Appeal from the 385th District Court Midland County, Texas
Trial Court Cause No. CV54356
consists of: Bailey, C.J., Stretcher, J., and Wright,
M. BAILEY CHIEF JUSTICE
an interlocutory appeal brought under the Texas Citizens
Participation Act (the TCPA). See Tex. Civ. Prac.
& Rem. Code Ann. §§ 27.001-.011 (West 2015),
§ 51.014(a)(12) (West Supp. 2018) (authorizing an
interlocutory appeal of denial of a TCPA motion to
dismiss). Deepwell Energy Services appeals the
denial of its "Responsive Texas Citizens Participation
Act Motion to Dismiss." Deepwell filed this motion in
response to a TCPA motion to dismiss filed by Aveda
Transportation and Energy Services, Jared Brown, Linda Clark,
Tom Halliday, and Mickey Sims (Appellees). Deepwell alleged
in its responsive motion to dismiss that Appellees' TCPA
motion to dismiss violated the same act.
appeal presents a threshold question: Is a TCPA motion to
dismiss subject to dismissal by a responsive or countermotion
to dismiss brought under the Act? Two of our sister courts of
appeals have answered this question in the negative. See
Paulsen v. Yarrell, 537 S.W.3d 224, 231-33 (Tex.
App.-Houston [1st Dist.] 2017, pet. denied); Roach v.
Ingram, 557 S.W.3d 203 (Tex. App.-Houston [14th Dist.]
2018, pet. filed). As set forth herein, we agree with the
First and Fourteenth Courts of Appeals that a party may not
seek the dismissal of a TCPA motion to dismiss by filing a
responsive or countermotion to dismiss under the Act. We
affirm the order denying Deepwell's responsive TCPA
motion to dismiss.
sued Appellees under numerous legal theories, alleging that
Appellees used Deepwell's confidential information to
lure away Deepwell's employees. Appellees filed a motion
under the TCPA to dismiss Deepwell's lawsuit. Deepwell
filed a lengthy written response to Appellees' TCPA
motion to dismiss. Deepwell also filed its own TCPA motion to
dismiss Appellees' TCPA motion to dismiss. Deepwell
referred to this motion as a "responsive TCPA motion to
trial court entered separate written orders granting
Appellees' motion to dismiss and denying Deepwell's
responsive motion to dismiss. Deepwell filed a notice of
appeal from the order denying its responsive motion to
dismiss. Thus, the trial court's order granting
Appellees' motion to dismiss is not at issue in this
TCPA is an anti-SLAPP law; "SLAPP" is an acronym
for "strategic lawsuits against public
participation." KBMT Operating Co. v. Toledo,
492 S.W.3d 710, 713 n.6 (Tex. 2016). The TCPA is intended
"to encourage and safeguard the constitutional rights of
persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent
permitted by law and, at the same time, protect the rights of
a person to file meritorious lawsuits for demonstrable
injury." Civ. Prac. & Rem. § 27.002.
asserts in its first issue that Appellees' motion to
dismiss under the TCPA could be challenged by a responsive or
countermotion to dismiss filed under the same act.
Deepwell's first issue involves the construction of a
statute, which courts review de novo. See R.R. Comm'n
of Tex. v. Tex. Citizens for a Safe Future & Clean
Water, 336 S.W.3d 619, 624 (Tex. 2011);
Paulsen, 537 S.W.3d at 231. We note that we also
review a trial court's ruling denying a motion to dismiss
under the TCPA de novo. Paulsen, 537 S.W.3d at 231.
TCPA allows a defendant to obtain expedited dismissal of
certain legal actions for which the party bringing the action
does not establish prima facie support. State ex rel.
Best v. Harper, 562 S.W.3d 1, 4-5 (Tex. 2018). "The
TCPA permits a party to file a motion to dismiss a 'legal
action' if the action 'is based on, relates to, or is
in response to a party's exercise of the right of free
speech, right to petition, or right of
association.'" Id. at 8 (quoting Civ. Prac.
& Rem. § 27.003(a)). The TCPA defines a
"[l]egal action" as "a lawsuit, cause of
action, petition, complaint, cross-claim, or counterclaim or
any other judicial pleading or filing that requests legal or
equitable relief." Civ. Prac. & Rem. §
asserts that Appellees' TCPA motion to dismiss was a
legal action that was based on, related to, or in response to
Deepwell's exercise of its right to petition. Deepwell
contends that the legislature defined the term "legal
action" "very broadly." Deepwell focuses its
analysis on the words "or any other judicial pleading or
filing that requests legal or equitable relief"
contained at the end of Section 27.001(6). Deepwell contends
that this phrase "greatly expands the scope of a
'legal action' beyond traditional
'actions'" to include a motion to dismiss under