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Texas Supreme Court Hears Arguments on Whether TCPA Covers Pre‑enforcement Challenges to SB 8
Summary
The Texas Supreme Court heard argument in Weldon v. Willow Fund over whether the Texas Citizens Participation Act (TCPA) reaches declaratory‑judgment suits challenging enforcement of Senate Bill 8. Justices pressed counsel on standing, mootness tied to attorney‑fee disputes and whether the statute’s 'based on or in response to' language requires showing a negative impact on protected rights.
The Supreme Court of Texas on Wednesday heard oral argument in Weldon v. Willow Fund, a dispute over whether the Texas Citizens Participation Act (TCPA) applies to declaratory‑judgment lawsuits that seek pre‑enforcement relief related to Senate Bill 8 (SB 8). Petitioner's counsel argued the TCPA — as amended in 2019 — reaches declaratory relief, while counsel for the respondent urged that the TCPA is an ill‑fitting procedural tool for facial constitutional challenges to a statute.
Petitioner's counsel told the court the 2019 amendments made clear that claims for declaratory relief fall within the TCPA “in the same way” as suits for damages or injunctions. Counsel said “the TCPA’s application does not in any way turn on whether the requested relief would restrain a defendant from engaging in constitutionally protected conduct,” arguing the statute’s text and amendments support applying the TCPA to those suits.
Respondent’s counsel, Mister Boyce, countered that the TCPA’s burden‑shifting and evidentiary framework is designed for fact‑focused motions and does not map cleanly onto purely legal, facial constitutional challenges. Boyce cited this court’s precedents (including Walgreens and McLean, as discussed in argument) and argued the TCPA should be read in light of its stated purpose: to both protect constitutional rights of petition and to preserve meritorious lawsuits for demonstrable injury.
Justices pressed both sides on several recurring themes. They queried whether the court of appeals’ reading — that step 1 of the TCPA inquiry fails when the plaintiff seeks only to enjoin unlawful conduct — would properly belong at step 1 or step 2 of the TCPA analysis. Several justices also asked whether the dispute is moot, given ongoing litigation over attorneys’ fees: petitioner replied that fee exposure and other enforcement possibilities leave a live controversy.
A second line of questioning focused on SB 8’s unusual enforcement design. Counsel and the court explored how SB 8’s private‑enforcement mechanism — which removes typical state actors from enforcement — affects whether and how the TCPA should apply to pre‑enforcement, declaratory or facial claims.
Counsel for both sides acknowledged procedural complexities, including overlapping federal suits and questions about standing and limitations. Neither side claimed the court should reach a final judgment from the bench; after argument the court submitted the case.
The court did not issue a decision at argument; a written opinion is expected at a later date.
