The Texas Supreme Court’s Docket, Part 3

There’s a perception in some appellate circles that if the court of appeals has issued a “memorandum opinion,” the chances of getting review by the Supreme Court of Texas are minuscule.   A look at the supreme court’s statistics might change a few minds.

To give some perspective, first consider what it means to have a “memorandum opinion.”  The Texas rules of appellate procedure allow intermediate courts of appeals to designate written opinions as an “opinion” or a “memorandum opinion.”  In general, if the issues decided by the court are settled under existing law, the court should use the “memorandum opinion” designation.  But the “opinion” label should be used when the court (1) establishes a new rule, alters an existing rule, or applies an existing rule to a novel set of facts; (2) addresses issues of constitutional law or other legal issues important to the jurisprudence of the state; (3) criticizes existing law; or (4) resolves an apparent conflict of authorities.   Faithful application of this test to each appeal results in a sorting of cases into those that are mundane because they don’t plow new ground (memorandum opinions) and those that are significant because of the nature of the issues resolved (opinions).  The Texas Supreme Court accepts only cases that are important to the state’s jurisprudence, so one would expect to see a strong bias in favor of the “opinions” over “memorandum opinions.”

The breakdown of granted petitions for the 4-year period from 2014 through 2017 shows that approximately 1/3 of the petitions granted involved memorandum opinions.   In 2016, the percentage was approximately 40% of the total petitions granted.  Those percentages are strikingly high if memorandum opinions are supposed to be reserved for mundane settled legal questions.   The percentages may give practitioners hope that an opinion labelled as a “memorandum opinion” is not the end of the appellate road.


The Texas Supreme Court’s Docket, Part 2

Each calendar year, the Supreme Court of Texas agrees to hear and decide somewhere around 80 petitions for review.   This is only a fraction of the petitions for review that come knocking on the court’s door.   When the court grants a petition for review the odds are very strong that the court is going to reverse the court of appeals judgment.  Overall reversal rates range between 75% to 85% for the years 2014 through 2017, with the average reversal rate for all four years being 82.2%.

But reversal rates vary depending upon which intermediate court of appeals issued the opinion being reviewed.  Excluding courts of appeals with a statistically insignificant number of cases reviewed, the reversal rates vary from a low of 54% (Austin) to a high of 94.7% (El Paso).  The chart below shows the percentage reversals by court of appeals:

Statistically, the odds of an affirmance are better than the average if the intermediate court of appeals that issued the opinion under review is the Houston First Court of Appeals, the Austin Court of Appeals, the Amarillo Court of Appeals, or the Corpus Christi Court of Appeals.

In part 1 of this series, I pointed out that the Texas Supreme Court was granting more petitions than would be expected by random selection for the 3rd (Austin), 4th (San Antonio), 8th (El Paso), 13th (Corpus Christi), and 14th (Houston) courts of appeals, and I raised the question of whether the numbers might be higher because these courts were committing more errors than the other intermediate appellate courts.  The reversal rates in the chart above do not seem to support that theory.  The reversal rates for the Austin Court of Appeals and the Corpus Christi Court of Appeals are well below the average.  The reversal rates for the San Antonio and Houston Fourteenth Courts of Appeals is about average.  Only the El Paso Court of Appeals has a higher than average reversal rate.   Thus, it would appear that there is something more than mere error that explains why the Texas Supreme Court accepts more petitions to review opinions from some courts of appeals than others.





The Texas Supreme Court’s Docket, Part 1

For well over a decade, the Supreme Court of Texas has been presented with more than 1000 different matters each fiscal year.  These matters consist of petitions for review, petitions for writs of mandamus, certified questions, petitions for habeas corpus, direct appeals, and a handful of other miscellaneous items.  The bulk of the court’s docket consists of petitions for review, which are either denied or granted.

Understanding the make-up of the court’s docket may be enlightening.  Where do these petitions for review come from and why?  In the coming weeks, I will be presenting a number of blog posts that focus upon the make-up of the court’s docket.  It is my hope to bring a greater understanding of the court’s docket by this analysis.

In this first blog entry, I focus on the immediate source of the petitions for review–the 14 intermediate courts of appeals.  More particularly, I wanted to see what intermediate court of appeals the granted petitions for review came from.   Assuming all things being equal, one might conclude that the distributions across the 14 intermediate courts would be roughly equal.  But you have to consider that the 14 courts of appeals have different numbers of justices on them, ranging from 3 to 13.  There are a total of 80 intermediate appellate court justices statewide, and thanks to the Texas Supreme Court’s efforts to equalize the workload, the distribution of cases among the 80 justices is roughly equal.   With this in mind, based upon the total petitions granted, I was able to calculate the distribution of those granted petitions across the 14 intermediate courts that would be expected if all things were equal (random), keeping in mind the number of justices serving on each court.  I then compared the expected distribution of granted petitions with the actual distribution of granted petitions.  I performed these calculations for the calendar years ranging from 2014 to 2017.  Here’s the result:

As this graph demonstrates, the Texas Supreme Court grants more petitions than would be expected from a random selection process for the 3rd (Austin), 4th (San Antonio), 8th (El Paso), 13th (Corpus Christi), and 14th (Houston) courts of appeals.  The Texas Supreme Court grants fewer petitions than would be expected from a random selection for the 2nd (Fort Worth), 5th (Dallas), 6th (Texarkana), 9th (Beaumont), 10th (Waco), and 11th (Eastland) courts of appeals.

What explains these differences?  Could it be that the 3rd, 4th, 8th, 13th, and 14th courts of appeals are making more errors?  Could it be that these courts are deciding issues that are more important to the state’s jurisprudence–which was one of the key factors (and now the only factor) the Texas Supreme Court uses for exercising its discretion over which petitions to accept for review?  Could it be that the other courts are making fewer errors, or deciding less important issues?  The reader can draw his or her own conclusions, but the data does not in itself give any definitive answer.

Could it be that more petitions are filed from the 3rd, 4th, 8th, 13th and 14th courts of appeals?  Stay tuned to find out…

Does Texas follow the “sham affidavit” doctrine?

A “sham affidavit” has been described as referring to an affidavit in which an affiant offers sworn testimony that contradicts the affiant’s prior, sworn testimony on a material point and the affiant gives no explanation in the affidavit for the change in the testimony.  The scenario of the “sham affidavit” arises with great frequency in Texas summary judgment practice.   Because many district courts and intermediate appellate courts refuse to give credence to such an affidavit, many motions for summary judgment have been granted and upheld.

The Supreme Court of Texas has never formally adopted or recognized the “sham affidavit” doctrine.  On February 6, 2018, the Texas Supreme Court will hear oral argument in Lujon v. Navistar, Inc., No. 16-0588.   Mr. Lujon argues that the application of the “sham affidavit” doctrine violates Texas Supreme Court holdings in Gaines v. Hamman, 358 S.W.2d 557, 562 (Tex. 1962), and in Randall v. Dallas Power & Light, Co., 752 S.W.2d 4, 5 (Tex. 1988), in which the court held that a deposition does not have controlling effect over an affidavit.  The briefs of the parties in the Lujon case may be found here.

The majority opinion in the court of appeals recognized and applied the sham affidavit doctrine, while a vigorous dissent argued that the sham affidavit doctrine should not be recognized.

Practitioners should watch for the Texas Supreme Court opinion in Lujon as it may resolve a conflict between the intermediate appellate courts over whether Texas follows the sham affidavit doctrine.



“Virtual” Business Operations Don’t Establish Venue for Patent Cases

The Federal Circuit has held that “virtual” business operations are insufficient to establish patent venue.  And it rejected the widely discussed four-factor approach to patent venue adopted by the Eastern District of Texas, which until recently was the nation’s busiest patent venue.

For almost 30 years, venue of patent cases utilized the general federal venue statute, 28 U.S.C. § 1391(c), which allows a corporation to be sued “in any judicial district in which such defendant is subject to the court’s personal jurisdiction.”  VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1578 (Fed. Cir. 1990).  That approach allowed almost any national firm to be sued in the Eastern District of Texas, the favorite venue for patent plaintiffs, leading to as much as 40% of all patent cases in the nation being filed there.

All that changed earlier this year.  In TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 197 L. Ed. 2d 816 (2017), the Supreme Court held that 28 U.S.C. § 1400(b) was the sole and exclusive venue statute for patent infringement actions.  Section 1400(b) provides that suits for patent infringement may be brought only “in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”

Following TC Heartland, many patent defendants in the Eastern District of Texas sought a change of venue.  The new venue fights focused attention on the meaning of “a regular and established place of business,” a little used phrase for which the case law was sparse and divergent.

In Raytheon Co. v. Cray, Inc., No. 2:15-cv-01554-JRG, 2017 WL 2813896 (E.D. Tex. June 29, 2017), the Eastern District court denied a motion to transfer venue.  The evidence showed that Cray did not rent or own an office or property in the Eastern District, but it allowed a sales executive to work remotely from his home in the district.  He provided price quotations to customers and identified his home telephone number as his office number with an Eastern District area code.  However he did not maintain Cray products or product literature at his home, and Cray did not pay the employee for the use of his home or publicly advertised his home as a Cray place of business.  The district court held that a fixed physical location in the district was not a prerequisite to proper venue, and that Cray was subject to venue under the holdings of In re Cordis Corp., 769 F.2d 733 (Fed. Cir. 1985).

After announcing its opinion, the court identified, for the benefit of future litigants, four factors for inquiries into what constitutes a regular and established places of business “in the modern era.”  The four factors included physical presence, a defendant’s representations, benefits received, and targeted interactions with the district.  Raytheon Co. v. Cray, supra at *11–14.  Cray sought mandamus from the Federal Circuit, arguing that its limited contacts in the Eastern District did not constitute a “regular and established place of business.”

The Federal Circuit agreed with Cray.  It started with the observation that “the world has changed since 1985 when the Cordis decision issued.”  It noted that not all companies have brick-and-mortar locations, business can be conducted virtually, employees can telecommute, and products may not be warehoused given the just-in-time delivery paradigm.  But despite these changes, under TC Heartland the focus must be on “the full and unchanged language of the statute” in ways not explored in Cordis.

Without saying so expressly, the Court applied an “original intent” approach to interpreting Section 1400(b).  It reviewed the history of patent venue leading up to the enactment of Section 1400(b)’s predecessor in 1897, and admonished courts to “be mindful of this history in applying the statute.”   It considered the plain meaning of each word as it was understood at the time of enactment, citing sources like the first edition of Black’s Law Dictionary (1891).

Using those sources, the Court interpreted a “place of business” under Section 1400(b) to mean “a physical, geographical location in the district from which the business of the defendant is carried out.”  A place of business does not refer to “a virtual space or to electronic communications from one person to another.”

A “regular” place of business means a steady, uniform, orderly, and methodical manner.  Sporadic activity is insufficient.  A “regular and established” business is not transient.  It must be settled certainly, or fixed permanently.  A business can move its location but must for a meaningful time period be stable and established.  If an employee can move their home out of the district without approval of the defendant, that fact would cut against the employee’s home being a place of business of the defendant.

Finally, the regular and established place of business must be “the place of the defendant” not solely a place of the defendant’s employee.  A defendant must establish or ratify the place of business not the employee on their own.  It is not sufficient that a defendant advertises a place of business or sets up an office in the district.  It must actually engage in business from that location. “In the final analysis, the court must identify a physical place, of business, of the defendant.”

The Court held that the district court erred in denying Cray’s motion to transfer venue, and that its four-factor test was not “sufficiently tethered to the statutory language” and thus failed to inform future litigants of the necessary requirements.

Venue of the suit against Cray was not proper in the Eastern District of Texas because Cray did not have a regular and established place of business there that was the place of the defendant.  The only showing was that there was within the district “a physical location where an employee of the defendant carries on certain work for his employer.”

The Court vacated the district court’s order denying Cray’s Rule 12(b)(3) motion and ordered the district court to grant the motion to transfer under Section 1406(a) to an appropriate venue to be determined by the district court.

In re: Cray Inc., No 2017-129 (Fed. Cir. Sept. 21, 2017)

How soon must an attorney notify his client of a court filing?

The answer to this question may depend upon the circumstances.  As reflected in one recent Dallas Court of Appeals opinion, minutes mattered in order for the lawyer to ensure compliance with her obligation not to engage in conduct that might disrupt pending appellate proceedings.  This opinion could serve as a good law school exam question.

Under the facts of the case, the Dallas County Child Protective Services Unit (CPS) filed suit to terminate parental rights of a child.  The child’s foster parents had had possession of the child for 16 months and expressed an interest in adopting the child.  However, CPS sought to place the child with a maternal aunt and uncle in Florida.

In some unusual circumstances, just prior to trial, the biological mother asked the trial court to strike the intervention of the foster parents, which the court did.  Minutes later a trial was held outside of the foster parents’ presence, which lasted all of 9 minutes.  At the conclusion of the trial, the court appointed the Florida aunt and uncle joint managing conservators.

Immediately following the trial, the parties made arrangements for CPS to take the child from the foster parents.  The foster parents advised the CPS attorney’s supervisor that they were filing a petition for writ of mandamus and were seeking an emergency stay order.  Before the filing, CPS removed the child from the foster parents’ home.  The foster parents then filed their petition for writ of mandamus and motion for emergency stay and all counsel were notified of the filings.  Thirty minutes after CPS’s counsel was notified of the filings, CPS released the child to the Florida aunt and uncle, who immediately left with the child to return to Florida.  Fifty-five minutes later, the Dallas Court of Appeals issued an order staying all orders of the trial court.

Although the court of appeals concluded that mandamus relief was not appropriate because the foster parents had an adequate remedy by appeal, the court nonetheless wrote to express its concern over the fact that neither the CPS case worker’s supervisor nor CPS’s attorney attempted to contact the Florida aunt and uncle after learning of the stay order.  The appellate court acknowledged that the child had been handed over to the Florida aunt and uncle before the stay order had issued, but the court questioned the decision to remove the child with such haste within 4 hours of the trial court’s rulings and in the face of the emergency filings.

After noting that the speed of the transfer violated CPS’s own internal guidelines and showed a lack concern for the child’s best interest, the court observed that the failure of the State to notify CPS of the appellate filings potentially violated ethical obligations to keep a client reasonably informed and not to engage in conduct intended to disrupt court proceedings.  The court of appeals concluded by cautioning the State to treat future emergency proceedings as serious matters deserving of review and respect, and warning that the failure to do so may warrant referral to the grievance process.

In re Schklair, No. 05-17-00610-CV (Tex. App.–Dallas June 23, 2017, orig. proceeding)

Supreme Court Limits Class-Action Tolling

The Supreme Court has held that class action tolling under American Pipe does not toll the time within which a suit must be filed under a statute of repose.

In American Pipe the Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class.”  American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974).  The open question was whether class tolling would also apply to statutes of repose.

In California Public Employees’ Retirement System v. ANZ Securities, No. 16–373 (June 26, 2017), a putative class action was filed under Section 11 of the Securities Act of 1933 concerning securities offerings of Lehman Brothers Holdings.  Section 13 of the Securities Act contains a three-year statute of repose.  More than three years after the securities were offered, the petitioner filed an individual action alleging identical violations.  After a proposed settlement was reached in the putative class action, the petitioner opted out of the class.  The respondents moved to dismiss the individual suit as untimely but the petitioner argued that American Pipe tolled limitations during the pendency of the putative class action.

The Supreme Court disagreed.  It reasoned that American Pipe was based on “the judicial power to promote equity, rather than to interpret and enforce statutory provisions.”  Whereas the statute at issue in American Pipe was a traditional statute of limitations, Section 13 of the Securities Act was held to be a true statute of repose whose purpose is to “create ‘an absolute bar on a defendant’s temporal liability.’”  In light of their purpose, the court held that statutes of repose “override customary tolling rules arising from the equitable powers of courts” and are not subject to tolling without legislative direction.

The court therefore affirmed the dismissal of the individual suit over the vigorous opposition of a four-justice dissent, which would have held that American Pipe tolling applies to statutes of repose.  Justice Gorsuch participated in the opinion and was in the majority.

California Public Employees’ Retirement System v. ANZ Securities, No. 16–373 (June 26, 2017)

Patent Exhaustion: A Win for Printer-Ink Refillers and Another Rebuke to the Federal Circuit

Just a week after reversing the Federal Circuit’s longstanding interpretation of patent venue in TC Heartland LLC v. Kraft Foods Group, No. 16-341 (May 22, 2017), the Supreme Court again reversed the Federal Circuit, this time with respect to patent exhaustion.

U.S. patent laws entitle a patent holder to prevent others from making, selling, or importing the patented invention “without authority” from the patentee.  35 U. S. C. §§ 154(a), 271(a).  However, patent rights end or exhaust once a patented product is sold.  A purchaser may freely reuse or resell the product without infringing on the patent.  The Supreme Court has now held that a patentee cannot retain patent controls after a sale by prohibiting buyers from reusing or reselling the patented items.  It also held that products sold overseas exhaust patent rights and preclude a patentee from claiming infringement when the products are later imported and resold in the U.S. without the patentee’s authority.

Lexmark sells patented toner cartridges for laser printers.  Remanufacturers like Impression Products buy empty Lexmark cartridges in the U.S. and overseas, refill them, and sell them at lower prices than Lexmark charges.  Lexmark tried to prevent customers from selling used cartridges through a Return Program in which it sold cartridges at a discount in exchange for an agreement that the buyer would not reuse or resell the cartridges.  Lexmark sued Impression Products and others claiming that they were infringing Lexmark’s patents by refilling Return Program cartridges, and by importing and filling overseas-sold cartridges.

Lexmark argued that its patent rights had not exhausted because it had not authorized reuse and resale of Return Program cartridges, nor given authority to import cartridges sold overseas at lower prices because they did not carry patent protection until they were brought into the U.S.  Impression Products argued that all patent rights as to cartridges that had once been sold were exhausted.

The Federal Circuit, sitting en banc, held for Lexmark as to both issues.  Lexmark Intn’l, Inc. v. Impression Products, Inc., 816 F. 2d 721 (Fed. Cir. 2016).  It held that, unlike an ordinary sale, Lexmark’s Return Program sales were restricted and thus resales were “without authority.”  As to cartridges sold abroad, the circuit held that patent exhaustion did not arise because the sales were made where American patent laws do not apply.  It reasoned that the patentee did not receive the rewards allowed by the patent laws from selling in an American market.

The Supreme Court disagreed.  It held that once an item is sold, the patentee has “enjoyed all the rights secured” by the patent law and has no further right to restrain the use of the product through that law.  The Court traced the doctrine to the common-law rule against restraints on alienation, citing Lord Coke’s writings from the 17th century.  The Court disagreed with the Federal Circuit’s belief that the exhaustion doctrine was merely an interpretation of the patent law’s prohibition on selling a patented product “without authority.”  Instead, exhaustion is a limit on the scope of the patentee’s own rights under the patent laws.  Thus, even if Lexmark’s contracts with its customers were enforceable under contract law, they did not allow Lexmark to retain patent rights items it had sold.

The Court further held that sales outside the United States exhaust all rights under the patent laws, analogizing to the “first sale doctrine” from copyright law.  That doctrine provides that once a copyright owner sells a copy of its work, it loses the power to restrict resales even if the first sale was made abroad.  Applying patent exhaustion to foreign sales was just as straightforward because nothing in the Patent Act indicates that the “borderless common law principle” of exhaustion should be limited to domestic sales.

The decision was 7-1 with Justice Gorsuch not participating.  Justice Ginsburg concurred as to the domestic sales but dissented as to international exhaustion.

Impression Products, Inc. vs. Lexmark International, Inc., No. 15-1189 (May 30, 2017)



Supreme Court Limits Forum Shopping in Patent Cases

In a closely-watched case, the Supreme Court greatly narrowed venue for patent cases.  The ruling will limit forum shopping and greatly reduce the number of cases filed in the Eastern District of Texas, which is perceived as the most favorable district for plaintiffs bringing patent claims.

In recent years as many as much as 30-40% of all patent infringement suits in the country were filed in the rural Eastern District of Texas.  Plaintiffs ranged from giant tech companies to non-practicing entities, known pejoratively as “patent trolls”—meaning individuals or companies that do not manufacture any products but attempt to enforce patents far beyond their actual value through frivolous and expensive litigation in places that were perceived to be friendly to plaintiffs.

How did this happen?  Federal law has a venue provision specific to patent cases, 28 U.S.C.  § 1400(b).  The statute provides that suits for patent infringement may be brought only “in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”  In 1957, the Supreme Court held that for purposes of Section 1400(b), a domestic corporation “resides” only in its state of incorporation.  Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 226 (1957).  This meant most patent cases had to be filed in the defendant’s home state or where they had a regular and established place of business.

In 1988, Congress adopted a new definition of “reside” as it applies in the general federal venue statute, 28 U.S.C. § 1391(c).  The new statute provided that except as otherwise provided by law and for all venue purposes, a corporation can be sued “in any judicial district in which such defendant is subject to the court’s personal jurisdiction.”  The Federal Circuit held that the new general venue statute controlled over the older and more restrictive patent venue statute.  VE Holding Corp. v. Johnson Gas Appliance Co., 917 F. 2d 1574, 1578 (Fed. Cir. 1990).  Thus, for over 25 years, patent plaintiffs have been able to file suits against major American manufacturers almost anywhere they wanted.  Venues that were perceived to be favorable to patent plaintiffs—like the Eastern District of Texas—were inundated with patent suits.  Entire support systems of local lawyers as well as hotels, restaurants, and temporary office locations grew to support the flood of patent cases.

Those days are now at an end.  In an 8-0 opinion, the Supreme Court held that the original patent venue statute and the Supreme Court’s 1957 interpretation continues to be the rule for patent cases.  Corporate defendants can no longer be sued anywhere the plaintiffs want.  The plaintiffs’ favored districts will no longer be available for nearly every suit.  In Texas, the Eastern District federal courts and all of the support systems will face a major contraction as the new ruling takes effect.  The ruling is being hailed by large corporations as a major rebalancing of litigation fairness in this very lucrative and expensive area.

TC Heartland LLC v. Kraft Foods Group, No. 16-341 (May 22, 2017)

Whose Right is it Anyway? Unconstitutional Speaker Discrimination in Texas’ Anti-SLAPP Scheme

Freedom of speech and thought lie at the core of liberty.  Though many philosophers, statesmen, and legal practitioners have opined on the value of free speech and thought, Justice Louis Brandies best captured the value of free speech and thought in our constitutional scheme:

Those who won our independence believed that the final end of the state was to make [people] free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. . . They believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government.

Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

Despite its central place in our constitutional scheme, the right to free speech is extremely fragile. Government imposed limitations to speech and thought sometimes elude detection, because government does not always directly regulate speech and, even when it does, the limitations are not always obvious.  Notwithstanding the sometimes opaque nature of direct impositions, a major threat to speech and thought comes from indirect government impositions.

SLAPP Suits as Indirect Government Impositions to Speech

Strategic litigation against public participation (SLAPP) provides one example of an indirect governmentally-imposed limitation to speech and thought.  These are suits brought by one party in an effort to silence another party against whom the suit is filed.  The prototypical SLAPP suit involves a defamation claim against the defendant.  Though government is not directly involved in chilling or silencing the defendant’s speech, the judicial system is the means by which the plaintiff chills or silences the defendant’s speech.  The threat of a potential judgment looming over the defendant implicates the government in the plaintiff’s effort to chill or silence the defendant’s speech.

Texas’ Anti-SLAPP Legislation

Texas enacted Anti-SLAPP legislation to curb litigants’ efforts to employ the judicial system as a means to silence or chill another’s speech.  The Texas Citizens Participation Act (TCPA) provides pretrial procedural checks against litigation designed to chill a party’s right to free speech, among other first Amendment rights.  See Tex. Civ. Prac. & Rem. Code §§ 27.001-011.  The Act allows a party to file a motion to dismiss the case, with an award of attorney fees and costs to the movant if successful on the motion.

This procedure is available to any party, regardless of whether it is an individual or entity and regardless of whether the suit is against the person for an act committed in his or her individual capacity or in his or her capacity as a member of the electronic or print media.  There are, however, four exemptions. Commercial speech falls outside the TCPA.  Suits for bodily injury, wrongful death, or survival also fall outside of the TCPA, as do insurance code suits or actions arising out of insurance contracts.   Enforcement actions by the state also do not fall within the TCPA.  See Tex. Civ. Prac. & Rem. Code § 27.010(a)-(d).

The Act also provides pretrial appellate procedural checks against suspected SLAPP suits.  If the party alleging a First Amendment right violation is unsuccessful in his motion to dismiss, that party may take an automatic, accelerated interlocutory appeal on the trial court’s denial of the motion to dismiss.  See Tex. Civ. Prac. & Rem. Code §§ 27.008, 51.014(a)(12).  Again, this appellate procedure is available to any party asserting a violation of his right to free speech, association, or to petition government.

The Texas Civil Practice and Remedies Code provides an additional appellate procedure to members “of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media.”  Tex. Civ. Prac. & Rem. Code § 51.014(a)(6).  If a party falls into this select category, that party may take an automatic, accelerated interlocutory appeal on a trial court’s denial of a motion for summary judgment based on a claim or defense arising under the free speech or press clause of the First Amendment.  Id.

Speaker Favoritism in Texas’ Anti-SLAPP Appellate Procedure

The significance of this additional appellate procedure for members of the electronic or print media, and for a person whose article appears in electronic or print media, is that this select group gets two bites at the appellate apple by way of an automatic interlocutory appeal.  If, for example, a person is sued for defamation for his op-ed piece published online, he may file a motion to dismiss and subsequently appeal the trial court’s denial without first seeking permission to take the issue on interlocutory appeal.  Even if he loses the first interlocutory appeal, he may then file a motion for summary judgment and subsequently appeal the trial court’s denial again without seeking permission to take the issue on interlocutory appeal.

Parties who do not fall within this select group get one-shot at an automatic, accelerated interlocutory appeal.  Though TCPR section 51.014(a)(6) aims to keep free speech channels open, it only does so for a select group of speakers.  All other speakers are directly excluded.  So this raises the question, is section 51.014(a)(6) an example of unconstitutional speaker-based discrimination?

The United States Supreme Court has held that it is “axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).  Following this precept, government “may not favor one speaker over another.”  Id.  Government action that discriminates against speech based on its message is presumed unconstitutional.  Id.  Viewpoint discrimination, however, is a more egregious form of content discrimination:  “When the government targets not subject matter, but particular views [or ideology, opinion, or perspective] taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”  Id.; see also R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992).

So far, lower courts have only obliquely grazed this issue.  In Main v. Royall, for example, the Dallas Court of Appeals had to decide whether book authors and publishers fell within section 51.014(a)(6)’s scope, i.e., whether they could be construed as members of the electronic or print media.  348 S.W.3d 381 (Tex. App.–Dallas 2011, no pet.).  The court focused on the legislative purpose driving section 51.014(a)(6)—“to provide members of the media with a mechanism to obtain immediate appellate review . . . of issues arising under the free speech and free press clause [to] avoid[] the time and expense of a trial when the defendant may be entitled to a constitutional or statutory privilege precluding liability”— and held that book authors and publishers comfortably fit into the forms of media protected by the statute.  Id. at 386-87.

The court dismissed the plaintiff’s argument that applying the statute to book authors would require future courts to apply the statute to anyone “with a computer, typewriter, or printer” and exclude only those persons writing by pen and pencil.  Id.  This latter issue was one the court did not have to decide to dispose of the matter.  Id.  But it is an issue that the courts must, at some point, confront.

A right

Perhaps a court may construe section 51.014(a)(6) to apply to any person writing by way of computer, or typewriter, and, perhaps a court may construe the statute to reach people writing with a pen or pencil.  The statute clearly excludes oral communications made outside of the presence of cameras, computers, or other media.  The statute would also likely not apply to any communication between persons by way of text message.

Selective procedural protection under section 51.014(a)(6) raises three related problems: First, affording media personnel and outlets additional First Amendment protection over ordinary citizens raises the specter of favored viewpoints, which is odious to the First Amendment.  Perhaps more people value an opinion piece published on over a competing opinion posted on a neighbor’s personal blog. The value in securing an equal opportunity for your neighbor publicly to voice his opinions and concerns lies in part in the act itself, an act of civic engagement; and in part on the content itself, which promotes the search for truth and contributes to the market place of ideas; and, finally, in part on its secondary function, as a means through which ordinary citizens can improve journalistic rigor—an often neglected value in the age of “fake news”—and political governance.

Second, and related to the importance of civic engagement, affording “media” outlets and personnel greater First Amendment protection than ordinary citizens adds to civil discord and distrust.  Even before, but far more after the Supreme Court decided Citizens United v. Federal Election Commission, there has been public clamor over corporate influence in government and money-backed interests potentially undermining our democratic processes.  That The Dallas Morning News is part of the press and, thereby, explicitly protected by the First Amendment should not veil the fact that The Dallas Morning News is a for-profit corporate body, owned by A.H. Belo Corporation.  And, tellingly, section 51.014(a)(6) was enacted to afford extra First Amendment protection to media outlets eighteen (18) years before similar, though not the same, protection was afforded to every other person in section 27.  Freedom of the press, freedom of speech, and the right to petition the government are inseparable rights, entitled to equal constitutional protection, not one greater than the other.  See McDonald v. Smith, 472 U.S. 479, 482-485 (1985).

Third, and related to the second, section 51.014(a)(6) provides less protection to the people who often need the most protection from baseless suits designed to silence them.  It was not lost on the legislature when it passed section 51.014 that litigation costs alone are speech prohibitive.  See House research Org., Bill Analysis, Tex. S.B. 76, 73rd Leg., R.S. (41) (stating that the purpose of the section is “to allow a newspaper, radio station or television station that was sued for libel to make an immediate appeal of a judge’s refusal to grant a summary judgment” so that an appellate court may “sort out unmeritorious libel cases before a case enters the time-consuming and expensive trial phase.”).  Although section 27.003 affords every person similar protection to section 51.014(a)(6), only media parties have the option to allow the sixty-day deadline to file a motion to dismiss to pass and, instead, opt into some discovery to file an informed summary judgment motion, leveraging an automatic and accelerated appeal against both the non-movant and the trial judge.   If an ordinary citizen loses on a section 27 motion to dismiss and loses on an automatic interlocutory appeal, he must bear the cost of further litigation, all the way to trial if he does not settle or win on summary judgment.


Texas’ Anti-SLAPP scheme provides a necessary check against indirect government impositions to free speech, a free press, and the right to petition the government.  Though its direct statutory measures in section 27 afford equal constitutional protection to all parties whose First Amendment rights are threatened by a SLAPP suit, its direct statutory measure in section 51.014(a)(6) favors media speakers over ordinary speakers.  Implied in the right to speak is the recipient’s right to listen, a right to receive information; likewise, implied in the right to publish is a right to collect information.  See Richmond Newspapers v. Va., 448 U.S. 555, 599 n.15 (1980) (Stewart, J., concurring).  When government decides who may speak, it also decides what one may hear; when government decides who may publish and by what means, it also decides what information one may collect to inform his or her understanding of this limited life he or she has.  The right to freedom of speech is a very fragile right; one must be on guard to detect subtle impositions to it—indeed, an imposition may sometimes come in the guise of protecting the very right it diminishes.