The opinion
Supreme Court of Texas
══════════
No. 24-0250
══════════
Sadie Weldon,
Petitioner,
v.
The Lilith Fund for Reproductive Equity,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Second District of Texas
═══════════════════════════════════════
Argued January 14, 2026
JUSTICE BUSBY delivered the opinion of the Court.
Although the underlying case concerns the constitutionality of
Senate Bill 8, also known as the Texas Heartbeat Act, this interlocutory
appeal presents a preliminary question regarding the application of the
Texas Citizens Participation Act (TCPA). The TCPA generally provides
a quick off-ramp for the dismissal of litigation that needlessly stymies
the exercise of the rights of association, free speech, or petition. Here,
the Lilith Fund for Reproductive Equity sued Sadie Weldon seeking a
declaratory judgment that the Heartbeat Act is unconstitutional, and
Weldon filed a TCPA motion to dismiss, which was denied. The court of
appeals affirmed, holding that the TCPA did not apply to the Fund’s
suit. We hold that the TCPA applies because the Fund’s suit was “based
on or . . . in response to” an earlier Rule 202 petition Weldon filed to
depose the Fund’s deputy director regarding potential violations of the
Heartbeat Act. TEX. CIV. PRAC. & REM. CODE § 27.005(b). We therefore
reverse and remand.
BACKGROUND
Before Dobbs v. Jackson Women’s Health Organization1
overturned Roe v. Wade2 and Planned Parenthood of Southeastern
Pennsylvania v. Casey,3 the Texas Legislature passed Senate Bill 8
(S.B. 8). That law, as we have explained elsewhere, 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. See Whole Woman’s Health v. Jackson, 642 S.W.3d
569, 573, 576 (Tex. 2022).4 After S.B. 8 went into effect, the Fund’s
deputy director, Ms. Neesha Davé, declared under penalty of perjury
that the Fund had “paid for at least one abortion without confirming the
gestational age of the client’s pregnancy and at least one abortion with
1 597 U.S. 215 (2022).
2 410 U.S. 113 (1973).
3 505 U.S. 833 (1992).
4 Stricter limits on abortion than those in S.B. 8 are now in effect.
See,
e.g., TEX. HEALTH & SAFETY CODE § 170A.002(a) (providing that, with certain
exceptions, “[a] person may not knowingly perform, induce, or attempt an
abortion”).
2
the belief that the client’s pregnancy was after the period in which
cardiac activity is usually detectable.” She stated that, “[i]n doing so, it
was Lilith Fund’s intention to pay for the abortions even if cardiac
activity was detected.”
Sadie Weldon filed a Rule 202 petition5 in Jack County in
January 2022. Weldon sought to depose Davé and have her produce
documents regarding any abortions provided in violation of the
Heartbeat Act. The trial court denied the petition in August 2022.
Meanwhile, forty-eight days after Weldon filed her petition and
while it was pending, the Fund filed this suit against her. The Fund
sought 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 Fund’s case concludes, an anti-
suit injunction against the Rule 202 petition, and attorney’s fees under
the Uniform Declaratory Judgments Act (UDJA).
Two months later, Weldon filed a TCPA motion to dismiss. The
trial court did not timely rule on the motion, so it was denied by
operation of law. Weldon filed this interlocutory appeal, and the court
of appeals affirmed, holding that the TCPA does not apply to this action
because it was not “based on or in response to” Weldon’s Rule 202
petition. 722 S.W.3d 40, 47-50 (Tex. App.—Fort Worth 2024). The court
5 A Rule 202 petition is a pre-litigation method of obtaining evidence
that can assist the petitioner in determining whether to file suit. See TEX. R.
CIV. P. 202.1 (“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.”).
3
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. Id. The court also relied on Texas Right to Life v.
Van Stean (Van Stean I), 704 S.W.3d 6 (Tex. App.—Austin 2023), a case
we reversed last term, 702 S.W.3d 348 (Tex. 2024). This petition
followed.
ANALYSIS
Weldon’s petition challenges whether her TCPA motion was
properly denied on the ground that the statute does not apply.6 The
TCPA’s stated purpose is 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,” as well as “protect the rights of a person to file
meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM.
CODE § 27.002. The TCPA achieves this purpose primarily through “a
special procedure for the expedited dismissal of” retaliatory,
non-meritorious suits that seek to silence or intimidate those speaking
6 We note that various developments during the pendency of this
litigation could suggest that the case may now be moot. The parties do not ask
us to reconsider or cabin our precedent under which the Fund’s pending
request for attorney’s fees under the UDJA saves the case from mootness. See
State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018); Allstate Ins. Co. v.
Hallman, 159 S.W.3d 640, 643 (Tex. 2005). Although application of that
precedent is sufficient for today’s purposes, nothing in this opinion should be
understood to foreclose the parties or the lower courts, on remand, from
discharging their shared obligation to carefully examine whether jurisdiction
over this dispute continues to exist.
4
on a matter of public concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex.
2015).
The TCPA dismissal procedure “requires a three-step decisional
process.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591
S.W.3d 127, 132 (Tex. 2019). At the first step, “the defendant must
demonstrate that the ‘legal action’ is ‘based on or is in response to’ the
defendant’s exercise of the right of speech, petition, or association.”
Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021) (quoting TEX. CIV.
PRAC. & REM. CODE §§ 27.003(a), .005(b)). If the defendant meets this
burden, then at the second step, “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.’” Id. (quoting TEX. CIV. PRAC.
& REM. CODE § 27.005(c)). Yet even if the claimant does so, “the court
still must dismiss the ‘legal action’” at the third step “if the defendant
‘establishes an affirmative defense or other grounds on which the
moving party is entitled to judgment as a matter of law.’” Id. (quoting
TEX. CIV. PRAC. & REM. CODE § 27.005(d)). The second and third steps
may be considered together,7 and a court need not analyze the second
step if it concludes that the third step requires dismissal.
The only issue the court of appeals reached was one not disputed
by the parties: whether Weldon satisfied the first step of the TCPA’s
dismissal procedure. Unlike that court, we answer yes: Weldon has
7 See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex.
2017). Thus, we have also described the procedure as having two steps. E.g.,
Lipsky, 460 S.W.3d at 586-87.
5
shown that the Fund’s suit for declaratory and injunctive relief is based
on or in response to Weldon’s Rule 202 petition.
“In analyzing the TCPA’s applicability, we follow settled
principles of statutory interpretation.” Walgreens v. McKenzie, 713
S.W.3d 394, 399 (Tex. 2025). That is, “[w]e construe statutes according
to their plain language, consider them as a whole, and ‘presume that the
Legislature chooses a statute’s language with care, including each word
chosen for a purpose, while purposefully omitting words not chosen.’”
Id. (quoting TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,
439 (Tex. 2011)). And “we give undefined terms in a statute their
ordinary meaning unless ‘a different or more precise definition is
apparent from the term’s use in the context of the statute.’” Id. (quoting
TGS-NOPEC, 340 S.W.3d at 439).
We addressed the “based on or in response to” standard just last
term in McKenzie. Without settling on a comprehensive definition, we
noted helpful explanations from dictionaries and cases. For example,
“based on” includes “factually predicated on,” and “in response to”
denotes a “reaction” or “act in return.” See id. at 400. We conclude the
standard is met here.
Weldon’s Rule 202 petition is an exercise of the right to petition
as defined by the statute because it is “a communication in . . . a judicial
proceeding.” TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(i). And this
suit by the Fund is a “legal action” because it is a “lawsuit” that
“requests . . . declaratory [and] equitable relief.” Id. § 27.001(6). Thus,
the remaining question at step one is whether the Fund’s declaratory
judgment action is “based on” or “in response to” Weldon’s exercise of
6
the right to petition. Id. §§ 27.003(a), .005(b). We conclude that it is for
the following reasons.
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. Indeed, the Fund relied on the
Rule 202 petition to show the need for its requested injunction, alleging:
“Defendant Weldon has stated she will take action, and has already
taken prefatory steps to that action by filing a Rule 202 action. If
Weldon’s threatened actions are allowed to proceed, Lilith Fund will be
harmed in a manner from which it will be unable to recover.” The Fund’s
counsel also explained in a trial court hearing that the Fund “filed these
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.” (Emphasis added.)
The Fund’s petition also expressly mentions the Rule 202 petition
or cites its contents more than a dozen times. Although the Fund’s
specific allegations that S.B. 8 should be declared unconstitutional on
various grounds focus on the Fund’s rights and conduct rather than
Weldon’s, the broader context reveals the connection between those
allegations and Weldon’s reliance on S.B. 8 in exercising her right to
petition. In the “jurisdiction and venue” section, for example, the Fund
alleges that Weldon is a proper party for the Fund’s declaratory
judgment claims because Weldon “clearly contends that S.B. 8 is valid
(if she did not, she would not be pursuing a petition under Rule 202 for
a pre-suit deposition to investigate alleged violations of SB8).”
Additionally, the Fund’s counsel acknowledged at oral argument that if
7
Weldon had not “identified herself as an interested person under the
UDJA then we wouldn’t have a basis under the UDJA to file [this] action
against her.”
Whatever the outer bounds of “based on” and “in response to,” this
case falls comfortably within them. 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.8 And the remainder
of the Fund’s petition and the statements by its counsel confirm that its
requests to declare S.B. 8 unconstitutional are factually predicated on
or in reaction to Weldon’s protected Rule 202 petition.
The court of appeals reached the opposite conclusion by adopting
the approach taken in Van Stean I, 704 S.W.3d 6, a decision we
subsequently reversed and remanded on other grounds, 702 S.W.3d
348.9 Under that approach, the TCPA applies at step one only if the
defendant engaged in a “lawful [exercise of a right] protected by the
TCPA,” and the court takes the plaintiff’s position in the legal action as
8 Weldon argues that the court of appeals erred in considering whether
the Fund’s “requested relief” would prohibit her from engaging in activity
protected by the TCPA. See 722 S.W.3d at 50 n.13. We disagree. Although it
is not necessary that the requested relief have a negative impact on the exercise
of a protected right, such an impact—like the anti-suit injunction in this
situation—can be sufficient to show that the suit is “based on” or “in response
to” the exercise of the protected right. The TCPA provides that one of its
purposes is to “safeguard” those rights, TEX. CIV. PRAC. & REM. CODE § 27.002,
and we have explained that it protects citizens exercising their rights “from
retaliatory lawsuits that seek to intimidate or silence them.” Lipsky, 460
S.W.3d at 584.
9 The court of appeals recently issued its decision on remand in Van
Stean, which takes the same approach on this issue. See Tex. Right to Life v.
Van Stean (Van Stean II), 729 S.W.3d 896, 917-921 (Tex. App.—Austin 2026,
no pet. h.).
8
true in making that determination. Weldon, 722 S.W.3d at 47 (emphasis
added) (quoting Van Stean I, 704 S.W.3d at 13).
Here, because the Fund pointed to its own conduct and rights in
seeking to declare S.B. 8 unconstitutional and “sought to permanently
enjoin only ‘any efforts to enforce SB 8 against [it] if SB 8 is declared
unconstitutional,’”10 the court of appeals concluded the Fund was “not
seeking to limit [Weldon’s] ‘constitutional rights . . . to petition, speak
freely, associate freely, and otherwise participate in government to the
maximum extent permitted by law.’” Id. at 49 (omission in original)
(quoting TEX. CIV. PRAC. & REM. CODE § 27.002). Although safeguarding
these rights is one purpose of the TCPA, the court viewed this approach
as a necessary “counterbalance,” id., to serve the TCPA’s other purpose:
“protect[ing] the rights of a person to file meritorious lawsuits for
demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002. The court
declined to interpret the TCPA “to forbid the [Fund] from seeking an
answer to SB 8’s constitutionality.” 722 S.W.3d at 49.
This approach misunderstands the TCPA. The Legislature chose
to implement and balance both of its stated policies—safeguarding
protected rights while protecting meritorious suits—by establishing the
three-step dismissal procedure we have explained. That procedure does
not “forbid” any plaintiff from seeking resolution of meritorious claims.11
10 Id. at 48-49 (quoting Van Stean I, 704 S.W.3d at 13).
11 Thus, the court of appeals was incorrect to conclude that applying the
TCPA to this UDJA action would impermissibly “abrogate or lessen any other
defense, remedy, immunity, or privilege available under other constitutional,
statutory, case, or common law or rule provisions.” TEX. CIV. PRAC. & REM.
CODE § 27.011(a); see 722 S.W.3d at 49.
9
Instead, when the defendant shows that the plaintiff’s suit is based on
or in response to one of the defendant’s protected rights as defined by
the statute (step one),12 the plaintiff may proceed by making a prima
facie showing that its suit is meritorious and the defendant may respond
that it is not or that it fails for other reasons (steps two and three).
The court of appeals’ approach improperly blends these separate
steps. According to the court, because the Fund’s declarations concerned
its own conduct and it sought to enjoin Weldon’s investigation only “if
SB 8 is declared unconstitutional,” the Fund’s action did not limit any
lawful conduct protected by the TCPA and thus step one was not met.
722 S.W.3d at 47-49, 49 n.11. But whether S.B. 8 is unconstitutional
and Weldon’s conduct therefore unlawful are merits questions for steps
two and three, which address whether the Fund can establish by clear
and specific evidence a prima facie case or whether Weldon can show
she is entitled to judgment as a matter of law or establish an affirmative
defense. See TEX. CIV. PRAC. & REM. CODE § 27.005(c)-(d). The merit of
the plaintiff’s position generally is not relevant at the first step and not
assumed at the second and third.13 Because the first step has been met
for the reasons given above, the TCPA applies.
12 See McLane Champions, LLC v. Hou. Baseball Partners LLC, 671
S.W.3d 907, 917 (Tex. 2023) (“[W]e have held that the TCPA is not limited in
application to constitutionally guaranteed activities.”).
13 Some courts of appeals have held that certain alleged criminal
conduct, such as assault and stalking, falls outside the scope of the TCPA’s
protection such that suits based on or in response to such conduct are not
covered by the TCPA. E.g., Ekstam v. Wells, No. 12-25-00071-CV, 2025 WL
3170992, at *7 (Tex. App.—Tyler Nov. 12, 2025, pet. filed); Grant v. Finecy, No.
02-23-00310-CV, 2023 WL 8940395, at *7-8 (Tex. App.—Fort Worth Dec. 28,
10
CONCLUSION
We hold that the Fund’s legal action is based on or in response to
Weldon’s exercise of her right to petition, so the TCPA applies. Because
Weldon’s motion to dismiss satisfied step one of the TCPA analysis, we
reverse the court of appeals’ judgment affirming the denial of the motion
and remand for the court of appeals to consider steps two and three,
which it did not reach.14
J. Brett Busby
Justice
OPINION DELIVERED: May 15, 2026
2023, no pet.); Sanchez v. Striever, 614 S.W.3d 233, 245-46 (Tex. App.—
Houston [14th Dist.] 2020, no pet.). We take no position on that issue in this
opinion.
14 We note that in the court of appeals, Weldon contended that the
Fund’s UDJA action should be dismissed under the TCPA for several reasons
that do not touch on the merits of the Fund’s constitutional challenges to
S.B. 8. We are confident that, on remand, the court of appeals will abide by its
duty to “avoid unnecessary constitutional issues.” Elliott v. City of College
Station, 717 S.W.3d 888, 898 (Tex. 2025) (quoting In re Turner, 627 S.W.3d
654, 656 (Tex. 2021)). Thus, the remainder of this case may be resolved
without reaching the merits of the constitutional questions involved.
11