### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00231- CV

In re Chris Elliott

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

C O N C U R R

I N G O P I N I O N

Whil e I join in t h e C ourt’s judgme nt conditionally g ranting mandamus relief , I

must respe ctfully differ with its rea soning. The Court can—a nd should—resolve this discovery

rela te d o r igina l proce eding without need to addre ss the intricac ies of the Texas Citi zens Participation
Act (TCPA). I n fac t, the rela tor, Elliott , would have no g rounds for relief u n d er t h e T C PA if 1
the Act is construed i n t h e m an n er the Court advoca tes. Worse, the Court’s unwar rante d broad

pronounce ments reg arding the nature of a “leg al action” under the TCPA also misread the Act and
will sow further confusion and misapplication in future case s, to the detriment of the L eg islature’s underly ing policy

g oals.

WHAT THI S CASE IS ACTUALLY ABOUT

T h i s orig inal proce eding arises from what is, at its core , a discovery dispute, albeit one implicating some First Amendme nt conce rns. That dispute has c enter ed on the a ttempt by Mag neGa s to obtain, throug h Rule of Civil Procedur e 202, a deposition calc ulated to unmask the

See Citi zens Participation Act, 82d L eg ., R.S., ch. 341, § 4, 2011 Tex. Gen. L aws 961, 964 1 (ef fec tive J une 17, 2011), codified at Tex. Ci v. Prac. & Rem. Code §§ 27.001–.011.anony

mous person or persons behind “The Pump Stopper’s” Dec ember 2015 article without reg ard
to First Amendment limitations on that discovery . The F irst Amendment has be en author itatively
held to encompa ss a rig ht to speak anony mously , and this is no less so when the speec h is

2
communicated on the I nterne t. As with other aspec ts of First Amendment protec tions, this rig ht is 3

not absolute and may y ield in instances wher e the First Amendment would not bar reme dy for

4
the speec h in question, such as when the speec h is actionable defa mation. The potential claims that

5 Mag neGa s purports to investiga te her e ar e the sort that mig ht eventually be shown to f

all into that

cate g ory , predic ated as they are on publication of alleg ed “fa lse and misleading information” about
the company
. But this does not mean that Mag neGa s can obtain discovery to unmask “The Pump

6 Stopper” based on its Rule 202 petition alone. Rather, beca use the First Am en d m en t rig ht to

anony mous speec h would be re n d er ed m eaning less if it could be pierc ed mere ly by pleading a potentially actionable speec h-base d claim, a preva iling rule has evolved wher eby the claimant

See Buck ley v. American Constit utional Law Found., Inc. , 525 U.S. 182, 199–200 (1999); 2 McI ntyre v . Ohio Elections Comm’n , 514 U.S. 334, 342–43, 356 (1995).
See Reno v . American Civil Liberties Union , 521 U.S. 844, 870 (1997). 3
See M cInty re , 514 U.S. at 353. 4
See In re Does 1-10 , 242 S.W .3d 805, 820 (Tex. App.—Texarkana 2007, orig

. proce eding ) 5 (compiling authorities to eff ect that anony

mous speake rs “may not f

r e e ly d e f ame individuals without fac ing c ivil responsibili ty for their acts” ). Although Mag neGa s’s Rule 202 p et i t i o n d o es not specify the leg al theories on which it 6 expects to rely , its counsel indicated during the hear ing on the petition that defa mation , “m arket manipulation,” and “ secur ities fraud” are among the possibilit ies counsel f orese es.
2must also make a thr es h o l d s h o wi n g of the claim’s potential merit (short of proving the alleg ed

wrong doer’ s identity ) as a prec ondition for that discovery

. 7
The prec ise threshold showing of merit require d of the claimant rema ins somew hat unsettled, althoug h the single Texas state appellate court that has cons i dere d the question thus

8
far —our sister co u rt in Texarkana —applied a “prima fac ie case for eac h essential element of the
claim in question” st an d ar d h aving some para llels to Section 27.005(c) of the TCPA, the Act’s provision presc ribing the claimant’s require d showing to avoid dismiss al in t h e event the movant

meets its initial burden. I n fac t, some anec dotal historical source s asser t that the draf

ters of 9
Section 27.005(c) borrowe d the provision’s “prima fac ie case for eac h essential element of the claim
in question” component from the Texarkana opinion, so as to extend to all speake rs the protec tions

our sister court held to apply to anony mous speake rs, althoug h t h e Ac t ’s text does not state this 1 0

See D oes 1-10 , 242 S.W .3d at 820–21 (c ompiling authorities). 7
See id . at 821–23. 8 Compare Does 1-10 , 242 S.W .3d at 821–23 (“[T]o obtain discovery of an anony mous 9 defe ndant’s identity

. . . , a defa mation plaintiff must submit sufficie nt evidenc e to establish a prima facie case for eac h essential ele ment of the c laim in question . . . withi n plaintif f’s control .” (quoting Best W

. Int’l v. Doe , No. C V-06-1537- PHX-DGC, 2006 U.S. Dis t. L EXI S 56014, at *12 (D. Ariz. J uly 25, 2006, order ) (quoting Doe v. Cahill , 884 A.2d 451, 465 (De l. 2005)) (alter ations in orig inal))) , with Tex. Civ. Prac. & Rem. Code § 27.005(c) (assuming movant meets initial burden presc ribed in (b), “the party bring ing the leg al action” can avoid dismiss al if it “esta blishes by clea

r and spec ific evide nce a

prima fa cie c ase f

or ea ch esse ntial element of the claim in question”).
See L aura L ee Prather & J ustice J ane Bla nd, Bullies Beware: Safeguarding Constit utional 1 0 Rights Through Anti-SLAPP in Texas , 47 Tex. Tec h L

. Rev. 725, 748–49 (2015) (“The [“prima fac ie
case for each essential element of t he claim in question”] test i s derived f rom In re Does

. . . . By incorpora ting this test into the [TC PA] , the [L ]egislature chose to apply the same standard to claims broug ht ag ainst non-anony mous speake rs as claims brough t ag ainst anony mous ones.”) ; see also Hea ring s on S.B. 1565 befor e Senate Commi ttee on State Affa irs, 82d L eg ., R.S. 3–4 (Apr. 4, 2011) (transc ript available from Capitol Resear ch Service s) (Prather testify ing that standard is “ the same analy sis that is done in an anony mous speec h case , wher e somebody comes forwa rd and they want
3expli citly

. Reg ardle ss, we can at least conclude that the First Amendment require s some threshold 1 1 showing of a claim’s potential merit as a prec ondition of unmasking the anony mo u s s p ea k er

or speake rs. An d t h e T CPA did not diminis h this pree x isting First Amendment protec tion for

1 2

anony mous speec h, nor could have , b u t in s te a d expli citly disclaimed any intent to “abr og ate or lessen

any other defe nse, reme dy , immunit y , o r privileg e available under other constitutional, statutory ,

case , or common law or

rule provisions.” 1 3
The district court order ed Elliott ’s Rule 202 deposition without requiring a threshold

s h o wi ng of any kind reg arding the merits of Mag neGa s’s potential claims and despite object i o n s
from Elliott and one of the anony mous speake rs (Doe ) that prese rved the complaint. Elliott bring s
this First Amendment objection forwa rd as his principal asser

ted g round for mandamus relief

. This

to know what – wha t the web – we b addre ss is behind a person w ho’s posted an anony mous blog. The court looks a t the very beg inning of the case to deter mine whether or not the re is a ny basis for the lawsuit. And if they deter mine that there is a basis for the lawsuit, they can g et that anony mous speake r’s information. I f they don’t deter mine that, then they can’ t g et the anony mous speake r’s information. So this just cre ates t h e s am e level play ing field for anony mous and non-anony

mous speec h.”). Prath er, an attorney who repr esents open-g overnme nt and media interests, is widely
cre dited with an integ ral a dvocac y role in the TCPA’s dra fting and passa g e by the L eg islature. Cf. Serafine v. Blunt , 466 S.W .3d 352, 367 (Tex. App.—Austin 2015, no pet.) (Pemberton, 1 1 J , concur ring ) (obser

ving, with reg ard to anti-SL APP conce rn emphasized by the TCPA’s leg islative advocates, “the text of t h e Ac t i t s el f makes no expli cit mention of SL APPs, nor of any rela ted
conce pt like sham litigation[,] [a] nd, as t he Tex as S upreme Cou rt h as repe atedly instructed lower courts, we are to r ely

upon the statutory

text the L eg islature ac tually used, not extrinsi c leg islative history or other possible indicia of what leg islators might have meant subjectively , as our para mount g uide to the ‘leg islative intent’ we a re to a scer

tain and follow fa ithfully .” (c itations omi tted)).
See D oes 1-10 , 242 S.W .3d at 820–21. 1 2
Tex. Ci v. Prac. & Rem. Code § 27.011(a)

. 1 3
4g round plainly has merit, and mandamus relief should condit i o n al l y issue for this rea son alone. 1 4

This Court needed to sa

y no more a t this j uncture

.

THE T CP A IS UNHELPF UL IN RESOL VING THIS CASE
The Court chooses a more circuitous analy tical path, endor s i n g a n ovel alternative theory aimed at invokin g t h e T CPA’s more g ener al protec tions ag ainst speec h-base d claims and
rela ted discovery

. Prior to the hear ing on Mag neGa s’s Rule 202 petition, c ounsel repr esenting the

anony mous s p e a

k e r D o e ( w h o , in c id e ntally , also repr esents Elliott , the witness whose deposition was being soug ht) filed on Doe’ s behalf what purports to be a “motion to dismiss ” the Rule 202 petition
under TCPA Section 27.003(a) , the Act’s provision authorizing a motion to dismiss “a leg al action” alleg ed to be “b as ed o n , re l ate[d] to, or
. . . in response to a party ’s exercise of the rig ht of fre e
speec h, rig ht to petition, or rig ht of association.” I n turn, emphasizing the “motion to dismiss ” 1 5
filed for Doe, Elliott asser ted that the Rule 202 deposition was aut o m ati cally stay ed by TCPA
Section 27.003(c) , which provides g eneral l y t hat “on the filing of a motion under this section, all discovery in the leg al action is suspended until the court has ruled on the m o t i on to dismiss .” 1 6

Be cause there is no question th at t h e Rule 202 deposition Mag neGa s seeks would be “discovery ”

See I n re W olfe , 341 S.W .3d 932, 933 (Tex. 2011) (per curia m) (orig

. proce eding ) (“A n 1 4 improper or der unde r R ule 202 may be set a side by

mandamus.” ( citing In re J orden , 249 S.W .3d 416, 420 (Tex. 2008) (orig

. proce eding ); see also In re Colonial Pipeline Co. , 968 S.W .2d 938, 941 (Tex. 1 9 9 8 ) (per curia

m) (orig

. proce eding ) (“A t rial court abuses its discretion when it acts in an unrea sonable or arbitra

ry manner or, stated d i ff

er entl y , when it acts without ref ere nce to g uiding rules and pr inciples.”) ( citation omitted).
Tex. Ci v. Prac. & Rem. Code § 27.003(a)

. 1 5
Id . § 27.003(c)

. 1 6
5within the meaning of Section 27.003(c) and that the district court did not rule on Doe’ s “motion 1 7

to dismiss ” befor e signing the challeng ed o rd er gra n ting the Rule 202 deposition, Elliott ’s
entitlement to relief under (c) turns o n wh et h er Doe’ s motion was in fac t “a motion under this
section” trig g ering the stay —i.e., a “motion to dismiss ” authorized by (a) —and wheth er the deposition Mag neGa s seeks would be “discove ry in the legal action ” Doe has moved to dismiss.

T h e Court endorse s Elliott and Doe’ s cre ative invocation of the TCPA, an d
the cornerstone of its rea soning is that Mag neGa s’s Rule 202 p et i t i o n or proceeding is, in itself , a “legal action” that Doe could move to dismiss under Section 27.003(a) , making the reque sted
d ep o s i t i o n

— t he sol e relief sought in that “leg al action”—also “discove ry in the l eg al action” that
is suspended by 27.003(c)

. As an initial observa tion, the Court’s venture into the intricac ies of the
TCPA is ultimately of littl e prac tical value in resolving the pivotal issue in this proce eding —which,

aga i n , ce nters on the extent to which Mag neGa s can obtain discovery of the identity of the Doe

o r Does behind “The Pump Stopper’s” article in light of the First Amendment ri gh t t o speak anony

mo u s l y
. The Court has mere ly shifted the proce dural context of the controlling
First Amendment analy sis from a threshold consideration controlling Mag neGa s’s primary asser ted rig ht to obtain the information via Rule 202 to more periphe ral battleg rounds within the TCPA’s

proce dural fra

mework, including whethe r Do e has met his initial burden under TCPA
Section 27.005(b) and then whether Mag neGa s can obtain that same information in the g uise 1 8

See Jorden , 249 S.W .3d at 4 2 0 (holding that Rule 202 depositions fall within Medica l 1 7 L iability Act’s g ener al ban of “all discovery ” in a “hea lthcare liability claim” prior to service of expert repor

t).
S ee Tex. Civ. Prac. & Rem. Code § 27.005(b) (moving party must “show[] by a 1 8 preponde ranc e of the evidenc e that the leg al action is based on, rela tes to, or is in response to t he party ’s exercise of

” prote cted e x pression as de fined in the TCPA).
6of “sp ec i fi ed and limit ed discovery rele vant to the [di smissal] motion” authorized by TCPA

Section 27.006(b). The latter issue would sq u a r e ly im p lic ate Doe’ s First Amendment rig ht to speak 1 9

anony mously , and thus the parties would revolve back to the same First Amendment dispute alre ady
raised dir ectly

by Mag neGa s’s Rule 202 petition its elf.
Under the circ umsta n ce s h ere , at least, overla y ing the parties’ First Amendment dispute with the TCPA’s proce dural fra mework serve s only to delay an d co m plicate
resolution unnece ssarily , contra ry to the Act’s m anifest purposes to secur e quick and inex pensive
dismiss al of meritless “leg al actions” that threa ten expres s i v e fr ee d oms. The parties—a nd the 2 0 jurisprudenc e—ar e better serve d by resolving this proc eeding based on Elliott’s First Amendment objection ra ther than throug h the Court’s unnec essar y analy tical detour throug h the Act.

IN ANY EVENT, ELLIO TT WOUL D HAVE NO RIG HT TO RELIEF UND ER THE

TCP A IF THE COURT’S CE NTRAL P REMISE IS CORRECT
Moreove r, if, as the Court holds, Mag neGa s’s Rule 202 petition is the rele vant “leg al

ac t i o n ” u n d er the TCPA, that centr al premise would be fata l to Elliott ’s attempt to invoke the discovery stay under Section 27.003(c)

. This is appar ent from the text of TCPA Section 27.003(a) ,

See Tex. Civ. Prac. & Rem. Code §§ 27.003(c) , .006(b). I f, as the Court holds, Mag neGa s 1 9 would have to prese nt a “prima fac ie case for eac h ess ential element” of Mag neGa s’s underly ing pot en t i al claims, see id. § 27.005(c) , slip op. at 18–19, Mag neGa s ordinarily could not meet that burden without identify ing the potential alleg ed wrong doer, prompting the need for discovery of that identity throug h 27.006(b).
See id

. § 27.002 (“The purpose of this chapte r [t he TCPA] is to encour ag e and safe g uard 2 0 the constitutional righ t s o f persons to petition, speak fre ely , associate fre ely , and otherwise participa te i n g overnme nt to the m axim um exte n t p er m i t t ed by law and, at t he same time, protec t the rig hts of a person to file meritorious lawsuits for demonstrable injury .”); id. §§ 27.003–.005 (pre scribing mecha

nisms for threshold t es t ing and expedited dismiss al of “leg al actions” that implicate expression the Act prote cts).
7which states in f ull: “I f a leg al action is ba sed on, rela tes to, or is in response to a party’s exercise of the rig ht of fre e spee ch, rig ht to petition, or rig ht of associa tion, that par ty may file a motion to
dismiss the leg al action.” A “par ty ” denotes a person named in a pleading ag ainst whom the relief 2 1
is soug ht. Consequently , acc epting t h e C o u rt ’s premise that Mag neGa s’s Rule 202 petition is

2 2
the rele vant “l egal action,” only Elliott , not Doe, could be considere d “a party ” authorized by Section 27.003(a) to file a “ motion to dismiss.” And beca use it is solely

the non-“ party ” Doe , not
Elliott , that would have filed a “motion to dismiss ” here , there would b e no “motion under
this section” that trig g ere d Section 27.003(c) ’s suspension of “discove ry in the leg al action.” 2 3

Acc ordin gly , the Court’s own theory of this case would evisce rate Elliott ’s claimed entitlement

to mandamus relief under Section 27.003(c)

. The Court’s det our throug h the TCPA should g o
no further

.

THE COURT’S VIE W OF A TCP A “LEGAL ACTION” IS MISTAKEN AND P ROBLE MATIC
The Court proce eds nonetheless to pronounce that Rule 202 proce eding s, or at least
those like Mag neGa s’s that seek to investiga t e p o tential claims, are in themselves “leg al actions” subject to motions to dismiss under TCPA Section 27.003(a)

. I n so doing, the Court speaks to what 2 4

Id . § 27.003(a) (empha ses adde d). 2 1
See Zanchi v. Lane , 408 S.W .3d 373, 377–80 (Tex. 2013) (construing “par ty ” as used in 2 2 Medica l L iability Act’s expert-re port require ment, rely ing in part on dictionar

y d efinitions and usag e in Texas Rul es of Civil Procedure ).

See Tex. Civ. Prac. & Rem. Code § 27.003(c) (“. . . on the filing of a mot ion under t his 2 3 section , all discovery in the leg al action is suspended until the co u rt h as ruled on the motion to dismiss .” (Empha sis added))

. See slip op. at 6–8, 11–17. 2 4
8is appar ently an “issue of first impression” reg arding t h e interac tion betwee n Rule 202 and the 2 5

TCPA. Even more signific ant to the jurisprudenc e are the implications of the Court’s underlying

2 6 analy sis reg arding the nature and scope of a “leg al action ” u n d er t h e TCPA. As I ’ve urg ed my colleag ues prev i o u s ly , the TCPA’s “leg al action” definition is among the Act’s fea tures whose
fac ially broad wording invites attempts by resour cef ul litigants to extend the Act’s power ful
dismiss al and cost-shifting mecha nisms to a vast rang e of case s and court filings having littl e to do
with any conventional understanding of the First Amendment, let alone the SL APP para digm 2 7

See id . at 7. 2 5
This issue is a sort of converse to the one addre ssed recently b y o u r Da l l as sister court, 2 6 which held that statements made in a Rule 202 petition qualify as an “exerc ise of the rig ht to petition” protec ted by the TCPA ag ainst a “leg al action” that is “base d on, rela tes to, or is in response to” such “ exercise.” See W atson v. Hardman , ___ S.W .3d ___, No. 05-15–01355-CV, 2016 Te x
. App. L EXI S 7111, *6–10 (Tex. App.—Dallas J uly 6, 2016, no. pet. h.) (r easoning that “Rule 202 proce eding is a ‘judicial proce eding ’ for Chapter 27 purposes,” such that the Rule 202 petition was “a communication in or pertaining to a judi cial proc ee d i n g” (c i ting Tex

. Civ. Prac. & Rem. Code § 27.001(4)( A)(i) (def

ining “exerc ise of the rig ht to petition” as, inter alia, “a communication in or perta ini n g t o
. . . a judicial proce eding ”)) ; accord Serafine , 466 S.W .3d at 359–60 (holding that lawsuit and rela ted lis pendens filing suffice d as “exerc ise of the rig ht to petition” becaus e t h ese wer e “communica tion[ s] in or perta ining to

. . . a judicial proce ed i n g,” namely the suit itself); id

. at 377–90 (Pemberton, J ., concur ring ) (ag ree ing with that conclusion under analy sis of “exerc ise of rig ht to petition” definition informed by backg round F irst Amendment principles)

. See Serafine , 466 S.W .3d at 370 (Pemberton, J ., concu rr i n g) (n o ting that “some of our 2 7 sister courts have observe d [t hat] ‘leg al action’ would fac ially encompa ss even motions, such as those seeking summary judgme nt or sanctions, at least to the extent that relief would be considere d ‘leg al or equitable relief

’” and that “the same logic ” would seeming ly apply “eve n [ t o ] d i s m issal motion s as serted under the TCPA itself

. . . if dismiss al with cost-shifting and sanctions can be considere d ‘leg al or equitable relief .’” (citation omitted)). To b e s ure, a viable TCPA dismiss al motion also require s proof by a “pre pondera nce of the evidenc e” that the “leg al action” (as it wer e) is “base d on, rela tes to, or is in response to” the “exerc ise of” one of the expressive rig hts protec ted by the statute. See Tex. C i v
. P ra c. & Rem. Code § 27.005(b). But if those other analy tical components are as broad as this Court has rea soned previously , they would prese nt but a small hurdle for cre ative lawy ers and litigants. Cf. Serafine , 466 S.W .3d at 378–79 (Pemberton, J ., concur ring ) (sug g esting that if TCPA definitions of protected ex pression are read in isolation, a spea ker c ould implicate all three cate g ories of expression protec ted under the Act throug h a single sentenc e spoken
9emphas i z ed by the Act’s champions, to the point of eff ectively cre ating a broadly applicable 2 8
“de f acto loser -pay s reg ime tied to summary dispositi ons.” 2 9
To the extent a

ny such ramifications truly ref lect the L eg islature’s intent expressed throug h the TCPA, it is not our proper j u d i ci al role to counter mand them, of course , barr ing

some constitutional impediment. But a corr ect understanding of the TCPA require s more than firstblush impressions of words rea d in isolation—we must also consider the larg er s t at u t o ry and jurisprudential context that informs the meaning of statutory text

. And while the majority here 3 0

privately to his or her spouse about a court case ), 390 (“[W] hen combined with a n ‘exercise of the rig ht to petition’

. . . that [has been construed to] encompa ss[ ] most (if not all) claims filed in court an d a ‘leg al action’ definition that seeming ly encompa sses most (if not all) claims filed in court, the ef fec t of the prevailing construction [of “based on, r elated to, or in response to] . . . is to m ake the T C P A available as a tactica l wea pon in a vast number of instances in which litigants
asser t competing claims ag ainst one another , at least for the party who files its claims first”); see also Neyland v. Thom

pson , No. 03-13-00643- CV, 2015 Tex. App. L EXI S 3337, at *42 (Tex. App.—Austin Apr. 7, 2015, no pet.) (mem. op.) (F ield, J ., co n cu rr i ng ) (“I t seems that any skilled litigator could fig ure out a way to file a motion to dismi ss under the TCP A i n near ly ever y case , in the hope that the [l eg al action] w ill not only be dismiss ed, but tha t the movant will also be
awa rded a ttorney s’ fe es.”)

. See Serafine , 466 S.W .3d at 365–67 (Pemberton, J ., concur ring ) (summarizing anec dotal 2 8 leg islative history emphasizing “anti-SL APP” c oncer ns); see also Prather & Bla nd, supra note 10, at 725–801 (using “anti-SL APP” throug hout article to char acte rize TCPA’s proce dural mecha nisms and policy

g oals). Serafine , 466 S.W .3d at 390 (Pember ton, J ., concur

ring ). 2 9 See, e.g ., In re Of

f i ce o f the Att’y Gen ., 456 S.W .3d 153, 155 (Tex. 2015) (per curia m) 3 0 (“When construing statutes, or any thing else, one cannot divorce text from context,” as “[t] he meaning of words rea d in isolation is fre quently contra ry to the meaning of words rea d contextually in li gh t o f wh at surrounds them.”); In re Allen , 366 S.W .3d 696, 706 (Tex. 2012) (noting role of backg round law in informing meaning of statutory text (quoting Ack er v. Texas W

ater Comm’n , 790 S.W .2d 299, 301 (Tex. 1990)); Bridgestone/Firestone, Inc. v. Glyn-J ones , 878 S.W .2d 132, 133 (Tex. 1994) (“Words in a vacuum mean nothing. Only in the context of the rema inder of the statute can the true meaning of a single provision be made clea r.” (citing Merc hants Fast Motor Lines, Inc. v. Rail road Comm’n , 573 S.W .2d 502, 505 (Tex. 1978)); Barr v. Bernhard , 562 S.W .2d 844, 849 (Tex. 1978))).
10scorns my insistence on such “dee per digg ing” and resultantly “mor e complicated” view of the

TCPA’s “plain and broad wording ,” I make no apolog ies for under t aking the eff ort. For when 3 1

courts fail to take acc ount of both text and context in as cer taining the TCPA’s meaning , they undermine not only

the L eg islature’s intent in the statute (as with a ll statutes) , but also “the sound

opera tion of our civil justice sy stem [and] the sometimes-competing rig hts of Texans”—including
liberties and protec tions at the core of our g overnme ntal sy stem—“that the statute was expressly
intended to balanc e and r econc ile.” 3 2

We must presume that the L eg islature was awa re of the exis tence of Rule 202 and the

pre- suit depositions it authorizes when enac ting the TCPA, as these mecha nisms preda te the Act. 3 3 3 4

Yet the L eg islature did not expli citly mention Rule 20 2 o r p re -s u i t depositions any wher e in the TCPA. But it did provide a def inition for “leg al ac tion,” as pre viously noted:

a lawsui t , cause of action, petition, complaint, cross-c laim, or counter claim or any other judicial plea ding or filing tha t reque sts lega l or equitable r elief. 3 5

Slip op. at 19. 3 1 Serafin e , 4 6 6 S .W.3d at 394 (Pemberton, J ., concur ring ). And I rema in hopeful that 3 2 someone outside this three- judge panel mig ht be listening. See id . at 394–95.
Allen , 366 S.W .3d at 706 (quoting Ack er , 790 S.W .2d at 301)). 3 3
See Citi zens Participation Act, 82d L eg ., R.S., ch. 341, § 4, 2011 Tex. Gen. L aws 961, 964 3 4 (ef fec tive J une 17, 2011); In re Doe ( Trooper ) , 4 44 S.W .3d 603, 605–07 & nn.8–12 (Tex. 2014) (orig

. proce eding ) (discussing R ule 202’s adoption as part of the 1999 Texas civil discovery rules revisions and that rule ’s historical ante cede nts).
Tex. Ci v. Prac. & Rem. Code § 27.001(6). 3 5
11This definition “is both expansive and varie d, ref err ing to an entire action or proce eding (‘law suit’); particula r pleading instr u m en t s and claims for relief (‘pe tition, complaint, cross-c laim, or

counter claim,’ plus the catc h-all of ‘any other judicial pleading or filing that reque sts leg al or equitable relief

’); and also ‘ca

use of action,’ which g ener ally denotes par t i cu l ar fac ts that would entitle a per son to seek some for m of leg al or e quitable re lief.” 3 6

T h e Court asser

ts that a R ule 202 petition qualifies as a “leg al action” by v i rt u e o f

two of these components of the TCPA definition. First, the Court relies on “petition,” deducing that
beca use Rule 202 terms the pleading made under that rule a “p et i t i o n , ” erg o that pleading is a 3 7 “petition” under the TCPA’s “leg al action” definition as well. Second, the Court rea sons simil arly 3 8
that a Rule 202 petition seeking to investiga te potential claims (the specific reme dy Mag neGa s seeks
under the rule) falls within “ any other judicial pleading or filing that reque sts .

. . equitable relief ,” emphasizing that this reme dy now authorized under Rule 202 can be termed “equitable ” to the extent
it de rives historically from the former Rule 737 bill of discovery and then from reme dies provided by Eng lish chanc ery courts. I ’ll g rant that the word “petition” ap p ea rs i n both Rule 202 and the 3 9

TCPA “leg al action” definition, and I have no quarr el with the Court’s basic depiction of Rule 202’s

Serafine , 466 S.W .3d at 370 (Pemberton, J ., concur ring ) (citing Jaster v. Comet II Constr., 3 6 Inc. , 438 S.W .3d 556, 563–71 (Tex. 2014) (plurality op.) (discussing at leng th the distinctions betwee n an “ac tion,” “lawsuit,” or “proc eeding ” and a “ca use of action” (citing Loaisi ga v. Cerda , 379 S.W .3d 248, 255 (Tex. 2012) ; A.H. Belo Corp. v. Blanton , 129 S.W .2d 619, 621 (Tex. 1939) ; Magill v. W

atson , 409 S.W .3d 673, 679 (Tex. App.—Houston [1st Dist.] 20 1 3 , n o p et

. ); Bell
v. Moores , 832 S.W .2d 749, 752 (Tex. App.—Houston [1 4 t h Di st.] 1992, writ denied) ; Elmo v. Jam es , 282 S.W . 835, 839 (Tex. Civ. App.—Fort Worth 1926, writ dism’d w.o.j.)))).
See Tex. R. C iv. P. 202.2. 3 7 Slip op. at 13–14. 3 8 Slip op. at 14–15 (citing Trooper , 444 S.W .3d at 606–07 & nn.10–14). 3 9
12historical orig ins; in fac t, I ’d add that vestig es of the equitable conce pts that g uided application of 4 0
Rule 202 antec edents have survived in the curr ent rule itself. But these observa tions in themselves 4 1
tell us littl e reg arding the meaning and sense in which the L eg islature used “petition” and “equitable
relief ” in the TCPA’s “legal action” definition

. That inquiry require s deepe r digg ing into the context
of usag e both within the definition and in the TCPA as a whole, and we cannot mere ly assume that 4 2
th e L e g is lature intended whateve r meaning s of “petition” or “equitable relief ” might exis t elsewhe re
. Although the term “petition” is sometimes used more broadly or g ener ically in reg ard

to court filings, as in the Rule 202 “petition,” the term also has a narr ower , more tec h n ical 4 3
connotation—the pleading instrument presc ribed under the Texas Rules of Civil Procedur e throug h
which a plaintiff initiates and maintains a civil suit. This sort of “petition” seeks substantive relief , 4 4

See also Nathan L

. Hec ht & Robert H. Pemberton, A Guide to the 1999 Texas Discove ry 4 0 Rule Rev isions , at 17 (1998) (Texas Supreme Court’ s r u le s li a is on justice and its then-Rules Attorney explaining that “Rule 202 is a rew rite of former Rule 187 that is broade ned somewhat to expressly permit disc o v er y depositions prior to suit and to investiga te potential claims. To this extent, Rule 202 replac es and limits the ‘bill of discovery ’ of r epea led Rule 737.”).

See Tex. R. Civ. P. 202 cm t

. 1 (noting that Rule 202 “applies to all discovery befor e 4 1 suit cover ed by former rules g overning depositions to perpe tuate testimony and bills of discovery ”); id. at cmt. 2 (“The bill of discovery proce dure, which Rule 202 incorporates, is equitable in nature , and a c ourt must not permit it to be used inequitably .”).
See Office of the Att’y Gen ., 456 S.W .3d at 155; Bridgestone/Firestone, Inc. , 878 S.W .2d 4 2 at 1 3 3 ; s ee a l

s o , e.g ., City of Lorena v. BMTP Holdings, L.P. , 409 S.W .3d 634, 641 (Tex. 2013) (“W e ex am i n e statutes as a whole to contextually g ive meaning to ever y provision.” (citing State v. Gonzalez , 82 S.W .3d 322, 327 (Tex. 2002))). See, e.g. , Tex. R. Civ. P. 329(a) (re fer ring to tr ial court g rant of new trial “upon pe tition 4 3 of the defen d an t ”) ; Tex. R. App. P. 52 (“pe tition” for relief in orig inal proce eding s); id

. R. 53 (“pe tition for review ” in Texas Supreme Court).
See Tex. R. Civ. P. 22 (“A civil suit in the district or county court shall be commence d by 4 4
a petition filed in the office of the cler k.”); see also id

. R. 500.2( t) (similarly defining “petition” in

13as evident in the rules’ additional require ment s that the “petition” include alleg ations g iving fair

notice of “the cause of action” (ag ain, the fac ts g iving rise to a substantive rig ht of relief ) supporting
“a claim for relief

.” This narr ower usag e of “petition” thus corr esponds not only to the definition’s 4 5

acc ompany ing ref

ere nces to “laws u it ” ( th e e ntire action being broug ht) and “ca use of action” (fa ctual
bases f or par ticular c laims for relief

that may be asse rted within a law suit), but also the ref ere nces

to pleading device s t h ro u gh wh i ch parties in a lawsuit asser t substantive claims or cause s of
actions—“c omplaint” (the fede ral counter part to t h e T exas “petition”), and “counte rcla im” and 4 6

“cr oss-claim” (terms for pleading s throug h which defe ndants asser t such claims or cause s of
action under both the Texas and fede ral rules). And this understanding of the meaning and scope 4 7
of “petition” would not be altere d by the definition’s concluding catc h-all co m p onent, “any other judicial pleading or filing that reque sts leg al or equitable relief .” Rather, the conver se is true: “any

o t h er j udicial pleading or filing that reque sts leg al or equitable relief ” is to be construed to have meaning and scope limit ed contextually to the same g ener al kind or class as the specific ref ere nces
that prec ede it. These contextual considerations point toward an intended usage of “petition” in 4 8

J ustice Court as “a formal written application stating a party ’s claims and reque sting relief from the court” and “is the f

irst document filed with the c ourt to beg in a lawsuit”).
See id . R. 47. 4 5
See Fe d. R. Civ. P . 3. 4 6
See Tex. R. C iv. P. 97; Fed. R. Civ. P . 13. 4 7 See, e.g. , Ross v. St. Luke’s Epi s copal Hosp ., 462 S.W .3d 496, 504 & n.1 (Tex. 2015) 4 8 (apply ing doctrine of ejusdem g ener is—“ when words of a g ener al nature are used in the connec tion with the desig nation of particula r objects or classes of persons or things, the meaning of the g ener al words will be restric ted to the particula r desig nation”—in construing “catchall” ref ere nce to claims for “other claimed depar t ure from acc epted standards of

. . . safe ty ” in Medica l L iability Act’s definition of “ h ea lth car e li ability claim” to require “a substantive rela tionship with the providi ng
14the s ense of the pl eading throug h which a plaintiff brings a lawsuit and asserts substantive cause s

of action or claims for relief ag ainst another , as opposed to the “pe tition” used to obtain discovery
under Rule 202.

Whether a Rule 202 petition mig ht f all within “ any other judicial pleading or filing
that reque sts

. . . equitable relief ”—the Court’s alterna tive ratio n ale—is potentially a closer call,

at least when considering the internal structure of the “leg al action” definition standing alone. Whil e
the definition’s “any other judicial pleading or filing that reque sts leg al or equitable relief ” catc hall
is contextually limit ed to the same g ener al kind or class as the specific ref ere nces prec eding it, we 4 9

must presume that the L eg islature d i d n o t intend a mere redunda ncy , either, and thus that the

5 0

catc hall must presumably captur e some rang e of “judicial pleading or filings” that are not nece ssarily

a “lawsuit” or one of the pleading instruments previously enumer ated withi n t h e d efinit ion,
and would not ne cessa

rily asser t a “ca use of action.” Simi larly , the Texas Supreme Court’s rec ent
construction of somewhat para llel lang uag e in t h e T C PA provisions g overning fee awa rds would imply that the “ . . . that re quests leg al or e quitable re lief” modifier should be construed to ope rate only ag ainst the definition’s ref ere nce to “any o t her judicial pleading or filing” and not as to the

of medical or health car e,” consistent with definition’s prec eding ref ere nces to c la im s f

o r “ tr e a tment” or “lack of trea tment” (quoti ng Hilco El ec. Co-op v. Midlot hian Butane Gas Co ., 111 S.W .3d 75, 81 (Tex. 2003) and citing Antonin Scalia & Br y an Gar n er , R ea d i n g Law: The Interpretation of Legal Texts 1999 (2012))

. See id

. 4 9 See, e.g ., TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 439 (Tex

. 2 0 1 1 ) 5 0 (noting presumption that the “L eg islature chooses a sta t u t e’s lang uag e with car e, including
eac h word chosen for a purpose, while purposef ully omitti ng words not chosen” (citing In re M.N. , 262 S.W .3d 799, 802 (Tex. 2008))).
15prec eding cate g ories of pleading s or filings specific ally listed in the definition. These observa tions 5 1
would sug g est that the common kind or class “any other judicial pleading or filing that reque sts leg al

or equitable relief

” share s with the definition’s prec eding components is being a “judicial pleading

or filing” and not ne cessa rily that the cate g ories all seek “leg al or equitable relief .” Whether this 5 2 points to “leg al or equitable relief ” that is broade r or narr ower than the relief soug ht in a “lawsuit,”
“ca use of action,” ‘petition,” etc., is not immedia t el y ap p arent from the “leg al action” definition
in itself.

But the Court’s notion that “equitable relief ” within the defini t i o n refers to any “judicial p l ea d i n g or filing” having equitable orig ins or components should g ive some pause. A
Rule 202 petition seeking to investiga te potential claims is hardly the only Texas “judicial pleading

or filing” that would “re quest

. . . equitable relief ” in this sense. Moreove r, as the Court seems to

5 3

See Sullivan v. Abraham , 488 S.W .3d 294, 297–99 (Tex. 2016) (re ly ing on last-antec edent 5 1
canon and punctuation to conclude that “as justice and equit y m ay require ” modifier in Section 27.009(a) (1)’ s m an datory awa rd of “cour

t costs, rea sonable attorney ’s fee s, and other
ex p en s es i n cu rre d in defe nding ag ainst the l eg al action as j ustice and equity may require ” applies only to “other e x penses incur

red” and not “c ourt costs” or “ rea sonable a ttorney ’s fe es”)

. Cf. id . (re asoning that provision’s structure indicated that “ court c osts” and “r easona ble 5 2 attorney ’s fee s” are ty

pes of “expenses incurre d,” while “as justice and equity require ” applies only to the concluding g ener al ca teg ory of “e x penses incur

red” ). See, e .g. , Caldwell v. Barnes , 975 S.W .2d 535, 537 (Tex. 1998) (“A bill of review is a

n 5 3 equ i t ab l e p roceeding broug ht by a party seeking to set aside a prior judgme nt that is no longe r subject to challeng e by a motion for new trial or appea l.”) (citations omitted); Craddock v. Sunshine Bus Lines, Inc. , 133 S.W .2d 124, 126 (Tex. 1939) (announc ing g uiding rule or principle—“ ha[ving] the sanction of equity ”—for trial courts to follow when deciding whether t o set aside a defa ult judgme nt and order a new trial); 5 McDona ld & Carlson Tex. Civ. Prac. § 28:17 (2d. ed.) (“A motion for new t rial m ay be based upon leg al or equitable gr ounds.

. . . An equitable motion . . . see ks to invoke the power of the court to g rant a new trial even though the movant failed to timely act and suffe red an adver se judgme nt.”); see also Riv erce nter Assocs. v. Rivera , 858 S.W .2d 366, 367 (Tex. 1993) (orig

. proce eding ) (“A lthough mandamus is not an equ i t ab l e reme dy , its issuance is larg ely controlled by equitable principles.” (citing Callahan v. Giles , 155 S.W .2d 793, 795 (1941))

. 16acknow ledg e, the bill of discovery orig inated as a means of obtaining throug h equity any discovery

from parties to a pending suit in the era befor e modern discovery as a m at t er o f rig ht was made
available

. To this extent, the equitable bill of discovery could be considere d a historical antec edent

5 4

not only to the Rule 202 pre- suit deposition to investiga te claims, but als o most if not all of the panoply of other discovery device s that the Rules of Civil Pr o ce d u re n o w make available

. And 5 5
while gra n t i n g t h ere are distinctions in timing and proce dure, I question the extent to which the
substanti v e n at u re of the relief awa rded in a Rule 202 proce eding —at bottom, a court-or dere d deposition of a nonparty

—is materia lly differ ent from a court order or even a subpoena compelling

a deposition or other discovery from nonparties that is soug ht under other rules. Although I cannot 5 6 fairly acc use the Court of endorsing a wholly unbounded notion of “leg al action,” the Court’s

rea soning would nonetheless imply that a vast rang e of court filings could be attacke d throug h TCPA
dismiss al motions.

An alterna tive view of the “leg al action” definition’s ref ere nce to “leg al or equitable
relief ” is that it denotes t h e t raditi onal law-e quity distinction that lives on in what are termed the “leg al” v er s u s “equitable ” reme dies obtainable when liability under some substantive rig ht of

reco v er y i s proven; i.e., the “leg al” reme dy of money damag es versus the “equitable ” relief of injunctions, specific perf ormanc e, and the like. Fr om this perspe ctive, the catc hall “any other 5 7

Slip op. at 14–15 (citing Trooper , 444 S.W .3d at 606–07 & nn. 10–14). 5 4
See Trooper , 444 S.W .3d at 606–07 (sug g esting that “the 1941 [Tex as] Rules o f 5 5 Civil Procedur e mig ht have r ender ed [the bill of discovery in its original for

m] obsolete.”)

. See Tex. R. C iv. P. 176 (subpoena), 205 ( discovery from nonpar

ties). 5 6 See, e.g. , Restatement (Third) of Restituti on and Unjust Enrichment § 4 cmt. d (2011) 5 7 (noting “[e]lementary g ener alizations

. . . for the classifica tion of reme dies ” wi thin the law of
17judicial pleading or filing that reque sts leg al or equitable relief ” woul d function primarily as a
safe g uard ag ainst cre ative reple ading of what are substantively lawsuits, cause s of action, petitions, complaints, counterc laims, or cross-c laims so as to avoid the TCPA’s dismis sal mecha nisms.

Ex amination of the TCPA as a whole confirms that t h e L egis lature intended this

narr ower notion of “a

ny other judi cial pleading or filing that reque sts leg al or equitable relief,” as
well as the more technica l meaning of “petition” urg ed above. I nstructive provisions beg in with Section 27.005, which pre scribes the standards under which Section 27.003(a) motions t o dismiss “the leg al ac tion” are decide d. Assuming the movant meets i ts initial burden, Section 27.005(c) 5 8 specifie s that “the party bring ing the legal action ” can avoid its dismiss al only if the party
“esta blishes by clear and specific evidenc e a prima fac ie case for eac h essential eleme nt of the
claim in question .” I f that party makes t h at re q uired showing so as to survive dismiss al, 5 9

S ec t i o n 27.005(d) contemplates further burden- shifting back to the movant to “esta blish[ ] by a preponde ranc e of the evidenc e eac h essential eleme nt of a valid defense to the nonmovant’s claim .” 6 0

An d i n p er forming these analy ses and also in asce rtaining whether a movant has met its initial

restitution, including that “a judgme nt for money , without resor t to any of the an ci l l ary reme dial d evices traditionally available in equity but not at law” is presumptively a leg al reme dy , wher eas “equitable reme dies

. . . order the defe ndant to do something” ); 1 Dan B. Dobbs, Law of Reme dies § 1.2 (2d ed. 1993) (“The d am ag es reme dy was historically a leg al reme dy

. The injunction and most other coer cive reme dies wer e equitable.” ); see also Hanson Aggregates W est, Inc. v. Ford , 338 S.W .3d 39, 42–43 (Tex. App.—Austin 2011, pet. denied) (explaining that “equitable relief ” of perma nent injunction m u s t be “supported by at least one valid underly ing cause of action that is established either by conclusive evidenc e or fac t finding s,” just as with reme dy of money damag es (citing Valenzuela v. A quino , 853 S.W .2d 512, 513–14 & n.2 ( Tex. 1993))).
See Tex. Ci v. Prac. & Rem. Code § 27.005(b)–( d). 5 8
Id . § 27.005(c) (empha ses adde d). 5 9
Id . § 27.005(d) ( emphase s added)

. 6 0
18burden, Section 27.006(a) direc ts trial courts to “conside r the pleading s and supporting and opposing

aff idavits stating the f

acts on whic h the liabilit

y or defense is based.” 6 1

As we must presume the L eg islature was awa re, Section 27.005(c) ’s ref ere nces to 6 2

“ essential eleme nt of the claim in questi o n ” i s the nomenclatur e of substantive cause s of action

o r theories of rec overy , such as particula r torts, not of mere petitions seeking depositi o n s
under Rule 202. T h i s i s t he sense in which the Texas Supreme Court has seeme d to view 6 3
Section 27. 0 0 5 (c ) as well, often using “cla im” in that provision intercha ng eably with “ca

use of
action.” Simi larly , one does not ordinarily raise “def enses” to a Rule 202 petition, as contemplated 6 4 by Section 27.005(c) , as opposed to asser ting objections or g rounds for protec tion under the

Id . § 27.006(a) (empha ses adde d). 6 1 See, e.g. , Allen , 366 S.W .3d at 706 (“‘ A statute is pr esumed to have been enac ted by the 6 2 leg islature with complete knowledg e of the exis ting law and with ref ere nce to it.’” (quoting Ack er , 790 S.W .2d at 301)); see also Tex. Gov’t Code § 311.011(b) (“Words and phrase s that have acquir ed
a technica l or particula

r meaning , whether by leg islative definition or otherwise, shall be construed
acc ording ly .”).

See, e.g. , Gharda USA, Inc. v. Control Solutions, Inc. , 464 S.W .3d 338, 353 (Tex. 2015) 6 3 (re fer encing “esse ntial elements” of “neg lige nce claim” and “manuf actur ing defe ct claim”) ; Stoner
v. Thompson , 578 S.W .2d 679, 683 (Tex. 1979) (“I n deter mining whether a cause of action was pled, plaintiff’s pleading s must be adequa te for the court to be able, from an examination of the plaintiff’s pleading s alone, to asce rtain with rea sonable cer tainty

. . . the eleme nts of

plaintif f’s cause of action and the relief

sought with sufficie nt information upon which to base a judgme nt.”) (empha sis added) (citation omitted); see also Tex. R. Civ. P. 279 (re fer ring to “ele ments” of “indepe ndent g rounds of
rec overy or of defe nse”) ; cf. Tex. R. Civ. P. 202 (no ref ere nce to “ele ments” or “esse ntial elements” of g rounds for or der)

.

See KBMT Operating Co. v. Toledo , ___ S.W .3d ___, No. 1 4 -0 4 5 6 , 2 0 1 6 Tex. L EXI S 6 4 499, at *7 (Jul y 17, 2016) (under Section 27.005, “KB MT was entitled to dismiss al u n l ess [t he claimant] established a p ri m a facie case for eac h element of a defa mation cause of action.”) ; In re Lipsky , 460 S.W .3d 579, 590–91 (Tex. 2015) (“c lear and specific evidenc e” of “ea ch essential element of the claim” require s more than “g ener al allega tions that mer el y re cite the elements of a cause of action

. . . . I nstead, a plaintiff must provide enoug h detail to show the fac tual bases for its claim.”)

. 19civil discovery rules, let alone prove up “esse ntial elements” to obtain that protec tion. And perha ps

even more signific antly , a Rule 202 petition does not seek to impo s e “l i ab i l i ty ” or interpose a
“def ense,” the focus of the evidenc e acc ording to Section 27.006(a) —the petition seeks a deposition

to investigate potential liabili t y o r d efenses or prese rve evide nce that may be rele vant to liability

or a defe nse. This analy sis is i ncapa ble of be ing a

pplied to a “leg al action” that consists only of a
Rule 202 petition. The analy sis could be applied, howeve r, to the “leg al acti o n ” t h at co n sists of
the underly ing potential claims for relief or anticipated suit on which a Rule 202 petition is predic ated—a

nd I will return to that observa tion momentarily

. The Court does not contend otherwise—in fact, it ackno wledg es t hat t he “claim in question” under Section 27.005 (i.e., that which has “esse ntial ele me n ts,” seeks to impose “liability ,”
and has “def

enses” with “esse ntial elements” ) must nece ssarily ref er to the alleg ed p o t en t i al
claims underly ing a Rule 202 petition and not to the petition itself. The Court insists , rathe r, that 6 5
Section 27.005 leaves open the possibili ty that the “cla im in question,” while potentially a “leg al
action” unde r the TCPA definition, need not ne cessa rily be a “ leg al ac tion,” such that the re levant “leg al action” can be the Rule 202 petition even wh i l e the underly ing potential claims are the
“cla im[ s] in question” on which analy sis focuse s. I will acknowledg e that Section 27.005 re fer s 6 6

to “ea ch essential element of the claim in question” rathe r than expli citly to “ea ch essential element
of the legal action in question,” but this is plainly the import of “ea ch essential element of the claim
in question” when rea d in the context of Section 27

. 005’s burden- shifting fra mework and the
TCPA’s br oader purpose to f err et out non- meritorious lawsuits that impli cate expressive liberties.

See slip op. at 18–19. 6 5
See id. 6 6
20That t here is a “claim” for substantive relief place d “ in question ” by a TCP A m otion to d i s m i s s a

“leg al action,” as Section 27.00 5 p resumes, signa ls that such motions inhere ntly seek to test the
meritoriousness of that substantive claim, with the conseque nces of quick dismiss al of that claim if
it fails the testing. Section 27.005 does not contemplate attacks on periphe ral filings or proce eding s 6 7 like Rule 202 petitions as ends in themselves, as the Court holds.

The Court insists that any such doubts reg arding text ual support for its construction
should be overlooke d beca use the L eg islat u re d i rected that the TCPA be “construe d liberally to
eff ectua t e its purpose and intent fully .” But a leg islative mandate that we “libera lly construe” a 6 8

statute does not authorize us to ignor e, rew rite, or displace the t ex t t h e L eg islature has actua lly
used —nor can it, without raising separ ation-of- power s conce rns. I n any event, translating the 6 9 7 0
TCPA’s “libera l construction” dire ctive into a spec ific applica tion of the Act is more c omplicated
than the Court pr esumes. The L eg islature specifie d that the TCPA’s “ purpose” is a dual mandate:
“enc ourag e and safe g uard the constitutional rig hts of persons t o petition, speak fre ely , associate

See Tex. Ci v. Prac. & Rem. Code § 27.002 (“The purpose of this c hapter [t he TCPA] is 6 7 to encour ag e and safe g uard the constitutional rig hts of persons to petition, speak fre ely , associate fre ely , and otherwise participa te in g overnme nt to the maxi mum extent permitted by law and, at the same time, protec t the rig hts of a person to file meritorious lawsuits for demonstrable injury .”);
see also Serafine , 466 S.W .3d at 375 (Pemberton, J ., concur ring ) (sug g esting that TCPA’s dismiss al mecha nisms may opera te simil arly to Me dical L iability Act’s expert-re port require ments to e x tent it requires thre shold testing of pote ntial meritoriousness of ce rtain cla ims). Slip op. at 17 (citing Te x . Civ. P rac . & Re m. Code § 27.011(b)). 6 8 See, e.g. , Holmes v. Morales , 924 S.W

. 2 d 920, 923–25 (Tex. 1996) 6 9 (re jecting —notwiths t anding Public I nformation Act’s “libera l construction” mandate—A ttorney Gene ral’s “impermissible administrative limit ation upon the Open Records Act’s exceptions’ plain lang uag e” unde r the then- applicable version of the law-e nforc ement exception).

See Scalia & Gar

ner, supra note 48, at 233, 244–46. 7 0
21fre ely , and otherwise participa te in g overnme nt to the maxi mum extent permitted by law and , at the

same time , protec t the rig hts of a person to file meritorious lawsuits for demons t ra b l e i n j u ry .” 7 1 Consequently , the TCPA is to be “construe d liberally ” toward eff ectua ting and balanc ing both expressive liberties and r ights of r edre ss. 7 2

Nor does the Court’s construction ultimately advanc e the TCPA’s g oal of protec ting
fre e expression, the side of the Act’s balanc ing equation that the Court is tacitly favor ing here

. What
the Court’s construction encour ag es is piece meal or seriatim “motions to dismiss ” attacking my riad
“l ega l actions” that consist mere ly of individual filings within or rela ted to a lawsuit, as oppo s ed

to the underly ing lawsuit and substantive claims that are the Act’s co re fo cu s. As such motions prolifer at e, appli cation of the TCPA stray s from—and, indeed, undermines throug h cost and delay —its manifest pu rp o s e t o secur e quick and inexpensive dismiss al of meritless “leg al
actions” that threa ten expressive fre edoms. Th e Co u r t’ s c o n s tr u c ti o n w o u ld simil arly invite tactica l 7 3

Id . § 27.002 (empha sis added). 7 1
See Serafine , 466 S.W .3d at 368 (Pemberton, J ., concur ring ) (“Rea d in conjunction with 7 2 section 27.002, this mandate [t hat the TCPA be ‘construe d liberally to eff ect its purpose and intent fully ’] would ref

er to a dual duty o n t h e p art of courts to ‘libera lly construe’ the statute both to ‘enc ourag e and safe g uard the constitutional rig hts’ p ro t ec t ed by the s tatute and ‘protec t the rights of a person to f

ile meritorious lawsuits f

or demonstrable injury .’”) ; Cheniere Energy, I nc. v. Lotfi , 449 S.W .3d 210, 216 (Tex. A pp.—Houston [1st Dist.] 2014, no pet.) (empha siz ing “the expli citly stated purpose of the statute, na mely , to balance the protec tion of First Amendme nt rig hts ag ainst the rig ht all individuals have to file lawsuits to redre ss their injuries.”).

See Tex

. C i v
. Prac. & Rem. Code § 27.002 (purpose ); id. §§ 27.003–.005 (pre scribing 7 3
me c h a n is ms f o r th r e s h o ld te s ti n g and expedited dismiss al of “leg al actions” that implicate expressio n the Act pr otects).
22g amesm an s h i p as parties could attack succe ssive “leg al actions” of this sort as a means of

circ umventing the Act’s de adlines for filing motions to dismi ss. 7 4

But there is a construction of the TCPA that would advanc e the Act’s purposes in
the Rule 202 context, y et rema in faithful to the statute’s terms. I t is the one alre ady sug g ested by the

prec eding anal y s i s

— t h e “lega l action” is not the R ule 202 petition or proceeding in itself, but the underly ing potential claim or anticipated suit that is the predic ate for th e p et i t i on. I n addition to avoiding the burdens, ineffic ienc ie s , a n d p o te n ti a l g a

me s ma n s h ip in v it e d b y th e Cour

t’s construction,
this view of the “leg al action” more importantly square s with Section 27.005 and 27.006(a) and also
with the unity Section 27.003(a) require s betwee n the person whose fre e expression is threa tened by
the “leg al action” and the “par ty ” to the “leg al action” who can bring the motion. I would hold that
the L eg islature intended to addre ss Rule 202 depositions under the TCPA in this manner , as opposed to deeming them stand-alone “leg al ac tions” as the Court does.

Alterna tively , even if a Rule 202 petition might fall within “leg al action” in an
abstrac t application of the TCPA’s definition, I would hold for these rea sons that the relev ant “leg al
action” under S ection 27.003(a) and (c) is th e u n d er l y ing potential claim or anticipated suit made
the basis for the petition. As this Court’s prior TCPA jurisprudenc e has rec og nized, application of
the Act’s “leg al action” definition turns not only o f wh et h er there exis ts some corr espondenc e
betwee n the definiti on and the pa rticular ple ading or filing at issue, but also the particular contex t
in which ex t ernal provisions of the Act are actua lly using or apply ing the term “leg al action” and

Cf. In re Estate of C

h eck , 438 S.W .3d 829, 836–37 (Tex. App.—San Antonio 2014, 7 4
no pet.) (re

jecti n g a tt e mp t to eff

ectively re- set Act’s deadlines by filing succe ssive amende d petitions
asser ting sa me ca

uses of a ction).
23the Act’s broade r policies. I n light of the fore g oing analy sis, these considerations point toward the 7 5
rele vant “leg al action” here being the under ly ing pote ntial claim or anticipa ted suit rather than the Rule 202 petition it self.

This construction of “leg al action,” to be sure, cre at es some potential tension with

cer tain of the TCPA’s other text ual fea tures. Most obviously , one might ask how a party could file

a “motion to dismiss ” or a trial court “dismiss” a “leg al action” that curr ently exis ts in the form 7 6 7 7
of a potential or anticipated or claim or suit, as opposed to one that has alre ady been filed. Simi larly , Section 27.003(b) sets the deadline for filing the motion to dismiss authorized in Section 27.003(a)

Given the my

riad meaning s or senses of “leg al action” included in the TCPA definition, 7 5 the term cannot mean all these things simult aneously in all of its uses wit h i n t h e TCPA. Consequently , deter

mination of whether there is a “leg al action” o f te n require s not only finding some corr elation to the g ener al def inition, but also asce rtaining which of the m ultiple alterna tive senses of “leg al action” the L eg islature intended to g overn within a particula r TCPA p rovision or application—e.g , did it intend “leg al action” in the sense of an entire “lawsuit,” or that of a particula r “ca use of action,” or in the sense of a pleading instrument or filing? This Court has acknow ledg ed
as much in its prior case s distinguishing betwee n differ ent claims and fac tual theories when apply ing the TCPA’s mecha

nisms for dismiss ing a “leg al action” that is “base d on, rela tes to, or is in response to” protec ted expression, an analy sis hinging logic ally on a view of “legal ac t i o n ” i n the sense of
a “ca use of action” or individual “cla im,” that would have failed to the extent “leg al action” ref err ed to an entire “lawsuit” or p l ea d i n g i n strument. See Serafine , 466 S.W .3d at 360; see also id

. at 393–94 (Pemberton, J ., concur ring ) (ela borating o n t h e import of the Court’s “mix ed-c laim” holdings). Sist er courts have also employ ed a simil ar analy sis in holding that the TCPA’s deadline for filing a motion to dismiss , which is tied to the date a “leg al action” is serve d, see Tex. Civ. Prac. & Rem. Code § 27.003(b), is not continually rese t by th e fi l i n g o f succe ssive amende d petitions,
n o t wi t h s tanding that such “petitions” are expli citly included in the “lega l action” definition. See, e.g. , Estate of Check , 438 S.W .3d at 836–37. Such choice s among alterna tive potential meaning s of “leg al action” are informed by the context of its particula r usag e and the TCPA’s policy g oals as ref lected in the statute as a whole. See Serafine , 466 S.W .3d at 393–94 (Pemberton, J ., concur ring ); Estate of Check

, 438 S.W .3d at 836–37 (taking acc ount of TCPA’s manifest purpose of fac ilitating
ear ly dismiss al of mer itless “leg al ac tions”).
See Tex. Ci v. Prac. & Rem. Code § 27.003(a)

. 7 6
See id. § 27.005. 7 7
24at the 60th day “af ter the date of service of the leg al ac tion” targ eted by the motion, other TCPA

7 8 provisions ref

er to the “the leg al action” as having been “broug h t , ” and the Act’s g ener al “leg al 7 9
action” definition also seems to contemplate that “leg al actions” are “judicial pleading s or filings.” 8 0

One would not or dinarily “ser ve” or have “broug ht” a “ leg al ac tion” that rema ins me rely potential or anticipa ted, nor would it normally be conside red a

n exis ting “ pleading or filing .”
These potential discr e p a

n c ie s a r e r e s o lv e d b y r e me mbe ring that a Rule 202 deposition
is not an end in itself, but is in aid of an underly ing potential or anticipated “leg al action.” I n this 8 1

respe ct, the filing and service of the Rule 202 petition c an be said to br ing, asser t, f ile, or serve the underly ing “leg al action” itself, at least to the extent of obtaining discovery in support of that “leg al
action.” The net eff

ect is that a Rule 202 petitioner is subject to a motion to dismiss challeng ing the underly ing predic ate “l ega l action” and not mere ly the discovery curr ently being soug ht, with the

Id. § 27.003(b). 7 8
See id

. § 27.007(a) (re quiring finding s “r egarding whether the l eg al action was brought 7 9 to deter or preve nt t h e m o v i ng party from exercising constitutional rig hts and is broug ht for an improper pur

pose”) , .009(a) (2) ( sanctions “a g ainst the party who broug ht the leg al ac tion”).
See supra at 16 (discussing Sullivan , 488 S.W .3d at 297–99); but cf. Jorden , 249 S.W .3d 8 0 at 421–22 (obser

ving that “ca

use of action” “g ener ally applies to fac ts, not filings,” and holding that “ca use of action” as used in Me dical L iability Act’s definition of “hea lth car e liability claim” used term “in the gene ral sense rela ting to underlying fac ts rathe r t han a m o re l i m i t ed sense applicable only to filed suits.”).
See Tex. R. Civ. P. 202.2 (spec ify ing that “petition” must state either “that the petitioner 8 1 anticipates the instit ution of a suit in which the petitioner may be a party ” or “that the petitioner seeks to investiga

te a potential claim by or ag ainst petitioner”) ; see also id

. R. 202.4 (trial court may order reque sted deposition on finding s either that “the reque sted deposition may preve nt a failure or delay of justice in an ant i ci p ated suit” or “the likely benef it of

. . . the reque sted deposition to investiga te a potential claim outweig hs the burden or expense of the proce dure” ), 202.5 (“The scope of discovery in depositions authorized by this rule is the same as if the anticipated suit or potential claim had be en filed.” ).
25discovery stay ed in the meantime including not only the Rule 202 deposition being soug ht, but also

any other discovery that might be soug ht “in t he lega l action” if the claimant proc eeds to file sui t.
Whil e this ramifica

tion might initially seem anomalous, it is actua lly consistent with an intent by the

L eg islature to preve nt Rule 202 depositions from being used to circ umvent the TCPA’s protec tions
and limit ations on speec h-base d claims. Wer e it o th e r w ise , resour cef

ul lawy ers and litigants desiring

to asser t a substantive claim that “is based on, rela tes to, or is in response to” TCPA-protecte d expressio n

— i

. e. , one vulnera ble to the TCPA’s expedited dismiss al mecha nisms, with discovery strictly restric ted in the meantime—could obtain depositions in circ umvention of those protec tions

mere ly b y re fra ining from filing the claim for the t ime being and invoki ng Rule 202. The TCP A,
in my view, ref

lec t s that the L eg islature soug ht to preve nt such end-r uns by eff

ectively placing
Rule 202 petitioner in the same position relat i v e t o t h e T CPA as if they had alre ady filed the

u n d er l y i ng speec h-base d claim or suit. But the L eg islature did not make Rule 202 petitions i n
themselves “le g al ac tions” subject to dismiss al motions, as the Court rea sons.

REGA RDLESS , THE T CP A SHOULD INFORM THE JUDICIARY’S AP P LICATION OF RU LE 202
On the other hand, it is conce ivable that th e TCPA, corr ectly construed, does not
addre ss Rule 202 deposition s at all. I n that event, the Act’s policies should never theless inform judicial application of Rule 202 in case s wher e the underly ing potential claims or anticipated
suit would implicate TCPA-protecte d expression. For that matter, perha ps these judicially cre ated
and administered internal limit ations o n R u l e 2 0 2 should be the J udiciary ’s starting point when considering how the rule and the TCPA intera ct.

26Whil e not qualify ing the reme dy as “equitable relief ” in the sense of the TCPA “leg al
action” definition, Rule 202 explains that pre- suit depositions to investiga te potential claims are “equitable in nature ,” and a corollar y , the rule adds, is that “a court must not permit it to be us ed inequitably .” Acc ording ly , the Texas Supreme Court has instructed, “Courts must strictly limit and

8 2

car efully supervise pre- suit discovery [under Rule 202] to preve nt abuse of that rule.” I n particula r, 8 3
the s upreme court has em p h as i z ed, Rule 202 should not be used as an “end- run around discovery
limit atio n s t h at woul d g overn the anticipated suit” or to obtain by that means what would be
denied in that suit. Al lowing Rule 202 to be used to obtain pre- suit depositions conce rning 8 4 potential claims that can potenti al l y b e shown to be “base d on, rela te[] to, or [be] in response to” TCPA-protecte d expression w ould a chieve this sort of prohibited end-r un to the extent trial courts
do not take acc ount of the TCPA’s pr otections and limit ations in deter mining whether and to what
extent to allow that dis cover y
. Mo re g ener ally , prec edents from both the Texas Supreme Court and this Court
h ave rec og nized that judicial application of equity -rooted reme dies should be informed by —and,

Tex. R. Civ. P. 202 cmt. 2 (“The bill of discovery proce dure, which Rule 202 incorporates, 8 2 is equitable in nature , and a c ourt must not permit it to be used inequitably .”).

W olfe , 341 S.W .3d at 933. 8 3
Id .; accord In re Depinho , ___ S.W .3d ___, No. 15-0284, 2016 Tex. L EXI S 385, *1, *4– 8 4 11 (Tex. May 20, 2016) (per curia m) (holding that “t ri al court clea rly abused its discretion by order ing Rule 202 depositions” to “investig ate u n ri p e claims” g iven that a lawsuit asser ting such claims, if filed, would have been dismiss ed “on ripene ss g rounds” (citing W olfe , 341 S.W .3d at 933)); Combs v. Texas Civil Rights Project , 410 S.W .3d 529, 535 (T ex
. App.—Austin 2013, pet. denied) (“[W] hile pre- suit depositions under [R ]ul e 202 are not nece ssarily barr ed by sovere ign immunit y , g overnme ntal entities are protec ted from pre- suit depositi ons to the same extent they would be protec ted from th e s ame depositions in the contemplated suit underly ing the proce eding s.”) (citations omitted).
27sometimes, altere d signific antly in d ef er ence to—the leg islative policy judgme nts ref lected in intervening statutory enac tments, even where the s tatutes themselves would not direc tly rea ch the subject matter of the dispute befor e the court. This is the approa ch the high court has applied with

reg ard to e quitable pre

judgme nt interest, and this Court followed that lead in Shook v. W alden , 8 5 8 6

in which we add re s s ed t he standards or elements that a claimant would have to prove to “pier ce”
the “veil” of a limit ed-liability corpor ation assuming (as had the parties th er e) that this reme dy
would be available in some form ag ainst an L L C under the equitable principles that had long
been held to opera te ag ain s t business corpor ations. We should g ive simil ar defe renc e to the 8 7

See Johnson & Higgins of Tex., Inc. v. Kennec o Energy, Inc. , 9 6 2 S.W .2d 507, 529-31 8 5 (Tex. 1998). Equitable prejudg ment interest is the defa ult source for such awa

rds absents statutory or contra ctual authorization. See id

. at 528. Following the supreme court’s 1985 decision in Cavnar
v. Quality Control Parking , which had the eff ect of expanding the availability and amount of equity

based prejudg ment-intere st awa rds compar ed to pri o r p rec edents, 696 S.W .2d 549, 554-55 (Tex. 1985), the L eg islature had en ac t ed a 1987 statute to g overn and limit more strictly prejudg ment-intere st awa rds in case s involving “wr ong ful death, p er s o n al injury , and proper ty damag e,” b u t l ea v i ng awa rds in most other case s to be g overne d by the now-more -g ener ous backg round equitable principles

. S ee Johnson & Higgins of Tex., Inc ., 962 S.W .2d at 529. Subsequent l y , in Kennec o , the supreme court had occa sion to revisit Cavnar in light of the intervening statutory chang e. See id

. at 529. Whil e holding that the statute did not apply to the case at hand as a matter of proper construction, see id

. at 529–30, the supreme court held nonetheless that the g overning equitable pri n ci p l es fo r awa rding prejudg ment interest must take acc ount of the L eg islature’s intervening balanc ing of policy interests ref lected in its choice of interest-c alculation methods for case s within the statute. See id

. at 530–31. Acc ord i n g ly , the court confor med the equitable principles to trac k the statutory method, see id ., also noting that it had done the same when fashioning a prejudg ment interest a cc ru al ru le i n latent-injury case s, see id

. at 531 (citing OwensIllinois v. Estate of

Burt , 897 S.W .2d 765, 769 (Tex. 1995)), and had simil arly looked to leg islative policies ref

lected in statutes when fashion i n g t o rt doctrines. See id

. (citing Smith v. Merritt , 940 S.W .2d 602, 604–05 (Tex. 1997) (common-la w social-host liability

duties informed by

Dra m Shop Act)).
368 S.W .3d 604 (Tex. App.—Austin 2012, pet. denied). 8 6
The L eg islature had not y et spoken to L L C ve il-piercing throug h statute. See id

. at 607. 8 7 The dispute in Shook cente red on the ex t en t to which analy sis would be g overne d solely by the equitable business-cor

poration veil-pierc ing p r in c ip le s a s th e T e xa s Su p r e me Co u

rt had applied them
28L eg islature’s intervening balanc ing of interests i n the TC P A an d h o ld that it is “inequitable,” and

there fore bey ond judicial discretion, to permit Rule 202 to be used to obtain discovery to an extent
the Act would not allow.

T he foreg oing considera tions would sug g est that Rule 202’s application sh o u l d b e
constraine d, as a ma tter of the r ule’s own inter

nal limiti ng principles, along the following lines:

• Consist ent with TCPA Sections 27.003(a) and (c) , a trial court would lack discretion to g rant a R ule 202 petition in the face of an objection asser ting that the petition is predicate d on a potential claim or anticipated suit that would be “base d on, rela ted to, or in response to” the “exerc ise of” the “rig ht of free speech,” “rig ht of association,” or “ri gh t to petition” as t he Act def ines those conc epts. 8 8

• I t the objector can make a showing that the potential claim or anticipated suit is in f act one “base d on, rela ted t o, or i n response to” t he “exercise of” the “r ight of fre e speech,” “rig ht of association,” or “rig ht to petition,” the Rule 202 petition would be d en i ed u n less the petition can prese nt the “prima fac ie” case consistent with TCPA Section 27.005(c) for eac h essential element of at least one underly ing claim. I n that event, the burden would likewise shift back to the objec tor consistent with Section 27.005(d).

in its 1986 Castleberry decision (a decision “per ceive d as a signific ant expansion of share holder and direc tor liability ,” as we noted, id

. at 611–13 (discussing Castleberry v. Branscum , 721 S.W .2d 270, 271–75 (Tex. 1986))), or must take acc ount of intervening statutory chang es that stiffene d the require ments for obtaining that reme dy ag ainst a busine s s co rp o ration. See id

. at 612–13 (summarizing statutory amendme n t s ). Al though we held that these statutory limit ations did not shield L L Cs as a matter of statutory construction, see i d

. at 6 1 9 , we reje cted the notion that application of the equitable principles to L L Cs would simply defa ult ba ck to tr acking Castleberry

. See id

. I nstead, following Kennec o ’s lead, we d educed that the judicial balanc ing of interests inhere nt in deter

mining whether the limit ed-liability form had been “a b u s ed” must proper ly take
acc ount of the L eg islature’s balanc ing of those same interests as ref lected in its intervening statutory chang es. See id

. at 619–21. Acc ording ly , we held that the equities would require claimants seeking to “pier ce” the “veil” of an L L C to meet t h e same require ments as if the entity wer e a business corpor ation instead. See id . at 621.

And i f l ack of specific ity in the petit ion defie s this deter mination, the t rial cou rt s hould 8 8 deny the petition for failure to include the contents require d by Rule 202. See Tex. R. Civ. P. 202.2.
29• Fur ther defe rring to the L eg islature’s judgme nt ref lected in Section 27.006(a) , the trial court would have discretion to permit “spec ified and limit ed discovery ” rele vant to the objection upon a showing of “g ood cause .”

These limit ations on Rule 202 depositions or discovery deriving from the TCPA wo u l d not be

ex clusive, of course , and other g rounds for objections or protec tion might well come into play

. 8 9

L ike the First Amendment rig ht to anon y m o u s speec h

. . . which bring s us back to the issue that
should have be en our f

ocus all along

.

CONCLUSION

I ag ree that mandamus should conditionally issue to restra in the district court’s order , but I disag ree with the Court’s analy sis of the TCPA or that we should even addre ss that statute here

.

__________________________________________ Bob Pembe rton, J ustice

Be fore Chief J ustice Rose, Jus tices Pemberton a nd Bour land
Filed: Oc tober 7, 2016

See Tex. R. Civ. P. 202.5 (“The scope of discovery in depositions authorized by this rule 8 9 is the same as if the anticipated suit or potential claim had been filed.”) ; cf. Tex. Civ. Prac. & Rem. Code § 27.011(a) (“This chapte r [t he TCPA] does not abrog ate or lessen any other defe nse, reme dy , immunit y , or privileg e available under other constitutional, statutory , case , or common law or rule provisions.”).
30