “construed liberally to effectuate its purpose and intent fully.” In considering whether to apply the TCPA to legal filings that are not full-fledged lawsuits, Texas courts have principally relied on these provisions.

As an example, the Austin Court of Appeals recently applied the TCPA to a Rule 202 discovery request. In this case, the plaintiff filed a Rule 202 petition seeking pre-suit discovery. The defendant moved to dismiss using the TCPA.

Upon filing of a TCPA motion, per the statute, the parties’ discovery efforts are automatically halted until the motion is decided. As a Rule 202 petition is a pre-suit discovery tool, the question before the Austin court was whether the filing of a TCPA motion stayed the Rule 202 deposition. The trial court answered in the negative. On appeal, the Austin Court of Appeals reversed.

In ruling that the TCPA’s automatic stay was triggered, the Austin Court of Appeals relied on the TCPA’s purpose:

…To encourage and safeguard the constitutional rights of persons to … speak freely … 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.

The Austin Court of Appeals then examined the TCPA’s definitions and concluded that “legal action” included Rule 202 petitions. After all, legal action in the TCPA is defined as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” In other words, the Austin Court of Appeals held that the TCPA was not just applicable to full-fledged lawsuits.

The Austin Court of Appeal’s decision further opens the door for TCPA dismissal of other pre-suit filings aside from Rule 202 petitions. Other states have similar anti-SLAPP statutes like the TCPA, and at present, Texas courts often look to other jurisdictions for guidance. It is worth noting that other courts in other jurisdictions have held that subpoenas and other non-petition filings are subject to dismissal under their respective anti-SLAPP statutes. It is likely that Texas courts will also go this way.

For those opposing a TCPA motion, the prevailing question remains: Is this a good use of the statue? As to the TCPA, Texas courts remain strict textualists employing the TCPA word-for-word as possible. Given that the Texas Legislature expressly chose “legal action” (instead of “petition” or “complaint”) in drafting the TCPA, applying the TCPA to non-petition filings is arguably a proper use of the statute.

For now, until more TCPA cases percolate through the Texas appellate courts or until the Texas Legislature clarifies the statute, the TCPA may be a route to early case disposal—with attorney’s fees—for Rule 202 petitions and subpoenas too.