The Texas TCPA motion: 60 days to file, discovery stops, and fees are mandatory

Texas has two very different dismissal motions and they are easy to confuse. A Rule 91a motion attacks a claim that has no basis in law or fact. The motion in this guide — under Chapter 27, the Texas Citizens Participation Act — attacks a claim because of what the defendant was doing when the dispute arose: speaking, petitioning, or associating. It comes with a hard 60-day clock, an automatic discovery suspension, a mandatory fee award, and an appeal if the court simply does not rule.

The exemptions in § 27.010 are as important as the grant. Read them before you file.

Who may file, and by when

CPRC § 27.003(a)–(b):

If a legal action is based on or is in response to a party's exercise of the right of free speech, right to petition, or right of association or arises from any act of that party in furtherance of the party's communication or conduct described by Section 27.010(b), that party may file a motion to dismiss the legal action. A party under this section does not include a government entity, agency, or an official or employee acting in an official capacity.

(b) A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the legal action. The parties, upon mutual agreement, may extend the time to file a motion under this section or the court may extend the time to file a motion under this section on a showing of good cause.

Sixty days from service, not from appearance or answer. There are two ways to extend — mutual agreement, or good cause shown to the court — but both require action before the day passes.

Note also who cannot use it: a government entity, agency, or an official or employee acting in an official capacity.

What "legal action" reaches — and what it does not

CPRC § 27.001(6) defines the target, and the exclusions matter:

"Legal action" means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief. The term does not include: (A) a procedural action taken or motion made in an action that does not amend or add a claim for legal, equitable, or declaratory relief; (B) alternative dispute resolution proceedings; or (C) post-judgment enforcement actions.

So a counterclaim is fair game; a discovery motion is not.

The three protected activities are each defined. "Exercise of the right of free speech" means "a communication made in connection with a matter of public concern." "Exercise of the right of association" means "to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern." The right to petition gets a nine-part list in § 27.001(4), running from communications in judicial and legislative proceedings to "any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state."

"Matter of public concern" is defined in § 27.001(7) as a statement or activity regarding "(A) a public official, public figure, or other person who has drawn substantial public attention due to the person's official acts, fame, notoriety, or celebrity; (B) a matter of political, social, or other interest to the community; or (C) a subject of concern to the public." Whether a particular statement falls inside that definition is the most heavily litigated question in the chapter, and it is decided in the case law rather than in the statute — treat the definition as the starting point, not the answer.

Discovery stops when you file

CPRC § 27.003(c):

Except as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.

Automatic, on filing, with no order required. That is a large part of the motion's practical value — and a large part of why the exemptions were added.

The hearing has its own two deadlines, in § 27.003(d)–(e): the movant must give written notice of the date and time "not later than 21 days before the date of the hearing," and a response is due "not later than seven days before the date of the hearing," each unless the parties agree or the court orders otherwise.

The burden, and the deadline on the judge

CPRC § 27.005 puts a clock on the court itself and then sets the three-step test:

The court must rule on a motion under Section 27.003 not later than the 30th day following the date the hearing on the motion concludes.

(b) Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action against the moving party if the moving party demonstrates that the legal action is based on or is in response to: (1) the party's exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of association; or (2) the act of a party described by Section 27.010(b).

(c) The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.

(d) Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the moving party establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.

Three steps. The movant shows the claim is based on protected activity. The claimant then has to produce clear and specific evidence of a prima facie case on each essential element — a materially higher bar than surviving a motion to dismiss on the pleadings. And even a claimant who clears that bar loses if the movant establishes an affirmative defense entitling it to judgment as a matter of law.

If the court does not rule

CPRC § 27.008 turns silence into an appealable order:

If a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal.

(b) An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court's failure to rule on that motion in the time prescribed by Section 27.005.

A motion that is never ruled on is denied by operation of law on the 31st day after the hearing, and the appeal from that non-ruling is expedited by statute.

Fees run both ways

CPRC § 27.009:

Except as provided by Subsection (c), if the court orders dismissal of a legal action under this chapter, the court: (1) shall award to the moving party court costs and reasonable attorney's fees incurred in defending against the legal action; and (2) may award to the moving party sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.

(b) If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney's fees to the responding party.

Costs and fees on dismissal are "shall"; sanctions on top are "may." And the mirror provision means a speculative TCPA motion is not free.

Subsection (c) narrows the award where what is dismissed is a compulsory counterclaim: fees are available only "if the court finds that the counterclaim is frivolous or solely intended for delay."

The exemptions — read these first

CPRC § 27.010(a) takes thirteen categories out of the chapter entirely. Among them:

(2) a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer; (3) a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action; (4) a legal action brought under the Insurance Code or arising out of an insurance contract; (5) a legal action arising from an officer-director, employee-employer, or independent contractor relationship that: (A) seeks recovery for misappropriation of trade secrets or corporate opportunities; or (B) seeks to enforce a non-disparagement agreement or a covenant not to compete; ... (9) an eviction suit brought under Chapter 24, Property Code; ... (12) a legal action based on a common law fraud claim; or (13) a legal malpractice claim brought by a client or former client.

Those exemptions gut several of the uses the TCPA was best known for. Trade-secret and non-compete suits between employers and employees are out. Common-law fraud is out. Personal injury is out.

But § 27.010(b) claws part of it back:

Notwithstanding Subsections (a)(2), (7), and (12), this chapter applies to: (1) a legal action against a person arising from any act of that person, whether public or private, related to the gathering, receiving, posting, or processing of information for communication to the public, whether or not the information is actually communicated to the public, for the creation, dissemination, exhibition, or advertisement or other similar promotion of a dramatic, literary, musical, political, journalistic, or otherwise artistic work ... and (2) a legal action against a person related to the communication, gathering, receiving, posting, or processing of consumer opinions or commentary, evaluations of consumer complaints, or reviews or ratings of businesses.

So a business suing over an online review is back inside the chapter even though it is "primarily engaged in the business of selling goods or services." And § 27.010(c) adds that the chapter applies to a legal action against a victim or alleged victim of family or dating violence, or of certain Penal Code offences, based on a public or private communication.

How Texas compares to the federal rules

A federal defendant facing the same suit has Rule 12 and, months later, summary judgment. It has no mechanism that stops discovery on filing and shifts fees on success.

A short checklist

• Diary 60 days from service, and treat it as the outside date rather than a target.
• Check § 27.010 before drafting. Thirteen exemptions, and several of them cover the commercial disputes people most often want to use this for.
• Then check § 27.010(b). Consumer reviews and newsgathering come back inside the chapter.
• Identify which right you are invoking — speech, petition, or association — and match it to the statutory definition.
• Expect the discovery stay, and plan the case around it; it is automatic on filing.
• Give 21 days' notice of the hearing, and respond no later than seven days before it.
• Build the record for fees. A successful movant gets costs and fees as of right.
• Calendar 30 days from the end of the hearing. No ruling by then is a denial you can appeal.
• If you are the claimant, prepare evidence, not allegations. Clear and specific evidence on every element is the test.

Where these rules live

• CPRC § 27.001 — Definitions
• CPRC § 27.003 — Motion to Dismiss
• CPRC § 27.005 — Ruling
• CPRC § 27.006 — Evidence
• CPRC § 27.008 — Appeal
• CPRC § 27.009 — Damages and Costs
• CPRC § 27.010 — Exemptions

This page explains what the statute says; it is not legal advice. Whether a particular communication is "a matter of public concern" is decided under case law that this site does not cover, and the answer often decides the motion.