I previously wrote about the proposed changes to the Texas Anti-SLAPP law in my article, Don’t Make A Mess Out Of The Texas Citizens Participation Act (March 27, 2023). That legislation (SB896/HB2781) has now made its way out the judiciary committees of both the Texas Senate and House and will soon come up for a full floor vote. Those committees didn’t seem to be particularly interested in determining the root causes of the current problems with the TCPA or listening to alternatives to address those issues. Instead of using a scalpel to carefully excise the problems with the TCPA, these committees have resolved on a carpet-bombing approach that seems to have as its only certain result that there will be a lot of collateral damage.
The purpose of Anti-SLAPP laws is to shield litigants from being exposed to the costs and expenses of lawsuit claims that infringe upon their constitutional rights to free expression. The Anti-SLAPP laws, and including the TCPA as currently drafted, do this by imposing a stay on litigation that involves these protected constitutional rights. Because state trial courts are not familiar with constitutional issues (such cases are usually handled by the federal courts), the state trial courts frequently get these issues completely 100% wrong, and thus Anti-SLAPP laws provide for the stay on litigation to continue through the appeal as well. Otherwise, if there was no stay during the appeal, if the trial court indeed made an error and overruled the TCPA motion, the litigant would have to spend a lot of money fighting a claim that would ultimately be reversed.
This point must be emphasized: The Texas trial courts very frequently get wrong the issues of whether a TCPA motion to strike is timely, whether the plaintiff’s cause of action is challengeable under the TCPA, and whether the TCPA motion itself was frivolous or in bad faith. But another point is just as important: It usually takes the Texas Court of Appeals literally some years to fix the trial court’s error — usually, at least two years and over five years in some cases.
Without the automatic stay of activity at the trial court during the appeal, the party whose constitutional rights are being violated will have to continue to put out a great deal of money (which they will never recoup) to fight the litigation on the merits, even though a reversal by the Court of Appeals would mean that all that litigation expenses for all parties essentially is laid waste.
Unfortunately, some litigants and attorneys in Texas have unethically misused the TCPA procedure to obtain the stay in cases where the TCPA was never meant to apply, and thus denied legitimate plaintiffs with valid non-constitutional claims their own right to have their cases heard and resolved in a timely fashion. There are many reasons for this result, including that Texas is very weak on giving discipline to attorneys and terminating sanctions to parties who file frivolous motions, the Texas Civil Practice & Remedies Code allows demurrers and amended pleadings to be filed long after the case was initiated (which then, perversely, allows for TCPA motions long after the case has already been rolling along) and does not allow for early challenges to a lawsuit as with a Rule 12(b)(6) motion under the Federal Rules of Civil Procedure (and analogous rules adopted by the vast majority of states), and, finally, the Texas Court of Appeals is terribly underfunded and undermanned thus leading to sometimes many years’ delays in hearing what should be routine appeals.
These are the real issues, and trying to add more bailing wire and duct tape to the TCPA is not going to address these underlying problems that are only finally manifesting themselves in the TCPA. Until these other much more serious and pervasive issues are addressed, any changes to the TCPA will be little more than changing the shade of the lipstick put on the pig.
But that is exactly what is now being proposed to the Texas legislature: More bailing wire and duct tape in the form of not imposing the automatic stay where the trial court has held the motion to be in bad faith, untimely, or outside the scope of the TCPA’s protections.
The existing language of the TCPA itself should not be changed for the simple reason that such change is not even necessary Instead, changes to other parts of the Texas Civil Practice & Remedies Code are both technically preferable and are likely to be less politically contentious.
The way this works now is that an automatic stay of litigation at the District Court level arises under the Texas Civil Practice & Remedies Code § 51.014(b) whenever an appeal is made by a party who has filed an appeal when their TCPA motion has been denied. This is not a problem in the abstract, nor is it a problem in most other states that have adopted the UPEPA or other Anti-SLAPP legislation. It is a problem in Texas, however, because various bad actors misuse the stay by way of bad faith TCPA filings ― essentially, some Texas lawyers have effectively “weaponized” § 51.014(b) as a dilatory tactic.
The technical problem is that § 51.014(b) currently does not provide a mechanism for the Court of Appeals to lift or otherwise modify the stay. The result is that the Court of Appeals has been handcuffed in its ability to deal with the bad faith TCPA filings.
The solution now being proposed to the Texas legislature is to simply eliminate the automatic stay in certain cases. This is a bad solution for the reason that it simply handcuffs the Court of Appeals in the other direction.
First, based on the reported opinions from the Court of Appeals, there are numerous instances where the District Court made an incorrect ruling that a party bringing a TCPA motion was in bad faith, and this ruling was later corrected on appeal. In such instances, eliminating the automatic stay altogether would wrongly subject the party bringing the TCPA action to unnecessary additional litigation, thus defeating the very purposes of the TCPA.
Second, the Court of Appeals needs flexibility to deal with the facts and circumstances of particular cases which might require that a stay be lifted or modified to some parties in the litigation, but not others, or to some issues in the litigation, but not others.
It is suggested that the correct solution would be to amend § 51.014(b) to add a new subparagraph (b)(1) as follows:
“(1) The appellate court may at any time in the exercise of its discretion, upon the motion or a party or upon its own motion, lift or terminate a stay under paragraph (b) of this Section, for an interlocutory appeal arising under Subsection (a)(12) of this Section, where the trial court has found under Section 27.009(b) that the motion was frivolous or solely intended to delay.”
This suggested change takes the handcuffs of rigidity off of the Court of Appeals in the handling of bad faith TCPA motions, and does so without any changes being made to the TCPA itself.
At the end of the day, the responsibility for filing and maintaining bad faith TCPA motions and appeals lies with the attorneys who are willing to engage in such misconduct. To combat this, stronger medicine is necessary. Therefore, it is suggested to amend § 51.014(b) to add a new subparagraph (b)(2) as follows:
“(2) Where the trial court has found under Section 27.009(b) that the motion was frivolous or solely intended to delay, and where this finding has been affirmed by the appellate court, the appellate court shall report the finding to an appropriate grievance committee through the procedure described in Section 9.013 of this Title.”
The suggested addition would not only make the vast majority of attorneys think twice before filing a bad faith TCPA motion, but it might also have the additional effect of those same attorneys to begin counseling their clients to dismiss any pending bad faith appeals of TCPA motion that are currently being maintained. Such has the potential, therefore, to clear out the glut of appeals of TCPA bad faith motions that are currently backlogging the Court of Appeals.
The Texas committees in the Senate and House has never given any serious attention to any solution other than their carpet-bombing solution of simply getting rid of the entire TCPA stay in certain instances. That would be a terrible outcome, particularly where it is quite possible that the afore-described surgical incision would lead to a much better outcome for all involved anyway.
Read the full article here
