Makayla Montoya Frazier and Buckle Bunnies Fund v. Zach Maxwell

• Court: Court of Appeals of Texas
• Decided: February 13, 2025
• Docket: 02-23-00103-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00103-CV ___________________________

MAKAYLA MONTOYA FRAZIER AND BUCKLE BUNNIES FUND, Appellants

V.

ZACH MAXWELL, Appellee

On Appeal from the 355th District Court Hood County, Texas Trial Court No. C2022388

Before the Court En Banc Opinion by Justice Kerr OPINION

I. Introduction

Rule of Civil Procedure 202 is a presuit-discovery device used to investigate a

potential claim’s existence or to preserve testimony to use in an anticipated lawsuit. See

Tex. R. Civ. P. 202.1. In 2022, Appellee Zach Maxwell filed a Rule 202 petition

seeking to depose Appellant Makayla Montoya-Frazier “to avoid a delay or failure of

justice in an anticipated suit” and to investigate potential claims against “individuals

and organizations that performed or aided or abetted abortions in violation of . . .

Senate Bill 8.” 1 See Tex. R. Civ. P. 202.4(a)(1)–(2). Montoya-Frazier and Appellant

Buckle Bunnies Fund, founded by Montoya-Frazier, moved to dismiss Maxwell’s Rule

202 petition under the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. &

Rem. Code Ann. §§ 27.001–.011.

The TCPA is an expedited adjudication device aimed at “SLAPP”2 suits, which

are meritless legal actions filed to impede the exercise of some First Amendment

1 The Legislature enacted Senate Bill 8 (SB 8), the Texas Heartbeat Act, in 2021. See Tex. Right to Life v. Van Stean, 702 S.W.3d 348, 351 (Tex. 2024); see also Weldon v. Lilith Fund for Reprod. Equity, No. 02-22-00413-CV, 2024 WL 976809, at *2 (Tex. App.—Fort Worth Mar. 7, 2024, pet. filed) (mem. op.) (noting that Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 142 S. Ct. 2228 (2022), made SB 8 “mostly a footnote”); Tex. Equal Access Fund v. Maxwell. No. 02-22-00347-CV, 2024 WL 853320, at *1–3 (Tex. App.—Fort Worth Feb. 29, 2024, pet. filed) (mem. op.) (tracing SB 8’s legal-challenge background). 2 SLAPP stands for “strategic lawsuit against public participation.” KBMT Operating Co., v. Toledo, 492 S.W.3d 710, 713 n.6 (Tex. 2016).

2 rights. See id. In DeAngelis v. Protective Parents Coalition, this court held that a Rule

202 petition was a “legal action” under the TCPA’s definition of that term and that

the TCPA could therefore be used to dismiss it. See 556 S.W.3d 836, 850 (Tex. App.—

Fort Worth 2018, no pet.). Since then, however, the Legislature has amended the

TCPA.3 See Laura Lee Prather, Striking A Balance[:] Changes to the Texas Citizens

Participation Act, 83 Tex. Bar J. 238, 238 (2020) (“On September 1, 2019, significant

[TCPA] changes . . . went into effect.”).

The trial court denied Appellants’ TCPA motion, and they brought this

accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(12). In Appellants’ first of four issues, they argue that, under DeAngelis, the

TCPA applies to Maxwell’s Rule 202 petition. In his response, Maxwell disagrees. The

court decided to revisit DeAngelis en banc to determine whether its holding remained

sound. See Tex. R. App. P. 41.2.

After requesting and receiving supplemental briefing, hearing oral arguments,

and performing a comprehensive analysis of the Rule 202–TCPA interplay through a

review of these devices’ text, context, purposes, procedures, statutory definitions, and

interpretive case law, we conclude that the TCPA, as amended in 2019, cannot be

3 Compare Act of May 18, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 960, 960–63 (amended 2013, 2019) (“2011 Act”), with Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–9, 2019 Tex. Sess. Law Serv. Ch. 378 (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011). The Legislature also amended the TCPA in 2013, 2021, and 2023. See infra n.8.

3 used to dismiss a Rule 202 petition because a Rule 202 petition is not a “legal action”

under the TCPA. We thus overrule Appellants’ first issue—and DeAngelis, to the

extent it conflicts with this opinion—and affirm the denial of Appellants’ TCPA

motion.4

II. Discussion

The TCPA provides for an expedited dismissal of a “legal action.” See Tex. Civ.

Prac. & Rem. Code Ann. § 27.003. The 2011 TCPA defined “legal action” as “a

lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other

judicial pleading or filing that requests legal or equitable relief.” 2011 Act at 961. The

last item is the definition’s “catchall.” See Cole v. Wolfram, No. 02-21-00410-CV,

2022 WL 1259043, at *2 (Tex. App.—Fort Worth Apr. 28, 2022, pet. denied).

In 2019, the Legislature amended the catchall to add declaratory relief, and it

added exclusions from the “legal action” definition, as shown in italics:

a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief. The term does not include:

(A) a procedural action taken or motion made in an action that does not amend or add a claim for legal, equitable, or declaratory relief;

(B) alternative dispute resolution proceedings; or

(C) post-judgment enforcement actions.

4 Because Appellants’ first issue is dispositive, we do not reach their remaining issues. See Tex. R. App. P. 47.1.

4 Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6)(A)–(C).

The parties’ arguments center on (1) the use of “petition” in Rule 202 and in

the above “legal action” definition, (2) Section 27.001(6)(A)’s exclusion, (3) the use of

“relief” in the “legal action” definition, and (4) the purposes of Rule 202 and the

TCPA.5

We will address these arguments below, beginning in Section A with the

standard of review that guides our analysis, followed by our review in Sections B and

C of Rule 202 and the 2019 TCPA, respectively, and our comparison, in Section D, of

these devices’ terms and functions. In the end, we conclude that the 2019 TCPA

cannot be used to dismiss a Rule 202 petition: a Rule 202 petition (1) is not a

“petition” for TCPA purposes, (2) is not included in the “legal action” definition’s

catchall because it does not request the catchall’s “relief,” and (3) is expressly excluded

from the catchall under Section 27.001(6)(A) because it is a procedural step that does

not add or amend a claim for legal, equitable, or declaratory relief.

A. We apply the de novo standard of review to construe statutes and rules.

Whether the TCPA applies is a statutory-construction issue. See Youngkin v.

Hines, 546 S.W.3d 675, 680 (Tex. 2018). Statutory construction is a question of law

that we consider de novo. See Tex. Health & Hum. Servs. Comm’n v. Est. of Burt,

689 S.W.3d 274, 279 (Tex. 2024). In this de novo review, our primary objective is to

The fourth topic was discussed during oral arguments. 5

5 ascertain and give effect to the Legislature’s intent. Morath v. Lampasas ISD,

686 S.W.3d 725, 734 (Tex. 2024). We seek intent first in the text’s plain meaning, but

if the text is ambiguous, we may resort to construction rules. See Greater Hous. P’ship v.

Paxton, 468 S.W.3d 51, 58 (Tex. 2015).

In reviewing a statute’s text for legislative intent, we consider the entire

statutory framework and construe the Legislature’s chosen words and phrases in

context rather than in isolation. Aleman v. Tex. Med. Bd., 573 S.W.3d 796, 802 (Tex.

2019); see Tex. Gov’t Code Ann. § 311.011 (stating that words and phrases “shall be

read in context and construed according to the rules of grammar and common usage”

and that if they “have acquired a technical or particular meaning, whether by

legislative definition or otherwise, [they] shall be construed accordingly”).

Both context and common sense delineate a word’s scope, Morath, 686 S.W.3d

at 735, 738, and we use its plain, commonly understood meaning unless a different

meaning is supplied “or the plain meaning . . . leads to absurd or nonsensical results,”

Pedernal Energy, LLC v. Bruington Eng’g, Ltd., 536 S.W.3d 487, 491 (Tex. 2017); see In re

T.V.T., 675 S.W.3d 303, 309 (Tex. 2023) (requiring absurdity, in the legal sense, to be

“unthinkable or unfathomable”).

To avoid absurdity, we are to resist rulings anchored in hypertechnical readings

of isolated words or phrases because the meaning of words read in isolation is

frequently contrary to their meaning read contextually. See In re Dallas Cnty.,

697 S.W.3d 142, 158 (Tex. 2024) (orig. proceeding). “[W]e must tether ourselves ‘to

6 the fair meaning of the text,’ not ‘the hyperliteral meaning of each word in the text.’” Id.

(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 356 (2012)). We will not give an undefined term a meaning that is inconsistent

with the statute’s other terms. Greater Hous. P’ship, 468 S.W.3d at 58.

To ascertain an undefined term’s commonly understood meaning, we may

consult dictionaries, see Morath, 686 S.W.3d at 735, treatises, and commentaries, as well

as the term’s prior constructions in other contexts, its use and definitions in other

statutes, and its use in our rules of evidence and procedure. Jaster v. Comet II Constr.,

Inc., 438 S.W.3d 556, 563 (Tex. 2014). Even if an undefined term has multiple

meanings, we recognize and apply only the meanings that are consistent with the

entire statutory scheme, Greater Hous. P’ship, 468 S.W.3d at 58, because we may not

interpret a statute in a way that renders any part of it meaningless or superfluous,

Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 581 (Tex. 2022). We must reject an

interpretation that defeats the statute’s purpose if another reasonable interpretation

exists. Atascosa Cnty. v. Atascosa Cnty. Appraisal Dist., 990 S.W.2d 255, 258 (Tex. 1999);

see Jaster, 438 S.W.3d at 569 n.17.

We may also look to statutory history and presumptions. See In re J.S.,

670 S.W.3d 591, 597 (Tex. 2023). Statutory history concerns how the law has changed

and, unlike legislative history, does not involve collateral or speculative questions such

as the policy goals that motivated individual legislators or the reasons they did not

adopt a given version of a legislative proposal. Id. at 597–98 (quoting Brown v. City of

7 Hous., 660 S.W.3d 749, 755 (Tex. 2023)). See generally Tex. Gov’t Code Ann.

§ 311.023 (stating that regardless of whether a statute is considered facially ambiguous,

a court may consider, among other matters, the object sought to be attained, the

enactment’s circumstances, former statutory provisions, and a particular

construction’s consequences).

When the Legislature re-enacts a statute with no substantial changes after

appellate courts have construed it, we presume that the Legislature has adopted the

judicial interpretation. Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex.

2000); see Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex. 1975) (“New

or revised statutes are presumed to be enacted by the legislature with full knowledge

of the existing condition of the law and subject thereto unless the contrary is clearly

indicated.”); see also Am. Nat’l Ins. v. Arce, 672 S.W.3d 347, 353 n.14 (Tex. 2023)

(referencing Grapevine Excavation’s discussion of the legislative-acceptance doctrine).

The above principles apply to procedural-rule interpretation. See Bethel v.

Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020).

B. Rule 202 is a presuit-discovery rule.

Rule 202, “the broadest pre-suit discovery authority in the country,” In re Doe

(Trooper), 444 S.W.3d 603, 610 (Tex. 2014) (orig. proceeding), is a “court-created

creature,” Amy Bresnen, Lisa Kaufman, & Steve Bresnen, Targeting the Texas Citizen[s]

Participation Act: The 2019 Texas Legislature’s Amendments to a Most Consequential Law,

8 52 St. Mary’s L.J. 53, 78 & n.147 (2020) (citing Tex. Const. art. V, § 31(b), and Tex.

Gov’t Code Ann. § 22.004(c)).

The supreme court created Rule 202 in 1999 by blending two repealed rules—

Rule 187, which permitted discovery to perpetuate testimony, and Rule 737, which

allowed a presuit investigation of an unfiled case’s merits—“in an attempt to

accommodate competing concerns of plaintiffs and defense lawyers regarding the

extent to which plaintiffs should be permitted to obtain pre-suit or investigatory

depositions without notice to potential parties.” Hon. Nathan L. Hecht & Robert H.

Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions (based on Misc. Docket

No. 98-9196 (Nov. 9, 1998), 61 Tex. Bar J. 1139 (Dec. 1998)), at

http://adrr.com/law1/rules.htm (last visited Feb. 10, 2025); see In re Bed Bath &

Beyond, Inc., No. 2-07-316-CV, 2007 WL 4292304, at *1 (Tex. App.—Fort Worth Dec.

7, 2007, orig. proceeding) (mem. op.); Kate Gaither, Texas Rule of Civil Procedure 202:

Uses, Abuses, and Other Considerations, 101 The Advoc. (Tex.) 30, 30 (2022) (discussing

Rule 202’s antecedents).

Because of its history, Rule 202 is a “unique discovery device . . . brought as a

stand-alone proceeding before suit is filed, and may—but not always—prove to be

ancillary to a later-filed suit.” 47 Charles Herring Jr. & Lauren Ross, Texas Practice:

Discovery Practice § 16:9 (2024) (“Herring & Ross”). “The unusual nature of Rule

202 proceedings has bred confusion, in a variety of contexts, concerning whether, and

for what purposes, these proceedings should be treated as akin to a separate civil

9 claim or action, a mere component of a later filed or anticipated suit, or something

else.” Id.

1. Rule 202’s terms emphasize presuit discovery to support future filings.

Rule 202 specifies who may request permission to take a presuit deposition and

why, see Tex. R. Civ. P. 202.1, what the Rule 202 petition must include, see Tex. R. Civ.

P. 202.2, who must be served and when, see Tex. R. Civ. P. 202.3, what a trial court

must find to grant the petition—including the order’s specific contents—see Tex. R.

Civ. P. 202.4, and how to take a Rule 202 deposition, see Tex. R. Civ. P. 202.5. The

supreme court has already defined “claim” and “suit” in the Rule 202 context. See In re

DePinho, 505 S.W.3d 621, 624 (Tex. 2016) (orig. proceeding). 6 We have italicized

below the terms “anticipated” and “potential” because—when used to modify

“claim” and “suit”—they highlight Rule 202’s focus on the future.

Rule of Civil Procedure 202.1 states,

A person[7] may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either (a) to

6 In the Rule 202 context, the supreme court has defined “claim” as “an existing—rather than future or speculative—right that may be presently asserted,” and “suit” as “any proceeding by a party or parties against another in a court of law.” DePinho, 505 S.W.3d at 624; see infra n.7 (regarding cases discussing “person” and “party”).

In supplemental briefing and during oral arguments, the parties argued about 7

“party” as used in the TCPA and in Rule 202 case law versus Rule 202’s textual use of “person” to argue for and against the TCPA’s application to Rule 202 petitions. We need not address these arguments because due process requires treating as a party a potential defendant identified in a Rule 202 petition. See In re Does, 337 S.W.3d 862, 863–65 (Tex. 2011) (orig. proceeding); In re Jorden, 249 S.W.3d 416, 422–23 (Tex.

10 perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or (b) to investigate a potential claim or suit.

Tex. R. Civ. P. 202.1 (emphases added).

The Rule 202 petition, brought in the petitioner’s name, must state either that

the petitioner “anticipates the institution of a suit in which [he or she] may be a party”

or “seeks to investigate a potential claim by or against petitioner.” Tex. R. Civ. P.

202.2(c)–(d) (emphases added). Instead of stating a claim or cause of action, the

petition must state “the subject matter of the anticipated action, if any, and the

petitioner’s interest therein.” Tex. R. Civ. P. 202.2(e) (emphasis added).

Rule 202.3 requires service of the petition and notice of the petition’s hearing at

least 15 days before “on all persons the petitioner seeks to depose and, if suit is

anticipated, on all persons petitioner expects to have interests adverse to petitioner’s in

the anticipated suit.” Tex. R. Civ. P. 202.3(a) (emphases added). Rule 202.5 requires a

petitioner to follow nonparty-discovery rules and offers certain protections from

abuse, stating,

Except as otherwise provided in this rule, depositions authorized by this rule are governed by the rules applicable to depositions of nonparties in

2008) (orig. proceeding); see also Arlington ISD v. Williams, Nos. 02-23-00142-CV, 02- 23-00155-CV, 2023 WL 8643040, at *4 (Tex. App.—Fort Worth Dec. 14, 2023, no pet.) (mem. op.) (observing that “a Rule 202 order allowing or denying presuit discovery from a party who is a potential or anticipated defendant is an interlocutory order” (emphasis added)); City of San Francisco v. Exxon Mobil Corp., No. 02-18-00106- CV, 2020 WL 3969558, at *1 (Tex. App.—Fort Worth June 18, 2020, pet. denied) (mem. op.) (referring to “Parties to the Rule 202 petition” to describe Rule 202 petitioners and their challengers).

11 a pending suit. The scope of discovery in depositions authorized by this rule is the same as if the anticipated suit or potential claim had been filed. A court may restrict or prohibit the use of a deposition taken under this rule in a subsequent suit to protect a person who was not served with notice of the deposition from any unfair prejudice or to prevent abuse of this rule.

Tex. R. Civ. P. 202.5 (emphases added); see Tex. R. Civ. P. 202.4(b) (requiring Rule

202 order to “contain any protections the court finds necessary or appropriate to

protect the witness or any person who may be affected by the procedure”).

Under Rule 202, the trial court must make specific findings and may order the

deposition “if, but only if,” it finds that “(1) allowing the petitioner to take the

requested deposition may prevent a failure or delay of justice in an anticipated suit,” or

“(2) the likely benefit of allowing the petitioner to take the requested deposition to

investigate a potential claim outweighs the burden or expense of the procedure.” Tex.

R. Civ. P. 202.4(a) (emphases added).

Rule 202’s future focus regarding potential claims and anticipated suits

facilitates presuit investigation by taking depositions. See generally Tex. R. Civ. P. 202.1,

.3–.5. Depositions are discovery tools “used to support an assertion of the right to a

legal remedy.” Dow Jones & Co. v. Highland Cap. Mgmt., L.P., 564 S.W.3d 852, 858 (Tex.

App.—Dallas 2018, pet. denied); see Tetra Tech, Inc. v. NSAA Invs. Grp., LLC, No. 02-

15-00297-CV, 2016 WL 3364876, at *3 (Tex. App.—Fort Worth June 16, 2016, no

pet.) (mem. op.) (explaining that “if someone ‘has a legal claim, he may use discovery

to aid him in pressing that claim.’” (quoting Chris Martiniak, The Lawyer’s

12 Preparations § 7.01[B][4], How to Take and Defend Depositions (Aspen Publishers, Inc.

2007)).

As procedural tools, depositions are used to obtain testimony “to support a

claim.” Tetra Tech, 2016 WL 3364876, at *4. They are not the type of relief to which a

prevailing litigant would be entitled at a lawsuit’s conclusion. Id. at *5; see Off. Emp.

Int’l Union Loc. 277 v. Sw. Drug Corp., 391 S.W.2d 404, 406 (Tex. 1965) (explaining,

under former Rule 187, that “the taking of depositions is not an end within itself but

is in aid of a suit which is anticipated”).

2. Rule 202 is a limited presuit-discovery device.

Rule 202 is a detailed rule for particular circumstances, in contrast to the

general rules that surround it and that address filings to commence, to respond to, or

to otherwise participate in a lawsuit. Cf. Tex. R. Civ. P. 1 (requiring procedural rules

generally to be liberally construed because their proper objective “is to obtain a just,

fair, equitable, and impartial adjudication of the rights of litigants under established

principles of substantive law”). Compare Williams, 2023 WL 8643040, at *3 (stating that

Rule 202 provides “relaxed pleading requirements” in that it does not require a

petitioner to plead a specific cause of action, to expressly state a viable claim, or to

require that the person from whom a deposition is sought be a potentially liable

defendant), with Tex. R. Civ. P. 22 (“A civil suit in the district or county court shall be

commenced by a petition filed in the office of the clerk.”), 45(a)–(c) (requiring

pleadings to be “by petition and answer” and to state causes of action and defenses),

13 47 (requiring “a short statement of the cause of action sufficient to give fair notice of

the claim involved,” a statement of the relief sought, and a demand for judgment),

60 (intervention), 62–67 (amendments), 69 (supplements), 78–82 (“Pleadings of

Plaintiff,” which cover petitions and defensive matters), and 83–98 (“Pleadings of

Defendant,” which include answers, special exceptions, affirmative defenses, counter-

and cross-claims, and Rule 91a dismissals).

Because it intrudes into otherwise private matters, presuit discovery is limited.

In re Acclarent, Inc., No. 02-24-00228-CV, 2024 WL 2873617, at *2 (Tex. App.—Fort

Worth June 7, 2024, orig. proceeding) (mem. op.) (quoting Does, 337 S.W.3d at 865).

Thus, Rule 202’s use is to be carefully supervised and “is not to be taken lightly,” id.,

and the following principles and limitations apply:

• A Rule 202 petition should not be routine. See id.; see also Tex. R. Civ. P. 202.4(a); Jorden, 249 S.W.3d at 423. This is because there “are practical as well as due process problems with demanding discovery from someone before telling them what the issues are.” Acclarent, 2024 WL 28733617, at *2 (quoting Jorden, 249 S.W.3d at 423).

• The trial court must have subject-matter jurisdiction over a potential claim and personal jurisdiction over a potential defendant. DePinho, 505 S.W.3d at 623 (stating that authorizing Rule 202 depositions for potential suits over which a trial court lacks jurisdiction “would untether pre-suit discovery from the suit it purports to be in aid of”); Doe (Trooper), 444 S.W.3d at 608–09 (“To allow witnesses in a potential suit to be deposed more extensively than would be permitted if the suit were actually filed would circumvent the protections of Rule 120a.”); see also City of San Francisco, 2020 WL 3969558, at *10 (discussing Rule 202 personal jurisdiction).

• A Rule 202 petition must be filed in the appropriate venue. The Rule 202 petition must be filed either where the anticipated suit may be filed or where the witness resides if no suit is yet anticipated. See Tex. R. Civ. P. 202.2(b)(1)–(2).

14 • A petitioner cannot get by Rule 202 what he or she cannot get in the anticipated legal action. Rule 202’s scope of discovery is the same as if the anticipated suit or potential claim had been filed. 3 McDonald & Carlson Tex. Civ. Prac. § 13:23 (2d. ed. 2024) (citing Tex. R. Civ. P. 202.5). If discovery would be denied in a filed lawsuit, then it is not available under Rule 202. See DePinho, 505 S.W.3d at 625.

• Filing suit moots a Rule 202 petition. See In re Overhead Garage Door, LLC, No. 07-18-00015-CV, 2018 WL 934814, at *3 (Tex. App.—Amarillo Feb. 16, 2018, orig. proceeding) (mem. op.).

• A Rule 202 order requires support beyond mere allegations. See Tex. R. Civ. P. 202.4(a) (requiring findings); Williams, 2023 WL 8643040, at *11.

• A Rule 202 order is ancillary and thus neither final nor appealable when the deposition is sought from someone who is anticipated to be a party. Jorden, 249 S.W.3d at 419.

• A Rule 202 order is final and appealable when the deposition is sought from someone against whom suit is not anticipated. Id.

• Rule 202 procedures are equitable. See Tex. R. Civ. P. 202 cmt. 2 (“The bill of discovery procedure, which Rule 202 incorporates, is equitable in nature, and a court must not permit it to be used inequitably.”).

• A Rule 202 order is not an adjudication. See City of Willow Park v. Squaw Creek Downs, L.P., 166 S.W.3d 336, 341 (Tex. App.—Fort Worth 2005, no pet.).

We will explore these last two points more fully but must first consider the

Legislature’s 2019 TCPA changes as they relate to the TCPA’s adjudicative purpose

and its definition of “legal action”—specifically, its use of “equitable relief” in the

catchall and in the Section 27.001(6)(A) exclusion.

15 C. The TCPA is a pretrial adjudication-and-dismissal statute, but its scope is narrow and focused on SLAPPs.

In construing the TCPA’s provisions, we consider its purpose and design. The

TCPA is an early-stage litigation device designed to dispose of meritless legal actions

filed to impede the exercise of some First Amendment rights. See Montelongo v. Abrea,

622 S.W.3d 290, 299–300 (Tex. 2021); see also Tex. Civ. Prac. & Rem. Code Ann.

§§ 27.002, .005. “For each step, the [TCPA] provides specific procedures and

deadlines for filing, responding to, hearing, ruling on, and appealing the dismissal

motion.” Montelongo, 622 S.W.3d at 296.

1. The TPCA’s purposes are two-fold: quickly disposing of frivolous, SLAPP-based claims and protecting legitimate claims supported by evidence.

The Legislature has never amended the TCPA’s purposes or guiding

instructions or its expedited-appeal provision. See Tex. Civ. Prac. & Rem. Code Ann.

§§ 27.002, .008, .011. The TCPA’s purposes are “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”—the

anti-SLAPP provision—“and, at the same time, protect the rights of a person to file

meritorious lawsuits for demonstrable injury.” Id. § 27.002. To effectuate these

purposes, the TCPA “shall be construed liberally,” but it “does not abrogate or lessen

any other defense, remedy, immunity, or privilege available under other constitutional,

statutory, case, or common law or rule provisions.” Id. § 27.011; cf. id. § 74.002(a)

16 (stating, as to dismissal of healthcare-liability claims, “[i]n the event of a conflict

between this chapter and another law, including a rule of procedure or evidence or

court rule, this chapter controls to the extent of the conflict”).

2. A 2019 TCPA motion is like other merits-dispositive pretrial motions.

“As interpreted and applied, the TCPA is arguably the broadest anti-SLAPP

law in the nation.” Mark C. Walker, Reputational Torts and the Texas Anti-SLAPP Law:

The Essential Guide with Updates on the Texas Defamation Mitigation Act, 99 The Advoc.

(Tex.) 4, 5 (2022). Before the 2019 amendments,8 the TCPA’s broad language

overwhelmed the courts. See Bibby v. Bibby, 634 S.W.3d 401, 406 (Tex. App.—Houston

[1st Dist.] 2021, no pet.). The TCPA gained “momentum and traction almost every

year after its passage,” with the number of appellate TCPA cases growing from four

in 2012 to 177 in 2020. Walker, 99 The Advoc. (Tex.) at 5; see Borgelt v. Austin

Firefighters Ass’n, IAFF Local 975, 692 S.W.3d 288, 311 (Tex. 2024) (recognizing the

state’s “voluminous TCPA jurisprudence”).

The pre-2019 TCPA closed the courthouse doors to litigants with valid claims

through the application, in unanticipated cases, of its broad definitions. Bibby,

634 S.W.3d at 406; see Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 574 (Tex. App.—

8 Compare 2011 Act, with Act of May 22, 2013, 83rd Leg., R.S., Ch. 1042, §§ 1–5, 2013 Tex. Gen. Laws 2501, 2501–02 (“2013 Act”); Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–9; Act of May 27, 2021, 87th Leg., R.S., ch. 915, § 3.001, 2021 Tex. Sess. Law Serv. Ch. 915; and Act of May 19, 2023, 88th Leg., R.S., ch. 804, § 1, 2023 Tex. Sess. Law Serv. Ch. 804.

17 Fort Worth 2019, pet. denied) (“[T]he Texas Supreme Court has made it clear that no

special rules of interpretation apply to rein in the [TCPA] out of concern that its

words over-remedy the evil it addresses.”). The Legislature thus amended the TCPA

to narrow it and to make it more like other merits-dispositive pretrial motions. See

Laura Lee Prather & Robert T. Sherwin, The Changing Landscape of the Texas Citizens

Participation Act, 52 Tex. Tech L. Rev. 163, 169–70 (2020) (explaining that the

Legislature amended the TCPA to prevent gamesmanship like TCPA motions filed in

response to “various purely procedural matters”).

a. The Legislature amended Section 27.003 to add deadlines like other dispositive pretrial motions.

In 2011, Section 27.003 described the basis for a TCPA motion to dismiss and

its effect on discovery. 2011 Act at 962. In 2019, the Legislature added the following

italicized language, incorporating additional deadlines that are similar to other

dispositive pretrial motions and narrowing the statute’s reach:

(a) If a legal action is based on, relates to,[9] or is in response to a party’s exercise of the right of free speech, right to petition, or right of association or arises from any act of that party in furtherance of the party’s communication or conduct described by Section 27.010(b),[10] that party may file a

9 The Legislature amended Section 27.003 to remove “relates to,” which in practice had expanded the TCPA beyond its anticipated reach. See Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 136 (Tex. 2019) (discussing TCPA’s application to private communications “related to” matters of public concern). 10 Section 27.010(b) provides that the TCPA applies to legal actions brought against a person for acts that include, among other things, “journalistic[] or other artistic work” and consumer reviews. Tex. Civ. Prac. & Rem. Code Ann. § 27.010(b).

18 motion to dismiss the legal action. A party under this section does not include a government entity, agency, or an official or employee acting in an official capacity.

(b) A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the legal action. The parties, upon mutual agreement, may extend the time to file a motion under this section or the court may extend the time to file a motion under this section on a showing of good cause.

(c) Except as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.

(d) The moving party shall provide written notice of the date and time of the hearing under Section 27.004 not later than 21 days before the date of the hearing unless otherwise provided by agreement of the parties or an order of the court.

(e) A party responding to the motion to dismiss shall file the response, if any, not later than seven days before the date of the hearing on the motion to dismiss unless otherwise provided by an agreement of the parties or an order of the court.

Tex. Civ. Prac. & Rem. Code Ann. § 27.003.

The 21-day-notice deadline in Section 27.003(d) matches that in Rule of Civil

Procedure 91a.3(b), which can be used to dismiss baseless causes of action, and in

Rule of Civil Procedure 166a(c), which can be used to dispose of a claim,

counterclaim, crossclaim, or declaratory judgment through a summary judgment. See

Tex. R. Civ. P. 91a.3(b), 166a(c).

The seven-day response is also the same in Rule 91a and Rule 166a

proceedings. See Tex. R. Civ. P. 91a.4, 166a(c); Garcia v. Semler, 663 S.W.3d 270, 276–

77 (Tex. App.—Dallas 2022, no pet.) (stating that the TCPA provides the same

disposal framework as Rule 166a and noting that the Legislature “conformed TCPA

[notice-and-response] procedure to summary-judgment procedure when it amended

19 [Section] 27.003 in 2019”); RigUp, Inc. v. Sierra Hamilton, LLC, 613 S.W.3d 177,

186 (Tex. App.—Austin 2020, no pet.) (“[W]hen invoked, the TCPA provides

procedures and remedies allowing for summary dismissal of cases—of all types—

before a full adjudication of the merits takes place . . . , similar to that of a summary-

judgment proceeding.”). And a TCPA motion, like a Rule 91a motion, must be filed

early in the lawsuit—within 60 days of service of the pleading containing the

challenged cause of action. Compare Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b),

with Tex. R. Civ. P. 91a.3.

b. The Legislature amended Section 27.005 to delete “preponderance” and to add “judgment as a matter of law.”

In 2019, the Legislature amended Section 27.005 by deleting the

preponderance-of-the-evidence language in Subsections (b) and (d) and adding the

availability of judgment as a matter of law for affirmative defenses in Subsection (d),

clarifying the statute’s dual purpose of early SLAPP identification and disposal

through pretrial adjudication and protection of meritorious claims supported by

evidence:

(a) The court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the motion.

(b) Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action against the moving party if the moving party demonstrates shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to:

(1) the party’s exercise of:

20 (A) the right of free speech;

(B) the right to petition; or

(C) the right of association; or

(2) the act of a party described by Section 27.010(b).

(c) The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.[11]

(d) Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the moving party establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law by a preponderance of the evidence each essential element of a valid defense to the nonmovant’s claim.

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b).

Subsection (d) reflects the same standard that a defendant would have to meet

to be entitled to summary judgment on an affirmative defense. See Tex. R. Civ. P.

166a(b), (c); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010).

c. The Legislature amended Section 27.006 to add summary- judgment evidence.

In 2011, Section 27.006, formerly entitled “Evidence,” required the trial court

to consider “the pleadings and supporting and opposing affidavits stating the facts on

11 The TCPA is not the only Civil Practice and Remedies Code chapter available for early dismissal of claims deemed frivolous based on a failure to timely provide substantive-claim support. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13), .351(b)(2) (dismissal of healthcare-liability claims for failure to timely file expert report), § 128.053(b)(2) (dismissal of sport-shooting-range claim for failure to timely serve expert report), § 150.002(e) (dismissal of suit against licensed or registered professionals for failure to timely file certificate of merit); see also Tex. R. Civ. P. 91a.1 (pretrial dismissal of cause of action with “no basis in law or fact”).

21 which the liability or defense is based” in determining whether to dismiss a legal

action. 2011 Act at 962. It further provided that “[o]n a motion by a party or on the

court’s own motion and on a showing of good cause, the court may allow specified

and limited discovery relevant to the motion.” Id.

As amended in 2019, Section 27.006, now entitled “Proof,” retains the same

limited-discovery provision and requires the trial court to consider the same pleadings

and affidavits as before regarding liabilities or defenses, but it also adds “evidence a

court could consider under Rule 166a, Texas Rules of Civil Procedure” to what a trial

court “shall consider.” Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a)–(b).12

d. The Legislature amended Section 27.007’s sanctions findings and added Section 27.0075 to clarify a TCPA ruling’s effect on the rest of the case.

In 2011, Section 27.007, “Additional Findings,” stated that at the movant’s

request, the trial court “shall issue findings regarding whether the legal action was

brought to deter or prevent the moving party from exercising constitutional rights and

[was] brought for an improper purpose, including to harass or to cause unnecessary

delay or to increase the cost of litigation.” 2011 Act at 962. The Legislature amended

this in 2019 to state, “If the court awards sanctions under Section 27.009(b), the court

12 In contrast, the trial court must decide a Rule 91a motion “based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59.” Compare Tex. R. Civ. P. 91a.6, with Tex. Civ. Prac. & Rem. Code Ann. § 27.006.

22 shall issue” those findings. Tex. Civ. Prac. & Rem. Code Ann. § 27.007 (emphasis

added).

In 2019, the Legislature also added Section 27.0075, “Effect of Ruling,” which

states, “Neither the court’s ruling on the motion nor the fact that it made such a

ruling shall be admissible in evidence at any later stage of the case, and no burden of

proof or degree of proof otherwise applicable shall be affected by the ruling.” Id.

§ 27.0075. That is, if a legal action is not a SLAPP, the trial court’s ruling on the

TCPA motion will have no further bearing on that legal action. See id. § 27.002 (stating

that one of the TCPA’s dual purposes is to “protect the rights of a person to file

meritorious lawsuits for demonstrable injury”).

e. The Legislature amended Section 27.009, the TCPA’s costs- and-sanctions provision, to make sanctions discretionary.

Sanctions are incorporated into the TCPA’s framework because dismissal alone

might not suffice to deter a SLAPP suit. See Landry’s, Inc. v. Animal Legal Def. Fund,

566 S.W.3d 41, 70 (Tex. App.—Houston [14th Dist.] 2018) (explaining that dismissal

alone is insufficient to deter meritless TCPA-applicable lawsuits because the party

whose protected conduct is the claim’s subject must bear the cost of vindicating those

rights in court), aff’d in part, rev’d in part on other grounds, 631 S.W.3d 40 (Tex. 2021).

In 2019, the Legislature made the sanctions award discretionary, deleted

Section 27.009’s “other expenses” and “justice and equity” provisions, and addressed

the dismissal of frivolous compulsory counterclaims:

23 (a) Except as provided by Subsection (c), if the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:

(1) shall award to the moving party court costs and reasonable attorney’s fees and other expenses incurred in defending against the legal action as justice and equity may require; and

(2) may award to the moving party sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.

(b) If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney’s fees to the responding party.

(c) If the court orders dismissal of a compulsory counterclaim under this chapter, the court may award to the moving party reasonable attorney’s fees incurred in defending against the counterclaim if the court finds that the counterclaim is frivolous or solely intended for delay.

Id. § 27.009. Like the TCPA, Rule 91a.7 gives the trial court discretion to award to a

prevailing party its incurred costs and reasonable attorney’s fees. See Tex. R. Civ. P.

91a.7. Both share the underlying goal of halting litigation costs for frivolous claims

early in the adjudication process. See Tex. Civ. Prac. & Rem. Code Ann. § 27.007(a);

Tex. R. Civ. P. 91a.7; Moody v. Herz, Tr. of Three R Trs., 672 S.W.3d 842, 849 (Tex.

App.—Houston [14th Dist.] 2023, no pet.).

3. The Legislature has continued to add exemptions to narrow the TCPA’s scope.

Section 27.010 set out only three exemptions from the TCPA in 2011: some

government-enforcement actions; some commercial sale-and-lease transactions; and

personal-injury, wrongful-death, and survival actions. 2011 Act at 963; see Serafine v.

24 Blunt, 466 S.W.3d 352, 371 (Tex. App.—Austin 2015, no pet.) (Pemberton, J.,

concurring op. on reh’g) (“[I]t speaks volumes about the range of ‘legal actions’

subject to dismissal under the [TCPA] . . . that the TCPA’s drafters perceived a need

to explicitly carve out money-damages suits arising from car wrecks, slip-and-falls, and

the like.”).

Then, in 2013, the Legislature exempted some insurance-related transactions.

2013 Act § 3, at 2501 (current version at Tex. Civ. Prac. & Rem. Code Ann.

§ 27.010(a)(4)). And in 2019, the Legislature exempted eight more “legal action”

types—trade secrets, covenants not to compete, and non-disparagement agreements;

family-law cases; some Deceptive Trade Practices Act and Health and Safety Code

cases; evictions; disciplinary cases; whistleblower actions; and common-law-fraud

cases—and clarified that the TCPA applies to some qualifying legal actions brought

against a family-or-dating-violence victim. Tex. Civ. Prac. & Rem. Code Ann.

§ 27.010(a)(5)–(12), (c). Finally, in 2023, the Legislature exempted legal-malpractice

claims. Id. § 27.010(a)(13). Thus, even when a claim otherwise fits in the “legal action”

definition, the TCPA might not apply, and the Legislature has continued to shrink the

TCPA’s scope.

4. The Legislature has narrowed the 2011 TCPA’s “legal action” definition.

In 2019, the Legislature constricted the 2011 “legal action” definition, although

it left “petition” in the definition. See id. § 27.001(6).

25 a. The supreme court has defined “petition” under the TCPA.

Appellants refer us to the following appellate-court decisions’ reliance on

“petition” in both the “legal action” definition and in Rule 202 to support their

argument that the TCPA can be used to dismiss a Rule 202 petition. Because the

supreme court has already defined “petition” under the TCPA, we will briefly

introduce these cases to provide context for our TCPA discussion below:

• In re Elliott, 504 S.W.3d 455 (Tex. App.—Austin 2016, orig. proceeding). The Elliott majority decided that under the 2011 TCPA, a Rule 202 petition is a “petition” for TCPA purposes. Id. at 463–64; cf. id. at 474–76 (Pemberton, J., concurring).

• DeAngelis v. Protective Parents Coalition , 556 S.W.3d 836 (Tex. App.—Fort Worth 2018, no pet.). DeAngelis relied on the Elliott majority and a federal district court opinion. Id. at 848–49 & nn.6–7 (referencing Elliott, 504 S.W.3d at 465, and In re Texas, 110 F. Supp. 2d 514, 521–22 (E.D. Tex. 2000), rev’d sub nom Texas v. Real Parties In Interest, 259 F.3d 387 (5th Cir. 2001)).

• Breakaway Practice, LLC v. Lowther, No. 05-18-00229-CV, 2018 WL 6695544 (Tex. App.—Dallas Dec. 20, 2018, pet. denied) (mem. op.). In Breakaway Practice, the court assumed—but did not decide—that the TCPA applied to Rule 202 petitions, id. at *2 n.2, the same course of action it took in Glassdoor, addressed below. See Glassdoor, Inc. v. Andra Grp., LP, 560 S.W.3d 281, 284, 294 (Tex. App.—Dallas 2017), judgm’t vacated, cause dism’d, 575 S.W.3d 523 (Tex. 2019).

• In re Krause Landscape Contractors , 595 S.W.3d 831 (Tex. App.—Amarillo 2020, no pet.). In Krause Landscape, the court followed the Elliott majority and DeAngelis but noted both that it had not been asked to construe “legal action” under the amended TCPA and that the appellants had pointed out that the Legislature had amended the TCPA “in a manner that appears to exclude” Rule 202 petitions from the “legal action” definition. Id. at 836.

• Florez v. Olibas , 657 S.W.3d 31 (Tex. App.—El Paso 2022, pet. denied). In Florez, the majority agreed with the Elliott majority and DeAngelis in interpreting the pre-2019 TCPA. Id. at 35 & nn.1–2, 39; cf. id. at 43 (Palafox, J., dissenting) (stating

26 that she would conclude that Rule 202 petitions are not TCPA “legal actions” and “would adopt the analysis of Houston Tennis Ass’n, Inc. v. Thibodeaux, 602 S.W.3d 712, 719 (Tex. App.—Houston [14th Dist.] 2020, no pet.)”). Chief Justice Alley cautioned that Elliott and DeAngelis were decided under the 2011 TCPA and warned that the Florez decision did not suggest how the court would rule under the 2019 TCPA. Id. at 43 (Alley, C.J., concurring).

• Texas Equal Access Fund v. Maxwell, No. 02-22-00347-CV, 2024 WL 853320 (Tex. App.—Fort Worth February 29, 2024, pet. filed) (mem. op.). In Maxwell, a three-justice panel of this court acknowledged the Rule 202–TCPA split. Id. at *17 n.9.

Appellants recognize that, in contrast to the above cases, both Houston courts

have concluded that the TCPA cannot be used to dismiss a Rule 202 petition. See

Caress v. Fortier, 576 S.W.3d 778, 781 (Tex. App.—Houston [1st Dist.] 2019, pet.

denied) (stating that a Rule 202 petition “is not a legal claim on the merits” and

referencing Paulsen v. Yarrell, 537 S.W.3d 224 (Tex. App.—Houston [1st Dist.] 2017,

pet. denied) (op. on reh’g)); Hughes v. Giammanco, 579 S.W.3d 672, 680–85 (Tex.

App.—Houston [1st Dist.] 2019) (following Caress, referencing Paulsen, and relying on

the Elliott concurrence), judgm’t set aside, op. not vacated, No. 01-18-00771-CV,

2019 WL 3331124 (Tex. App.—Houston [1st Dist.] July 25, 2019, no pet.) (per

curiam) (mem. op.); Thibodeaux, 602 S.W.3d at 714 & n.2, 717–19 (agreeing with the

Giammanco and Caress reasoning).

In May 2019, when the Legislature amended the TCPA, it had before it the

split between Elliott and DeAngelis on one side and Caress on the other, as well as

Glassdoor, which was argued in the supreme court in September 2018, but which was

not resolved in the court’s January 2019 opinion. See Glassdoor, 575 S.W.3d at

27 525 (stating that the Rule 202 proceeding was rendered moot by the potential claims’

becoming time-barred); see also Mark C. Walker, The Essential Guide to the Texas Anti-

SLAPP Law, the Texas Defamation Mitigation Act, and Rule 91a, 91 The Advoc. (Tex.)

280, 295 & nn.105–06 (2020) (noting that in 2019, the Legislature was “well aware of

the cases holding that [TCPA] ‘legal action’ included Rule 202 proceedings”).

But while we must presume the Legislature’s awareness of the split, see Grapevine

Excavation, 35 S.W.3d at 5, two years later, the supreme court defined “petition” under

the pre-2019 TCPA. See Montelongo, 622 S.W.3d at 298.

In Montelongo, the supreme court acknowledged that “[g]enerally, a petition is a

‘formal written request presented to a court,’” but that “in Texas parlance, the term is

used ‘in a generic sense to embrace all the pleadings of the plaintiff in the course of

the case.’” Id. at 298 & n.11 (citing Black’s Law Dictionary for the first definition and

58 Tex. Jur. 3d Pleading § 110 (2021) for the second). Based on Montelongo, a

“petition” for purposes of a TCPA “legal action” is “all the pleadings of the plaintiff

in the course of the case.” See id. at 298; see also Giammanco, 579 S.W.3d at

681 (concluding that the Legislature must have meant the narrower, more technical

use of “petition”—a plaintiff’s pleadings—because construing it more generically

“would render the Legislature’s inclusion of the other procedural devices enumerated

in the definition of ‘legal action’ meaningless because those devices are also formal

written requests presented to a court and, thus, would be ‘petitions’ in the broader

sense”).

28 Because a Rule 202 petition is filed before a lawsuit is initiated through

pleadings and is therefore not filed “in the course of the case,” see Montelongo,

622 S.W.3d at 298, Rule 202’s use of “petition” does not—by itself—turn a Rule

202 petition into a TCPA “legal action.” Compare Tex. R. Civ. P. 78 (defining “[t]he

pleading of plaintiff”), with Tex. R. Civ. P. 202.2(b), (f) (describing Rule 202 petition’s

requirements). So we next delve into whether a Rule 202 petition falls under the “legal

action” catchall or the Section 27.001(6)(A) exclusion.

b. A Rule 202 petition does not fall under either the “legal action” catchall or the Section 27.001(6)(A) exclusion.

The “legal action” definition under the 2011 TCPA led to considerable

litigation because, as the supreme court noted, “It would be difficult to write a more

capacious definition, and even more so to conceive one for an undefined term.” State

ex rel. Best v. Harper, 562 S.W.3d 1, 12 (Tex. 2018).

Under the 2011 TCPA, litigants pounced on the broad definition of “legal

action” and other terms by “test[ing] novel interpretations of the statute in ways that

led to a significant abuse of the judicial process,” and by employing the TCPA “in

response to a litany of procedural motions, unnecessarily tying cases up in the courts,

overburdening the judicial system, and turning the purpose of the statute on its head.”

Prather & Sherwin, 52 Tex. Tech L. Rev. at 169. In response, in 2019, the Legislature

“took steps . . . to attempt to narrow” the TCPA’s scope and to “reduce the number

of TCPA motions and appeals heard.” Walker, 99 The Advoc. (Tex.) at 7. One step

29 was to narrow the TCPA’s definitions. Prather & Sherwin, 52 Tex. Tech L. Rev. at

169.

Under the 2019 TCPA, a “legal action” includes only the following:

• a lawsuit: a civil suit “commenced by a petition filed in the office of the clerk.” Tex. R. Civ. P. 22; see Lawsuit, Black’s Law Dictionary (12th ed. 2024) (“A legal case brought before a court for adjudication.”).

• a cause of action: “a fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.” Jorden, 249 S.W.3d at 421 & n.19. “Cause of action” is not synonymous with “action” but rather with the right to relief that entitles a person to maintain an “action.” Jaster, 438 S.W.3d at 564. “[A] party asserts a claim or cause of action ‘in’ a pleading that is filed ‘in’ a lawsuit or ‘action.’” Id. at 567.

• a petition: “all the pleadings of the plaintiff in the course of the case.” Montelongo, 622 S.W.3d at 298.

• a complaint: the federal-court equivalent of a “petition.” Jaster, 438 S.W.3d at 569 n.17.

• a cross-claim: “any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein.” Tex. R. Civ. P. 97(e).

• a counterclaim: “a subsidiary action,” Creative Oil & Gas, LLC, 591 S.W.3d at 131 & n.3 (citing then-Section 27.001(6)), which may or may not arise out of the same transaction or occurrence as an opposing party’s claim. See Tex. R. Civ. P. 97.

• “any other judicial pleading or filing that requests legal, declaratory, or equitable relief.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6).

As discussed, this last item is the definition’s catchall. Id. The parties do not

argue that a Rule 202 petition is a lawsuit, a cause of action, a complaint, a cross-

claim, or a counterclaim, and we have held above that a Rule 202 petition is not a

30 TCPA “petition.” Thus, for a Rule 202 petition to fit within the “legal action”

definition, it must fall within the “any other” catchall.

Further, under the 2019 TCPA, Section 27.001(6)(A) excludes from the “legal

action” definition “a procedural action taken or motion made in an action that does not

amend or add a claim for legal, equitable, or declaratory relief.” Id. § 27.001(6)(A)

(emphases added). Accordingly, if Rule 202 petitions fall within the catchall but also

within the Section 27.001(6)(A) exclusion, then the TCPA will not apply.

As we construe Section 27.001(6)(A)’s double use of “action,” we will keep in

mind the Legislature’s attempts to narrow the TCPA’s scope. See J.S., 670 S.W.3d at

597 (discussing statutory history); see also In re City of Georgetown, 53 S.W.3d 328,

336 (Tex. 2001) (orig. proceeding) (explaining that the Legislature may repeat itself

out of an abundance of caution or for some other reason).

(1) “Action” in Section 27.001(6)(A) has two meanings.

In the Section 27.001(6)(A) exclusion, the Legislature identified “a procedural

action” and a “motion made in an action.” Tex. Civ. Prac. & Rem. Code Ann.

§ 27.001(6)(A). As discussed below, the first use of “action” does not reflect the

word’s common meaning as identified by the supreme court; “action” as used in the

latter phrase does. See Jaster, 438 S.W.3d at 566.

The supreme court reviewed the common meaning of “action” in Jaster, in the

context of Chapter 150’s expert-report requirement. Id. at 558, 563–64. After

considering the entire statute, the court concluded that the word’s common meaning

31 referred “to an entire lawsuit or cause or proceeding,” noting that it had used “case,”

“cause,” “suit,” “lawsuit,” and “proceeding” interchangeably with “action,” while

using “claim,” “cause of action,” and “chose in action” to refer to the facts giving rise

to a right that is enforceable in such a proceeding. Id. at 563, 565–66; see 1A Tex. Jur.

3d Actions § 3 (defining “action” in reference to pursuing adjudication of contested

issues). Under Jaster, an adjudication of claims for relief is the point of bringing an

“action.” See 438 S.W.3d at 565–67. But the Section 27.001(6)(A) exclusion’s final

portion provides that neither the first “action” nor a motion in the second “action”

may “amend or add a claim for legal, equitable, or declaratory relief.” Tex. Civ. Prac.

& Rem. Code Ann. § 27.001(6)(A).

The first “action” in Section 27.001(6)(A) is also modified by “procedural,”

yielding a further conundrum. Black’s Law Dictionary defines “procedural” as “[o]f,

relating to, or involving the manner for carrying out the protocols relating to some

established course of action, such as the rules of litigation” and states, “Procedural

rules provide the methods of enforcing and protecting whatever rights and duties are

created by substantive laws.” Procedural, Black’s Law Dictionary (12th ed. 2024).

Lawsuits, causes of action, petitions, complaints, crossclaims, counterclaims, and

other pleadings or filings requesting legal, declaratory, or equitable relief are all

“procedural” in that they follow the Rules of Civil Procedure. See generally Tex. R. Civ.

P. 1 (explaining that the rules’ objective “is to obtain a just, fair, equitable and

impartial adjudication of the rights of litigants”). Most of the TCPA’s “legal action”

32 items are either “actions” under Jaster or are necessary in order to bring an “action”

under Jaster. See 438 S.W.3d at 565–66. Thus, to avoid rendering the statutory scheme

meaningless, the “procedural action” excluded in Section 27.001(6)(A) must mean

something different. See Whole Woman’s Health, 642 S.W.3d at 581. That is, substituting

“lawsuit” for “action” here—a procedural lawsuit that does not add a claim for

relief—would be nonsense because lawsuits exist to bring claims for relief. See Jaster,

438 S.W.3d at 566. Section 27.001(6)(A)’s first usage of “action,” if defined as in Jaster,

would conflict with the “legal action” framework from which the Legislature sought

to exclude the “procedural action taken.”

But Section 27.001(6)(A)’s second usage, referring to a “motion made in an

action,” see Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6)(A) (emphasis added), is

consistent with Jaster and the TCPA’s “legal action” framework. See Montelongo,

622 S.W.3d at 298 (construing Section 27.003(b)’s requirement that a “motion to

dismiss a legal action . . . must be filed not later than the 60th day after the date of

service of the legal action.” (first emphasis added)). This is a usage familiar to civil

litigants, who frequently file in existing lawsuits motions that neither amend nor add

claims, like summary-judgment motions or motions to compel. See 3 McDonald &

Carlson Tex. Civ. Prac. § 17:8 (2d. ed. 2024) (“A motion is an application to the court

for an order granting relief that is not embraced within the prayer of a pleading.”); see

also id. § 19.2 (“Pretrial motions can be made on an almost limitless array of

33 subjects.”). We conclude that the Legislature intended two different uses of “action”

in Section 27.001(6)(A).

Our conclusion is buttressed by the definitions of “action” and its synonyms

set out in the general-use dictionary. Merriam-Webster defines “action” both as “the

initiating of a proceeding in a court of justice by which one demands or enforces

one’s right” and as “a thing done: DEED.” https://www.merriam-

webster.com/dictionary/action (last visited Feb. 10, 2025). It lists, among others, the

following synonyms for the second type of “action”: “act,” “step,” and “activity.” Id.

Interpreting the Legislature’s first use of “action” as “step,” see id., and its

second use of “action” to mean a courtroom proceeding supported by pleadings, see

Jaster, 438 S.W.3d at 565–66, we read Section 27.001(6)(A) to state that the TCPA

does not apply to a procedural step taken (or to a motion made in an action) “that

does not amend or add a claim for legal, equitable, or declaratory relief.” See Castleman

v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (“[W]e must make logical

inferences when necessary ‘to effect clear legislative intent or avoid an absurd or

nonsensical result that the Legislature could not have intended.’” (quoting Cadena

Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 338 (Tex.

2017))).

We next examine “relief” as used in the “any other” catchall and in Section

27.001(6)(A).

34 (2) “Relief” presents a split in authority.

Courts of appeals are split on what “relief” includes. This divide is based on

how “legal” and “equitable” should be construed.

(a) Elliott initiated the “relief” split. In Elliott, MagneGas sought to take a Rule 202 presuit deposition of Chris

Elliott to investigate potential claims related to an anonymous author’s article about

MagneGas. 504 S.W.3d at 457. Elliott argued that the trial court’s Rule 202 order

violated the TCPA because an interested party, John Doe 1, had filed a TCPA motion

to dismiss MagneGas’s Rule 202 petition. Id. If the TCPA applied despite the lack of

an existing lawsuit, then all discovery—including Elliott’s Rule 202 presuit

deposition—should have been stayed. Id. at 459, 461.

The Elliott majority decided that the Rule 202 petition was covered by the

TCPA 13 because it fell under the catchall as a judicial pleading or filing requesting

“legal or equitable relief.” Id. at 464. To reach this conclusion, the majority relied on,

among other things,

• the TCPA’s liberal-construction provision, id. at 466 (referencing then-Section 27.011(b));

• Rule 202’s equitable origins under former Rules 187 and 737, id. at 464–65 & n.7; and

13 The Elliott majority also held that a Rule 202 petition is a “petition” for TCPA purposes, a conclusion that we reject. See 504 S.W.3d at 463–64 (discussing “petition”).

35 • Black’s Law Dictionary’s definition of “relief” as “redress or benefit, esp. equitable in nature (such as an injunction or specific performance) that a party asks of a court”—and its definition of “benefit”—“[a]dvantage; privilege.” Id. at 465 (quoting Black’s Law Dictionary (9th ed. 2009)).

The majority thus concluded that “[a] trial court’s grant of a Rule 202 petition

ordering a person to be deposed before a suit is filed provides a party with a benefit

that it would not otherwise be entitled to receive.” Id. at 465. But see Harper,

562 S.W.3d at 9 (defining 2011 TCPA “relief” as another word for “remedy”).14

Justice Pemberton concurred but stated that the majority’s depiction of Rule

202’s origins provided “little regarding the meaning and sense in which the Legislature

used . . . ‘equitable relief’ in the TCPA’s ‘legal action’ definition,” and he provided a

different view of Rule 202’s history:

[T]he Court’s notion that “equitable relief” within the definition refers to any “judicial pleading or filing” having equitable origins or components should give some pause. A Rule 202 petition seeking to investigate potential claims is hardly the only Texas “judicial pleading or filing” that would “request . . . equitable relief” in this sense. Moreover, as the Court seems to acknowledge, the bill of discovery originated as a means of obtaining through equity any discovery from parties to a pending suit in the era before modern discovery as a matter of right was made available. To this extent, the equitable bill of discovery could be considered a

14 Black’s Law Dictionary’s most recent edition replaces “benefit” with “remedy” in its “relief” definition: “The redress or remedy, esp. equitable in nature (such as an injunction or specific performance), that a party asks of a court. – Also termed remedy.” Relief, Black’s Law Dictionary (12th ed. 2024). Obtaining traditional legal or equitable remedies usually requires a successful lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (providing that a judgment creditor is entitled to judicial aid “through injunction or other means” to obtain a judgment’s satisfaction); Tex. R. Civ. P. 301 (stating that a judgment “shall be so framed as to give the party all the relief to which he may be entitled either in law or equity”).

36 historical antecedent not only to the Rule 202 pre-suit deposition to investigate claims, but also most if not all of the panoply of other discovery devices that the Rules of Civil Procedure now make available. And while granting there are distinctions in timing and procedure, I question the extent to which the substantive nature of the relief awarded in a Rule 202 proceeding—at bottom, a court-ordered deposition of a nonparty—is materially different from a court order or even a subpoena compelling a deposition or other discovery from nonparties that is sought under other rules.

Elliott, 504 S.W.3d at 475, 476–77 (Pemberton, J., concurring) (internal footnotes

omitted).

Justice Pemberton opined that the catchall’s use of “legal or equitable relief”

denoted the traditional law–equity distinction of money damages as “legal” and

injunctions and specific performance as “equitable,” and functioned to “safeguard

against creative repleading of what are substantively lawsuits, causes of action,

petitions, complaints, counterclaims, or cross-claims so as to avoid the TCPA’s

dismissal mechanisms.” Id. at 477–78 (Pemberton, J., concurring). He identified other

TCPA provisions that clarified this intent by using “the nomenclature of substantive

causes of action or theories of recovery”—identifying then-Section 27.005’s use of

“essential element” and “defenses” and then-Section 27.006(a)’s language referencing

supporting and opposing affidavits to support liability and defense. Id. at 478–

79 (Pemberton, J., concurring). He also pointed out that opposing a Rule 202 petition

usually took the form of “asserting objections or grounds for protection under the

civil discovery rules” because a Rule 202 petition “does not seek to impose ‘liability’

or interpose a ‘defense’” but rather “seeks a deposition to investigate potential liability

37 or defenses or preserve evidence that may be relevant to liability or a defense.” Id.

(Pemberton, J., concurring).

Elliott’s internal “relief” split mirrors our intracourt DeAngelis–Cole split, as

discussed next: DeAngelis, construing the 2011 TCPA, defines “relief” broadly, like the

Elliott majority, while Cole, construing the 2019 TCPA, defines “relief” narrowly, in

the traditional law–equity sense, like Justice Pemberton’s concurrence.

(b) The en banc court must resolve the DeAngelis– Cole split. Because both DeAngelis and Cole were decided by three-justice panels of this

court, if they are incompatible, the en banc court must overrule one. See Mitschke v.

Borromeo, 645 S.W.3d 251, 256–57 (Tex. 2022) (explaining that three-justice panels

must follow materially indistinguishable decisions of earlier panels of the same court

unless a higher authority—an en banc decision or an applicable legislative provision—

has superseded that prior decision). We begin with Cole because it construes the

applicable TCPA version.

(c) Cole defines “relief” narrowly.

In Cole, this court addressed “relief” when an appellant tried to shoehorn a

motion to require security for costs into the 2019 TCPA’s catchall. See

2022 WL 1259043, at *2. After examining “relief” by looking first to a similar but

more recent Black’s Law Dictionary definition—which referenced “remedy,” defined

as “[t]he means of enforcing a right or preventing or redressing a wrong”—the court

38 observed that the catchall had “dubious applicability” to the motion. Id. at *3 (quoting

Black’s Law Dictionary (11th ed. 2019)). The court noted that “in the legal sense,

‘relief’ operates to vindicate a wrong or injustice that has occurred and [to] change the

relationship between the parties.” Id. (citing Dow Jones, 564 S.W.3d at 857).

The court also considered how the Legislature had modified “relief” in the

2019 TCPA with the words “legal,” “declaratory,” and “equitable.” Id. Because a court

grants “declaratory” relief under the specific statutory authority in Civil Practice and

Remedies Code Chapter 37 and because the qualifiers “legal” and “equitable”

implicate “the traditional law–equity distinction,” the court observed that legal relief

takes the form of monetary damages, while equitable relief “is generally granted

through injunctions, specific performance, or other similar remedies recognized in the

law.” Id.

The court concluded that the motion to require security for costs was not a

TCPA “legal action” for three reasons: it neither sought relief for a wrong or injustice

nor changed the parties’ relationship; it did not seek declaratory relief under Chapter

37; and the posting of security for costs implicated neither legal nor equitable relief

but rather “simply ask[ed] that a party be required to provide security for costs that

may, at the trial court’s discretion, be taxed against that party at the conclusion of a

lawsuit.” Id. at *3–4.

Under Cole, a Rule 202 petition would logically not be a TCPA “legal action”

because it too does not request relief for a wrong or injustice or change the parties’

39 relationship, does not request declaratory relief under Chapter 37, does not request

monetary damages, and does not expressly request an equitable remedy in the form of

an injunction or specific performance. See id.

(d) DeAngelis defines “relief” broadly.

In contrast to Cole, in determining that a Rule 202 petition requested equitable

relief as a TCPA “legal action,” the earlier DeAngelis panel relied on the Elliott majority

and In re Texas, in addition to referencing Black’s Law Dictionary’s definitions of

“relief” and “action in equity.” 556 S.W.3d at 848–49 & nn.6–7.

In In re Texas, a federal district court concluded that a Rule 202 petition to

investigate potential claims related to a federal settlement agreement was a removable

civil action because it

possesses all the elements of a judicial proceeding: there is a controversy between parties; there are pleadings (the State’s petition); relief is sought (the State has prayed for a court order authorizing the taking of depositions); and a judicial determination is required—specifically, whether authorizing depositions may prevent injustice or, on balance, will not be unduly burdensome. Finally, both parties will be required to adhere to the state court’s orders.

110 F. Supp. 2d at 521–22. But see Tex. R. Civ. P. 202.2(e) (requiring Rule

202 petitioner to “state the subject matter of the anticipated action, if any” (emphases

added)); Montelongo, 622 S.W.3d at 298 (defining “petition” as “all the pleadings of the

plaintiff in the course of the case”); Tetra Tech, 2016 WL 3364876, at *5 (explaining

that a deposition is not the type of relief to which a prevailing litigant would be

entitled at a lawsuit’s conclusion).

40 The Fifth Circuit reversed In re Texas with instructions to remand to the state

court because the Rule 202 proceeding was “only an investigatory tool,” explaining,

The [Rule 202] investigation could lead to no further action, or it could result in a cause of action not contemplated or covered by the settlement agreement; or, indeed, it may lead to the institution of a cause of action for which the invocation of, at least, the injunctive powers of the All Writs Act would be timely and appropriate. In any event, the federal courts cannot preclude the State of Texas from investigating potential claims in the milieu of the Texas courts—pursuant to Texas law—unless and until such investigation poses an actual threat to the settlement agreement.

259 F.3d at 394–95 (internal footnotes omitted); see Herring & Ross, supra § 16:9 &

n.1 (explaining that other Texas federal district courts have concluded that a Rule

202 proceeding to investigate a potential claim is not a “civil action” for removal

because it asserts no “claim or cause of action upon which relief can be granted,” is

not an “original action” but rather is ancillary to an anticipated suit, and is a state-

court discovery request that provides no basis for federal jurisdiction).15

(e) Black’s Law Dictionary’s equity discussion supports Cole ’s position.

The DeAngelis panel’s decision partly relied on the definition of “action in

equity.” 556 S.W.3d at 848. Black’s Law Dictionary defines “action in equity” as “1.

Action (4); 2. See suit in equity under SUIT.” Action in Equity, Black’s Law Dictionary

(12th ed. 2024). It defines “suit in equity” as “[a] civil suit stating an equitable claim

15 The Fifth Circuit has since held that the TCPA does not apply in federal court. Klocke v. Watson, 936 F.3d 240, 245 (5th Cir. 2019).

41 and asking for an exclusively equitable remedy.” Suit in equity, Black’s Law Dictionary

(12th ed. 2024). It defines “suit” as “[a]ny proceeding by a party or parties against

another in a court of law; CASE (1). – Also termed lawsuit; suit at law. See ACTION

(4).” Suit, Black’s Law Dictionary (12th ed. 2024). The terms suit (equity) and lawsuit

work together, “denot[ing] proceedings instituted for the purpose of enforcing a right

or otherwise seeking justice.” Id. (quoting Bryan A. Garner, Garner’s Dictionary of Legal

Usage 862–63 (3d ed. 2011)).

As quoted in Black’s Law Dictionary, Garner has explained that both actions

and suits ultimately result in judgments, stating,

Suit is historically most closely associated with proceedings in equity . In the legal sense, suit refers to an ongoing dispute at any stage, from the initial filing to the ultimate resolution. Lawsuit more clearly implies courtroom proceedings before a judge, as opposed to a dispute before some other type of tribunal. Action is close to suit and lawsuit , but historically action was closely tied to legal as opposed to equitable proceedings. . . . When the jurisdictional distinction between law and equity existed, an action ended at judgment, but a suit in equity ended after judgment and execution. Today, since virtually all jurisdictions have merged the administration of law and equity, the terms action and suit are interchangeable.

Id.

Instead of addressing the adjudication aspect involved in proceedings seeking

traditional legal or equitable relief, see id., the DeAngelis panel merely quoted this

court’s earlier observation in Bed Bath & Beyond that Rule 202 “incorporates equitable

bill of discovery procedures previously found” in other rules. 556 S.W.3d at 848–

49 (quoting Bed Bath & Beyond, 2007 WL 4292304, at *1). Although accurately quoted,

42 the panel overlooked the context in which the statement had been made: whether a

relator seeking relief from a Rule 202 order had an adequate appellate remedy. See Bed

Bath & Beyond, 2007 WL 4292304, at *2–3.

In Bed Bath & Beyond, we explained that a Rule 202 order for presuit discovery

from a third party against whom suit is not contemplated will result in an order that is

final and appealable as an “end[] in [it]sel[f]” because the order “resolve[s] all

discovery issues . . . and act[s] as [a] mandatory injunction.” Id. at *2 (quoting Ross

Stores, Inc. v. Redken Labs, Inc., 810 S.W.2d 741, 742 (Tex. 1991), which was decided

under Rule 737 on summary judgment). If, however, suit is specifically contemplated,

then the trial court’s ruling is not a final and appealable order, and review must be

sought by mandamus. Id.

Bed Bath & Beyond does not shackle us to a conclusion that the relief sought in a

Rule 202 petition (a presuit deposition) is the same type of “relief” contemplated by

the Legislature in defining a TCPA “legal action.” See Elliott, 504 S.W.3d at 474–

75 (Pemberton, J., concurring). To the contrary, while a Rule 202 order can

sometimes result in a final judgment that functions as a mandatory injunction, as we

discuss below in Section D, the Rule 202 petition itself merely requests discovery in

the form of permission to take a deposition to investigate a claim that might

ultimately lead to filing a claim for a merits-based adjudication.

We turn next to a review of “relief” in light of the TCPA’s purposes.

43 c. “Relief” in light of the TCPA’s purposes means vindication of a right or a legal change in the parties’ relationship.

In Harper, the supreme court stated that the TCPA’s “legal action” definition

“appears to encompass any ‘procedural vehicle for the vindication of a legal claim.’”

562 S.W.3d at 8 (quoting Paulsen, 537 S.W.3d at 233) (emphasis added). Because the

court cited Paulsen, we look to that case and its progeny, along with cases addressing

the interplay between the TCPA and other procedural devices, to better understand

the TCPA’s use of “relief.” See In re Est. of Calkins, 580 S.W.3d 287, 296 n.9 (Tex.

App.—Houston [1st Dist.] 2019, no pet.) (“This Court has expressed doubt as to

whether the TCPA applies to proceedings other than those for adjudication of legal

claims on their merits.”).

(1) Paulsen and its progeny address “relief” in terms of merits adjudication.

Paulsen, a defamation lawsuit, was not a Rule 202–TCPA case but has informed

some of those cases. See Thibodeaux, 602 S.W.3d at 718; Giammanco, 579 S.W.3d at

681–82; Caress, 576 S.W.3d at 781. In response to the defendant’s TCPA motion to

dismiss, the plaintiff in Paulsen filed his own TCPA motion. 537 S.W.3d at 230.

Characterizing the plaintiff’s argument as “a seductively creative interpretation of

statutory intent that would lead to an endlessly circular and absurd result,” the trial

court denied the plaintiff’s TCPA motion. Id.

On appeal, the plaintiff argued that the defendant’s TCPA motion was a TCPA

“legal action” because it was a “legal filing” and sought legal or equitable relief in the

44 form of a dismissal, attorney’s fees, and court costs. Id. at 230, 232. The court

disagreed, relying on ejusdem generis to limit Section 27.001(6)’s catchall to “things

like the former.” Id. at 233; see Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496,

504 (Tex. 2015) (“Where the more specific items, [a] and [b], are followed by a

catchall ‘other,’ [c], the doctrine of ejusdem generis teaches that the latter must be

limited to things like the former.”).

In holding that the TCPA did not authorize a countermotion to dismiss as a

substitute for filing an opposing response, the court observed, “For these purposes

the enumeration of ‘lawsuit,’ ‘cause of action,’ ‘petition,’ ‘complaint,’ ‘cross-claim,’ and

‘counterclaim,’ is best characterized by the observation that each element of this class

is a procedural vehicle for the vindication of a legal claim, in a sense that is not true for a motion to

dismiss.” Paulsen, 537 S.W.3d at 233–34 (emphasis added).

Following Paulsen, the court in Giammanco—a Rule 202–TCPA case—

concluded that a Rule 202 petition does not fall under the “legal action” catchall

because it does not seek either legal or equitable relief “in the traditional sense,” and

because a successful Rule 202 petitioner “acquires only the right to obtain discovery”

and not the vindication of a claim or a change in the parties’ relationship. 579 S.W.3d

at 674–75, 681–83. 16 A Rule 202 petition “is a means of obtaining discovery to

16 The court also followed Dow Jones & Co., and the Elliott concurrence, as well as its prior holding in Caress. See Giammanco, 579 S.W.3d at 681–85.

45 evaluate whether to pursue the vindication of a claim that may, or may not, be shown

to exist through the pre-suit discovery.” Id. at 682.

The court pointed out that its position was supported by the supreme court’s

acknowledgment in Glassdoor that a Rule 202 petition becomes moot when the

applicable limitations period has run on “as-yet unfiled claims” that the Rule

202 petitioner wants to investigate. Id. at 683 (citing Glassdoor, 575 S.W.3d at 527 &

n.3). That is, because a Rule 202 petition does not seek to vindicate a claim,

limitations can run before the Rule 202 potential-claim investigation has been

completed. If, instead of a Rule 202 petition, a lawsuit setting forth a claim for a

merits-based adjudication were filed, the claim would not be time-barred unless the

defendant timely raised and proved that affirmative defense. Id.

The court also concluded that although an order compelling a presuit

deposition is a benefit unavailable without Rule 202, “it is not a benefit that is

equivalent to a remedy.” Id. at 684. “At its core, Rule 202 entitles the successful

petitioner to discovery,” which is “a tool in aid of evaluating whether to pursue a

remedy later.” Id. The testimony secured by a Rule 202 deposition might conclusively

demonstrate that no viable action exists from which to seek a remedy. Id.

As in the Elliott concurrence, the Giammanco court also considered the TCPA’s

entire statutory framework in concluding that it did not apply to Rule 202 petitions

based on then-Sections 27.005 and 27.006’s references to elements of claims,

46 defenses, and liability and the fact that “a Rule 202 petition asserts no substantive

claim or cause of action.” Id. at 684–85.

Finally, the court observed that construing the TCPA to apply to Rule

202 petitions would overwrite Rule 202 in that Rule 202 petitions are often filed

because the operative facts are unclear to the petitioner. Id. at 685. Making Rule

202 petitions dismissable under the TCPA would make “all such petitions . . . subject

to defeat” because of the TCPA’s prima-facie-evidence requirement and the

possibility that the potential claim’s limitations period would expire before the TCPA

proceedings concluded. Id.; see Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); see also

Thibodeaux, 602 S.W.3d at 718–19 (noting that Giammanco’s construction “allows a

petitioner to file a Rule 202 petition to ascertain whether she can file a meritorious

lawsuit for demonstrable injury”).

(2) Although authorities are split on sanctions motions, most cases addressing the TCPA in other procedural contexts support the Paulsen interpretation.

Courts have concluded that the TCPA does not apply in the following

procedural contexts:

• Subpoenas. See Dow Jones & Co., 564 S.W.3d at 855–57 (holding that pre- 2019 TCPA did not apply to third-party discovery subpoena because a subpoena is not a “filing” and does not seek traditional legal or equitable relief); see also Greiner v. Womack, No. 04-19-00525-CV, 2019 WL 5405904, at *1 (Tex. App.—San Antonio Oct. 23, 2019, no pet.) (mem. op.) (holding that subpoena was not a TCPA “legal action” because it did not request legal or equitable relief or purport to assert a “claim in question” upon which the appellee would be required to present a TCPA prima facie case).

47 • Requests for production. Sanchez v. Striever, 614 S.W.3d 233, 247 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

• Motions to compel. See Ruff v. Ruff, No. 11-20-00122-CV, 2021 WL 388707, at *6 (Tex. App.—Eastland Feb. 4, 2021, pet. denied) (mem. op.).

• Motions to transfer. In re Guardianship of Fairley, 604 S.W.3d 450, 458–59 (Tex. App.—San Antonio 2020) (holding that motion to transfer was just “a procedural vehicle relating to which court should decide the underlying matter” and not a merits adjudication of the other party’s claims), aff’d on other grounds, 650 S.W.3d 372 (Tex. 2022).

• Rule 91a and Rule 166a motions. See id. at 459 (holding that 2019 TCPA did not apply to a Rule 91a motion because to hold otherwise would allow the TCPA movant to “circumvent her obligation of responding to the rule 91a motion to dismiss,” leading to absurdity); In re Est. of Check, 438 S.W.3d 829, 836 (Tex. App.—San Antonio 2014, no pet.) (observing that to imply that filing a summary-judgment motion “would reset the deadline for a [TCPA] motion . . . is irrational and at odds with one of the purposes of the Act”), abrogated on other grounds by Montelongo, 622 S.W.3d at 299; see also Walker, 99 The Advoc. (Tex.) at 15.

• Objections. Nunu v. Risk, 612 S.W.3d 645, 661 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (stating that objections are merely actions taken by counsel to call the court’s attention to improper evidence or procedure and do not assert substantive claims).

• Motions for contempt. See id. (explaining that contempt is used to coerce a contemnor to obey a preexisting court order or to punish the contemnor for disobedience and “does not vindicate the movant’s cause of action, claim, or right of relief; rather, contempt vindicates a court’s authority”).

• Appellate-court proceedings. Amini v. Spicewood Springs Animal Hosp., LLC, 550 S.W.3d 843, 843–46 (Tex. App.—Austin 2018, no pet.) (op. on mot. to dismiss appeal).

48 With the exception of appellate-court proceedings, see id.,17 the holdings in the

above cases align with our construction of the Section 27.001(6)(A) exclusion for

“procedural action[s] taken or motion[s] made in an action that do[] not amend or add

a claim for legal, equitable, or declaratory relief.” See Tex. Civ. Prac. & Rem. Code

Ann. § 27.001(6)(A).

The sanctions split in authority pertains both to “relief” and to sanctions-

motion functions. Both Houston courts, the Dallas court, and the Beaumont court

have concluded that a Rule 13 motion for sanctions is not a TCPA “legal action.” See

Kinetic Content, LLC v. Dang, 695 S.W.3d 769, 774–77 (Tex. App.—Houston [1st Dist.]

2024, pet. filed) (referencing Section 27.001(6)(A)); Thuesen v. Scott, 667 S.W.3d 467,

472–77 (Tex. App.—Beaumont 2023, no pet.) (same); Patel v. Patel, No. 14-18-00771-

CV, 2020 WL 2120313, at *3 n.2, *10 (Tex. App.—Houston [14th Dist.] May 5, 2020,

no pet.) (mem. op.) (applying pre-2019 TCPA); Barnes v. Kinser, 600 S.W.3d 506, 507–

08 & n.1 (Tex. App.—Dallas 2020, pet. denied) (same). In Patel and Barnes, the courts

also held that the TCPA does not apply to a counterclaim for filing frivolous

pleadings under Civil Practice and Remedies Code Chapter 10. Patel,

2020 WL 2120313, at *1, *10; Barnes, 600 S.W.3d at 510. And in Misko v. Jones, the

Dallas court held that the TCPA does not apply to a discovery-abuse sanctions

17 In Amini, the court explained that then-Section 27.008 prescribed a role for appellate courts under the TCPA that is the “traditional one in deciding appeals from trial-court rulings” such that a TCPA motion could not be used to dismiss an appeal. 550 S.W.3d at 846.

49 motion. 575 S.W.3d 872, 874 (Tex. App.—Dallas 2019, pet. denied) (applying pre-

2019 TCPA). These courts hold that sanctions motions are not TCPA “legal

actions” because

• Neither Rule 13 nor Chapter 10 establishes an independent cause of action for damages; instead, each provides a basis for a trial court to impose sanctions for filing bad-faith pleadings sua sponte or on a party’s motion. See Patel, 2020 WL 2120313, at *4, *6; Barnes, 600 S.W.3d at 509–10; Thuesen, 667 S.W.3d at 474.

• Rule 13 and Chapter 10 motions share a similar purpose as the TCPA—to check abuses in the pleading process, punish violators, and deter similar misconduct, and Section 27.011 does not abrogate that purpose. See Patel, 2020 WL 2120313, at *4, *6; Barnes, 600 S.W.3d at 509–11; Thuesen, 667 S.W.3d at 475; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 27.002–.003, .007, .009, .011.

• To hold that the TCPA applies to Rule 13 and Chapter 10 motions would convert the TCPA from “a weapon against lawsuit abuse” to “a weapon against weapons against lawsuit abuse.” Patel, 2020 WL 2120313, at *6 (emphasis added); see also Misko, 575 S.W.3d at 877 & n.4 (stating that treating a motion for sanctions based solely on the other party’s alleged discovery misconduct during litigation as a TCPA “legal action” would “lessen” the discovery-abuse remedies otherwise retained under Section 27.011(a)).

• A Rule 13 or Chapter 10 sanctions motion does not set forth a right to receive payment or an equitable remedy and thus does not “amend or add a claim” under Section 27.001(6)(A). Thuesen, 667 S.W.3d at 474 (construing 2019 TCPA); see Kinetic Content, LLC, 695 S.W.3d at 776–77 (echoing Thuesen and Patel).

The Austin and San Antonio courts, in contrast, have held that a motion for

monetary sanctions is a TCPA “legal action.” See Pate v. Haven at Thorpe Lane, LLC,

681 S.W.3d 476, 479, 486 (Tex. App.—Austin 2023, pet. granted) (applying post-

2019 TCPA); KB Home Lone Star Inc. v. Gordon, 629 S.W.3d 649, 652 (Tex. App.—San

50 Antonio 2021, no pet.) (same); Hawxhurst v. Austin’s Boat Tours, 550 S.W.3d 220,

226 (Tex. App.—Austin 2018, no pet.) (applying pre-2019 TCPA).

The Austin court, in construing the 2011 TCPA, held that based on the “legal

action” list (including the catchall), the TCPA could be used to dismiss a Chapter

9 sanctions motion brought as a counterclaim that was “based on” and “in response

to” the plaintiff’s exercise of his right to petition and as a filing seeking legal or

equitable relief from the allegedly sanctionable conduct. Hawxhurst, 550 S.W.3d at 223,

226. But cf. Misko, 575 S.W.3d at 878 (noting that although the Hawxhurst sanctions

motion attacked the plaintiff’s substantive claims, “We do not read Hawxhurst to stand

for the proposition that each individual filing within pending litigation that is ancillary

to the substantive claim at issue constitutes a separate ‘legal action’ for [TCPA]

purposes”).

In Pate, a divided Austin court revisited “legal action” under the 2019 TCPA

and concluded that the TCPA applied to a motion to compel filed against nonparties

who had ignored a subpoena. 681 S.W.3d at 479, 488–89. The motion to compel

sought monetary sanctions in the form of attorney’s fees, costs, and expenses incurred

in bringing the motion. Id. at 479. The nonparties filed a TCPA motion, complaining

that the motion to compel and for sanctions was a “legal action . . . based on and in

response to their activity in posting and gathering consumer complaints, commentary,

and reviews.” Id. at 480. The trial court denied the TCPA motion. Id. at 481.

51 On appeal, the majority construed the nonparties’ TCPA motion as an

intervention and noted that under Hawxhurst, it had already held that a sanctions

motion fell under the “any other” catchall. Id. at 481–83. It then concluded that the

motion to compel and for sanctions fell outside the Section 27.001(6)(A) exclusion by

adding a claim for legal or equitable relief after referencing “the long-standing rule

that ‘[a] motion for sanctions is a claim for affirmative relief that survives nonsuit if

the nonsuit would defeat the purpose of sanctions.’” Id. at 484–86 (quoting

CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, 390 S.W.3d 299, 300 (Tex.

2013)). The majority concluded that the trial court should have granted the TCPA

motion because although the TCPA nonmovant could have presented a prima facie

case for its motion’s “elements”—service of a valid subpoena and the nonparties’

failure to comply—it had not done so because it “chose to put all its eggs in the legal-

action basket.” Id. at 489.

In dissent, Justice Baker observed that the Legislature had “ostensibly sought to

narrow the TCPA’s breathtaking scope,” and he would have affirmed the trial court’s

denial because a discovery-sanctions motion filed against nonparties was not a “legal

action” but rather “the exact type of ‘procedural action’ the legislature sought to

exclude in its amendments,” particularly when the Rules of Civil Procedure “do not

authorize the imposition of sanctions against non-parties.” Id. at 490 (Baker, J.,

dissenting).

52 The San Antonio court has also held that sanctions motions fall under the

TCPA in KB Home Lone Star Inc. 629 S.W.3d at 652, 656–57. There, the court expressly

disagreed with Patel’s and Barnes’s decisions to limit “legal action” to “substantive”

causes of action and rights of relief because in defining “legal action,” the TCPA did

not “exclude sanctions motions from the definition, categorically or otherwise.” Id.

(referencing Hawxhurst). In applying the 2019 TCPA, the San Antonio court held that

because the sanctions motion at issue requested monetary relief, it fell outside Section

27.001(6)(A)’s exemption. Id. at 655–57; see also Whataburger Rests. LLC v. Ferchichi,

698 S.W.3d 297, 300, 302 (Tex. App.—San Antonio 2022, pet. granted) (mem. op.)

(same).

We are more persuaded by the Houston, Dallas, and Beaumont courts’ view

regarding the vindication of claims and the relief sought, but whether the TCPA

applies to sanctions motions—all, some, or none—we leave for another day because

that issue is not before us.

In summary, we conclude that the term “relief” as used in the “legal action”

definition refers to a legal change in the parties’ relationship or the vindication of a

right. As we next discuss, to fall within the TCPA, a request for relief must be by way

of a substantive claim—something that is not a Rule 202 petition’s purpose.

D. Rule 202’s and the TCPA’s text, purposes, and procedures are incompatible.

Under the 2019 TCPA’s plain language, a “legal action” is a “filing that requests

legal, declaratory, or equitable relief,” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6)

53 (emphasis added), but the term does not include a procedural step that does not

“amend or add a claim for legal, equitable, or declaratory relief,” id. § 27.001(6)(A)

(emphasis added). As we will explain, a Rule 202 petition does not assert a claim for

“relief” as defined under the TCPA.

1. Rule 202 petitions do not request TCPA “relief.”

A Rule 202 petition requests discovery before a lawsuit is filed. Tex. R. Civ. P.

202.1. It does not expressly request “relief” under Cole’s common, narrow

understanding of the term. That is, even if a Rule 202 order may sometimes function as

an injunction, see Bed, Bath, & Beyond, 2007 WL 4292304, at *2, it does not fall within

the TCPA’s “legal action” definition’s catchall because it does not request legal,

declaratory, or equitable relief through a claim for vindication of a party’s rights. See

Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6); Harper, 562 S.W.3d at 8 (quoting

Paulsen, 537 S.W.3d at 233); see also Montelongo, 622 S.W.3d at 296 (quoting Harper for

the proposition that the TCPA’s “legal action” encompasses any procedural vehicle to

vindicate a legal claim).

2. The distinctions between adjudication and discovery prevent the TCPA’s application to Rule 202 petitions.

The “relief” referenced in Section 27.001(6)’s “legal action” definition and in

the Section 27.001(6)(A) exclusion is for vindication of rights through an adjudication

concluding in a judgment.

54 a. Adjudication goes to an existing case’s merits for “relief” on a claim.

Parties seek to vindicate their rights through adjudication. As the Paulsen court

explained, the enumerated “legal action” list in Section 27.001(6) is “best

characterized by the observation that each element of this class is a procedural vehicle

for the vindication of a legal claim.” 537 S.W.3d at 233 (emphasis added). Black’s Law

Dictionary defines “vindicate” (the verb form of the noun “vindication”) as “[t]o

assert, maintain, or affirm (one’s interest) by action

their rights through a class-action suit>”, “[t]o defend (one’s interest) against

interference or encroachment

lender tried to foreclose>”, and “[t]o assert a legal right to (a thing); to seek recovery

of (a thing) by legal process.” Vindicate, Black’s Law Dictionary (12th ed. 2024).

Black’s Law Dictionary defines “adjudicate” as “[t]o rule on judicially,” Adjudicate,

Black’s Law Dictionary (12th ed. 2024), and defines “adjudication” as “[t]he legal

process of resolving a dispute; the process of judicially deciding a case,” Adjudication,

Black’s Law Dictionary (12th ed. 2024).

One of the TCPA’s two stated purposes is to protect citizens from SLAPPs—

“meritless lawsuits” filed not to vindicate legal rights but to retaliate against citizens’

actions of petitioning, speaking, or associating. See 2011 Act (introduction); see also

Tex. Civ. Prac. & Rem. Code Ann. § 27.002. Thus, the TCPA requires an expedited

dismissal if the party bringing the lawsuit cannot establish by clear and specific

55 evidence a prima facie case for each essential element of his or her claims or if the

party defending against the lawsuit can establish an affirmative defense or other

grounds “on which the moving party is entitled to judgment as a matter of law.” Tex.

Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b)–(d); In re Panchakarla, 602 S.W.3d

536, 538 (Tex. 2020) (orig. proceeding) (explaining that the TCPA balances

safeguarding constitutional rights and protecting the right to file meritorious lawsuits

for demonstrable injury by “authorizing ‘expedited consideration of any suit that

appears to stifle the defendant’s communication on a matter of public concern’”

(quoting In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding))).

As discussed above, a TPCA motion goes directly to the merits of a lawsuit

filed to seek relief through the vindication of rights via the adjudication of a claim,

counterclaim, or crossclaim. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6);

McLane Champions, LLC v. Hous. Baseball Partners LLC, 671 S.W.3d 907, 914 (Tex.

2023) (“The statute provides this protection [for the enumerated rights while

protecting meritorious lawsuits] by authorizing a motion to dismiss early in the

covered proceedings, subject to expedited interlocutory review.”); see also Borgelt,

692 S.W.3d at 311–12 (stating that the TCPA was enacted for “slam-dunk” SLAPP

cases and not the kind of cases that require a trial); USA Lending Grp. v. Winstead PC,

669 S.W.3d 195, 198 (Tex. 2023) (“[T]he [TCPA] requires early dismissal of qualifying

legal actions when the plaintiff lacks evidence of any essential element of its claim.”).

56 b. Discovery is for investigation.

Discovery, on the other hand, is a procedural tool that does not resolve a

claim’s merits. See In re Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 668 (Tex. 2007)

(orig. proceeding) (“Discovery is a tool to make the trial process more focused . . . .”).

Instead of resolving a claim’s merits, “the purpose of discovery is to enable courts to

decide disputes based on ‘what the facts reveal, not by what facts are concealed.’” In re

Liberty Cnty. Mut. Ins. Co., 679 S.W.3d 170, 174 (Tex. 2023) (orig. proceeding) (quoting

In re K & L Auto Crushers, 627 S.W.3d 239, 248 (Tex. 2021) (orig. proceeding)).

Black’s Law Dictionary defines “discovery” as “[c]ompulsory disclosure, at a

party’s request, of information that relates to the litigation

motion to compel discovery> . . . [t]he primary discovery devices are interrogatories,

depositions, requests for admissions, and requests for production.” Discovery, Black’s

Law Dictionary (12th ed. 2024). Under our civil-procedure rules, once a lawsuit has

been filed, a party may obtain discovery regarding any matter that is not privileged and

is relevant to the pending action’s subject matter, whether it relates to the party’s

claim or defense or any other party’s defense. See Tex. R. Civ. P. 192.3.

Discovery rules govern litigation conduct, see id., and “[d]iscovery orders do not

engage directly with the merits of the case; they compel compliance with procedural

rules that govern the litigation process,” Harley Channelview Props., LLC v. Harley Marine

Gulf, LLC, 690 S.W.3d 32, 41 (Tex. 2024).

57 c. Rule 202 seeks discovery, not adjudication.

As a presuit-discovery rule, Rule 202 is considerably more limited than the

regular post-filing discovery rules, and it exists to investigate potential claims or

preserve testimony for an anticipated—but not yet filed—lawsuit. See generally Section

B. A party filing a Rule 202 petition does not assert a substantive claim or cause of

action. Bennett v. Zucker, No. 05-19-01445-CV, 2021 WL 3701365, at *4 (Tex. App.—

Dallas Aug. 20, 2021, pet. denied) (mem. op.) (citing Thibodeaux, 602 S.W.3d at 718);

Combs v. Tex. Civ. Rights Project, 410 S.W.3d 529, 534 (Tex. App.—Austin 2013, pet.

denied) (“[A] petition under rule 202 is ultimately a petition that asserts no substantive

claim or cause of action upon which relief can be granted.”); see Maxwell,

2024 WL 853320, at *16–17 & n.9 (explaining that “a Rule 202 proceeding cannot be

a basis for substantive claims”); see also Tex. R. Civ. P. 202.2(e) (stating that the Rule

202 petition must “state the subject matter of the anticipated action, if any, and the

petitioner’s interest therein” (emphases added)); cf. Tex. Civ. Prac. & Rem. Code Ann.

§ 27.001(6)(A) (applying “legal action” definition to actions that “amend or add a claim

for legal, equitable, or declaratory relief” (emphasis added)).

Adjudication, as defined above, does not take place in a Rule 202 order because

that order simply gives the petitioner the right to obtain discovery (via deposition)

that might or might not lead to a claim or cause of action. See Williams,

2023 WL 8643040, at *3; see also DePinho, 505 S.W.3d at 623 (stating that presuit

discovery is not an end within itself); City of Willow Park, 166 S.W.3d at 341 (explaining

58 that a Rule 202 petition does not seek final or even preliminary adjudication of a claim

but rather investigation of potential claims).

Because a Rule 202 petition does not assert substantive claims, and a Rule

202 order does not rule on such claims, see In re Baxter, No. 05-16-01174-CV,

2016 WL 6099547, at *2 (Tex. App.—Dallas Oct. 19, 2016, orig. proceeding) (mem.

op.), a Rule 202 order will not provide a basis for res judicata. 18 See Jorden, 249 S.W.3d

at 421 (stating that for res judicata, a “cause of action which arises out of [the] same

facts should, if practicable, be litigated in the same lawsuit” and thus may be barred

even if never filed). In contrast, a TCPA dismissal is a merits judgment and carries res

judicata implications. Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 22 (Tex.

App.—Houston [14th Dist.] 2020, no pet.); Better Bus. Bureau of Metro. Hous., Inc. v. John

Moore Servs., 500 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); see

Tex. Right to Life, 702 S.W.3d at 351 (“An order resolving a TCPA motion constitutes

a ruling on the merits.”).

Even though Section 27.001(6)(A)’s exclusion does not specifically name Rule

202 petitions, the adjudication–investigation distinctions between the TCPA’s and

Rule 202’s purposes and their differences in timing (pretrial versus pre-filing) are

highlighted by the Legislature’s 2019 additions to the TCPA of deadlines like other

18 Further, filing a Rule 202 petition cannot be used to relate back for dominant jurisdiction, Lee v. GST Transp. Sys., LP, 334 S.W.3d 16, 19 (Tex. App.—Dallas 2008, pet. denied), and a Rule 202 order requires presuit findings that are not merits-based inquiries, see Tex. R. Civ. P. 202.4(a).

59 dispositive pretrial motions to Section 27.003; of “judgment as a matter of law” to

Section 27.005; of summary-judgment evidence to Section 27.006; of Section 27.0075,

which presupposes that a case has been filed by providing that a TCPA ruling is not

admissible “at any later stage of the case”; and of Section 27.009(c), addressing

frivolous-compulsory-counterclaim dismissal. The distinctions between Rule

202 petitions (discovery) and TCPA “legal actions” (merits adjudication) are so

profound that the TCPA cannot and must not be used to dispose of a Rule

202 petition.

3. Rule 202’s future focus conflicts with the TCPA’s focus on existing lawsuits.

In Montelongo, the supreme court explained that courts “dismiss claims, causes

of action, causes, and lawsuits.” 622 S.W.3d at 301. Rule 202 applies to the potential for

these items but contains none of them.

By definition, Rule 202’s use of “anticipated” and “potential” means that a

lawsuit has not yet happened but might, and fundamental differences inhere between

the TCPA’s function—to kill an existing lawsuit—and Rule 202’s function—to verify

through presuit discovery the basis for a future lawsuit and to safeguard testimony.

Compare Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) (“If a legal action is based

on . . . a party’s exercise . . . that party may file a motion to dismiss the legal action.”),

and id. § 27.003(c) (using the TCPA to suspend “all discovery in the legal action” until

the trial court has ruled on the TCPA dismissal motion), with Tex. R. Civ. P.

60 202.1 (stating that a person may petition the court “for an order authorizing the taking

of a deposition on oral examination or written questions either (a) to perpetuate or

obtain the person’s own testimony or that of any other person for use in an

anticipated suit; or (b) to investigate a potential claim or suit”).

4. The TCPA cannot be used to dismiss a Rule 202 petition: wrapping up.

A Rule 202 petition is merely a restricted method for permission to gather

evidence, ending in a presuit deposition order that might—or might not—someday

lead to a lawsuit’s filing. See Tex. R. Civ. P. 202.4(b) (“The order must state whether a

deposition will be taken on oral examination or written questions.”). In contrast,

TCPA motions—like other merits-based adjudicatory motions—are used to address

the elements of claims, defenses, and other grounds on which a moving party may be

entitled to judgment as a matter of law, none of which applies to a Rule 202 petition.

See Caress, 576 S.W.3d at 782 (stating that because a Rule 202 petition does not place

unfiled claims before the trial court for a merits adjudication, “a trial court’s order

denying a Rule 202 petition cannot dispose of those unfiled claims on the merits, even

if the denial purports to rest on a ruling under the TCPA”). Compare Tex. Civ. Prac. &

Rem. Code Ann. § 27.005(c)–(d), with Tex. R. Civ. P. 91a.1 (stating that a party may

move to dismiss a cause of action because it has no basis in law or fact), and Tex. R.

Civ. P. 166a(c) (stating that a judgment “shall be rendered forthwith” if the summary-

judgment evidence shows that “except as to the amount of damages, there is no

61 genuine issue as to any material fact and the moving party is entitled to judgment as a

matter of law on the issues expressly set out in the motion or in an answer or any

other response”).

Although both Rule 202 and the TCPA are “early stage” litigation devices, Rule

202 is presuit, by definition, while the TCPA is deployed only after suit has been filed.

See USA Lending Grp., 669 S.W.3d at 205 (“The [TCPA] does not select for plaintiffs

certain to succeed; it screens out plaintiffs certain to fail—those who cannot support

their claims with clear and specific evidence.”). We conclude that the TCPA is for use

only against a party that has already sought to vindicate its existing claims through

adjudication—by filing a lawsuit to pursue a merits-based ruling—while Rule 202 may

be used to seek permission to investigate potential claims that might someday be

brought against anticipated parties (or to perpetuate testimony for use in an

anticipated suit). See generally Sections B–C.

We read the 2019 TCPA to clarify that, to the extent the TCPA might have

applied to a Rule 202 petition before September 1, 2019, it no longer does because a

Rule 202 petition is a procedural step that does not seek a merits-based adjudication

and that does not amend or add a claim for legal, equitable, or declaratory relief as

defined in Cole. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6)(A); Cole,

2022 WL 1259043, at *3–4; see also Montelongo, 622 S.W.3d at 296 (referencing legal-

claim vindication). We overrule DeAngelis to the extent it is inconsistent with our

reasoning above, and we overrule Appellants’ first issue and hold that the TCPA does

62 not apply to Maxwell’s Rule 202 petition.19 Because of our disposition of Appellants’

first issue, we need not address their remaining issues, all of which rely on the TCPA’s

applicability.

III. Conclusion

We affirm the trial court’s order denying Appellants’ TCPA motion to dismiss

and remand this case to the trial court for further proceedings.

/s/ Elizabeth Kerr Elizabeth Kerr Justice Delivered: February 13, 2025

We do not reach whether Maxwell’s petition met Rule 202’s requirements or 19

whether the trial court abused its discretion by granting his petition.