For longtime Dallas attorney Randal Mathis, the Texas Citizens Participation Act is a law that has been serially abused by his opponent in a long-running estate battle to thwart collection of a $50 million judgment to the detriment of his client and his law firm.
That same statute is a savior to small-town newspaper publisher Kelli Barnes. Without its free speech protections, the Polk County Enterprise might have suffered a devastating financial blow when it was sued by an assistant district attorney over the paper’s article that linked him to a notorious wrongful conviction.
These are starkly opposing views of the landmark 2011 law enacted to protect Texans, including news and advocacy organizations, from litigation designed to silence their ability to exercise rights to speak freely, petition their government or associate about matters of public concern. Commonly known as the state’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law, the TPCA created an expedited motion to dismiss a lawsuit if the defending party can persuade a trial court that the suit was targeted to stifle its speech or expressive activities.
Now the Texas Legislature is poised to alter the law’s key protection — an automatic stay of trial proceedings while a defendant appeals the denial of its motion to dismiss a SLAPP suit. Prospects for legislative action are growing as stakeholders on both sides of the issue work for a compromise on legislation that came close to passing last session.
Critics of the stay, such as Mathis and Texans for Lawsuit Reform, say abuse of the law is running rampant as TCPA motions to dismiss are being filed in cases that have nothing to do with speech rights.
Media organizations and advocacy groups ranging from the ACLU of Texas to National Right to Life are locking arms as the Protect Free Speech Coalition to defend the stay, saying its removal would force a party targeted by a retaliatory lawsuit to engage in expensive discovery while an appellate court reviews the trial court’s refusal to dismiss the case.
The leading bill is Senate Bill 336, filed by Sen. Bryan Hughes, an attorney and Republican from Mineola. Its companion, House Bill 2459, was filed by Rep. Jeff Leach, a Plano Republican who is counsel at Gray Reed. The bills were assigned to committees chaired by Hughes and Leach, enhancing their chances for passage.
The subject of the bills is Texas Civil Practice and Remedies Code Section 51.014, which governs interlocutory appeals. The statute stays all trial court proceedings until the appeal is resolved for TCPA motions to dismiss, class certifications, sovereign immunity assertions and pleas to the jurisdiction by a governmental unit.
The bills would repeal the automatic stay only for the TCPA and allow a 60-day stay when a motion to dismiss is denied for being untimely, within a statutory exception or deemed frivolous. The court of appeals could stay the commencement of trial and other proceedings in the trial court on a determination that the appellant is likely to succeed on the merits or that it is in the interest of justice.
If the order did not state a reason for denying the motion or if the motion was denied for a reason not otherwise provided for in the bill, a stay would be in effect during the appeal.
Lee Parsley, president and general counsel for TLR, thinks the 60-day window builds enough time for a court of appeals to determine whether to uphold a trial court’s denial of a motion to dismiss.
“These are not 14-day jury trials that you’re appealing from. You’re appealing from what might have been an hour or two hearing in the trial court and a fairly limited record. So that’s why I think the 60-day window is entirely manageable for the lawyers who do this all the time,” Parsley said.
Opponents believe the 60-day stay would often expire before an appellate brief would even be due. That would leave defendants targeted for speaking out on a matter of public concern with the expense of discovery in the trial court at the same time they were fighting on appeal. Media companies are concerned the legislation could prompt higher malpractice insurance costs.
Laura Prather, a Haynes Boone partner and anti-SLAPP expert who helped write the Texas law, said problems with lengthy stays due to congested courts of appeals are not solely an issue related to the TCPA.
“Our point is, if you want to fix this problem of the statutes being too rigid during an interlocutory appeal, then fix it everywhere. Don’t just target people’s free speech rights. Look at it across the board and give the appellate court some mechanism to lift the stay,” Prather said.
Bills that would address the stay in a broader manner have been filed by Sen. Nathan Johnson, D-Dallas, and Rep. Joe Moody, D-El Paso. Johnson is a commercial litigator in the Dallas office of Thompson Coburn. Moody works as senior counsel for WestStar Bank and is speaker pro tempore of the Texas House of Representatives.
Johnson’s SB 1292 would allow an appellate court to enlist the assistance of a trial court in hearing evidence and making findings of fact and recommendations relating to the appellate court’s authority to issue temporary orders necessary to preserve a party’s rights until disposition of an appeal.
Moody’s HB 2986 would allow the appellate court to lift a stay on a party’s motion if the appellate court determines that lifting the stay is necessary for the specific and limited purpose of preventing irreparable harm to a party or the public. HB 2986 is scheduled to be heard March 26 by the House Judiciary and Civil Jurisprudence Committee.
Clogged Appellate System
Although appeals of TCPA motions are supposed to be expedited, that rarely happens in the state’s courts of appeals where criminal appeals and family law cases often take precedence.
“When the SLAPP statute is abused, then that abuse is not resolved quickly because the appellate courts are bogged down,” said Parsley. “So, the abuse means that when this statute is misused by someone, then you’re stuck in the appellate court for probably a year and a half. And then if they choose to go to the Supreme Court [that would] tack on probably another six months.”
That is the situation Mathis has found himself in. He had never heard of the Texas Citizens Participation Act when Michael Ruff, his opponent in a bitter battle over a wealthy family’s finances, began filing anti-SLAPP motions to dismiss lawsuits brought by Suzann Ruff, Michael’s estranged mother. Since 2017, Mathis has been trying to collect a $50 million probate judgement in favor of his client that has grown with interest to $70 million.
The Ruff litigation was cited in TLR’s recent publication entitled: Fixing (Again) the Anti-SLAPP Statute. The “again” refers to 2019 amendments the Legislature made to narrow the types of cases impacted by the law.
“Due to his willingness to abuse the anti-SLAPP statute, Michael, his business entities, and his siblings have been able to stall litigation involving trust modification, breaches of fiduciary duty, conspiracy, and other claims unrelated to the First Amendment for fourteen years. The litigation is still ongoing,” the paper states.
Michael Ruff is seeking review by the Texas Supreme Court over a Palo Pinto County trial court’s denial of a TCPA motion to dismiss a suit by Suzann Ruff against a law firm that had represented the son. According to filings in the case, Michael Ruff is proceeding pro se and his contact information was redacted.
“Mike is broke, he has no assets, and he has no ownership in any entity or property,” he wrote in his petition.
In an interview with The Lawbook, Mathis said that although his client has prevailed on Michael Ruff’s TCPA appeals, the expense of responding to dozens of dismissal motions and subsequent appeals and the inability to collect the judgment has nearly destroyed his law practice. He said the anti-SLAPP law has “inadvertently broken the legal system” and supports the bills by Hughes and Leach.
Thomas S. Leatherbury is a longtime First Amendment lawyer who testified in support of the TCPA last fall before the House Judiciary and Civil Jurisprudence Committee. He has known Mathis since the 1980s and sympathizes with Mathis’ client but implores legislators not to make law to respond to an extraordinary case.
“The law benefits potentially all speakers, every corporation that has a website that could be sued for defamation because of some content on it,” Leatherbury said. “It’s difficult for me to take the narrow view that some of the people who are proposing this do, that they’ve been harmed in one lawsuit so you should make this wholesale change in the statute because of a particularly bad example.”
In addition to the Ruff case, TLR cites a case from Harris County over the validity of a 2022 judicial election and a tortious interference case over a contract for legal representation as other examples of misuse of the anti-SLAPP statute.
Mathis says he is so sure there are other cases out there that he has an ad coming out in the Texas Bar Journal seeking input from lawyers around the state.
Publishers, Advocacy Groups Defend Law
In a world where economic headwinds have led to the loss of many small-town newspapers, Barnes’ publications have been covering Polk County, San Jacinto County, Trinity County and Tyler County for eight decades. She submitted written testimony to the House committee for its October 2024 interim hearing on the anti-SLAPP law.
“We have survived changes in the way we deliver news to our communities, hurricanes and floods, theft, a pandemic, and most recently a frivolous lawsuit filed by a public official who did not like what we printed about him. In our case, his exact words in a social media post were ‘I am getting a new corvette and I will put their name on the license plate.’ It is just this kind of frivolous case that news organizations like ours cannot withstand. We do not have the time or the money to defend ourselves. Thankfully, the anti-SLAPP law assisted in clearing our name and may also replace money we lost.”
“This is just one small example of a much larger protection this law affords to news organizations committed to real community journalism and free speech.”
The article published by the Polk County Enterprise in 2020 recounted an incident involving a newly hired Polk County assistant district attorney who had previously worked for the Williamson County DA. The article said that Tommy Lamar Coleman was overheard in a Williamson County courtroom in 2011 mocking requests by Michael Morton to have DNA testing done on a bloody bandana found near the scene of his wife’s 1986 murder in the couple’s home. Testing of the bandana linked the DNA to a convicted felon named Mark Alan Norwood, whose DNA also was found at a murder scene in Travis County. Morton was exonerated and freed from prison.
Coleman argued that the article made it appear that he assisted with the initial prosecution of Morton even though he was 17 and not a lawyer at the time. The trial court denied the publishing company’s motion to dismiss, and the Ninth Court of Appeals affirmed.
In February 2024, the Supreme Court ordered the dismissal of Coleman’s suit, finding the account of Coleman’s participation in Morton’s post-conviction proceeding was “undisputedly true.”
Leatherbury, who directs the First Amendment Clinic at Southern Methodist University’s Dedman School of Law, represented the newspaper pro bono, but the paper also had paid insurance defense lawyers. Coleman was ordered to pay $92,000 in attorney’s fees to the publishing company and a former editor and $25,000 in sanctions to the editor.
Among the nonprofit organizations defending the TCPA is the Institute for Justice, a public interest law firm whose stated mission is to end abuses of government power and secure the constitutional rights of Americans.
Arif Panju, managing attorney of the Texas office, represented book author and attorney Carla Main in a pre-TCPA case. When a Dallas developer alleged defamation in 2008 lawsuit over Main’s book on an eminent domain dispute in Freeport, the IJ took her case, paying the tab over the three years it took until she won at the Fifth Court of Appeals. Main’s testimony helped pass the anti-SLAPP law.
Panju said the TCPA should be protected, not watered down.
“The protection has to necessarily extend to everyone for it to work,” he said. “Once you start carving out categories of decisions like frivolousness or timeliness, you’re going to find judges that get it wrong, and all those litigants that were targeted are the new SLAPP targets. And that policy decision should be an easy one to make. Texans should not be SLAPP targets again.”
Curveball on Attorney Fees
An unexpected front in the TCPA wars was opened when Rep. Mano DeAyala filed HB 2986, which would make attorney fees discretionary instead of mandatory when a dismissal motion is granted. DeAyala is a Houston Republican and senior partner at Buck Keenan.
“It would really change the leverage that a defendant has in a SLAPP suit to go from mandatory to discretionary attorney’s fees,” said Leatherbury, who is supporting legislation that would allow the awarding of fees under the TCPA to lawyers working pro bono.
Parsley said while both sides can get attorney fees under the TCPA, a plaintiff who defeats a motion to dismiss has a higher burden.
“It’s always been a little bit misleading because the defendant who files the SLAPP motion, if they win, they’re guaranteed their attorney’s fees,” he said. “The plaintiff in the same case, if they defeat the SLAPP motion to dismiss, then they get their attorney’s fees only if they can go further and show that the SLAPP motion to dismiss was frivolous.”
Parsley said he doesn’t have a problem with DeAyala’s bill but that it’s not as targeted to the specific abuses that TLR is seeing as is Hughes’ SB 336.
Proposed TCPA-related Bills
- SB 336/HB 2459: Repeals automatic stay during appeal of a trial court’s denial of an anti-SLAPP motion to dismiss; requires a 60-day stay if the motion was denied because it is untimely, within a statutory exception, or deemed frivolous; stays trial court proceedings if the motion was denied for a different stated reason, without reason, or by operation of law.
- HB 2988: Repeals attorney fee requirement when moving party prevails on dismissal motion; allow fees when trial court finds a motion to dismiss frivolous or intended to delay.
- SB 1292: Allows appellate court to enlist the trial court to hear evidence and make recommendations for temporary orders necessary to preserve a party’s rights until disposition of an appeal.
- HB 2986: Allows appellate court to lift a stay to prevent irreparable harm to a party or the public.
- SB 1516/HB 2966: Requires the awarding of pro bono attorney fees to the moving party for defending against the legal action.