Mechanism 06

The TCPA motion to dismiss

How does the Texas Citizens Participation Act end a lawsuit?

By putting the claimant to proof at the outset. A movant shows the legal action is based on or in response to the exercise of the right of free speech, petition or association; the burden then shifts to the claimant to establish by clear and specific evidence a prima facie case for each essential element. Filing suspends all discovery, and denial is immediately appealable.

By John P. Henry · Tex. Civ. Prac. & Rem. Code ch. 27 · Reviewed 2026-08-02

The authority

[A] party may file a motion to dismiss the legal action … not later than the 60th day after the date of service of the legal action.Tex. Civ. Prac. & Rem. Code § 27.003(b)

Tex. Civ. Prac. & Rem. Code ch. 27

When it applies

Defamation and business-disparagement suits, claims arising from statements to regulators or in other litigation, tortious-interference claims built on communications. The 2019 amendments narrowed the scope considerably, so the first question is whether the Act reaches the claim at all.

How it is proved up

Move within 60 days of service of the legal action. The period is extendable by agreement or on a showing of good cause, and not otherwise.
Establish the Act applies before arguing the merits. After House Bill 2730 the definitions are narrower and the § 27.010 exemptions are broader, and most denials now turn on applicability.
Use the discovery stay. Filing suspends discovery until the ruling, which is much of the practical value on a case that would otherwise be expensive early.
Do not rely on the hearing date alone. The court must rule within 30 days after the hearing closes, and § 27.008(a) still provides that the motion is denied by operation of law if it does not — that provision survived the 2019 amendments, contrary to a widespread belief.
Plead the affirmative defence route in the alternative. Under § 27.005(d) the movant still wins by establishing an affirmative defence or entitlement to judgment as a matter of law.

What defeats it

An exemption under § 27.010, which is where most modern TCPA motions die.
Clear and specific evidence of a prima facie case on every element, which is a real but not insurmountable burden.
A claim that is not based on or in response to protected activity, however much communication was involved.
The 60 days.

Where I have used it

Not yet, in a matter reproduced in this catalog. The entry is here because the Act is the fastest route out of a communications-based claim in Texas and because two things about it are widely misstated — the automatic denial provision survives, and fees remain mandatory for a successful movant under § 27.009(a)(1) notwithstanding the 2019 amendments.

Questions

How long do you have to file a TCPA motion to dismiss in Texas?

Not later than the 60th day after the date of service of the legal action, under Tex. Civ. Prac. & Rem. Code § 27.003(b). The deadline may be extended by agreement or on a showing of good cause.

Does filing a TCPA motion stop discovery?

Yes. Section 27.003(c) suspends all discovery in the legal action until the court rules on the motion, subject to the limited discovery a court may allow under § 27.006(b).

Are attorney's fees mandatory under the TCPA?

For a successful movant, yes. Section 27.009(a)(1) provides that the court shall award court costs and reasonable attorney's fees. Sanctions are discretionary. The 2019 amendments narrowed the Act's scope but did not make the fee award discretionary.