There are 370 opinions that use the phrase “Texas Citizens Participation Act” in the Texas state Westlaw database, and not one of them has held the TCPA unconstitutional.** The Fifth District has 81 opinions, rivaled only by combining the two Houston COAs (combined 83 opinions).
Given the Dallas COAs prolificacy in the TCPA arena, it is somewhat surprising their first substantive opinion on a constitutional challenge just came in Goldberg v. EMR (USA) Holdings, Inc). No. 05-18-00261-CV 2019 WL 3955771 (Dallas COA August 22, 2019). TCPA Practitioners in the know will recognize the players because this case spun out In re. Geomet Recycling, LLC, CA NO. 18-0443 (Tex. June 14, 2019), where the Texas Supreme Court rejected an attempt to have the trial court enforce an injunction violation while a TCPA denial is on appeal.
I was following Goldberg because I thought it might be the first Dallas COA opinion to dive into the Right of Association (but Dyer beat it to the punch months ago). Goldberg is one of the most complicated opinions I’ve read in terms of analyzing and applying the Texas Anti-Slapp, but the biggest takeaway (for me) is the rejection of the constitutional challenges (under both the Texas and United States constitutions). Obviously, until the Texas Supreme Court rules on a constitutional challenge it is arguably still a viable argument, but not one anyone should hang their hat on considering the volume of appeals (and more importantly rejected Petitions for Review) where the TSC has not taken up the issue so far.
We conclude Plaintiffs have not shown the TCPA violates the Texas or United States Constitutions. The trial court erred to the extent, if any, that the denial of Defendants' motion to dismiss was based on Plaintiffs' assertion that the TCPA is unconstitutional. We sustain Defendants' fifth issue.
Big hearing in a few weeks on the TCPA that I’m gearing up for, so that’s all I have on Goldberg. Have a good weekend #lawtwitter.
** Not every opinion that references the TCPA are substantive opinions. For example, there are 25 opinions from the Texas Supreme Court, but only 18 are substantive opinions about the TCPA.