How to Defend Against a TCPA Motion to Dismiss in Texas: Understanding the Prima Facie Evidence Requirement

Filing a lawsuit is only the beginning of the litigation process. In Texas, plaintiffs who bring claims involving protected speech, petitioning activity, or association may face an immediate challenge under the Texas Citizens Participation Act (TCPA).

A defendant can use the TCPA to request early dismissal of qualifying claims.

For the plaintiff, that can create a significant legal hurdle: the requirement to establish a prima facie case through clear and specific evidence.

Understanding what this means, and preparing for the possibility of a TCPA challenge before litigation begins, can make a substantial difference in how a case proceeds.

What Is a Prima Facie Case Under the Texas TCPA?

A prima facie case is a threshold evidentiary showing that supports the essential elements of a legal claim.

Under Section 27.005(c) of the Texas Civil Practice and Remedies Code, when the defendant establishes that the TCPA applies, the plaintiff must establish by clear and specific evidence a prima facie case for each essential element of the challenged claim.

This does not mean the plaintiff must prove the entire lawsuit at an early hearing.

However, it does mean the plaintiff must provide the required factual support for the elements of the claim rather than relying solely on generalized accusations or unsupported conclusions.

What Does "Clear and Specific Evidence" Mean?

The TCPA requires more than a vague assertion that wrongdoing occurred.

The evidence must be sufficiently detailed to establish the required prima facie showing for each element of the claim.

Consider a hypothetical dispute involving a business owner who alleges that a former employee made defamatory statements.

The business owner might claim that the former employee damaged the company's reputation by publicly making false allegations.

To respond effectively to a TCPA motion, the plaintiff may need to establish facts addressing questions such as:

• What specific statements were made?
• Who made those statements?
• When and where were they published?
• Why are the statements allegedly false and defamatory?
• What level of fault applies, and what evidence supports it?
• What legally recognized harm or damages resulted, where proof is required?

The precise requirements depend on the cause of action and the applicable law.

A plaintiff cannot assume that the seriousness of an accusation alone establishes a viable legal claim.

How Does the TCPA's Three-Step Framework Work?

The TCPA generally uses a three-stage analysis.

Step One: The Defendant Establishes That the TCPA Applies

The defendant must demonstrate that the legal action is based on or in response to qualifying protected activity or another act covered by the statute.

That may involve the right of free speech, the right to petition, or the right of association.

The court must also consider whether statutory exemptions affect the motion.

Step Two: The Plaintiff Establishes a Prima Facie Case

If the TCPA applies, the plaintiff must establish by clear and specific evidence a prima facie case for each essential element of the challenged claim.

If the plaintiff fails to make the required showing, dismissal may be required.

Step Three: The Defendant Establishes a Legal Defense

Even when the plaintiff establishes a prima facie case, the court must dismiss the action if the defendant establishes an affirmative defense or another ground entitling the defendant to judgment as a matter of law.

This framework makes it particularly important for plaintiffs to evaluate both the elements of their claims and the defenses that may apply.

What Evidence Can a Court Consider During a TCPA Hearing?

Under Section 27.006(a), a court determining whether a claim is subject to dismissal under the TCPA must consider the pleadings, evidence permitted under Texas Rule of Civil Procedure 166a, and supporting and opposing affidavits stating relevant facts.

Depending on the dispute, potentially important materials may include:

• Emails and written correspondence.
• Social media posts and electronic messages.
• Contracts and business records.
• Sworn declarations or affidavits.
• Documents establishing publication or communication.
• Financial records relevant to claimed economic damages.

The admissibility and sufficiency of particular evidence depend on the circumstances and applicable procedural rules.

A plaintiff should work with an attorney to identify which materials actually establish the required elements of each claim.

Can a Plaintiff Request Discovery to Respond to a TCPA Motion?

Yes, but discovery is limited.

Filing a TCPA motion generally suspends discovery in the lawsuit until the court rules.

However, Section 27.006(b) permits the court to allow specified and limited discovery relevant to the motion upon a showing of good cause.

A plaintiff seeking discovery should identify what information is needed and why that information is relevant to the TCPA issues.

The court is not required to authorize broad discovery simply because the plaintiff would prefer to obtain more evidence.

This limitation makes preparation before filing suit especially important.

What Happens If the Plaintiff Loses the TCPA Motion?

If the court dismisses a legal action under the TCPA, Section 27.009 generally requires an award of court costs and reasonable attorney's fees to the successful moving party, subject to statutory exceptions.

The court may also impose sanctions in appropriate circumstances.

For plaintiffs, this means an unsuccessful claim can result in more than dismissal. It can create additional financial exposure.

There are exceptions and additional provisions governing particular circumstances, including compulsory counterclaims and frivolous TCPA motions.

How Can Plaintiffs Reduce the Risk of a TCPA Dismissal?

Before filing a lawsuit that involves potentially protected communications, plaintiffs should carefully assess several issues.

Identify each legal element. Every cause of action has specific requirements. The available facts and evidence should be evaluated against those elements.

Preserve relevant evidence. Communications, business records, and other materials should be collected and preserved as appropriate.

Evaluate potential defenses. A viable claim may still face significant defenses, including those established as a matter of law.

Consider TCPA applicability and exemptions. The statute does not apply to every lawsuit involving speech, and its scope can be decisive.

Assess financial exposure. The potential for attorney's fees and costs should be part of the litigation strategy.

These steps cannot guarantee that a TCPA motion will be defeated, but they can help identify weaknesses before the parties incur significant litigation expenses.

McMillan & Black Represents Clients Facing TCPA Challenges

Whether you are considering a defamation lawsuit or defending an existing claim against a TCPA motion, early case evaluation matters.

McMillan & Black, PLLC represents Texas clients in litigation involving TCPA motions to dismiss and related procedural issues.

Our attorneys can assess the claims, examine the available evidence, identify potential defenses, and help determine the appropriate litigation strategy.

Contact McMillan & Black, PLLC to discuss a lawsuit that may involve a Texas TCPA challenge.

Frequently Asked Questions

Does a plaintiff have to prove the entire case at a TCPA hearing?

No. The plaintiff must make the required prima facie showing through clear and specific evidence for each essential element of the challenged claim.

Can a plaintiff use affidavits to oppose a TCPA motion?

Yes. The TCPA expressly permits consideration of supporting and opposing affidavits addressing relevant facts.

Can a plaintiff obtain discovery before the TCPA hearing?

Possibly. The court may allow specified and limited discovery relevant to the motion upon a showing of good cause.

Can a plaintiff recover attorney's fees if a TCPA motion is frivolous?

Potentially. Section 27.009(b) permits the court to award court costs and reasonable attorney's fees to the responding party if the motion is found frivolous or solely intended to delay.

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