Those who have come across the Anti-SLAPP statute before—the Texas Citizens Participation Act found in Chapter 27 of the Civil Practice and Remedies Code (TCPA)—may be familiar with a minor split in appellate decisions as to whether it can be used to dismiss a petition for pre-suit discovery under Texas Rule of Civil Procedure 202. Previously, only the appellate courts in Houston had ruled that the TCPA does not apply in such a context, with most others, including the Second Court of Appeals in DeAngelis v. Protective Parents Coalition,1 ruling it does apply such that the procedure could be used to prevent discovery and obtain a recovery of fees.
On February 13, 2025, the Second Court of Appeals in Frazier v. Maxwell2 issued an en banc opinion, however, overruling its prior DeAngelis panel to hold that, based on its view of the purposes of the TCPA in contrast to pre-suit discovery, as well as amendments made to the statute in 2019 and various case law, that the TCPA can no longer be used in connection with Rule 202.
In short, the en banc court concluded that a petition for pre-suit discovery is not encompassed within what the TCPA’s definitions refer to as a “petition” generally and also does not seek the type of legal, declaratory, or equitable “relief” specified in the definition of a covered “legal action.” The court based its interpretation of the former on statements by the Texas Supreme Court in Montelongo v. Abrea3 which referred to “petition” as used in Texas to mean only a plaintiff’s pleadings in the course of a case, rather than the broader notion of anything that may be presented to a court. Further, while recognizing that Rule 202 does allow a petitioner to obtain something it would not be entitled to otherwise, the benefit sought (i.e., discovery for an anticipated or potential claim) is ultimately not what the TCPA’s dismissal procedures are meant to apply. The court thus took a definitive position stated as follows:
“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).”4
Some of the analysis in Frazier seems open to continued disagreement among courts who have previously ruled in line with DeAngelis or not yet weighed in on the topic. For example, the interpretation of an undefined term like “relief” in a way that means it was intended by the Legislature not to encompass what a Rule 202 petitioner can only obtain by a judicial order—what commentators in the past have likened to a “forced interrogation”—in light of the statute’s stated dual purpose of protecting constitutional rights and meritorious suits, seems subject to differing opinions. Certainly it could be argued that the rights to free speech, petition, and association can be chilled by pre-suit discovery in the same way, if not more, than the filing of a full lawsuit. It is not even a given that a plaintiff filing a full lawsuit would ever get to the point of discovery, as the TCPA allows a court to dismiss matters that the plaintiff cannot support a prima facie basis on their own without even allowing any discovery.5
In any event, if you are a person seeking to file or facing a Rule 202 petition for pre-suit discovery in Tarrant County, Denton County, or any of the other counties that make up the jurisdiction of the Second Court of Appeals in Fort Worth, you will want to be aware of the ruling in Frazier v. Maxwell as it can significantly impact the cost-benefit analysis. The question in other areas of the State outside of the Houston appellate districts largely remains open, making the availability of attorney’s fees less than certain pretty much anywhere until there is uniform guidance.
For further information, the full opinion in Frazier v. Maxwell was last accessible at this following link at the time of this posting: No. 02-23-00103-CV.
- 556 S.W.3d 836 (Tex. App.—Fort Worth 2018, no pet.). ↩︎
- No. 02-23-00103-CV, 2025 Tex. App. LEXIS 891 (Tex. App.—Fort Worth Feb. 13, 2025, no pet. h.). ↩︎
- 622 S.W.3d 290 (Tex. 2021). ↩︎
- Frazier, 2025 Tex. App. LEXIS 891, at *66 (emphasis added). ↩︎
- See Tex. Civ. Prac. & Rem. Code § 27.006(b) (requiring a showing of “good cause” before a court even has any discretion to permit “specified and limited discovery”). ↩︎
