Texas has a modern but non-uniform Anti-SLAPP law known as the Texas Citizens Participation Act (“TCPA”) which operates to protect free speech and related rights from the perils of abusive litigation brought to silence or retaliate against the speaker. In fact, the TCPA was one of two Anti-SLAPP laws (the other was California’s) that were primarily relied upon in the drafting of the Uniform Public Expression Protection Act (“UPEPA”) which has proven to be popular among state legislatures. There have been, however, criticisms of the TCPA arising not so much from the text of the statute itself but rather from misapplications of the TCPA by the lower Texas courts. Today, we see the Texas Supreme Court step in to correct the Texas Court of Appeals on one such issue.
The culprit in this case is the phrase “legal action”. The TCPA provides for the early dismissal of a legal action if that litigation is based upon the speaker’s lawful exercise of their free speech and related rights. The phrase “legal action” is ordinarily understood to basically mean a cause of action, which is basically a vessel found within a petition or complaint that states sufficient facts as would entitle a party to relief. It is very common that several actions be pled within a single petition or complaint based on essentially the same facts, such as with an auto accident case against a teenage driver where one action for negligence might be pled against the driver and a second against his parents for negligent entrustment of the vehicle. There should not be much, if any, confusion as to what a “legal action” means, although the UPEPA decided to use the phrase “cause of action” instead just to eliminate even the possibility of any such misinterpretation.
The TCPA defines a legal action as a “lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim”, but then goes on to include “any other judicial pleading or filing that requests legal, declaratory, or equitable relief.” The purpose of that last phrase is to keep a litigant from filing something that states a legal action but attempting to call it something else, such as a Writ Of Mumbo Jumbo or something unusual. Nonetheless, it is that last phrase which stored up trouble, since a “filing” could be taken to mean a motion that requested some relief (although that is basically what every motion does).
Some of the Texas Court of Appeals held in a number of cases that “legal action” could include certain motions, such as discovery motions or motions for sanctions where the party bringing the motion sought monetary relief. The rationale of these courts was along the lines that since one party was trying to get money out of the other, that constituted a “legal action” which brought into play the TCPA. The upshot was that a party faced with a discovery motion seeking monetary relief or a motion for sanctions could challenge the motion itself by bringing a TCPA special motion. The other of the Texas Court of Appeals basically just said, “No, a motion is not a legal action whether it awards monetary relief or not.”
Eventually, this split of opinions within the Texas Court of Appeals made its way up to the Texas Supreme Court which issued an opinion in Ferchichi v. Whataburger Restaurants LLC, 2025 WL 1350005 (Tex., May 9, 2025), which you can read for yourself here and which we will now examine.
After reviewing the split of cases within the Texas Court of Appeals, the Texas Supreme Court then went on to examine the text of the TCPA on this point. Again, the TCPA defines a legal action as a “lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim”, but then goes on to include “any other judicial pleading or filing that requests legal, declaratory, or equitable relief.” While noting that this last phrase is meant to be broadly interpreted, the Texas Supreme Court also noted that it is meant to be interpreted according to a doctrine of statutory construction known as ejusdim generis. This doctrine basically states that where the legislature has given examples of various things in a statute, and then tacked on something akin to “and like things” at the end, those “like things” must be in the same family as those things which have been listed. Applied here, it meant that the “other judicial pleading or filing” needed to be like a lawsuit, cause of action, petition, etc.
To the contrary, the Texas Supreme Court noted:
“The motions to compel and for sanctions at issue here, by contrast, are not remotely ‘like’ a ‘lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.’ Rather, they are based on conduct ancillary to the substantive claims in the case’ and cannot stand on their own. []
The courts of appeals made no effort to address the required connection, instead construing the catch-all provision in isolation and effectively holding that any filing that requests relief from the court is covered by that provision.”
It also did not matter to the Texas Supreme Court that a particular motion sought monetary relief, as that would not drag it under the coverage of the TCPA because those are procedural remedies not directly arising from the cause of action giving rise to the case:
“As such, there is no reason to treat a motion to compel that does not seek monetary relief any differently from one that does, at least for purposes of determining whether it constitutes a legal action under the TCPA.”
Thus, the Texas Supreme Court held that motions did not fall within the ambit of the TCPA and a party cannot properly bring a TCPA special motion to try to get rid of the motion. Instead, a motion will be granted or denied without any regard to the TCPA.
ANALYSIS
There is not much to say about the Texas Supreme Court’s ruling because it is right on target. The only criticism would be towards the particular Texas Court of Appeals which upheld the application of the TCPA to motions, which was frankly just silly from the outset.
The good news is that this ruling in Ferchichi should get rid of a substantial number of misuses of the Texas TCPA, which has come under criticism because of these and similar misuses. The problem is not with the TCPA, of course, but with the lower Texas courts which entertain and sometimes endorse these misuses. The only way to stop that is for the Texas Supreme Court to do what is did here, which was to render a corrective opinion. Very likely, the Texas Supreme Court will have to hear a higher volume of TCPA appeals for a while before the Texas Court of Appeals finally gets on board with the program.
Implicitly, the troubles of the Texas Supreme Court in herding the wet cats of the lower Texas courts onto the right track would be alleviated were Texas to adopt the UPEPA. This is because the UPEPA has the great benefit of uniformity, meaning that the lower courts could look to opinions from the appellate courts of other states to see what the right answer is, without falling for slick sounding but known to be incorrect arguments brought by creative litigants.
But that is for another day.
Read the full article here
