Peaceful protestors in Texas have a legal tool, often overlooked, to protect themselves against police misconduct and brutality, the Texas Citizens’ Participation Act (“TCPA”). The TCPA is Texas’ version of an anti-SLAPP law, or law against Strategic Lawsuits Against Public Participation. Many states have anti-SLAPP statutes, which are designed to protect citizens from frivolous lawsuits filed to prevent them from exercising certain constitutional rights. The Texas anti-SLAPP statute protects participation in public affairs, specifically free speech, free association, and the right to petition the government for redress of grievances. The Texas Citizens’ Participation Act is special, however. The TCPA applies to criminal offenses, including the kinds of charges likely brought against protestors and those offenses likely committed by law enforcement when officers engage in misconduct. Protestors in Texas may be able to use the TCPA to attack and defend against law enforcement misconduct during peaceful protests, win dismissal of criminal charges against protestors, and obtain monetary damages.
Broadly, the TCPA (Chapter 27, Texas Civil Practices and Remedies Code) is an anti-SLAPP statute protecting Texans from “legal actions” that are filed “based on or in response to” the use of Texans’ First Amendment rights. Three rights are protected: free speech, free assembly, and the right to petition the government for redress of grievances. Usually, the TCPA only applies in civil court, however, it also specifically applies to “offenses” under certain chapters of the Texas Penal Code, mostly those relating to assaultive offenses, such as unlawful restraint, assault on a public servant, or assault causing bodily injury. The TCPA protects Texans from violence meant to prevent them from participating in government through free speech, assembly, and petition. The trick is that the TCPA may only be used in response to “legal actions” based on or in response to a citizen’s exercise of those three rights. A Texan cannot use the TCPA to sue an officer for illegal use of force, but may use it in response to a “judicial pleading or filing that requests . . . relief” and which was filed “based on or in response to” the citizen’s attempt to exercise their rights, such as a criminal complaint or motion for summary judgment. If successful, the legal action must be dismissed, the citizen’s legal fees must be paid, and a judge may award damages against the party filing the legal action to deter them from future misconduct.
Potentially, there are two primary ways the TCPA would protect protestors. However, the TCPA is a complex, unusual statute that has proven to be ripe for creative use. There may be other possibilities. The first primary way the TCPA may protect protestors is when they are charged criminally as a result of their role as a protestor. The second is when protestors are victims of police misconduct and file suit against the law enforcement officers and/or agencies responsible.
All three of the rights protected by the TCPA are implicated when protestors are abused or wrongly arrested. However, the filing of any document requesting relief in a legal proceeding is what triggers TCPA protection. So, when a protestor is arrested, he/she may file an anti-SLAPP Motion to Dismiss as soon as any “judicial pleading” or other document is filed requesting legal relief against the protestor. In most cases, those pleadings or filings will happen during the booking and arraignment process immediately following an arrest.
For example, a protestor arrested for assault on a public servant in San Antonio, Texas will be sent to a magistrate judge to have a bond set prior to being released from jail. The paperwork involved seems to meet the TCPA’s definition of “legal action.” The protestor could file a Motion to Dismiss based on the TCPA to attack the order setting bond, the complaint charging the offense, or other filings that naturally occur when someone is arrested. The protestor can pick which legal action to attack. So, if they wanted to go to jury trial for the publicity or other reasons, protestors could seek to dismiss other legal actions, such as a State’s Motion For Bond Conditions, Motion for Bond Increase, or written objection to a personal recognizance bond (“PR bond”). Protestors may elect to seek dismissal of some criminal charges and not others or all of the charges against them.
The Texas Citizens’ Participation Act Section 27.010(c) states:
This chapter applies to a legal action against a victim or alleged victim of family violence or dating violence as defined in Chapter 71, Family Code, or an offense under Chapter 20, 20A, 21, or 22, Penal Code, based on or in response to a public or private communication.
Depending on how Texas appellate courts interpret that section, victims, or even alleged victims, of police brutality may be able to use the statute against legal actions when the police misconduct was in response to a victim’s public or private communication, including oral and written communication. Assume a protestor is abused by police and files a lawsuit in Texas court. Potentially, that protestor could use the TCPA to dismiss a Defendant’s Motion for Summary Judgment seeking to dismiss the protestor’s lawsuit. This is a big deal, because that’s the motion law enforcement uses to assert qualified immunity, the number one hurdle for police misconduct suits.
The TCPA has not been well litigated in this context. We don’t have much guidance from the higher courts on how to interpret it. In fact, the TCPA created so many problems in civil law that there was a “deluge” of litigation, causing the Texas legislature to amend the TCPA in 2019. As a result, TCPA litigation is far from predictable. The biggest risk is that a party filing a frivolous anti-SLAPP motion can be compelled to pay to pay the other party’s legal expenses.
There are procedural rules that must be followed. For example, Texas anti-SLAPP motions must be filed within 60 days of the legal action they seek to dismiss. Discovery is suspended, with certain exceptions, until the motion is heard, which could delay preparation of a defense in a criminal case. Failure to follow the procedural rules of the TCPA could cause a TCPA motion to fail.
The bottom line is that the TCPA is a confusing law, even for experts, and unfamiliar to most criminal defense lawyers. Any ruling on a TCPA motion to dismiss is likely to be appealed and the TCPA allows for interlocutory appeals, or immediate appeals taken before the underlying case is concluded. Delay and expense are very likely, even for parties that win, although they may be compensated for their legal expenses and receive monetary awards if sanctions are imposed against their opponents.
Consult a lawyer immediately. Many lawyers may be unfamiliar with Texas anti-SLAPP law, but they may be able to help you find an attorney who is. Because there are tight deadlines imposed by the TCPA, you should not delay in finding a lawyer. If you have a lawyer, ask them if the TCPA applies to your case. Although many Texas lawyers, especially criminal lawyers, are not familiar with this law, failure to advise clients of a TCPA defense has been held to be malpractice in other contexts. So, help your lawyer out by asking about the TCPA quickly.
Our San Antonio law firm, Hoelscher Gebbia Cepeda PLLC, is available for free consultations related to the TCPA and criminal defense or civil lawsuits against police misconduct. Our lawyers have successfully fought police, forensic, and prosecutorial misconduct. In fact, our cases and attorneys have impacted the wider justice system in Texas. We are actively seeking test cases for the Texas Citizens’ Participation Act and its implications for criminal defense and cases involving police misconduct. As a result, our lawyers offer free consultations for potential test cases throughout Texas, not just San Antonio. Contact us today to set up an appointment by calling 210-222-9132 or by clicking here.