Supreme Court of Texas Holds Citizens Participation Act Applies to Lilith Fund’s Suit Challenging Heartbeat Act

The decision

On May 15, 2026, the Supreme Court of Texas held that the Texas Citizens Participation Act (TCPA) applies to a suit that the Lilith Fund for Reproductive Equity filed against Sadie Weldon seeking a declaration that Senate Bill 8, also known as the Texas Heartbeat Act, is unconstitutional. In an opinion by Justice J. Brett Busby, the court held that the Fund’s suit was “based on or . . . in response to” a Rule 202 pre-suit deposition petition that Weldon had filed, which the court treated as an exercise of the right to petition. The court reversed the judgment of the Court of Appeals for the Second District of Texas, which had held the TCPA inapplicable, and remanded for that court to consider the remaining steps of the TCPA dismissal procedure. The opinion does not decide whether S.B. 8 is constitutional or whether the Fund’s suit must be dismissed.

Background

Citing its 2022 decision in Whole Woman’s Health v. Jackson, the court described S.B. 8 as a law that “provides a civil cause of action for private citizens to sue abortion providers and others regarding abortions that are performed without verifying the absence of a fetal heartbeat.”

In January 2022, Weldon filed a petition under Rule 202 of the Texas Rules of Civil Procedure in Jack County, seeking to depose the Fund’s deputy director and obtain documents regarding any abortions provided in violation of the Heartbeat Act. The trial court denied the petition in August 2022.

Forty-eight days after Weldon filed the Rule 202 petition, and while it was pending, the Fund sued her, seeking a declaratory judgment that S.B. 8 is unconstitutional on various grounds, a temporary injunction preventing Weldon from filing any S.B. 8 suits against the Fund until the case concluded, an anti-suit injunction against the Rule 202 petition, and attorney’s fees under the Uniform Declaratory Judgments Act (UDJA).

Two months later, Weldon moved to dismiss under the TCPA. The trial court did not timely rule, so the motion was denied by operation of law. Weldon took an interlocutory appeal, and the Fort Worth court of appeals affirmed, holding that the Fund’s suit was not “based on or in response to” the Rule 202 petition. The Supreme Court stated that the court of appeals “relied on the TCPA’s purpose statement to conclude that it applies only to lawful exercises of speech and to protect the rights of people to file meritorious lawsuits,” and that it also relied on the Austin court of appeals’ decision in Texas Right to Life v. Van Stean, which the Supreme Court had reversed and remanded on other grounds in 2024.

The court’s reasoning

The TCPA framework

The court described the TCPA’s stated purpose as two-fold: 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,” and to protect the right to file meritorious lawsuits.

Citing Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC and Montelongo v. Abrea, the court restated the three-step dismissal procedure: at step one, the defendant must show that the legal action is based on or in response to the defendant’s exercise of the right of speech, petition, or association; at step two, the claimant may avoid dismissal by establishing “by clear and specific evidence a prima facie case for each essential element of the claim in question”; and at step three, the court must dismiss if the defendant “establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.” The court stated that the only issue the court of appeals reached was step one.

The court’s step-one holding

Applying settled principles of statutory interpretation and drawing on its 2025 decision in Walgreens v. McKenzie, the court noted that, without settling on a comprehensive definition of the “based on or in response to” standard, it had noted helpful explanations from dictionaries and cases: “‘based on’ includes ‘factually predicated on,’ and ‘in response to’ denotes a ‘reaction’ or ‘act in return.’”

The court found that Weldon’s Rule 202 petition is an exercise of the right to petition under the TCPA because it is “a communication in . . . a judicial proceeding,” and that the Fund’s suit is a “legal action” because it is a lawsuit requesting declaratory and equitable relief. The remaining question was whether the suit was based on or in response to the petition.

“Most obviously, the Fund’s petition for declaratory judgment requested an anti-suit injunction seeking to prevent Weldon from continuing with her Rule 202 petition.” The Fund relied on the Rule 202 petition to show the need for that injunction, alleging that “Defendant Weldon has stated she will take action, and has already taken prefatory steps to that action by filing a Rule 202 action.” The Fund’s counsel told the trial court that the Fund had filed its claims “[i]n response to that Rule 202 petition which made clear that Ms. Weldon was actively investigating potential SB 8 lawsuits against Lilith Fund.” The court also noted that the Fund’s petition mentions or cites the Rule 202 petition more than a dozen times.

The court wrote that whatever the outer bounds of the statutory phrases, “this case falls comfortably within them,” and stated: “When a TCPA-protected activity results in a legal action seeking to enjoin that activity, the legal action is based on or in response to the protected activity.”

The court of appeals’ approach

The court then addressed the approach the court of appeals had adopted from Van Stean I, under which the TCPA applies at step one only if the defendant engaged in a lawful exercise of a protected right, with the plaintiff’s position taken as true. “This approach misunderstands the TCPA,” the court wrote. It explained that the Legislature balanced both of the statute’s stated policies through the three-step procedure, which does not forbid any plaintiff from pursuing meritorious claims. Whether S.B. 8 is unconstitutional, and therefore whether Weldon’s conduct was unlawful, are merits questions for steps two and three. “The merit of the plaintiff’s position generally is not relevant at the first step and not assumed at the second and third.”

Jurisdiction

In a footnote, the court observed that “various developments during the pendency of this litigation could suggest that the case may now be moot.” It stated that the parties did not ask it to reconsider its precedent under which the Fund’s pending UDJA fee request saves the case from mootness, citing State ex rel. Best v. Harper and Allstate Insurance Co. v. Hallman. The court applied that precedent for present purposes but stated that nothing in the opinion forecloses the parties or lower courts on remand from examining “whether jurisdiction over this dispute continues to exist.”

Separate opinions

None.

Status

The court reversed the court of appeals’ judgment affirming the denial of Weldon’s TCPA motion and remanded “for the court of appeals to consider steps two and three, which it did not reach.” In a footnote, the court noted that Weldon had raised grounds for dismissal in the court of appeals that do not touch the merits of the Fund’s constitutional challenges, and wrote: “Thus, the remainder of this case may be resolved without reaching the merits of the constitutional questions involved.” The opinion also leaves the question of continuing jurisdiction open on remand.

The decision was reported by Bloomberg Law on the day it issued, by Law360, and by Texas Scorecard on May 21, 2026.