The Texas Citizens Participation Act and Business Litigation: When Anti-SLAPP Protections Apply to Commercial Disputes
A Dallas software company sues a former executive for defamation, tortious interference, and business disparagement after the executive posts critical comments online about the company’s products. Sixty days later, the executive’s counsel files a motion to dismiss under Chapter 27 of the Texas Civil Practice and Remedies Code, the Texas Citizens Participation Act. Discovery freezes immediately. The hearing has to happen within 60 days. The court has 30 days after the hearing to rule. If the executive prevails, the company pays mandatory attorney’s fees and may face additional sanctions. If the executive loses, the case proceeds with substantial delay and a developed record of the speech-related issues. A Dallas business law attorney handling commercial litigation today operates in a landscape where the TCPA’s procedural force has been narrowed by the 2019 amendments but remains a pivotal tool in any case touching defamation, tortious interference, or speech-related claims.
Here is what the TCPA actually does, where the 2019 amendments changed the analysis, and how the statute factors into Dallas commercial litigation in 2026.
The Statute and Its Purpose
The Texas Citizens Participation Act, codified at Civil Practice and Remedies Code Chapter 27, was enacted in 2011 to protect against Strategic Lawsuits Against Public Participation. The statute’s stated purpose under § 27.002 is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government, while protecting the rights of persons to file meritorious lawsuits for demonstrable injury.
The TCPA’s mechanism is procedural rather than substantive. It creates an expedited motion-to-dismiss process for legal actions based on or in response to a party’s exercise of three constitutional rights:
- The right of free speech, defined as a communication made in connection with a matter of public concern
- The right to petition, defined to include statements made in or in connection with judicial, legislative, executive, or administrative proceedings
- The right of association, redefined in 2019 to require connection to governmental proceedings or matters of public concern
A defendant who files a TCPA motion gets immediate procedural advantages: a stay of discovery, an expedited hearing schedule, mandatory attorney’s fees if the motion succeeds, and interlocutory appellate review of any adverse ruling.
The 2019 Amendments and What Changed
The TCPA’s pre-2019 breadth produced years of expansive applications that critics viewed as well beyond the statute’s intended scope. Texas appellate courts had applied the TCPA to claims for trade secret misappropriation, non-compete enforcement, tortious interference, and breach of fiduciary duty, often in cases that had nothing to do with public participation or expressive activity.
House Bill 2730, effective September 1, 2019, narrowed the statute substantially.
The “relates to” language was removed from § 27.003(a). Legal actions now have to be “based on or in response to” a party’s exercise of the protected rights, eliminating the loose connection that had supported many earlier applications.
The “matter of public concern” definition was tightened. The pre-amendment definition’s broad reach to issues “related to” health, safety, environmental, or economic concerns was replaced with a narrower formulation requiring genuine public significance. The Texas Supreme Court’s 2019 decision in Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC applied the same narrowing principle to pre-amendment cases, holding that communications between two private parties about modest production at a single oil and gas well did not involve matters of public concern.
Significant exemptions were added under § 27.010, removing entire categories of claims from TCPA reach:
- Trade secret misappropriation under the Texas Uniform Trade Secrets Act
- Actions to enforce non-disparagement agreements
- Actions to enforce covenants not to compete in employment or independent contractor relationships
- Texas Deceptive Trade Practices Act claims
- Family Code cases
- Medical peer review cases
- Eviction suits
- Attorney disciplinary proceedings
Government entities, agencies, officials, and employees acting in official capacities can no longer file TCPA motions, which closed off the offensive use of the statute that had emerged in the prior decade.
The mandatory sanctions provision was made discretionary, but the mandatory attorney’s fees award for prevailing movants remained, with the deletion of the “as justice and equity may require” qualifier giving courts no discretion to reduce a fee award.
What Still Falls Within the TCPA in Commercial Litigation
The 2019 amendments narrowed the statute’s reach into ordinary commercial disputes substantially, but several categories of business litigation remain squarely within the TCPA’s scope.
Defamation and business disparagement claims. The classic SLAPP fact pattern, where a business sues a critic, competitor, or former employee for defamation based on speech about the business, remains the TCPA’s heartland. Online reviews, social media posts, news articles, and public statements about a business are typically protected speech if they touch on matters of public concern.
Tortious interference claims based on speech. When the alleged interference consists of statements rather than physical conduct, the TCPA often applies. A claim that a former employee told the plaintiff’s customers untrue things about the plaintiff’s products falls within the TCPA framework even if the underlying customer-relationship issue would otherwise be a routine commercial dispute.
Business disparagement. Texas’s tort of business disparagement, which requires false statements about the plaintiff’s economic interests, frequently triggers TCPA analysis when the statements were made on matters of public concern.
Defamation counterclaims in commercial cases. A defendant in a commercial case who counterclaims for defamation based on statements the plaintiff made in connection with the dispute can find the counterclaim itself dismissed under the TCPA if the statements involved petition activity (for example, statements made to government regulators or in legal proceedings).
Cases involving regulatory or safety matters. Communications about environmental concerns, product safety, professional licensing complaints, or similar matters often qualify as matters of public concern and bring associated commercial claims within the TCPA.
The commercial speech exemption under § 27.010(a)(2) remains an important counterweight. The TCPA does not apply to legal actions brought against a person primarily engaged in the business of selling or leasing goods or services, where the statement or conduct arose out of the sale or lease and was directed at an actual or potential customer. The exemption keeps ordinary commercial communications between businesses and customers outside the TCPA, but it has narrow boundaries that get litigated frequently.
What a Dallas Business Law Attorney Watches in TCPA Practice
Several procedural features make TCPA practice meaningfully different from ordinary motion-to-dismiss work.
The 60-day filing deadline. Section 27.003(b) requires the motion to dismiss to be filed within 60 days after service of the legal action. The deadline is jurisdictional in practical effect. Late motions are denied. Amended pleadings adding new parties or claims may reset the clock for the new claims, but case law on what counts as a meaningful amendment is still developing.
The burden-shifting framework. Section 27.005 establishes a multi-step analysis. The movant must first show by a preponderance of evidence that the TCPA applies. If that burden is met, the burden shifts to the nonmovant to establish “clear and specific evidence of a prima facie case for each essential element of the claim.” If the nonmovant carries that burden, the movant can still prevail by establishing each essential element of a valid affirmative defense by a preponderance of evidence.
The “clear and specific evidence” standard is more demanding than ordinary pleading sufficiency. Conclusory allegations and inferences without record support do not satisfy it. The Texas Supreme Court’s decisions in In re Lipsky and subsequent cases have clarified that the standard requires more than naked recitations of elements but does not require admissible evidence in the form required at trial.
The mandatory attorney’s fees award. Section 27.009(a)(1) requires the court to award reasonable attorney’s fees to the prevailing movant. The mandatory nature of the award, combined with the absence of judicial discretion to reduce it for equity reasons after the 2019 amendments, makes TCPA motions a real financial risk for plaintiffs.
The interlocutory appeal. Section 51.014(a)(12) authorizes interlocutory appellate review of orders denying or granting TCPA motions. Cases routinely take a year or more to resolve through the appellate process, during which the trial court proceedings are stayed.
Strategic Considerations for Plaintiffs
Plaintiffs filing commercial cases that might trigger TCPA exposure should consider several issues during the pleading stage.
Assess the speech component carefully before filing. Claims that depend on the defendant’s speech for the underlying tort theory are more vulnerable than claims based on conduct.
Consider whether claim selection avoids TCPA reach. Trade secret misappropriation claims are exempted under § 27.010(a). Breach of contract claims (other than non-disparagement claim enforcement) are typically outside the TCPA. Restructuring a claim from defamation to breach of confidentiality agreement, where the facts support both, can avoid TCPA exposure.
Document the prima facie case before filing. Plaintiffs need to be ready to produce clear and specific evidence of each element of each claim within 60 to 90 days of filing. Cases filed without that evidence in hand are at risk.
Strategic Considerations for Defendants
Defendants served with claims that arguably involve protected speech should evaluate TCPA exposure immediately.
Calendar the 60-day deadline at the moment of service. The window closes quickly, and the consequences of missing it are permanent for that pleading.
Assess whether the claims are based on or in response to protected speech as defined post-2019. The narrower definitions limit but do not eliminate TCPA opportunities.
Consider whether discovery will help or hurt. The automatic discovery stay benefits defendants who do not want to give plaintiffs the chance to develop evidence, and disadvantages defendants who need discovery to support their TCPA motion.
Evaluate the attorney’s fees economics. A successful TCPA motion produces a fee award against the plaintiff. An unsuccessful motion produces no fee shifting against the defendant but does delay the case and develop a record on speech issues.
When to Bring in a Dallas Business Law Attorney
TCPA practice involves tight deadlines, specific evidentiary standards, and procedural maneuvering that ordinary motion practice does not. A Dallas business law attorney evaluating whether to file or defend a TCPA motion can identify the issues at the pleading stage, calibrate the strategy to the post-2019 framework, and avoid the costly mistakes that come from treating commercial litigation as if the anti-SLAPP statute did not exist.
The Mundaca Law Firm advises Dallas businesses on commercial litigation, including matters that implicate the Texas Citizens Participation Act on either side. If you are filing or defending a case that involves speech, tortious interference based on communications, or business disparagement allegations, an early conversation about TCPA strategy is the right step.
