The Texas Citizens Participation Act (TCPA), our state’s version of an anti-SLAPP (Strategic Lawsuits Against Public Participation) statute has been amended in an attempt to narrow its scope. It was originally enacted to protect free speech such as a Facebook posting by a concerned citizen about a company polluting the environment, which might trigger the filing of a lawsuit by the polluter to silence the citizen expressing their concerns. In that situation, the TCPA provided for a procedure to request the court to dismiss the lawsuit in its early stages, limit the defense costs to the citizen and provide for the citizen to recover attorney fees.

Unfortunately, due to the vague wording of the TCPA as originally enacted, it was being applied to causes of action in ways never intended by the Act. For example it has been applied to causes of action involving theft of trade secrets and violations of employment non-compete agreements.

Thus, effective as of September 1, 2019 the statute has been amended in an attempt to narrow its scope. Key amendments to the statute include:

• Clarification that the Act does not apply to arbitration proceedings.
• Modification of the definition of the terms “exercise of the right of association” to mean “to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern.”
• Modification of the definition for the terms “matter of public concern” to mean “ a statement or activity regarding (a) public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, theme, notoriety, or celebrity; (b) a matter of political, social, or other interest to the community; or (C) a subject of concern to the public.”
• Requirement that the movant provide written notice of the date and time of the TCPA hearing not later than 21 days before the date of the dismissal hearing.
• Requirement that the respondent file a response to the motion no later than 7 days before the date of the dismissal hearing.
• Making a court award of sanctions discretionary rather than mandatory.
• Expanding the list of specified claims excluded from the Act to include actions for misappropriation of trade secrets, enforcement of covenants not to compete, Deceptive Trade Practices Act violations, and common law fraud.

Hopefully, the courts will find that the TCPA only applies to the type of protected free speech to which it was intended to apply. Only time will tell how the courts will interpret the amendments. Stay tuned for further developments.