Non-monetary sanctions and punitive sanctions are not allowed by the Texas anti-SLAPP, TCPA, statute

Statute

Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq. 

Case

McGibney v. Rauhauser, 549 S.W.3d 816 (Tex. App.—Fort Worth 2018, pet. denied).

Plaintiff filed a suit for defamation against defendant. Defendant filed a motion to dismiss under the Texas anti-SLAPP, TCPA, law. The trial court refused to set a hearing and the defendant appealed. The Court of Appeals ruled that the judge should have dismissed the case and sent the case back to the trial court to award attorneys fees and sanctions against plaintiff.
On remand, the trial court, without a hearing, awarded over $300,000 in attorneys fees and $1 million in sanctions. When plaintiffs filed an emergency motion to stay the order, the trial court granted the motion and conducted a hearing. The trial court then signed a new order awarding defendant over 300,000 in attorney’s fees, $75,000 in conditional fees on appeal and  $150,000 in sanctions. In addition, the court imposed non monetary sanctions including ordering plaintiff to transfer six domain names to defendant, to disclose all domain names that plaintiff or their agents have registered, to publish for 365 consecutive days a written apology on the first page of all websites owned by plaintiff “for making certain allegations against Appellee ‘and admitting that [Appellants] had no evidence to support such accusations when they made them…” and to publish for 365 consecutive days a written apology on the first page of all websites owned by plaintiff for making certain remarks about defendant’s attorney.

…we are asked to determine whether the phrase “shall award to the moving party … sanctions” empowers a trial court to impose non-monetary sanctions, or whether the trial court’s authority to award sanctions is limited solely to monetary sanctions. The key to that determination is found in the legislature’s choice of the word “award.”

An examination of the entire civil practice and remedies code reveals consistency with regard to the use of the term “award.”37 In the code, the word “award” is used exclusively in circumstances where a monetary remedy is available.

In the sections of the code where the legislature specifically empowered courts to levy non-monetary sanctions, it chose a different word—”impose”—to describe the remedy.

Because it chose “award,” rather than “impose” and did not—as it did in sections 9.012(3), 10.004, 90.054, and 140A.102(a) —expressly confer the power to impose nonmonetary sanctions, we hold that section 27.009 does not authorize the imposition of nonmonetary sanctions.

Non-monetary sanctions and punitive sanctions are not allowed by the Texas anti-SLAPP, TCPA, statute

Concluding, in light of the record before us, that the trial court abused its discretion by awarding an unreasonable amount of attorney’s fees and monetary sanctions under the TCPA, by imposing non monetary sanctions when the TCPA does not provide for them, and by improperly conditioning the appellate attorney’s fee award, we reverse and vacate these portions of the trial court’s judgment, affirm the remainder of the trial court’s judgment, and remand the case to the trial court for further proceedings. 

Appellants also argue that the trial court’s order requiring them to transfer their various internet domain addresses to Appellee violated their due process and other constitutional rights and amounted to a quasi-criminal order along the lines of contempt without due process protections. Based on our disposition below, we do not reach these arguments.