Texas Supreme Court holds circumstantial evidence can support expedited motion to dismiss if suit affects First Amendment rights.

IN RE STEVEN LIPSKY, 13-0928 (Tex. April 24, 2015)

The Texas Citizens Participation Act (“TCPA”) protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them. Tex. Civ. Prac. & Rem. Code §§27.001–.011. The protection consists of a special motion for an expedited consideration of any suit that appears to stifle the defendant’s communication on a matter of public concern. Some courts hold that only direct evidence is relevant when considering a motion to dismiss under the Act, while others have concluded that relevant circumstantial evidence must also be considered. The Texas Supreme Court held that relevant circumstantial evidence must be considered when ruling on such a motion.

Lipsky had a water well on his property with too much natural gas in the ground water. He reported the gas presence to the Environmental Protection Agency (“EPA”) and the media. The EPA determined a local oil and gas operator (“Range”) was responsible.  The Texas Railroad Commission did an investigation and determined Range was not responsible. Lipsky sued Range, who counter-sued Lipsky. Lipsky filed an expedited motion to dismiss under the TCPA which the trial court denied. The court of appeals dismissed the attempted interlocutory appeal for lack of jurisdiction so he brought this original proceeding. The Texas Supreme Court analyzed the TCPA in detail and determined that the language requires a court to dismiss if circumstantial evidence is sufficiently clear and specific to indicate First Amendment protections are being quelled.

This case may be of interest to municipalities and other governmental entities given the Supreme Court’s holding in Andrews County, et al v Sierra Club, 14-0214 (Tex. May 8, 2015) (opinion found here).   Without going into great detail about the case, the Supreme Court noted the County’s suit against the Sierra Club indicated its First Amendment rights and therefore the TCPA motion should have been analyzed under Lipsky’s proper evidentiary standards.

If you would like to read this opinion click here. Justice Devine delivered the opinion. The docket sheet can be found here.