It has been awhile (578 days if you are into precision) since my last blog. My plan had been to wait until SCOTX issued another TCPA opinion. Well they showed me. And since I have no desire to rebuild my loyal following on Mastadon after the fall of civilization, 2023 will be the final year for this blog.

But I’m pretty sure we are going to get two SCOTX opinions on the TCPA. First up, Comcast Corporation v. Houston Baseball Partners LLC, 627 S.W.3d 398 (Houston COA 2021). SCOTX heard oral argument on October 25, 2022. 

Before we dig in, a little history lesson.  The TCPA really sprang into commercial litigation consciousness after ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017). SCOTX determined the TCPA applied to claims by a former EMPCo employee (plaintiff) that was terminated after his supervisors determined he allegedly lied about “gauging the tanks” which could create serious environmental risks.  The supervisors communications internally with EMPCo investigators lead to plaintiff’s termination, and he sued EMPCo and the supervisors (defendants) for conspiracy, defamation, business disparagement, etc.  Defendants filed a TCPA motion, which the trial court denied, affirmed by the Dallas Court of Appeals.  SCOTX reversed because private statements under the “right of free speech” could trigger the broadly worded TCPA depending on the severity of the issue under discussion.,

The statements, although private and among EMPCo employees, related to a “matter of public concern” because they concerned Coleman’s alleged failure to gauge tank 7840, a process completed, at least in part, to reduce the potential environmental, health, safety, and economic risks associated with noxious and flammable chemicals overfilling and spilling onto the ground . . . Therefore, we conclude that EMPCo, Caudle, and Stowe successfully established the TCPA’s applicability to Coleman’s lawsuit under the TCPA’s free-speech prong.

In a lengthy opinion, the Austin Court of Appeals applied the Coleman analysis to hold that your garden variety unfair competition/theft of trade secrets claims (i.e. allegedly bad folks talking about and doing bad things) triggers the TCPA protections under “right of association. ”  Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191 (2017).

And then the TCPA train jumped the tracks, jumped the shark, got over its skis. Pick your metaphor.  You could not swing a dead cat in a Texas courthouse without hitting a Texas Anti-Slapp Motion.  Suddenly every COA was inundated with business tort cases slugging it out as to whether fraud, breach of fiduciary duty, tortious interference, conspiracy, you name it, applied.  If nothing else, TCPA motions derailed litigation, in some instances for multiple years.

As Justice Bonnie Goldstein eloquently stated on December 14, 2022:

While a laudable aspiration, its [the TCPA] application has been stretched to the ethical limits of lawyers’ creative litigation tactics. The tortured history of TCPA judicial opinions, disparate and split among the intermediate appellate courts, reflects that the TCPA occupies a shifting position in an ever-changing landscape of Texas jurisprudence.

COAs struggled mightily with the language, some following the Austin COA and its broad application of ROA to pretty much any claim. Others followed the Ft. Worth COA in narrowing ROA, while the Dallas COA was outright hostile to ROA getting applied to basic business torts.


Which brings us full circle to Comcast, a 2011 (not a typo) business dispute involving the purchase of Astros and the Astros’ interest in a marketing network.  Like the Astros 2021 World Series campaign, this did not turn out well, and the buyer sued the sellers et al  for conspiracy, fraud by nondisclosure, and negligent misrepresentation.  Removal and an involuntary bankruptcy stalled the litigation for five years, finally winding back up in Houston state court. 

You didn’t need to bang pots and pans to know that the defendants would go high and inside with a TCPA motion, which the trial court denied. The Houston COA affirmed, side stepping the issue of whether the TCPA applied:

The parties have generated nearly 3,000 pages in the clerk’s record relevant to this threshold testing of the plaintiff’s claims, and much of that voluminous briefing and evidence regards the parties’ stark disagreement over whether the TCPA applies. For purposes of this interlocutory appeal, however, we will presume without deciding that the act applies. Because we agree with HBP that it established by clear and specific evidence a prima facie case for each essential element of its claims, our conclusion is dispositive and compels us to affirm the order denying the motion to dismiss without the need to address the parties’ additional arguments

You can read Comcast, but it will not illuminate any TCPA specific issues. 

What makes Comcast interesting to me is the oral argument.  Because it’s hot!  Texas guns in the Summer hot. Nolan Ryan inside fastball hot.  Ghost pepper hot.  You can watch it here.

You can read the various briefs, but the description of the case on the website says it all:

This case addresses whether the Texas Citizens Participation Act applies to claims for fraud, civil conspiracy, and breach-of-contract stemming from the sale of a major sports network.

Right of free speech is the only issue addressed in the oral argument (based on my now fuzzy recollection), but ROA is briefed by all sides.

SCOTX could sidestep finally resolving the ROA issue by applying the commercial speech exemption.  But there are still pre-September 2019 cases working their way through the appellate courts.  So, I hope we finally get an answer. 

But much like most of Gaylord Perry’s pitches, we may never know what was really on the ball.


SCOTX briefing is here.

Smalls attribution

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