The Texas Anti-Slapp Test (3 1/2 Steps)

The Texas Anti-Slapp is effectively broken down into three phases, with an exemption that I’ll call the half step.  This is a high level review only. Watch for blog posts that break down cases discussing the various steps.

Step 1:  

Does the claim/counterclaim infringe on the defendant/counter-defendant’s right to free speech, right of association, or right to petition (the “3 Rights”)?   

See §27.001(1-9) for definitions; §27.005(b) (preponderance of the evidence standard under Step 1).

Do not rely on your common sense notions of what the 3 Rights mean; these are defined terms and are enforced according to legislative definition.  If the claim/counterclaim implicates one or more of the 3 Rights, then those cause of actions must be dismissed (absent falling under the 1/2 step or the plaintiff/counter-plaintiff meeting Step 2).

This is a claim by claim analysis.  Not all of the claims might be protected by the statute.

Step 1.5:

Does the commercial speech exemption apply? 

See §27.010(b) (for definition).

If the claim/counterclaim falls within the commercial speech exemption, then the motion to dismiss fails. (Other exemptions exist; but I’m addressing this from the commercial dispute angle).

Step 2:

If the defendant/counter-defendant can  meet Step 1 and does not fall within the commercial speech exemption, can the plaintiff/counter-plaintiff meet the elements of each claim/counterclaim.

See §27.005(c) (clear and specific evidence standard under Step 2).

For Texas practitioners, you should consider Step 2 as having to meet a Tex. R. Civ.P. 166a(i) motion which challenged each element of each claim/counterclaim

If the evidentiary element for each claim/counterclaim is met, that specific cause of action cannot be dismissed. If an element is missing, the claim or counterclaim is dismissed.


Step 3: