The Texas Citizens Participation Act, H.B. No. 2973, allows you to counter a SLAPP suit against you based on your statements in exercise of your right of free speech, petition, or association. The statute provides for a special motion to dismiss, and allows (with some exceptions) for a stay of discovery proceedings while your motion is being considered. If your motion to dismiss is successful, the court will award you attorneys' fees, court costs, and possibly punitive damages against the party that filed the lawsuit.

The statute allows for dismissal of suits based on any type of communication, in any medium, that is: related to a "matter of public concern"; or pertaining to or in connection with any governmental proceeding or issue being considered by any governmental branch; or between individuals “who join together to collectively express, promote, pursue, or defend common interests."

Activities Protected By The Texas Anti-SLAPP Statute

To challenge a lawsuit under the Citizens Participation Act, you must show that it is based on your act or acts of "communication" (defined as the "making or submitting" of any "statement or document in any form or medium") in connection with your rights of association, petition, or free speech. The statute broadly defines these rights:

• (a) "Right of association" refers to people collectively "express[ing], promot[ing], pursu[ing], or defend[ing] common interests."
• (b) "Right of free speech" refers to communications related to "a matter of public concern."
• (c) "Right to petition" refers to a wide range of activities relating to governmental proceedings or issues being considered by governmental bodies.

Although dependent on your subject matter, the right of free speech is the section of the statute that will most likely apply to statements made online. The statute defines a "matter of public concern" as as issue related to health or safety; environmental, economic, or community well-being; the government; a public figure or official; or a good, product or service in the marketplace. If a lawsuit against you involves online statements on any of these topics, the statute may provide you relief.

The Act specifically excludes any "enforcement actions," such as criminal prosecutions, brought in the name of the state of Texas, as well as any legal actions against people "primarily engaged in the business of selling or leasing goods or services," if the statement at the heart of the lawsuit arises out of that sale and is directed at actual or potential customers. The Act further excludes lawsuits related to bodily injury and wrongful death claims.

How To Use The Texas Anti-SLAPP Statute

You must file a special motion to dismiss under the Citizens Participation Act within 60 days of being served with the lawsuit. A court may also allow you to file the motion after sixty days, but there is no guarantee that it will do so. Upon learning of a lawsuit against you that you think may be a SLAPP, you should consult an attorney; while legal help is expensive, if your motion to dismiss succeeds the court will grant you attorneys' fees.

One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. After receiving your motion to dismiss, the court must rule on your motion within thirty days, unless the court's docket is overbooked. Once your motion to dismiss is filed, discovery proceedings on the claim will be stayed, or postponed, until the court disposes of the motion – that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions.

The court may allow some limited discovery as long as it is relevant to the motion to dismiss, but the allowance of such discovery does not extend the time for the court to rule on the motion. In the first appellate decision from Texas interpreting the Citizens Participation Act, the Court of Appeals for the Fifth District held that when a trial court judge deferred ruling on anti-SLAPP motion for more than thirty days after it was filed in order to allow limited discovery to take place, the lower court constructively denied the motion and the defendant had an immediate right to appeal at the end of the thirty-day period. Avila v. Larrea, No. 05-11-01637-CV, slip op. at 11-12 (Tex. App. Dec. 18, 2012).

Texas courts follow a two-step process when deciding a motion to dismiss under the anti-SLAPP law. First, you (as the party looking to invoke the anti-SLAPP statute) must show “by a preponderance of the evidence” that the plaintiff's claim is "based on, relates to, or is in response to" your exercise of the speech/petition/association rights described above. Once you successfully show that your online writing involves the exercise of those rights, the burden shifts to the plaintiff for step two. The plaintiff must establish "by clear and specific evidence" a prima facie case for each part of his or her original claim; if the plaintiff fails to show this, the court will dismiss the claim.

Whoever loses the motion to strike (either you or the plaintiff) has the right to an immediate appeal.

What Happens If You Win (or Lose) A Motion To Dismiss

If you prevail, in whole or in part, in your motion to dismiss under the Citizens Participation Act, the court "shall" award you "court costs, reasonable attorney's fees, and other expenses. . . as justice and equity may require." The court "shall" further award you damages from the plaintiff "sufficient to deter the party who brought the legal action from bringing similar actions." In short, the court will tailor your total monetary award to suit both your costs and the specific attributes of the individual plaintiff.

Note that if the court finds that your motion to dismiss under the Act is "frivolous or solely intended to delay," the judge "may" award court costs and attorney's fees to the plaintiff; this is permissive, not required, and the plaintiff may not recover further punitive damages.

If you succeed in fending off a SLAPP lawsuit in Texas, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Texas does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.