tcpa motion in Texas

2026Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). • The words “clear and specific” are defined to mean, for the former, “‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and, for the latter, “‘explicit’ or ‘relating to a particular named thing.’” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding). • “The [party responding to a TCPA motion to dismiss] may rely on circumstantial evidence—indirect evidence that creates an inference to establish a central fact—unless ‘the connection between the fact and the inference is too weak to be of help in deciding the case.’” Dall.

2025“In a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss.” In re Lipsky, 460 S.W.3d at 591 .

2024TCPA framework The TCPA “protects citizens who [associate,] petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.” Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018) (quoting In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015)); see also Tex. Civ.

2021A. TCPA Applies Elaine contends that the TCPA applies to Preston’s claims seeking Elaine’s disinheritance based on the in terrorem clause because the claims implicate Elaine’s right to petition. 8 Just as the TCPA applies to a claim related to the making of a statement in open court, see Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018), it also applies if the claim relates to the defendant’s affidavit testimony submitted to a court.

2023See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018) (stating that raising argument regarding TCPA’s applicability at hearing on TCPA motion sufficiently preserved that argument for appellate review).

2022But cf. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018) (“We have not previously cabined our TCPA analysis to the precise legal arguments or record references a moving party made to the trial court regarding the TCPA’s applicability.

2026Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). • The words “clear and specific” are defined to mean, for the former, “‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and, for the latter, “‘explicit’ or ‘relating to a particular named thing.’” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding). • “The [party responding to a TCPA motion to dismiss] may rely on circumstantial evidence—indirect evidence that creates an inference to establish a central fact—unless ‘the connection between the fact and the inference is too weak to be of help in deciding the case.’” Dall.

2025Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). -8- In our review under the proper standard, we are mindful that “a TCPA motion to dismiss is not a trial on the merits and is not intended to replace either a trial or the summary judgment proceeding established by the Texas Rules of Civil Procedure.” Stallion Oilfield Servs.

2025However, “[w]hen it is clear from the plaintiff’s pleadings that the action is covered by the Act, the defendant need show no more.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017). 4 Further references to provisions of the Texas Civil Practice and Remedies Code will be by reference to “section __” or “§ __.” 4 We review a trial court’s determination of a TCPA motion to dismiss de novo.

2025LLC v. Fuentes, No. 08-23-00017-CV, 2023 WL 5808849 , at *3 (Tex. App.—El Paso Sept. 7, 2023, no pet.) (mem. op.) (holding amendment of plaintiff’s claims did not moot pending TCPA motion); Rauhauser v. McGibney, 508 S.W.3d 377 , 381-83 (Tex. App.—Fort Worth 2014, no pet.) (per curiam) (holding plaintiff’s nonsuit did not moot pending TCPA motion), disapproved of on other grounds by Hersh, 526 S.W.3d at 467 .

2024“When a legal action is in response to both expression protected by the TCPA and other unprotected activity, the legal action is subject to dismissal only to the extent that it is in response to the protected conduct, as opposed to being subject to dismissal in its entirety.” Walker v. Hartman, 516 S.W.3d 71, 81 (Tex. App.—Beaumont 2017, pet. denied). “[A] TCPA motion to dismiss is not a trial on the merits and is not intended to replace either a trial or the summary judgment proceeding established by the Texas Rules of Civil Procedure.” Stallion Oilfield Servs.

2023“When a legal action is in response to both expression protected by the TCPA and other unprotected activity, the legal action is subject to dismissal only to the extent that it is in response to the protected conduct, as opposed to be subject to dismissal in its entirety.” Walker, 516 S.W.3d at 81 (citation omitted); see also Gaskamp v. WSP USA, Inc., 596 S.W.3d 459 , 469 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (holding that TCPA motion to dismiss was not rendered moot by filing of amended petition). 18 Appellees’ Original Petition alleged that to avoid its contractual obligation to

2026See Long Canyon Phase II & III Homeowners Ass’n, Inc. v. Cashion, 517 S.W.3d 212, 217 (Tex. App.—Austin 2017, no pet.) (stating that “[w]e review de novo whether each party carried its assigned burden”); see also Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 26 2017, no pet.) (“We review de novo the denial of a TCPA motion to dismiss.”).

2023See Long Canyon Phase II & III Homeowners Ass’n, Inc. v. Cashion, 517 S.W.3d 212, 217 (Tex. App.—Austin 2017, no pet.) (stating that “[w]e review de novo whether each party carried its assigned burden”); see also Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“We review de novo the denial of a TCPA motion to dismiss.”).

2025Montelongo, 622 S.W.3d at 293-94; Patriot Contracting, 650 S.W.3d at 830 (holding new pleading did not add new claims nor essential factual allegations; thus, TCPA motion was untimely); Ruff v. Ruff, No. 05-21-00157-CV, 2022 WL 420353 , at *8 (Tex. App.—Dallas Feb. 11, 2022, pet. denied) (mem. op.) (holding TCPA motion untimely where the allegation was “in the original petition . . . and in every amendment to the petition that is in the record on appeal” and a subvariant wording the original petition was “essentially the same claim re-alleged repeatedly over two years in the subsequent amendme

2024Suspending all discovery in the entire case until the trial court orders specific discovery related to the TCPA motion to dismiss or rules on the motion to dismiss will not render any provision in section 27.003(c) meaningless. 11 For purposes of Rule 13, “‘[g]roundless’ . . . means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.” Id.

2022Cf., e.g., LMP Austin English Aire, LLC through Lafayette English Partner, LLC v. Lafayette English Apartments, LP, No. 03-21-00219-CV, ___ S.W.3d ___, 2022 WL 36 4594495, at *13 (Tex. App.—Austin Sept. 30, 2022, no pet. h.) (reviewing pleadings and affidavit when analyzing partial grant of TCPA motion that had occurred before final summary judgment); Beving v. Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied) (“In our review, we consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.”).

2021We have also determined that “when the pleadings, evidence, and parties’ arguments are based on a mix of protected and unprotected activity, and they do not distinguish between the two, a defendant–movant’s motion to dismiss under the TCPA should be denied.” White Nile Software, 2020 WL 5104966 , at *5 (rejecting right-of-petition and association-based TCPA claim in case involving legal malpractice and other causes of action); accord Weller v. MonoCoque Diversified Interests, LLC, No. 03-19-00127-CV, 2020 WL 3582885 , at *4 (Tex. App.—Austin July 1, 2020, no pet.) (mem. op.); Beving v. Beadles

2022Patriot and Friedman contend that Mid-Main’s Eighth Amended Counterclaim triggered a new sixty-day deadline, and thus their TCPA motion to dismiss was timely, for two reasons: first, any pleading amendment resets the TCPA’s sixty-day deadline; and second, Mid-Main’s Eighth Amended Counterclaim asserted new essential factual allegations. 8 The supreme court has rejected appellants’ first argument,4 as have all Texas intermediate appellate courts considering the question, including ours.5 “Construing the [TCPA] to permit a defendant to file a dismissal motion after the claimant files a new plead

2021A supplemental petition that asserts new factual allegations, however, may reset the 60-day deadline for filing a TCPA motion to dismiss “as to the newly added substance.” Jordan v. Hall, 510 S.W.3d 194, 198 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing James v. Calkins, 446 S.W.3d 135, 146 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)).

2025Partners, 529 S.W.3d at 434, 439 (holding that plaintiff need not show actual damages to survive TCPA motion to dismiss because article’s gist could be construed as accusing her of committing crime, which is defamatory per se); see also Brady v. Klentzman, 515 S.W.3d 878 , 886 n.3 (Tex. 2017) (noting that nominal damages may be presumed without evidence of 14 actual injury).

2024See D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429 , 441–42 (Tex. 2017) (addressing merits of attorney’s fees issue in appealable interlocutory order from denial of TCPA motion “in the interest of judicial economy”).

2020See Clinton v. Araguz, No. 13-18-00526-CV, 2019 WL 5793127 , at *4–5 (Tex. App.— Corpus Christi–Edinburg Nov. 7, 2019, pet. denied) (mem. op.) (holding that TCPA motion was not denied by operation of law thirty days after an August 9, 2018 hearing when the record established that the trial court intended to postpone the hearing); cf. In re Neely, No. 14-19-01018-CV, 2020 WL 1434569 , at *2–4 (Tex. App.—Houston [14th Dist.] Mar. 24, 2020, orig. proceeding) (per curiam) (mem. op.) (holding that TCPA motion was overruled by operation of law thirty days after a July 19, 2019 hearing when, at that

2020PRAC. & REM. § 27.008(a) (authorizing a party to appeal when the party’s TCPA motion to dismiss “is considered to have been denied by operation of law”); Avila v Larrea, 394 S.W.3d 646 , 655–56 (Tex. App.—Dallas 2012, pet. denied) (holding that an appellate court had jurisdiction over an interlocutory appeal from denial—by operation of law—of a TCPA motion to dismiss).

2020Because we must analyze the substance of a plaintiff’s claims irrespective of the labels used in the pleadings, see Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 302 (Tex. App.—Austin 2018, pet. denied); Serafine, 466 S.W.3d at 383 , we construe Quantum Materials’s petition as pleading breach of fiduciary duty and DTPA violations. 3 In its briefing and argument to this Court, Quantum Materials complains vaguely of “negotiations” that K&L Gates might have undertaken on its behalf with the very Lenders that ultimately intervened in the underlying suit, but Quantum Materials did not include tha

2020CICA specifically urges that there can be no dispute that it pleaded and proved causes of action for unfair competition, tortious interference with a contract, and trade secret misappropriation against Riley and CALI “given that [CICA] defeated a motion to dismiss those very claims under the TCPA.” In other words, CICA argues that “a party who defeats a TCPA motion to dismiss a priori has ‘plead[ed] and prove[d]’ the corresponding causes of action with clear and specific evidence.” The “prima facie case” required to overcome dismissal under the TCPA “requires only the minimum quantum of eviden

2023We have already determined in the executives’ favor as to their jurisdictional defense of the PUC’s exclusive jurisdiction over this dispute and Panda’s failure to exhaust administrative remedies, and nothing in Section 27.005(b)’s text precludes the assertion of jurisdictional defenses to support a TCPA motion.4 See id.; de la Torre, 613 S.W.3d at 314-15; Holcomb v. Waller County, 546 S.W.3d 833, 840 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (determining that, because county lacked standing to bring suit against defendant, it lacked cognizable claim for which it could establish prima

2020Here, because the trial court lacked jurisdiction to hear Waller County’s declaratory-judgment action, we are precluded from any consideration of Holcomb’s motion to dismiss, concerning the merits of the case, and for sanctions and attorney’s fees under the TCPA.”); but see Holcomb, 546 S.W.3d at 840 (remanding case with instructions to dismiss suit for lack of subject matter jurisdiction after holding further proceeding to award costs and fees under TCPA).

2024“The party seeking dismissal must demonstrate that the legal action is ‘factually predicated’ on conduct that falls within the scope of the right of free speech, right of association, or right to petition as statutorily defined.” Jetall Cos., 2022 WL 17684340 , at *15 (quoting Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418 , 428-29 (Tex. App.—Dallas 2019, pet. denied)); see Porter-Garcia v. Travis Law 15 Firm, P.C., 564 S.W.3d 75, 85 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).4 We review de novo the applicability of the TCPA and the trial court’s ruling denying a TCPA motion to dismis

2022See Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet. denied) (stating that we review de novo a trial court’s ruling on a TCPA motion to dismiss).

2023Compare Batra v. Covenant Health Sys., 562 S.W.3d 696, 707 (Tex. App.—Amarillo 2018, pet. denied) (“In addition to consideration of the pleadings and affidavits, a trial court may, but is not required to, hear live testimony and receive the submission of documentary evidence.”), with Quintanilla v. West, 534 S.W.3d 34, 42 (Tex. App.—San Antonio 2017), rev’d on other grounds, 573 S.W.3d 237 (Tex. 2019) (explaining that “[t]he trial court does not hear live testimony” when considering a TCPA motion to dismiss), ; see also Heavenly Homes of S. Tex., LLC v. Infinity Custom Constr., LLC, No. 13-21-

2023Compare Batra v. Covenant Health Sys., 562 S.W.3d 696, 707 (Tex. App.—Amarillo 2018, pet. denied) (“In addition to consideration of the pleadings and affidavits, a trial court may, but is not required to, hear live testimony and receive the submission of documentary evidence.”), with Quintanilla 19 v. West, 534 S.W.3d 34, 42 (Tex. App.—San Antonio 2017), rev’d on other grounds, 573 S.W.3d 237 (Tex. 2019) (explaining that “[t]he trial court does not hear live testimony” when considering a TCPA motion to dismiss); see also Heavenly Homes of S. Tex., LLC v. Infinity Custom Constr., LLC, No. 13-21

2024Ltd. v. Gravity Oilfield Servs., LLC, 592 S.W.3d 205 , 215 (Tex. App.— Eastland 2019, pet. denied) (“[A] TCPA motion to dismiss is not a trial on the merits and is not intended to replace either a trial or the summary judgment proceeding established by the Texas Rules of Civil Procedure.”).

2023Although Doe contradicted Cruz’s affidavit with his own; to survive a TCPA motion, Cruz only had to provide “evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.” Lipsky, 460 S.W.3d at 590 ; see also Stallion Oilfield Servs., 592 S.W.3d at 215.

2023See Tervita, LLC, v. Sutterfied, 482 S.W.3d 280, 287 (Tex. App.—Dallas 2015, pet. denied) (concluding that because appellant failed to meet its burden of showing TCPA applied to appellees’ claim, appellate court need not address other prongs of TCPA analysis).

2022In Tervita, we considered a trial court’s denial of an employer’s TCPA motion in response to various claims brought by an injured employee, including claims for conspiracy and labor code violations for allegedly false statements made about the employee during testimony in the employee’s worker’s compensation benefit –4– proceedings.3 Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 285 (Tex. App.—Dallas 2015, pet. denied).

2025See Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 890 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (dismissing for lack of jurisdiction appeal from partial grant of TCPA motion to dismiss).

2024Although the Civil Practice and Remedies Code authorizes the immediate appeal of an order denying a TCPA motion to 9 dismiss, it does not authorize an interlocutory appeal from “all other ancillary rulings contained within the same written ‘interlocutory order.’” Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 891 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

2026See Long Canyon Phase II & III Homeowners Ass’n, Inc. v. Cashion, 517 S.W.3d 212, 217 (Tex. App.—Austin 2017, no pet.) (stating that “[w]e review de novo whether each party carried its assigned burden”); see also Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 26 2017, no pet.) (“We review de novo the denial of a TCPA motion to dismiss.”).

2023See Long Canyon Phase II & III Homeowners Ass’n, Inc. v. Cashion, 517 S.W.3d 212, 217 (Tex. App.—Austin 2017, no pet.) (stating that “[w]e review de novo whether each party carried its assigned burden”); see also Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“We review de novo the denial of a TCPA motion to dismiss.”).

2021See, e.g., Sullivan v. Tex. Ethics Comm’n, 551 S.W.3d 848 , 856 n.6 (Tex. App.—Austin 2018, pet. denied) (“Because we hold that the TCPA does not apply, we do not reach the second 10 step in the TCPA analysis of whether [the nonmovant] met its burden to prove a prima facie case.”); see also TEX.

2021See, e.g., Sullivan v. Tex. Ethics Comm’n, 551 S.W.3d 848 , 856 n.6 (Tex. App.—Austin 2018, pet. denied) (“Because we hold that the TCPA does not apply, we do not reach the second 10 step in the TCPA analysis of whether [the nonmovant] met its burden to prove a prima facie case.”); see also TEX.

2021A supplemental petition that asserts new factual allegations, however, may reset the 60-day deadline for filing a TCPA motion to dismiss “as to the newly added substance.” Jordan v. Hall, 510 S.W.3d 194, 198 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing James v. Calkins, 446 S.W.3d 135, 146 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)).

2020See Jordan, 510 S.W.3d at 198 (“Although an amended petition asserting claims based upon new factual allegations may reset a TCPA deadline as to the newly-added substance, the deadline for a TCPA motion is not reset when a plaintiff files an amended petition that adds no new claims and relies upon the same factual allegations underlying an original petition.”) (citing James, 446 S.W.3d at 146 ); Paulsen, 455 S.W.3d at 197 (“An amended pleading that does not add new parties or claims does not restart the deadline for filing a motion to dismiss under the TCPA.”).

2025In response to the defendant’s TCPA motion to dismiss, the plaintiff in Paulsen filed his own TCPA motion. 537 S.W.3d at 230 .

2024See Paulsen v. Yarrell, 537 S.W.3d 224 , 233–34 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (holding TCPA dismissal motion is not itself TCPA “legal action” subject to cross TCPA motion).

2024See Trane US, Inc. v. Sublett, 501 S.W.3d 783, 786 (Tex. App.—Amarillo 2016, no pet.) (per curiam); Britton v. Azzouz, No. 02-24-00206- CV, 2024 WL 3365246 , at *1 (Tex. App.—Fort Worth July 11, 2024, no pet.) (mem. op.) (appeal of an order granting a TCPA motion to dismiss is only properly taken from a final judgment that disposes of all claims and parties).

2024See Trane US, Inc. v. Sublett, 501 S.W.3d 783, 786 (Tex. App.— Amarillo 2016, no pet.) (dismissing appeal from order granting TCPA motion to dismiss where trial court had not yet ruled on request for mandatory attorney’s fees); see also Fleming & Assocs., L.L.P. v. Kirklin, 479 S.W.3d 458, 460 (Tex. App.— 2 Houston [14th Dist.] 2015, pet. denied) (“[T]he courts of appeals do not have jurisdiction over an interlocutory appeal from an order granting a motion to dismiss under chapter 27 of the Texas Civil Practice and Remedies Code.”).

2025Clark argues that Bailey “knew [the TCPA motion] was doomed to fail.” In support of this argument, Clark relies on a change in the law that was signaled by the Texas Supreme Court’s decision in Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127 (Tex. 2019).

2024Neuman himself acknowledged in his pleadings in the trial court that he “has raised issues regarding RAAR’s operations, its organizational controls, the competency of its leadership, and the validity of RAAR’s elections and official actions” and that “[t]his lawsuit is a direct result of [the Board’s] inability or unwillingness to produce RAAR’s books and records as required by law.” To prevail on his TCPA motion to dismiss based on the violation of his freedom of speech, Neuman must have shown that his communications “had relevance to a public audience at the time [they were] made, regardless

2025LLC v. Fuentes, No. 08-23-00017-CV, 2023 WL 5808849 , at *3 (Tex. App.—El Paso Sept. 7, 2023, no pet.) (mem. op.) (holding amendment of plaintiff’s claims did not moot pending TCPA motion); Rauhauser v. McGibney, 508 S.W.3d 377 , 381-83 (Tex. App.—Fort Worth 2014, no pet.) (per curiam) (holding plaintiff’s nonsuit did not moot pending TCPA motion), disapproved of on other grounds by Hersh, 526 S.W.3d at 467 .

2022See Rauhauser v. McGibney, 508 S.W.3d 377, 381 (Tex. App.—Fort Worth 2014, no pet.), overruled on other grounds by Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (“The law is well-settled that a defendant’s motion to dismiss that may afford more relief than nonsuit affords constitutes a claim for affirmative relief . . . .”). 21 necessary to establish the court’s jurisdiction to decide her TCPA motion.

2025A TCPA motion to dismiss, which allows the movant to seek “a dismissal with prejudice, attorney’s fees, and sanctions . . . constitutes an affirmative request for relief.” Id. at 468 (internal quotation marks omitted). 3D was therefore entitled to be heard on its TCPA motion even after Toscano filed the amended petition.

2023See Gaskamp v. WSP USA, Inc., 596 S.W.3d 457 , 469 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (amendment of petition after TCPA motion was filed does not moot TCPA motion); cf. Coterill-Jenkins v. Tex. Med.

2025See Fleming & Assocs. v. Kirklin, 479 S.W.3d 458 , 460–61 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (dismissing interlocutory appeal of order granting TCPA motion to dismiss because there was no final judgment); WIKD, LLC v. Gomez, No. 05-24-00710-CV, 2024 Tex. App. LEXIS 5600 , at *2–3 (Tex. App.—Dallas Aug. 6, 2024, no. pet.) (mem. op.) (dismissing interlocutory appeal of order granting TCPA motion to dismiss where the issue of attorney’s fees remained pending); Garcia v. Semler, No. 05-20-00761-CV, 2021 Tex. App. LEXIS 2788 , at *3 (Tex. App.—Dallas Apr. 13, 3 2021, no pet.) (mem.

2024See Trane US, Inc. v. Sublett, 501 S.W.3d 783, 786 (Tex. App.— Amarillo 2016, no pet.) (dismissing appeal from order granting TCPA motion to dismiss where trial court had not yet ruled on request for mandatory attorney’s fees); see also Fleming & Assocs., L.L.P. v. Kirklin, 479 S.W.3d 458, 460 (Tex. App.— 2 Houston [14th Dist.] 2015, pet. denied) (“[T]he courts of appeals do not have jurisdiction over an interlocutory appeal from an order granting a motion to dismiss under chapter 27 of the Texas Civil Practice and Remedies Code.”).