House Judiciary Chairman Jeff Leach says he has incurred $300,000 in attorney fees defending a defamation lawsuit, fees which a Parker County court has assessed under the Texas Citizens Participation Act against the Republican activist who filed the lawsuit.
But Leach said he will never be able to recover the fees because the woman, Morgan McComb, is judgment-proof. The fee dispute is now pending before the Second Court of Appeals.
Leach’s unusual interjection of his personal legal saga came during an April 23 hearing on House Bill 2988, which would affect how attorney fees are awarded after disposition of a motion to dismiss under the TCPA. It is one of several bills that would alter the law to address situations where some lawyers are using it to delay legitimate lawsuits.
The TCPA, also known as the state’s anti-SLAPP law, created an expedited motion to dismiss cases designed to silence Texans’ ability to exercise their free speech and petition rights about matters of public concern. Critics say the law has incentivized bad actors to file TCPA dismissal motions to delay legitimate cases.
The bill’s author, Rep. Mano DeAyala, R-Houston, said at the outset of the hearing before the Judiciary and Civil Jurisprudence Committee that he intended to alter the bill from its initial version to retain current statutory language requiring court costs and attorney’s fees be awarded to defendants who prevail on their dismissal motion.
Instead, DeAyala said, he will focus on mandating fees when a motion is frivolous, brought to harass or solely cause delay or involves the type of lawsuit exempted under the TCPA. The law allows a court to award costs and fees to the responding party if it finds that a motion to dismiss is frivolous or solely intended to delay, but DeAyala said that rarely happens.
“What my bill does is restores a balance to the TCPA by reining in its misuse in the non-First Amendment context, restores core protections for free speech and petition while allowing courts to curb abuse,” he said. “It keeps the early dismissal mechanism in place, all the strength and the good that is in the TCPA, but it reduces the bad-faith filings driven by tactical advantages rather than constitutional concerns.”
DeAyala, a senior partner with Buck Keenan, said his firm is representing a man who sued a private company for a percentage of profits he was supposed to be paid. The case has been delayed since 2019 by the defendant’s TCPA motions, and his client is in his 80s.
He invited individuals who testified against his bill to meet with him to try and find language acceptable to both sides.
Lee Parsley, president and CEO of Texans for Lawsuit Reform, testified in support of DeAyala’s bill. “If you are going to create a right to sue, you ought to create a right for either party who wins the case to recover their attorney fees,” Parsley said.
Stacy Allen, a partner in the Austin office of Jackson Walker, testified against the bill on behalf of the Texas Association of Broadcasters.
“This would have the effect of gutting the entire statute because the defendants in these cases are typically individuals with little means or news organizations with strapped budgets and they are not going to risk filing the anti-SLAPP motion where they may get stuck not only having their own fees in connection with the motion but having to pay the plaintiff’s fees on top of that,” Allen said.
Of the 36 states with anti-SLAPP laws, only one allows plaintiffs to recover attorney fees if the defendant loses, Allen said, noting that state has few anti-SLAPP motions filed.
The Texas law is supported by free speech advocates and organizations from across the political landscape.
It was two years ago when Leach was served with McComb’s lawsuit as he chaired a committee meeting. McComb claimed that the Plano Republican lawmaker defamed her in a social media exchange about whether backers of legislation to allow Texas to secede from the United States were supporting “treasonous sedition.”
The Parker County trial court granted Leach’s motion to dismiss and awarded $20,000 in sanctions against McComb and her attorney and $124,000 in attorney’s fees as well as contingent appellate attorney’s fees, court costs and post-judgment interest.
McComb has told the trial court that she cannot afford to pay the costs.
In her petition to the Second Court of Appeals challenging the sanctions and fees, McCombs said Leach and the trial court “weaponized” the TCPA “to impose extreme and excessive sanctions and attorneys’ fees on her to punish her because of her political beliefs and association with a political opponent” of Leach.
McComb is represented by Paul M. Davis of Frisco.
In his response, Leach said McComb, acting jointly with the Texas Nationalist Movement, “deliberately provoked a dispute with Leach on social media, invited the comments she alleged were defamatory, filed a defamation lawsuit against Leach as a publicity stunt and sorely underestimated the possible consequences that could follow from her attempt to silence constitutionally protected speech and her abuse of the judicial system.”
Leach is represented by Michael W. Minton of Fort Worth, Whitney Davis and Jonathan Cone of Eggleston King Davis in Weatherford, and Thomas S. Leatherbury and Peter B. Steffensen of the Southern Methodist University Dedman School of Law.
The appeal was submitted to the court this week on briefs.
During Wednesday’s hearing, Leach said his case represents a playbook where a third-party litigation funder can “go find a plaintiff that has no assets and go sue that public official into oblivion.”
Supporters of the TCPA have expressed surprise that Leach filed House Bill 2459, which would repeal the automatic stay allowed during appeal of a trial court’s decision on a motion to dismiss. He has not yet set his bill for a committee hearing.
A similar bill in the Senate, Senate Bill 336, is awaiting a committee hearing.
The full House on Thursday passed a bill that would allow an appellate court to temporarily lift a stay during an interlocutory appeal “for a specific and limited time on a party’s motion if the appellate court determines that lifting the stay is necessary only for the specific and limited purpose of preventing irreparable harm to a party or the public.”
House Bill 2986 now goes to the Senate for consideration.