Changes Looming for Pretrial Practice in Texas as Bills Pass State Senate Committee

Pretrial motion practice in Texas state courts is one step closer to drastic change after the Senate State Affairs Committee unanimously passed two pieces of legislation Monday.

Two separate motions to dismiss are getting tweaked in House Bills 2730 and 3300, which both overwhelmingly passed the Texas House and are on their way to Senate passage now that they have cleared the Senate committee process. Before they become law, the Senate must pass both bills by May 22, its deadline to consider all bills on second or third reading, and the governor must sign the bills. If this happens, the changes would take effect Sept. 1.

House Bill 2730 would narrow the Texas Citizens Participation Act, the state’s anti-SLAPP law, which lawyers have used since 2011 to dismiss a wide range of case types and win attorney fees for their clients.

But the legislation would narrow the scope by limiting the anti-SLAPP law to legal actions dealing with free speech, free association and freedom to petition the government. Lawmakers meant for the law to apply only to First Amendment cases when it first passed in 2011, but the statute’s broad language allowed lawyers to use it in cases in which the legislature never intended.

“There are abuses that have arisen,” said Sen. Bryan Hughes, R-Tyler, the Senate sponsor of HB 2730.

HB 2730 adds a long list of case types that are exempted from the anti-SLAPP law, and the exemptions include State Bar of Texas attorney discipline matters.

At Monday’s Senate hearing, one attorney spoke out about the idea of excluding lawyer discipline cases. Rich Robins, attorney and editor of TexasBarSunset.com, said he thinks the bar pursues “bogus” grievances against attorneys to silence their opposition, and those lawyers should be able to file anti-SLAPP motions to dismiss.

Austin solo practitioner Mary Louise Serafine added that the current law is working, and the list of exemptions is a bad idea.

“This bill is like putting duct tape and staples on something that is already working,” she said.

But just as lawmakers might take away the anti-SLAPP motion to dismiss from many lawyers, a second bill, House Bill 3300, could broaden the appeal of another type of motion to dismiss.

Under current law, this motion, known as the “91a motion to dismiss” because it’s located in Texas Rules of Civil Procedure Rule 91a, allows attorneys to argue for the dismissal of a case that has no basis in law or fact. There’s a mandatory loser-pays provision that says the prevailing party collects attorney fees from the losing party.

The proposed HB 3300 would make a small but significant tweak to the law. In the loser-pays provision, it would change the word “shall” to “may,” which gives a judge discretion to decide to award fees.

Sen. Joan Huffman, R-Houston, the Senate sponsor of HB 3300, said that making fees discretionary would encourage the use of the motion to dismiss and help cut court backlogs.

Richard Trabulsi Jr., president of Texans for Lawsuit Reform, said at the hearing that HB 3300 would make this motion to dismiss more useful in Texas, because mandatory fee-shifting lessened the use of the motion.

“If you are a defendant, you have to put your own client at risk of losing the motion and paying the other side’s attorney fees,” Trabulsi said. “If you are judge and grant a motion to dismiss, you may find it unjust to award attorney fees against a losing party who really can’t afford the fees. You may not rule on the motion to dismiss or you may rule against.”