![]() This is a bad solution for the reason that it simply handcuffs the Court of Appeals in the other direction.įirst, based on the reported opinions from the Court of Appeals, there are numerous instances where the District Court made an incorrect ruling that a party bringing a TCPA motion was in bad faith, and this ruling was later corrected on appeal. The solution now being proposed to the Texas legislature is to simply eliminate the automatic stay in certain cases. The result is that the Court of Appeals has been handcuffed in its ability to deal with the bad faith TCPA filings. The technical problem is that § 51.014(b) currently does not provide a mechanism for the Court of Appeals to lift or otherwise modify the stay. It is a problem in Texas, however, because various bad actors misuse the stay by way of bad faith TCPA filings ― essentially, some Texas lawyers have effectively "weaponized" § 51.014(b) as a dilatory tactic. This is not a problem in the abstract, nor is it a problem in most other states that have adopted the UPEPA or other Anti-SLAPP legislation. The way this works now is that an automatic stay of litigation at the District Court level arises under the Texas Civil Practice & Remedies Code § 51.014(b) whenever an appeal is made by a party who has filed an appeal when their TCPA motion has been denied. The existing language of the TCPA itself should not be changed for the simple reason that such change is not even necessary Instead, changes to other parts of the Texas Civil Practice & Remedies Code are both technically preferable and are likely to be less politically contentious. There are many reasons for this result, including that Texas is very weak on giving discipline to attorneys and terminating sanctions to parties who file frivolous motions, the Texas Civil Practice & Remedies Code allows demurrers and amended pleadings to be filed long after the case was initiated (which then, perversely, allows for TCPA motions long after the case has already been rolling along) and does not allow for early challenges to a lawsuit as with a Rule 12(b)(6) motion under the Federal Rules of Civil Procedure (and analogous rules adopted by the vast majority of states), and, finally, the Texas Court of Appeals is terribly underfunded and undermanned thus leading to sometimes many years' delays in hearing what should be routine appeals.īut that is exactly what is now being proposed to the Texas legislature: More bailing wire and duct tape in the form of not imposing the automatic stay where the trial court has held the motion to be in bad faith, untimely, or outside the scope of the TCPA's protections. Unfortunately, some litigants and attorneys in Texas have unethically misused the TCPA procedure to obtain the stay in cases where the TCPA was never meant to apply, and thus denied legitimate plaintiffs with valid non-constitutional claims their own right to have their cases heard and resolved in a timely fashion. ![]()
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