Affirmed and Plurality, Concurring, and Dissenting Opinions filed December 

31, 2020.

In The

Fourteenth Court of Appeals

NO. 14-19-00488-CV

GENSETIX, INC., Appellant

V.

BAYLOR COLLEGE OF MEDICINE, DIAKONOS RESEARCH, LTD., 

AND WILLIAM K. DECKER, Appellees

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2019-02003

PLURALITY OPINION

Appellant Gensetix, Inc. appeals from the trial court’s order dismissing its 

claims against appellees Baylor College of Medicine (“BCM”), Diakonos Research, 

Ltd., and William K. Decker (collectively “the Decker Parties”). The trial court 

dismissed Gensetix’s claims pursuant to the Texas Citizens Participation Act 

(“TCPA”). See Tex. Civ. Prac. & Rem. Code Ann. § 27.001, et. seq. In three issues 

on appeal Gensetix argues (1) the TCPA does not apply to its claims; (2) if the TCPA 
2

applies Gensetix established by clear and specific evidence a prima facie case for 

each element of the claims in question; and (3) the TCPA is unconstitutional. We 

conclude that the TCPA applies to Gensetix’s claims and that Gensetix failed to 

establish by clear and specific evidence a prima facie case for each element of its 

claims. We further conclude that the fee-shifting provisions of the TCPA do not 

violate the Texas Constitution or the First and Fourteenth Amendments to the United 

States Constitution. We affirm the trial court’s dismissal of Gensetix’s claims.

BACKGROUND

Plaintiff Gensetix alleged that Defendant Dr. William Decker invented 

methods of modifying patients’ immune systems to kill cancer cells during Decker’s 

employment at The University of Texas MD Anderson Cancer Center (“UT”). UT

retained title to the patents as Decker’s employer. According to Gensetix’s original 

petition, the live pleading at the time of dismissal, UT granted Alex Mirrow, a nonparty to this litigation, an exclusive license to commercialize the patented method

invented by Decker. Mirrow subsequently assigned his rights in the licensed method 

to Gensetix. The parties referred to this assignment of rights as the “UT-Gensetix 

License.” 

Gensetix alleged that although Decker left UT and retained no rights in the 

patents, he continued to practice the patented technology at BCM. Gensetix alleged

that it contacted Decker and BCM seeking to assert its patent rights and to acquire 

any intellectual property rights Decker and BCM claimed to own based on

improvements or new discoveries from their use of the patented methods. Gensetix 

alleged that BCM was receptive to the idea of assigning these rights; accordingly, 

Gensetix sought financial backing from Fannin Innovation. 

BCM eventually assigned rights for any developments allegedly based on the 

patented methods to Diakonos. Diakonos offered to sublicense the patents from
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Gensetix, but Gensetix declined. 

I. Gensetix’s Claims

Gensetix filed the present suit naming Decker, Diakonos, and BCM as 

defendants and asserting the following claims against Decker:

Breach of contract–non-disclosure agreement. Gensetix alleged that it 

entered into a non-disclosure agreement with Decker, which, according to 

Gensetix’s pleading, prevented Decker from disclosing any Gensetix confidential 

information to third parties. Gensetix alleged that Decker disclosed confidential 

information to Dan Faust of Diakonos and that Faust used the confidential 

information to negotiate with BCM for rights to intellectual property arising from

Decker’s lab at BCM. Gensetix alleged that it suffered harm from Decker’s action 

because Diakonos was “developing commercial treatments for the benefit of 

Diakonos, Decker, and BCM instead of for the benefit of Gensetix and UT.” 

Gensetix further alleged it suffered damages “in the form of additional out-of-pocket 

costs, lost intellectual property licenses, lost revenue, and lost goodwill.” 

Breach of contract–cooperation agreement. Gensetix alleged that it, as part 

of a “handshake agreement,” paid Decker in exchange for Decker’s promise to 

“commercialize the technology on behalf of Gensetix.” Gensetix alleged that 

Decker’s breach caused it significant harm because it could not reap the benefits of 

the “UT-Gensetix License.” 

Promissory Estoppel. Gensetix alleged that in reliance on the “handshake 

agreement” Gensetix paid Decker to “develop a commercial product and ‘refrain [] 

from any activities that might not be in [Gensetix’s] best interests[.]’” As damages 

Gensetix alleged it suffered out-of-pocket expenses paid in reliance on Decker’s 

promises. 
4

Tortious interference–Gensetix/BCM deal. Gensetix alleged that Decker 

interfered with Gensetix’s reasonable expectation of developing a business 

relationship with Fannin Innovation. Gensetix further alleged that Decker interfered 

with Gensetix’s ability to profit from Decker’s work at BCM. Gensetix alleged 

damages in the form of “out-of-pocket costs, lost revenue, and goodwill.” 

Gensetix asserted the following claims against Decker, Diakonos, and BCM:

Tortious interference with UT-Gensetix License. Gensetix alleged it had a 

licensing agreement with UT to license Decker’s intellectual property and that BCM 

and Diakonos interfered with that prospective business relationship. Gensetix 

alleged damages in the form of “making it more expensive, burdensome, and 

difficult for Gensetix to perform its existing contract with UT[.]” 

Civil conspiracy. Gensetix alleged that Decker, Diakonos, and BCM 

conspired to interfere with Gensetix’s contract with UT. 

II. Motions to Dismiss

Decker, Diakonos, and BCM answered and filed motions to dismiss 

Gensetix’s claims under the TCPA, alleging that (1) Gensetix’s claims were based 

on, related to, or were in response to their exercise of the right to association, 

petition, or to free speech; and (2) Gensetix had not and could not establish by clear 

and specific evidence a prima facie case for each essential element of its claims. 

In Decker’s motion he alleged that Gensetix’s action implicated his right to 

free speech and right of association as defined by the TCPA. Decker argued that 

Gensetix’s central allegation was that Decker pursued commercialization of his 

inventions with Diakonos and BCM rather than Gensetix. 

In BCM’s motion it alleged that Gensetix’s action implicated its right to 

petition the United States Patent Office in addition to its right of association, and 
5

right to free speech as defined by the TCPA. BCM further argued that Gensetix could 

not establish by clear and specific evidence a prima facie case of tortious interference 

because Gensetix had not pleaded any facts to support that BCM willfully and 

intentionally interfered with a contract or that any interference proximately caused 

Gensetix’s injuries. BCM further argued that Gensetix’s civil conspiracy claim 

failed for the same reasons. Diakonos joined both Decker and BCM’s motions. 

III. Gensetix’s Response

Gensetix responded to the motions to dismiss arguing that (1) no defendant 

had shown that Gensetix’s action implicated its rights to petition, association, or free 

speech under the TCPA; and (2) Gensetix had established a prima facie case for each 

of its claims. In support of its response Gensetix attached the declaration of Rita 

Mousa, manager of Gensetix. 

In Mousa’s declaration she averred that UT executed a license agreement with 

Mirrow granting Mirrow rights in certain patents involving cancer treatment arising 

from Decker’s research. Mirrow subsequently assigned those rights to Gensetix. 

Gensetix entered into negotiations with BCM about funding, licensing, and 

eventually bringing to market additional intellectual property largely based on 

Decker’s ongoing research. Mousa stated that, anticipating an agreement with BCM,

Gensetix began discussions with outside entities with which it might partner for 

funding and investment in that development. One of the entities was Fannin 

Innovation. According to Mousa, Decker encouraged her to meet with Dan Faust of 

Diakonos and to consider Diakonos as a funding partner. Mousa learned that 

Diakonos had obtained a copy of the UT-Gensetix License, which was subject to 

strict confidentiality provisions. Fannin Innovation subsequently withdrew from 

consideration of the partnership with Gensetix, citing, according to Mousa, Decker’s 

unwillingness to enter into the partnership. Gensetix entered into a non-disclosure 
6

and confidentiality agreement with Decker, a copy of which was attached to Mousa’s 

affidavit. 

According to Mousa, Decker agreed that he would cooperate with Gensetix in 

continuing to develop his research and “bring it to market” under the UT-Gensetix 

License as well as under any potential agreement that Gensetix made with BCM. 

Gensetix agreed to provide funding for such efforts in what “Decker referred to as a 

‘handshake agreement.’” With regard to the “handshake agreement” with Decker, 

Mousa attached email exchanges between the two. In the first email from Decker to 

Mousa, Decker explained that he did not have control over BCM’s pursuit of patents 

or licensing agreements. In the second email, Mousa referred to an email allegedly 

sent by Decker with a subject line of “handshake agreement.” No email with the 

subject line, “handshake agreement” was attached to Gensetix’s response. 

Mousa also attached a copy of an email from BCM notifying her that BCM 

had decided to withdraw its interest in licensing Decker’s technologies to Gensetix. 

Mousa later learned that BCM had partnered with Diakonos to further develop and 

license Decker’s research. 

After a hearing, without stating its reasons, the trial court granted the motions 

to dismiss. After receiving evidence of attorneys’ fees, the trial court entered final 

judgments of dismissal and awarded attorneys’ fees to the Decker Parties. Gensetix 

appeals those judgments.

ANALYSIS

In three issues Gensetix argues (1) the trial court erred in determining that the 

TCPA applies to its claims; (2) the trial court erred in determining that Gensetix 

failed to establish by clear and specific evidence a prima facie case for each element 

of its claims; and (3) the fee-shifting provisions of the TCPA are unconstitutional 
7

under both the United States and Texas Constitutions. 

I. Standard of Review and Governing Law

We consider whether the trial court properly dismissed Gensetix’s claims

under the TCPA, which is codified in Chapter 27 of the Texas Civil Practice and 

Remedies Code. Tex. Civ. Prac. & Rem. Code §§ 27.001-.011.21 The TCPA is an 

anti-SLAPP law; “SLAPP” is an acronym for “Strategic Lawsuits Against Public 

Participation.” Fawcett v. Grosu, 498 S.W.3d 650, 654 (Tex. App.—Houston [14th 

Dist.] 2016, pet. denied) (op. on reh’g). 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, to protect the rights of a person to file meritorious lawsuits 

for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002; Cox Media Grp., 

LLC v. Joselevitz, 524 S.W.3d 850, 859 (Tex. App.—Houston [14th Dist.] 2017, no 

pet.). The TCPA “protects citizens from retaliatory lawsuits that seek to intimidate 

or silence them” from exercising their First Amendment freedoms and provides a 

procedure for the “expedited dismissal of such suits.” In re Lipsky, 460 S.W.3d 579, 

586 (Tex. 2015). We construe the TCPA liberally to effectuate its purpose and intent 

fully. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 

2018); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017); Tex. 

Civ. Prac. & Rem. Code § 27.011(a).

To further its stated goals, the TCPA establishes a mechanism for summary 

dismissal of lawsuits that unacceptably threaten the rights of free speech, the right 

to petition, or the right of association. See Lipsky, 460 S.W.3d at 589; Fawcett, 498 

1 The Legislature recently amended the TCPA. Those amendments became effective 

September 1, 2019, and do not apply to this suit. In this opinion, all citations to the TCPA refer to 

the pre-amendment version that was in effect at the time Gensetix filed its suit.
8

S.W.3d at 655. A defendant invoking the TCPA’s protections must show first, by a 

preponderance of the evidence, that the plaintiff’s legal action is “based on, relates 

to, or is in response to” the defendant’s exercise of one or more of the enumerated 

rights. Lipsky, 460 S.W.3d at 586. 

We review the trial court’s denial of a TCPA motion to dismiss de novo. 

Joselevitz, 524 S.W.3d at 859. Under the de novo standard, we “make an 

independent determination and apply the same standard used by the trial court in the 

first instance.” Id. (internal quotation omitted). The basis of a legal action is not 

determined by the defendant’s admissions or denials but by the plaintiff’s 

allegations. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017). When it is clear from 

the plaintiff’s pleadings that the action is covered by the TCPA, the defendant need 

show no more. Id.; see also O’Hern v. Mughrabi, 579 S.W.3d 594, 602 (Tex. App.—

Houston [14th Dist.] 2019, no pet.).

If the defendant makes the initial showing, the burden shifts to the plaintiff to 

establish by clear and specific evidence a prima facie case for each essential element 

of the claim in question. See Lipsky, 460 S.W.3d at 587. “Prima facie case” refers to 

the quantum of evidence required to satisfy the nonmovant’s minimum factual 

burden and generally refers to the amount of evidence that is sufficient as a matter 

of law to support a rational inference that an allegation of fact is true. See id. at 590; 

Deaver v. Desai, 483 S.W.3d 668, 675–76 (Tex. App.—Houston [14th Dist.] 2015, 

no pet.).

While the TCPA imposes no elevated evidentiary standard, the evidence 

offered to support a prima facie case must be “clear and specific.” This requires 

“more than mere notice pleading.” Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 

2017) (per curiam). Clear and specific evidence means that the nonmovant must 

provide enough detail to show the factual basis for its claim. Bedford, 520 S.W.3d 
9

at 904. If the movant’s constitutional rights are implicated and the nonmovant has 

not met the required showing of a prima facie case, the trial court must dismiss the 

nonmovant’s claim. Tex. Civ. Prac. & Rem. Code § 27.005. The items the trial court 

shall consider in determining whether a legal action should be dismissed under the 

TCPA expressly include “the pleadings and supporting and opposing affidavits 

stating the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem. 

Code § 27.006(a).

II. Applicability of TCPA

Our first inquiry is whether the Decker Parties showed by a preponderance of 

the evidence that the TCPA applies to Gensetix’s claims. A party moving for 

dismissal under the TCPA bears the initial burden to show by a preponderance of 

the evidence that the legal action against them is “based on, relates to, or is in 

response to” the exercise of either: (1) the right to free speech; (2) the right to 

petition; or (3) the right of association. Tex. Civ. Prac. & Rem. Code §§ 27.003(a), 

27.005(b); see S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 

(Tex. 2018).

The TCPA defines both the right of free speech and the right of association as 

involving communications. Tex. Civ. Prac. & Rem. Code § 27.001(2)–(3). Under 

the TCPA, a “communication between individuals who join together to collectively 

express, promote, pursue, or defend common interests” constitutes an exercise of the 

right of association. Id. § 27.001(2). A communication includes “the making or 

submitting of a statement or document in any form or medium, including oral, visual, 

written, audiovisual, or electronic.” Id. § 27.001(1).

III. Free Speech

Gensetix argues that its pleadings do not implicate the right of free speech 
10

because (1) their communications were made in connection with a private business 

dispute, which is not a matter of public concern; and (2) Gensetix’s claims are not 

predicated solely on communications.

A. Gensetix’s claims relate to communications as defined by the 

TCPA.

The TCPA provides its own definition of “exercise of the right of free speech.” 

The statutory definition is not fully coextensive with the constitutional free-speech 

right protected by the First Amendment to the United States Constitution and article 

I, section 8 of the Texas Constitution. Adams, 547 S.W.3d at 892. The TCPA defines 

the exercise of free speech as “a communication made in connection with a matter 

of public concern.” Tex. Civ. Prac. & Rem. Code § 27.001(3). A “‘[c]ommunication’ 

includes the making or submitting of a statement or document in any form or 

medium, including oral, visual, written, audiovisual, or electronic.” Tex. Civ. Prac. 

& Rem. Code § 27.001(1). “The plain language of the statute imposes no 

requirement that the form of the communication be public.” Lippincott v. 

Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)

Turning to Gensetix’s allegations in its live pleading, Gensetix sued the 

Decker Parties contending that Decker breached contracts with Gensetix and 

tortiously interfered with prospective business relationships. Gensetix further 

alleged that all three defendants tortiously interfered with contracts that Gensetix 

had formed with UT. Gensetix alleged that Decker thwarted its “deals” with BCM 

and Fannin by approaching BCM and making “statements that disparaged Gensetix 

and/or discouraged BCM from concluding their agreements with Gensetix.” (CR 10) 

Gensetix further alleged that Decker violated a nondisclosure agreement by 

communicating with BCM and Diakonos. As to all three defendants Gensetix 

alleged that they agreed amongst themselves to willfully and intentionally interfere 
11

with Gensetix’s contract with UT. 

At the factual core of Gensetix’s claims are communications amongst the 

Decker Parties to the exclusion of Gensetix. Gensetix alleged that the Decker Parties 

“communicated about and agreed to” interfere with Gensetix’s existing contract with 

UT. In asserting its breach-of-contract claims against Decker, Gensetix claimed that 

Decker “disclosed Gensetix’s confidential information.” Therefore, the factor of a 

communication has been met. See, e.g., Abatecola v. 2 Savages Concrete Pumping, 

LLC, No. 14-17-00678-CV, 2018 WL 3118601, at *8 (Tex. App.—Houston [14th 

Dist.] June 26, 2018, pet. denied) (mem. op.) (holding that a tortious interference 

claim “would necessarily have required communications or ‘the making or 

submitting of a statement or document in any form or medium, including oral, visual, 

written, audiovisual, or electronic.’”).

B. Gensetix’s claims against the Decker Parties are related to their

right to free speech as matters of public concern.

Gensetix further argues that its claims do not implicate the Decker Parties’

rights to free speech because their communications do not involve matters of public 

concern as defined by the TCPA. A “matter of public concern” includes an issue 

related to, inter alia, “health or safety” or “a good, product, or service in the 

marketplace.” Tex. Civ. Prac. & Rem. Code § 27.001(7). The TCPA does not require 

that the statements specifically mention any of the listed matters of public concern, 

nor does it require more than a tangential relationship to same; rather, the TCPA 

applies so long as the movant’s statements are “in connection with” “issue[s] related 

to” any of the matters of public concern listed in the statute. ExxonMobil Pipeline 

Co., 512 S.W.3d at 900. Private communications made in connection with a matter 

of public concern fall within the TCPA’s definition of the exercise of the right of 

free speech under the TCPA. Lippincott, 462 S.W.3d at 509.
12

To be protected, the TCPA does not require that the communication 

“specifically mention” the matter of public concern. ExxonMobil Pipeline, 512 

S.W.3d at 900. Indeed, “not every communication related somehow to one of the 

broad categories set out in section 27.001(7) always regards a matter of public 

concern.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 137 

(Tex. 2019). The communication must have “public relevance beyond the pecuniary 

interests of the private parties involved.” Id. at 136. That is, the communication must 

refer “to matters ‘of political, social, or other concern to the community,’ as opposed 

to purely private matters.” Id. at 135 (quoting Brady v. Klentzman, 515 S.W.3d 878, 

884 (Tex. 2017)). The communication must address a “a subject of legitimate news 

interest; that is, a subject of general interest and of value and concern to the public.” 

Brady, 515 S.W.3d at 884 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)).

Gensetix’s claims are related to the Decker Parties’ communications about a 

matter of public concern, i.e., “a good, product, or service in the marketplace.” The 

Supreme Court of Texas has instructed, “Given the ‘in the marketplace’ modifier, 

the TCPA’s reference to ‘a good, product, or service’ does not swallow up every 

contract dispute arising from a communication about the contract. By referring to 

communications made in connection with goods, products, or services ‘in the 

marketplace,’ the definition confirms that the right of free speech involves 

communications connected to ‘a matter of public concern.’” Creative Oil, 591 

S.W.3d at 134. In Creative Oil, the court acknowledged that, in previous decisions, 

it had held that private communications can be covered by the TCPA. Id. (citing 

ExxonMobil Pipeline, 512 S.W.3d 895, and Lippincott, 462 S.W.3d 507). However, 

the court distinguished those cases, noting that they “involved environmental, health, 

or safety concerns that had public relevance beyond the pecuniary interests of the 

private parties involved,” whereas the case before it did not. Id. 
13

Here, the dispute between the parties is not simply a private contract dispute 

affecting only the fortunes of the private parties involved. At the heart of the dispute 

is Decker’s medical research, which is a “subject of general interest and of value and 

concern to the public.” Brady, 515 S.W.3d at 884. The subject matter of the dispute 

removes this from a matter only affecting the fortunes of the parties involved and 

squarely places it in the realm of a good, product, or service in the marketplace. See 

ExxonMobil Pipeline, 512 S.W.3d at 901 (statements, although private among 

employees, related to a matter of public concern because they concerned a process 

related to the potential environmental, health, safety, and economic risks associated 

with noxious and flammable chemicals overfilling and spilling onto the ground); 

Lippincott, 462 S.W.3d at 510 (emails related to whether nurse anesthetist properly 

provided medical services to patients were matters of public concern); Baumgart v. 

Archer, 581 S.W.3d 819, 825–26 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) 

(holding that news report in television broadcast and web article allegedly implying 

former peace officer’s guilt of murder of deputy constable related to “health or 

safety” and were thus protected under TCPA).

Citing Brugger v. Swinford, No. 14-16-00069-CV; 2016 WL 4444036 at*3 

(Tex. App.—Houston [14th Dist.] Aug. 23, 2016, no pet.) (mem. op.), Gensetix 

argues that the Decker Parties’ communications were private communications made 

in connection with a business dispute and, therefore, not a matter of public concern 

under the TCPA. In Brugger, this court held that a lawyer’s allegedly defamatory 

statements to shareholders about a corporate officer were made in course of a dispute 

between the shareholders and corporation, and were not communications in

connection with a matter of public concern. Id. That case is distinguishable on its 

facts in that the communications in Brugger were restricted to a private business 

dispute. 
14

The Supreme Court of Texas warned in Creative Oil, that “A private contract 

dispute affecting only the fortunes of the private parties involved is simply not a 

‘matter of public concern’ under any tenable understanding of those words.” 591 

S.W.3d at 137. The contract disputes at issue here do not involve a simple business 

dispute and do not simply affect “only the fortunes” of the Decker Parties. Decker’s 

cancer research and BCM and Diakonos’s ability to bring that research to the public 

affect the health of the community at large. If Decker’s research proves fruitful, the 

Decker Parties stand to benefit; however, the public at large also stands to benefit 

with the addition of another weapon in the battle against cancer. As such, the Decker 

Parties’ communications related to a matter of public concern and, thus, are speech 

protected by the TCPA.2

Accordingly, we overrule Gensetix’s first issue asserting that the TCPA does 

not apply to its claims. We conclude that the Decker Parties made the initial showing 

required under the TCPA and the burden then shifted to Gensetix to establish a prima 

facie case for its claims of breach of contract, tortious interference, and civil 

conspiracy.

III. Prima facie case

If the movants on a TCPA motion to dismiss show that the TCPA applies, the 

burden shifts to the nonmovants to establish by clear and specific evidence a prima 

2 The legislature amended the definition of “matter of public concern” and narrowed the 

phrase’s scope to include, “(A) a public official, public figure, or other person who has drawn 

substantial public attention due to the person's official acts, fame, notoriety, or celebrity; (B) a 

matter of political, social, or other interest to the community; or (C) a subject of concern to the 

public.” Act of June 2, 2019, 86th Leg., R.S., ch. 378, § 1, 2019 Tex. Gen. Laws 684, 684. 

However, the amendment expressly provides that this change in law applies only to a legal action 

filed on or after the September 1, 2019, the effective date of the amendment. See Act of June 2, 

2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Gen. Laws 684, 687. Our conclusion is limited to 

the pre-amended version of the statute.
15

facie case for each essential element of the claim in question to avoid dismissal. Tex. 

Civ. Prac. & Rem. Code § 27.005(c). The Supreme Court of Texas has noted that 

“[c]lear and specific evidence is not a recognized evidentiary standard[,]” and 

“[a]lthough it sounds similar to clear and convincing evidence, the phrases are not 

legally synonymous.” Lipsky, 460 S.W.3d at 589. 

We will first address what “evidence” we may consider when determining 

whether Gensetix met its burden to establish by clear and specific evidence a prima 

facie case for each essential element of its claims. Gensetix argues that we may 

consider its unverified pleadings in determining whether it has met its burden under 

the TCPA. The Decker Parties respond with the long-standing maxim that pleadings 

are not competent evidence, even if sworn or verified. See Laidlaw Waste Sys. 

(Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Surety 

Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971).

Gensetix argues that it met its burden under the TCPA through the allegations

in its petition and the declaration of Mousa attached to its response to the motions to 

dismiss. Under the TCPA, however, general allegations that merely recite the 

elements of a claim will not suffice; rather, “a plaintiff must provide enough detail 

to show the factual basis for its claim.” Lipsky, 460 S.W.3d at 590–91. “Prima facie 

evidence” is that “minimum quantum of evidence necessary to support a rational 

inference that the allegation of fact is true.” Id. at 590 (internal quotations omitted). 

Conclusory statements are not probative and accordingly will not suffice to 

establish a prima facie case. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 

223–24 (Tex.2004). In other words, “bare, baseless opinions” are not “a sufficient 

substitute for the clear and specific evidence required to establish a prima facie case” 

under the TCPA. Lipsky, 460 S.W.3d at 592. Based on section 27.006(a)’s directive 

(“the court shall consider the pleading and supporting and opposing affidavits”) and 
16

the Texas Supreme Court’s interpretation that “pleadings and evidence” setting forth 

the factual basis for a claim are sufficient to resist a TCPA motion to dismiss, this 

court has held that a nonmovant under the TCPA was permitted to rely on his 

pleadings in addition to the attachments to the pleadings in response to a motion to 

dismiss. See Fawcett, 498 S.W.3d at 660.

We do not read this court’s direction in Fawcett, to mean that pleadings in the 

context of the TCPA are to be considered on their own as evidence. In that case, 

unlike here, the nonmovant had attached evidence to his pleadings. Id. We are further 

unpersuaded by the authority cited by Gensetix for the proposition that they need not 

present evidence in response to a TCPA motion to dismiss. Gensetix first cites a 

Third Court of Appeals decision in an original proceeding in which the Third Court 

stated, “the Act does not require a movant to present testimony or other evidence to 

satisfy his evidentiary burden.” In re Elliott, 504 S.W.3d 455, 462 (Tex. App.—

Austin 2016, no pet.). In coming to that conclusion the Third Court cited section 

27.006 of the TCPA, which relates to the proof the movant is required to produce to 

determine whether a legal action is subject to the TCPA. Id.; see also Tex. Civ. Prac. 

& Rem. Code § 27.006(a). In this case, Gensetix is the nonmovant to which the 

burden has shifted to establish a prima facie case. The decision in Elliott, therefore, 

does not apply to Gensetix’s burden. 

Gensetix also cites Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 

WL 6695810 at *7 (Tex. App.—Houston [1st Dist.] Dec. 20,2018, no pet.) for the 

proposition that “while Section 27.006 contemplates that the movant and the nonmovant may offer affidavits and, if permitted, other evidence obtained through 

discovery, nothing in the TCPA requires either party to offer evidence beyond the 

pleadings.” Since the parties filed their briefs in this appeal, the court withdrew that 

opinion and issued Gaskamp v. WSP USA, Inc., 596 S.W.3d 457 (Tex. App.—
17

Houston [1st Dist.] 2020, pet. filed), superseding the withdrawn opinion. In the 2020 

Gaskamp opinion, the court held that the TCPA did not apply to the nonmovant’s 

claims and that, consistent with the court in Elliott, and the plain language of the 

statute, when determining whether the movant has met its burden under the TCPA 

the movant may rely on the pleadings alone. Id. at 482. 

This court recently addressed the issue of whether a nonmovant in attempting 

to defeat a TCPA motion could rely on the allegations in his pleadings alone. See 

Buzbee v. Clear Channel Outdoor, No. 14-19-00512-CV; 2020 WL 6738021 (Tex. 

App.—Houston [14th Dist.] November 17, 2020, no pet. h.). Quoting Lipsky, 460 

S.W.3d at 590, we held, “Once the court is satisfied that the Act applies, and the 

burden shifts to the non-movant, the TCPA requires something beyond allegations 

in the pleading “to support a rational inference that an allegation is true.” Buzbee, 

2020 WL 6738021 at *10. 

We therefore reject Gensetix’s proposition that a nonmovant can rely on the 

allegations in the pleadings alone as prima facie evidence of its claims. Gensetix, as 

the nonmovant, must produce “clear and specific evidence” to establish a prima facie 

case of each of its claims; it cannot rely on its pleadings alone. In considering 

whether Gensetix met its burden we review not only Gensetix’s pleadings but the 

evidence attached to its response to the motion to dismiss.

A. Gensetix did not produce clear and specific evidence of damages in 

connection with its claims against Decker.

The statute does not define “clear and specific evidence,” but the Texas 

Supreme Court has interpreted the phrase to impose more than “mere notice 

pleading” and that “minimum quantum of evidence necessary to support a rational 

inference that the allegation of fact is true.” Lipsky, 460 S.W.3d at 590–91.We 

review both the pleadings and evidence attached to Gensetix’s motion to dismiss to 
18

determine whether Gensetix has provided “enough detail to show the factual basis 

for its claim.” Id.

Gensetix asserted claims against Decker for breach of contract, promissory 

estoppel, and tortious interference with a potential business relationship. Damages 

is a required element of each of Gensetix’s claims. See West v. Triple B. Servs., LLP, 

264 S.W.3d 440, 446 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (to recover 

on a breach-of-contract claim, plaintiff must have sustained damages as a result of 

the defendant’s breach); Wheeler v. White, 398 S.W.2d 93, 97 (Tex. 1965) (“Where 

the promisee has failed to bind the promisor to a legally sufficient contract, but where 

the promisee has acted in reliance upon a promise to his detriment, the promisee is 

to be allowed to recover no more than reliance damages measured by the detriment 

sustained.”); Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 860 (Tex. App.—

Houston [14th Dist.] 2001, pet. denied) (to prevail on claim for tortious interference 

with a prospective business relationship, the plaintiff must show it suffered actual 

harm or damages as a result of the defendant’s interference). 

To recover on a breach-of-contract claim, the plaintiff must show that it 

sustained damages as a result of the defendant’s breach. West, 264 S.W.3d at 446. 

The goal in measuring damages for a breach-of-contract claim is to provide just 

compensation for any loss or damage actually sustained as a result of the breach. 

Parkway Dental Assocs., PA v. Ho & Huang Props., LP, 391 S.W.3d 596, 607 (Tex. 

App.—Houston [14th Dist.] 2012, no pet.). The normal measure of damages for a 

breach-of-contract claim is the expectancy or benefit-of-the-bargain measure. Id. 

The purpose of this measure of damages is to restore the injured party to the 

economic position it would have occupied had the contract been performed. Id.

The basic measure of actual damages for tortious interference with contract is 

the same as the measure of damages for breach of the contract with which the 
19

defendant allegedly interfered, to put the plaintiff in the same economic position he 

would have been in had that contract actually been performed. See Am. Nat’l 

Petroleum Co. v. Transcon. Gas Pipe Line Corp., 798 S.W.2d 274, 278 (Tex. 1990). 

The same is true for tortious interference with prospective business relationships.

Baty, 63 S.W.3d at 860 (Damages for a claim of tortious interference with 

prospective business relationships include actual harm as a result of the defendant’s 

interference).

Damages for promissory estoppel are “not measured by the profits that such 

party’s reliance led him to expect, but instead are limited to the amount necessary to 

compensate that party for a loss already suffered.” Allied Vista, Inc. v. Holt, 987 

S.W.2d 138, 142 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (quoting Sun 

Oil Co. v. Madeley, 626 S.W.2d 726, 734 (Tex. 1981)). 

Gensetix alleged that Decker breached a non-disclosure agreement and a 

“handshake” cooperation agreement. Gensetix alleged its damages consisted of “outof-pocket costs, lost intellectual property licenses, lost revenue, and lost goodwill.” 

In Mousa’s declaration she alleged that Decker’s alleged breach and interference 

“rendered Gensetix’s performance of its obligations under the UT License

Agreement more expensive, burdensome, and difficult—particularly Gensetix’s 

obligations regarding commercialization and clinical trial progress.” 

As to the promissory estoppel claim, Gensetix alleged that it suffered out-ofpocket expenses paid in reliance on Decker’s promises. As damages for alleged 

tortious interference with a prospective business claim, Gensetix alleged it suffered 

“out-of-pocket costs, lost revenue, and goodwill.” 

Generally, in alleging damages for Decker’s actions, Gensetix alleged in its 

pleading that Decker’s alleged interference with the Fannin Innovation relationship 

and the BCM relationship caused injury and damages:
20

• By undermining and delaying Gensetix’s ability to share costs, 

fund, and manage commercialization activities and clinical trials;

• Gensetix had to spend additional time and money searching for 

other potential business partners once the Fannin Innovation deal 

did not go forward;

• Gensetix was deprived of intellectual properly licenses and 

related revenue; and

• Gensetix invested time and money in applying for and obtaining 

patents, legal fees for intellectual property analysis, and financial 

support directly to Decker and his lab.

In its prayer for relief Gensetix sought “damages likely to exceed 

$1,000,000.” Gensetix appears to seek lost profits damages from Decker’s alleged 

breach of contract and the claims for promissory estoppel, and tortious interference 

with prospective business relationships. At a minimum, opinions or lost-profit 

estimates must be based on objective facts, figures, or data from which the lostprofits amount may be ascertained. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 

649 (Tex. 1994).

The term “prima facie case” “refers to evidence sufficient as a matter of law 

to establish a given fact if it is not rebutted or contradicted.” Lipsky, 460 S.W.3d at

590. In Lipsky, the nonmovant presented evidence of damages in the form of an 

affidavit stating that the nonmovant suffered “direct pecuniary and economic losses 

and costs, lost profits, loss of its reputation, and loss of goodwill in the communities 

in which it operates . . . in excess of three million dollars.” Id. The supreme court 

held that the affidavit was conclusory and insufficient to satisfy the TCPA’s 

requirement of clear and specific evidence. Id. The court further held that general 

averment of economic losses and lost profits, without more, failed to satisfy the 

minimum requirements of the TCPA. Id. at 592–93.

Here, Gensetix’s pleadings and Mousa’s declaration are less specific than the 
21

evidence found insufficient in Lipsky. Opinions must be based on demonstrable facts 

and a reasoned basis. Id. at 593. Gensetix’s proof of damages consists of general 

descriptions of damages by Mousa and Gensetix’s unverified petition, which do not 

constitute clear and specific evidence of damages. Mousa’s declaration described 

that as a result of Decker’s alleged conduct, “Gensetix has lost the ability to share in 

the proceeds of bringing to market the treatments advanced by Decker” and that 

Decker “rendered Gensetix’s performance of its obligations under the UT License 

Agreement more expensive, burdensome, and difficult—particularly Gensetix’s 

obligations regarding commercialization and clinical trial progress.” Gensetix made 

no attempt to “quantify any measure of its purported damages” and there “is no clear 

and specific evidence of any injury.” See Toth v. Sears Home Improvement Products, 

Inc., 557 S.W.3d 142, 158 (Tex. App.—Houston [14th Dist.] 2018, no pet.)

Relying on Deuell v. Tex. Right to Life Comm., Inc., 508 S.W.3d 679, 689

(Tex. App.—Houston [1st Dist.] 2016, pet. denied), Gensetix argues that it need only 

present evidence to support a rational inference as to the existence of damages, not 

their amount or constituent parts. In Deuell, the plaintiff sued State Senator Bob 

Deuell for tortious interference with a contract when the senator sent a cease-anddesist letter to radio stations resulting in the stations dropping the plaintiff’s 

advertisements. Id. at 683. The plaintiff, in addressing damages to avoid dismissal 

under the TCPA, followed up general descriptions of loss with evidence that it “paid

approximately $15,037 for the placement and airing of the new radio advertisements 

with CBS Radio Texas.” Id. at 688. Our sister court held that the plaintiff provided 

“clear and specific evidence that Deuell’s act caused it actual damage or loss, in the 

form of costs to produce a new radio advertisement and to procure additional airtime 

to make up for time the original advertisement had been suspended.” Id. The court 

continued that there was sufficient evidence the plaintiff “incurred specific costs to 
22

replace the contracted-for advertising services.” Id. at 689. The plaintiff in Deuell

cited specific out-of-pocket costs incurred. Gensetix has not.

While Gensetix need not prove all of its damages to satisfy the standard under 

the TCPA, it must provide evidence of some damages. Gensetix failed to present any 

evidence of the amount of lost revenue attributable to Decker’s alleged breach of 

contract or interference with Gensetix’s prospective business relationships, extra 

expenses incurred as a result of Decker’s granting a license to BCM and Diakonos, 

or the amount of out-of-pocket expense it incurred supporting Decker’s research in 

detrimental reliance on Decker’s promises.

Gensetix’s pleadings and evidence with regard to damages are conclusory and 

not “clear and specific evidence” of any particularized harm. See Lipsky, 460 S.W.3d 

at 592–93 (general averment of economic losses and lost profits, without more, 

failed to satisfy the minimum requirements of the TCPA); Better Bus. Bureau of 

Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.—

Houston [1st Dist.] 2013, pet. denied) (conclusory statements will not suffice to

establish prima facie case). At most, we have Gensetix’s conclusory allegations that 

it lost the ability to license Decker’s research, which was “still under development 

that could potentially proceed to trials that might one day result in a commercialized 

treatment for cancer.” A potential license for research under development that could 

potentially proceed to trials that one day might result in a commercialized treatment 

does not quantify any measure of Gensetix’s purported damages. Gensetix failed to 

present evidence sufficient as a matter of law to establish damages if it is not rebutted 

or contradicted. See Lipsky, 460 S.W.3d at 590. Because there is no clear and specific 

evidence of damages, we conclude that Gensetix did not establish a prima facie case 

of an essential element of its breach of contract, tortious interference, and promissory 

estoppel claims against Decker.
23

B. Gensetix did not produce clear and specific evidence of damages in 

connection with its claims against the Decker Parties.

Gensetix asserted claims against the Decker Parties for tortious interference 

with the UT-Gensetix License, and for civil conspiracy. Damages are a required 

element of each of Gensetix’s claims. See Prudential Ins. Co. of Am. v. Fin. Review 

Services, Inc., 29 S.W.3d 74, 77 (Tex. 2000) (to prevail on claim for tortious 

interference with a contract, the plaintiff must show it suffered actual harm or 

damages as a result of the defendants’ interference); Agar Corp., Inc. v. Electro 

Circuits Int’l, LLC, 580 S.W.3d 136, 142 (Tex. 2019) (civil conspiracy requires an 

underlying tort that has caused damages).

As with Decker, Gensetix sought lost profits damages as compensation for 

BCM and Diakonos’s alleged tortious interference and conspiracy. Gensetix alleged 

in its pleadings that:

• Gensetix has been unable to realize any value from its own 

commercialization of the licensed technology; 

• Gensetix was required to spend time and money to find 

additional funding and commercialization partners; and

• Gensetix has invested substantial time and money in anticipation

of commercialization, including money spent on applying for 

and obtaining patents, legal fees for intellectual property 

analysis, and financial support directly to Decker and his lab in 

anticipation of licensing and commercialization.

As evidence of those damages, Gensetix points to the following two paragraphs of 

Mousa’s declaration:

On June 1, 2015, I received an email from Brian Phillips at BCM 

notifying me that BCM was withdrawing from negotiations with 

Gensetix to license Decker’s technology and partner with BCM. 

Attached as Exhibit G is a true and correct copy of the text of that email 

as I forwarded it to a third party. As a result, Gensetix has lost the ability 

to share in the proceeds of bringing to market the treatments advanced 
24

by Decker.

The actions of Decker, Diakonos, and BCM, as described both above 

and in Gensetix’s Petition in this lawsuit have rendered Gensetix’s 

performance of its obligations under the UT License Agreement more 

expensive, burdensome, and difficult—particularly Gensetix’s 

obligations regarding commercialization and clinical trial progress.

As with its allegations against Decker, Gensetix’s general averments of 

economic loss are insufficient proof of damages under the TCPA. Gensetix does not 

offer clear and specific evidence of damages by failing to specify how its attempts 

at commercializing the UT-Licensed Technology have become “much more 

expensive, burdensome, and difficult”; what “time and money” Gensetix has spent 

“to find additional funding and commercialization partners other than Fannin 

Innovation”; or how and to what extent not having a license to Decker and BCM’s 

patents “decreased the value of any deal that Gensetix can offer potential funding 

and commercialization partners” under the UT License. See Bedford, 520 S.W.3d at

906 (“‘[G]eneral averments of direct economic losses and lost profits’ do not satisfy 

the Act’s clear-and-specific-evidence standard without ‘specific facts illustrating 

how [a defendant’s] alleged remarks about [a plaintiff’s] activities actually caused 

such losses.’” (quoting Lipsky, 460 S.W.3d at 592–93)).

Gensetix did not identify any efforts to commercialize the UT Patents or 

initiate clinical trials that were frustrated or delayed, but rather asked the trial court 

to assume that any potential efforts to do so would be more burdensome, which does 

not meet the “clear and specific evidence” standard. As with its allegations of harm 

against Decker, Gensetix provided no objective facts, figures, or data to support its 

claim for lost profits. Because there is no clear and specific evidence of damages, 

we conclude that Gensetix did not establish a prima facie case of an essential element 

of its tortious interference and civil conspiracy claims against the Decker Parties.
25

Accordingly, we overrule Gensetix’s second issue arguing the trial court erred 

in determining it failed to set forth a prima facie case for its claims under the TCPA. 

IV. Constitutionality of the TCPA

In its third issue Gensetix argues that the mandatory fee-shifting provision of 

the TCPA violates the open-courts provision of the Texas Constitution and the First 

and Fourteenth Amendments to the United States Constitution. The open-courts 

provision of the Texas Constitution states, “All courts shall be open, and every 

person for an injury done him, in his lands, goods, person or reputation, shall have 

remedy by due course of law.” Tex. Const. art. V, § 13. The First Amendment right 

to petition government for redress of grievances encompasses a right of access to the 

courts. See Bill Johnson’s Rests., Inc. v. National Lab. Rel. Bd., 461 U.S. 731, 741 

(1983).

In the trial court, after the court granted the Defendants’ motions to dismiss, 

but before the court awarded attorneys’ fees and assessed sanctions, Gensetix filed 

a response to BCM’s application for attorneys’ fees and sanctions. In that response 

Gensetix argued that the TCPA’s mandatory fee provision was unconstitutional in 

violation of the open-courts provision of the Texas Constitution and the First and 

Fourteenth Amendments to the United States Constitution.

3 At trial and on appeal 

Gensetix combines its arguments under the Texas and United States Constitutions. 

We, too, will review them together.

We begin our analysis with the presumption that a statute is constitutional. 

Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). 

3 The Decker Parties initially argue that Gensetix failed to preserve this issue for review in 

the trial court. Because Gensetix raised the constitutionality issue in the trial court and obtained an 

implicit ruling from the trial court when the court signed the fee orders, we hold that error was 

preserved. See Tex. R. App. P. 33.1.
26

The party challenging a statute’s constitutionality bears the burden on that issue. See 

Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 725 (Tex. 1995). Landry’s, 

Inc. v. Animal Legal Def. Fund, 566 S.W.3d 41, 67 (Tex. App.—Houston [14th 

Dist.] 2018, pet. granted). A party may argue that a statute is unconstitutional on its 

face or as applied to that party. See Tex. Workers’ Comp. Comm’n v. Garcia, 893 

S.W.2d 504, 518 & n.16 (Tex. 1995). A statute is unconstitutional on its face only if 

every application of the statute violates the Constitution. See Nootsie, 925 S.W.2d at 

663. Because Gensetix does not expressly state whether it challenges the TCPA’s 

constitutionality on its face or as applied, we determine this based on the arguments 

presented.

Gensetix argues that the TCPA “unreasonably restricts litigants’ access to the 

courts through the levying of punitive fees that make it extraordinarily difficult and 

risky for plaintiffs to bring suit.” From this argument, we determine that Gensetix is 

arguing that the statute is unconstitutional on its face in that Gensetix argues that 

every application of the statute violates the Constitution. See Garcia, 893 S.W.2d at

518 (holding that under a facial challenge the challenging party contends that the 

statute, by its terms, always operates unconstitutionally). Gensetix argues that the 

mandatory “fee-shifting structure, combined with the high burden on the plaintiff to 

go forward with its case well before full discovery can be taken, creates a high 

disincentive to litigate even meritorious cases.” 

The open-courts provision of the Texas Constitution guarantees litigants the 

right to their day in court. Offenbach v. Stockton, 285 S.W.3d 517, 522 (Tex. App.—

Dallas 2009), aff’d, 336 S.W.3d 610 (Tex. 2011). But, it is not absolute. Rather, this 

requirement “‘guarantees that a common law remedy will not be unreasonably 

abridged.’” Tenet Hosp. Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014) (quoting 

Garcia, 893 S.W.2d at 521). That is, while a statute that totally forecloses judicial 
27

review may violate the provision, one that merely presents hurdles to judicial review 

may withstand scrutiny. Offenbach, 285 S.W.3d at 522–23. An open-courts 

challenge is a due process complaint which also “requires the party to use due 

diligence.” Id. With this in mind, we turn to Gensetix’s constitutional challenge.

The TCPA provides that upon dismissal of a legal action under the TCPA, 

“the court shall award to the moving party . . . court costs, reasonable attorney’s fees, 

and other expenses incurred in defending against the legal action as justice and 

equity may require” as well as “sanctions . . . as the court determines sufficient to 

deter the party who brought the legal action from bringing similar actions described 

in this chapter.” Tex. Civ. Prac. & Rem. Code § 27.009(a). To prevail on an opencourts challenge, Gensetix must show that a cognizable common-law claim is being 

restricted and that the restriction is unreasonable or arbitrary when balanced with the 

statute’s purpose and basis. See Mem’l Hermann Health Sys. v. Khalil, No. 01-16-

00512-CV, 2017 WL 3389645, at *16 (Tex. App.—Houston [1st Dist.] Aug. 8, 

2017, pet. denied) (mem. op.) (holding TCPA’s fee-shifting provision does not 

violated the open-courts provision).

We agree with our sister court that the fee-shifting provision does not violate 

the open-courts provision. Id., 2017 WL 3389645, at *15–17. In Khalil, the court 

held that the fee-shifting provision of the TCPA did not act as a barrier to a party’s 

right to petition for redress. Id. 2017 WL 3389645, at *16. In coming to that 

conclusion, the court considered the TCPA’s express purpose to balance protections 

for persons exercising their constitutional rights of expression and association with 

protections for persons filing meritorious lawsuits for demonstrable injury. Tex. Civ. 

Prac. & Rem. Code § 27.002.

Gensetix argues, however, that the court in Khalil did not address “the opencourt violation caused by the mandatory application of conditional appellate fees 
28

upon dismissal of a TCPA action.” We find the court’s reasoning in Khalil applies 

equally to the award of conditional appellate fees. In Khalil, our sister court noted 

that the TCPA has provisions in place to limit the impact of the fee-shifting 

provision. Khalil, 2017 WL 3389645 at *16. Notably, the attorney’s fees, even 

conditional appellate fees, are not imposed on parties who meet the burden placed 

on them under the TCPA, of establishing by “clear and specific evidence” the 

elements of their prima facie case to avoid dismissal. Id.; see also Tex. Civ. Prac. & 

Rem. Code § 27.005(c). The fee provision in the TCPA shifts litigation costs from 

the prevailing party to the party who failed to meet its burden. Khalil, 2017 WL 

3389645 at * 16. 

The same is true for conditional appellate fees. If a nonmovant in a TCPA 

action is successful on appeal those fees would be reversed along with the trial 

court’s dismissal order. A trial court may not penalize a party for taking a successful 

appeal. Keith v. Keith, 221 S.W.3d 156, 171 (Tex. App.—Houston [1st Dist.] 2006, 

no pet.). The TCPA does not contain any provision contrary to the general rule that 

because a party should not be penalized for successfully appealing an error occurring 

in a lower court, appellate attorney’s fees must be conditioned upon a successful 

appeal. See McGibney v. Rauhauser, 549 S.W.3d 816, 827 (Tex. App.—Fort Worth 

2018, pet. denied) (holding that TCPA appellate fee award must be conditional on 

successful appeal). Therefore, the TCPA’s conditional appellate fee awards do not 

create an impermissible pay-to-play barrier to the courts; the awards shift litigation 

costs after resolution of a claim. See Landry’s, 566 S.W.3d at 67; Khalil, 2017 WL 

3389645 at *16. We therefore overrule Gensetix’s third issue challenging the 

constitutionality of the fee-shifting provisions of the TCPA.
29

CONCLUSION

Having overruled each of Gensetix’s issues on appeal we affirm the trial 

court’s dismissal of Gensetix’s claims.

/s/ Jerry Zimmerer

Justice

Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant (Frost, C.J., 

concurring) (Poissant, J., dissenting).