The Texas Citizens Participation Act in Business Litigation

By Catherine A. Keith · Last updated July 15, 2026

The Texas Citizens Participation Act is one of the most powerful procedural tools in Texas litigation. When it applies, it produces dismissal with prejudice, attorney’s fees, possible sanctions, and stays of discovery during the motion practice. It is a shield for defendants. It is also a sword in plaintiffs’ hands when the other side files a TCPA motion without basis, producing sanctions and fee recovery.

The statute was substantially amended in 2019 to narrow what became overuse in ordinary commercial disputes. The current TCPA, codified at Chapter 27 of the Civil Practice and Remedies Code, retains the core anti-SLAPP function but applies more narrowly than before. Knowing what the 2019 version does and does not reach is the whole game, and the sections below map it: the core function, the three-step burden-shifting framework, the commercial speech exemption, the timing, and the consequences of a motion.

The TCPA’s core function

The TCPA provides an expedited motion-to-dismiss procedure for legal actions based on, related to, or in response to the exercise of:

• The constitutional right of free speech (communications on matters of public concern).
• The constitutional right to petition (communications in or pertaining to governmental proceedings).
• The constitutional right of association (communications between people joined together to collectively express views on matters of common interest).

When a legal action falls within the TCPA’s coverage, the defendant can file a motion to dismiss invoking the statute’s expedited procedure. The motion produces a series of consequences that distinguish TCPA practice from ordinary motion-to-dismiss work.

The three-step framework

TCPA motions follow a three-step burden-shifting framework:

Step one: movant’s prima facie burden. The party moving for dismissal must show by a preponderance of the evidence that the legal action is based on, related to, or in response to the exercise of one of the protected rights. If the movant fails, the motion is denied.

Step two: non-movant’s burden. If the movant satisfies step one, the burden shifts to the non-movant to establish by clear and specific evidence a prima facie case for each essential element of the claim. The “clear and specific evidence” standard is more demanding than ordinary pleading requirements and requires more than allegations, it requires evidence supporting each element.

Step three: movant’s defense. Even if the non-movant satisfies step two, the movant can still obtain dismissal by establishing by a preponderance of the evidence each essential element of a valid defense to the non-movant’s claim as a matter of law.

The burden-shifting analysis is the heart of TCPA practice. Cases that survive step one and fail at step two, because the plaintiff did not develop adequate evidence, are dismissed even when the underlying claim might have been viable with more time.

The 2019 amendments and the commercial speech exemption

The TCPA was substantially amended in 2019, with the amendments effective for actions filed on or after September 1, 2019. The principal changes:

Narrower definitions of the protected rights, particularly free speech and association. The amendments restricted these to narrower constitutional functions.

Expanded exemptions removing many ordinary commercial disputes from coverage.

The commercial speech exemption in section 27.010(b), substantially expanded by the 2019 amendments. The exemption removes from TCPA coverage actions against persons primarily engaged in business of selling or leasing goods or services, when the statement or conduct arises out of the sale or lease and the intended audience is actual or potential customers.

The commercial speech exemption excludes most ordinary business-to-customer disputes from TCPA coverage. This was the intended effect of the 2019 amendments, the legislature concluded the prior version was being used too broadly in ordinary commercial litigation.

Other exemptions include actions seeking enforcement of covenants not to compete (which would otherwise be impacted by free speech and association theories), certain insurance matters, certain family law matters, and others.

The current TCPA still has significant scope in business contexts, but the coverage is narrower than the pre-2019 version.

When the TCPA applies in business cases

Even with the 2019 amendments, the TCPA remains relevant in specific business contexts:

Business disparagement and defamation claims. Many of these involve communications on matters of public concern, triggering free speech protection.

Tortious interference claims based on communications. Particularly when the alleged interference is communicative rather than physical.

Claims arising from public-forum statements. Online reviews, social media posts, and other publicly accessible communications often qualify.

Claims arising from regulatory or governmental involvement. Petition right protections cover communications in or pertaining to governmental proceedings, including communications with regulators, applications for licenses, and similar interactions.

Claims arising from internal organizational communications. Some internal communications relating to matters of common interest may invoke association rights.

The pre-filing question for plaintiffs is whether the case profile makes TCPA exposure likely. Cases with clear TCPA exposure require either reformulation to eliminate the exposure or careful evidence development to satisfy the “clear and specific evidence” standard.

The timing requirements

Filing deadline. The TCPA motion must be filed within 60 days after service of the legal action. The court can extend the deadline on a showing of good cause, but extensions are not automatic.

Hearing deadline. A hearing on the motion must be held within 60 days after filing, with limited extensions available.

Ruling deadline. The court must rule within 30 days after the hearing.

Discovery stay. All discovery is stayed pending the motion’s resolution unless the court orders limited discovery on the motion. The stay is one of the principal practical effects of TCPA filing, it freezes the case while the motion proceeds.

The expedited timeline forces early decision-making. Cases where TCPA motions are filed cannot proceed at ordinary pace; the motion must be resolved before substantive discovery can proceed.

Consequences of TCPA motions

If granted. The action is dismissed with prejudice. The moving party recovers court costs, reasonable attorney’s fees, and expenses. The court may award sanctions against the party who brought the action.

If denied. Immediate interlocutory appeal under section 51.014(a)(12). The appeal further delays the case while the court of appeals reviews the denial.

Bad-faith motions. When TCPA motions are filed frivolously or in bad faith, courts can award attorney’s fees and sanctions against the moving party. The two-way fee shifting incentivizes meritorious motions and discourages strike motions.

Strategic considerations

For defendants considering TCPA motions:

Evaluate coverage carefully. The 2019 amendments narrowed coverage substantially. Cases that would have been clearly covered under the prior version may not be covered now.

Consider the discovery stay benefit. Even when ultimate dismissal is uncertain, the discovery stay during motion practice can substantially benefit the defendant.

Coordinate with other motions. Rule 91a motions, summary judgment motions, and other dispositive tools can sometimes work in coordinated fashion.

Manage interlocutory appeal exposure. Denied TCPA motions produce mandatory appellate work. The decision to file should account for the possibility of appellate consequences.

For plaintiffs facing TCPA motions:

Develop “clear and specific” evidence quickly. The expedited timeline requires fast evidence development. Cases that lack proper evidentiary support fail at step two.

Argue the exemption first. If the case falls within the commercial speech exemption or another statutory exclusion, the analysis stops at step one.

Address the “based on” element. Many TCPA motions can be defeated by demonstrating that the legal action is not really based on the exercise of protected rights but on independent conduct.

Reading Chapter 27 from both chairs

We assess TCPA exposure at intake on every business case, because a granted motion means dismissal with prejudice plus fees, and that cost makes coverage analysis a priority. We file TCPA motions when the elements support them and use the statute aggressively where it applies. We are equally ready to defend our clients’ claims against one; a claim that survives TCPA review is usually well-positioned for the rest of the case. And we fold the discovery stay, the interlocutory appeal, and the two-way fee shifting into the larger plan rather than treating the motion in isolation.

The mistake we see most is filing a TCPA motion on a claim the commercial speech exemption plainly removes from coverage, and paying the other side’s fees for it. Coverage comes first, every time, whether you are bringing the motion or facing it.