Texas Supreme Court Limits Application of the Texas Citizens Participation Act to Discovery Disputes
In a significant ruling that affects litigation strategy across Texas, the Texas Supreme Court has established clear boundaries on when the Texas Citizens Participation Act (TCPA) can be invoked in discovery disputes. The May 9, 2025 opinion in Ferchichi v. Whataburger Restaurants LLC decisively holds that motions to compel discovery and for sanctions are not “legal actions” subject to dismissal under the TCPA.
Bottom Line for Litigants
If you’re involved in a lawsuit in Texas, this ruling means you cannot use the TCPA’s dismissal mechanism to counter routine discovery motions or motions for sanctions. The court has effectively closed a procedural loophole that had been increasingly used to delay litigation and add complexity to discovery disputes.
Case Background
The opinion consolidated two separate cases with similar legal questions:
- Ferchichi v. Whataburger: The plaintiffs filed a motion to compel Whataburger to produce a surveillance video and requested sanctions. Whataburger responded with a TCPA motion to dismiss.
- Haven v. Pate: Haven filed a motion to compel two non-party mothers to produce documents in response to subpoenas and requested sanctions. The mothers responded with a TCPA motion to dismiss.
In both cases, the trial courts denied the TCPA motions, but the courts of appeals reversed, finding that motions seeking monetary sanctions qualified as “legal actions” under the TCPA.
What the Court Decided
The Texas Supreme Court reversed the appellate courts and held that a motion to compel and for sanctions is not a “legal action” subject to dismissal under the TCPA. The Court’s reasoning hinged on its interpretation of what constitutes a “legal action” under the statute.
Key Findings:
- The TCPA defines “legal action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief.”
- The Court applied the ejusdem generis doctrine (a rule of construction that says when specific items are followed by a catchall phrase, the catchall must be limited to things similar to the specific items) to interpret the catchall provision.
- The enumerated filings in the definition are connected by their function of “commencing (or materially amending) a proceeding on a substantive legal claim” against another party.
- Motions to compel and for sanctions are “based on conduct ancillary to the substantive claims” and cannot stand on their own, making them unlike the other items in the list.
Justice Lehrmann, writing for the Court, explained: “Including a motion to compel and for sanctions in the definition of ‘legal action’ does not effectuate the TCPA’s express purpose—it subverts that purpose.”
Impact of the 2019 TCPA Amendments
This ruling reinforces the Texas Legislature’s 2019 amendments to the TCPA, which narrowed the scope of “legal action” by explicitly excluding “a procedural action taken or motion made in an action that does not amend or add a claim for legal, equitable, or declaratory relief.”
Prior to these amendments, courts were divided on whether motions for sanctions constituted “legal actions” under the TCPA. Some courts held that any filing requesting relief (including monetary sanctions) qualified, while others took a narrower view.
The Supreme Court’s decision provides clarity that aligns with the Legislature’s intent to limit the TCPA’s application to substantive claims rather than procedural motions.
The Door Left Open
Importantly, the Court did not entirely foreclose the possibility that some procedural motions could qualify as “legal actions” under the TCPA. The opinion explicitly states:
“We certainly are not holding that a procedural motion can never be a legal action; indeed, the TCPA’s language confirms that it can if it ‘amend[s] or add[s] a claim for legal, equitable, or declaratory relief.'”
This caveat leaves room for future litigation over what types of procedural motions might “amend or add a claim” sufficient to trigger TCPA protections.
Practical Implications for Litigants
This ruling has several important implications for those involved in Texas litigation:
- Streamlined Discovery Disputes: Discovery motions will be resolved through normal procedural channels without the delay and expense of TCPA proceedings.
- Prevention of Procedural Gamesmanship: Parties can no longer use TCPA motions as a strategic tool to delay resolution of discovery disputes, requiring courts to focus on the substantive merits of the discovery issues.
- Faster Resolution: Parties can address discovery disputes more efficiently without the procedural complexity and delays associated with TCPA motions.
- Different Remedies Available: The Court emphasized that parties still have remedies against meritless motions to compel or for sanctions—they can simply oppose them through normal channels or seek sanctions under other provisions if the motions are frivolous.
Changes to Anti-SLAPP Strategy in Texas
This decision represents a significant shift in how the TCPA can be used in Texas litigation. Strategic implications include:
- Focus on Substantive Claims: TCPA motions should now be reserved for substantive claims like those in petitions, counterclaims, and cross-claims.
- Avoiding Procedural Abuse: The decision prevents parties from using the TCPA as a tactical weapon to impede normal discovery.
- Early Case Assessment: Litigants should evaluate potential TCPA issues at the outset of litigation, focusing on the substantive claims rather than anticipated discovery disputes.
- Clearer Boundaries: The decision provides clearer guidelines for when the TCPA applies, reducing uncertainty and potentially frivolous TCPA motions.
Looking Ahead
While this ruling clarifies that routine discovery motions and sanctions requests are not subject to TCPA dismissal, questions remain about what types of procedural filings might “amend or add a claim” sufficient to qualify as a “legal action.” Future litigation will likely test these boundaries.
The Texas Supreme Court has taken a significant step toward ensuring that the TCPA serves its intended dual purpose: protecting constitutional rights while allowing meritorious lawsuits to proceed efficiently. By preventing the statute from being used as a tool to complicate discovery disputes, the Court has helped restore balance to the litigation process.
Conclusion
The Ferchichi decision represents an important course correction in the application of the Texas Citizens Participation Act. For potential litigants, the message is clear: the TCPA remains a powerful tool to protect against strategic lawsuits aimed at silencing protected speech, but it cannot be used to obstruct routine discovery disputes or motions for sanctions.
As Justice Lehrmann’s opinion emphasizes, the TCPA should be construed “liberally to effectuate its purpose and intent fully,” not to create additional procedural hurdles in litigation. This ruling helps ensure that Texas courts can address the merits of cases more efficiently while still protecting the constitutional rights the TCPA was designed to safeguard.
This article provides general legal information and analysis. It should not be considered legal advice, and readers should consult with qualified legal counsel for their specific situations.