# Bailey Cowan Heckaman, PLLC v. Clark, Love & Hutson, GP Supreme Court of Texas, No. 25-0534 **Bailey Cowan Heckaman, PLLC v. Clark, Love & Hutson, GP, No. 25-0534, is before the Supreme Court of Texas. Key issue: Whether the Texas Citizens Participation Act's bodily-injury exemption, which covers "a legal action seeking recovery for bodily injury, wrongful death, or survival" and "statements made regarding that legal action," applies to a fee-sharing dispute between two law firms arising from earlier bodily-injury litigation, or only to statements about the nonmovant's own pending bodily-injury action.** Practice areas: defamation, civil procedure ## Key issues - Whether the Texas Citizens Participation Act's bodily-injury exemption, which covers "a legal action seeking recovery for bodily injury, wrongful death, or survival" and "statements made regarding that legal action," applies to a fee-sharing dispute between two law firms arising from earlier bodily-injury litigation, or only to statements about the nonmovant's own pending bodily-injury action. - Whether courts must ordinarily decide first, under the TCPA's burden-shifting structure, whether the movant has shown the Act applies before deciding whether an exemption does. ## Factual History Clark, Love & Hutson, G.P. (the Clark Firm) and Bailey Cowan Heckaman, PLLC (the Bailey Firm) are law firms that signed an April 4, 2007 letter agreement (the "2007 Agreement") to share fees in pharmaceutical mass-tort litigation over the antidepressant Paxil. The Clark Firm says it developed the litigation framework and is owed half of the attorney's fees the Bailey Firm earned when 605 of its separate clients settled their individual claims against the manufacturer in 2017 (Brief on the Merits (Petitioner), PDF p. 13; Brief on the Merits (Respondent), PDF pp. 2, 6). The Clark Firm sued the Bailey Firm for breach of that agreement in Erath County. ## Procedural History The Bailey Firm moved to dismiss the contract claim under the TCPA and sought fees, costs and sanctions. After a May 30, 2023 hearing, the 266th District Court of Erath County (Judge Jason Cashon) denied the motion on June 12, 2023, found it was filed solely for delay, and awarded the Clark Firm $100,000 in fees and costs. The Eleventh Court of Appeals (Bailey, C.J., joined by Trotter and Williams, JJ.) held that the 2007 Agreement and the 2017 settlement are "statements" regarding a legal action seeking recovery for bodily injury, so the TCPA's bodily-injury exemption applied, and it affirmed the denial of dismissal without conducting the three-step TCPA analysis, but vacated the fee award. Bailey Cowan Heckaman PLLC v. Clark, Love & Hutson, G.P., 710 S.W.3d 423 (Tex. App.—Eastland 2025, pet. filed). The Bailey Firm does not challenge the vacatur of the fee award (Brief on the Merits (Petitioner), PDF pp. 13-14). It petitioned for review on August 22, 2025, and the Court requested briefs on the merits on January 30, 2026; because the petition was filed before January 1, 2026, the former appellate rules apply (Brief on the Merits (Petitioner), PDF p. 14). ## Issues Presented 1. Whether the court of appeals erred in applying the bodily-injury exemption to a fee dispute between two law firms who previously represented clients in separate bodily-injury litigation, creating a split with the Amarillo court. 2. Whether the exemption cannot apply because it is undisputed the Clark Firm's contract claim does not itself seek recovery for bodily injury. 3. Whether courts must ordinarily decide at step one whether the TCPA applies before reaching an exemption (Brief on the Merits (Petitioner), PDF pp. 4, 16). The Clark Firm recasts these as whether its claim based on the 2007 Agreement, a statement about litigation involving bodily injuries, involves a statement concerning a legal action seeking recovery for bodily injury, and whether the Court should require intermediate courts to address whether a TCPA right is implicated before addressing whether an exemption applies (Brief on the Merits (Respondent), PDF p. 7). ## Legal Arguments **Petitioner (Bailey Cowan Heckaman, PLLC):** The unambiguous text exempts only a nonmovant's pending legal action seeking recovery for bodily injury and statements about that action, not a later, separate fee dispute between law firms seeking economic damages. The court of appeals misapplied Temple v. Cortez Law Firm, PLLC and rewrote the exemption, and the Fourteenth Court's opinion in a separate TCPA appeal, which relied on Temple, is not persuasive. Carlson Law Firm, PC v. Austin Carrizales Law, PLLC (Tex. App.—Amarillo 2021, pet. denied) (mem. op.) gives meaning to both clauses of the exemption. The TCPA's burden-shifting structure also requires courts ordinarily to decide first whether the movant established that the Act applies, and the Eleventh Court skipped step one; the Bailey Firm asks the Court to settle the split and clarify the order of analysis (Brief on the Merits (Petitioner), PDF pp. 4-5; Reply Brief (Petitioner), PDF p. 2). **Respondent (Clark, Love & Hutson, G.P.):** The exemption has two parts, and the second covers claims based on "statements made regarding" a legal action seeking recovery for bodily injury; the contract at issue is such a statement about the Paxil litigation, and the Bailey Firm's own theory that the claim "pertains to" the Paxil judicial proceedings satisfies the exemption. The Eastland court followed the mainstream reading shared by the Dallas court in Temple and the Tyler court in ETX Successor Tyler v. Pridgeon, while Carlson is an unpublished, never-cited memorandum opinion whose reading would make the second part surplusage and presents no genuine split. The Clark Firm also argues the Court should not require intermediate courts to write on whether a TCPA right is implicated before addressing whether an exemption applies (Brief on the Merits (Respondent), PDF pp. 2-3, 8-9). ## Stated Reasons the Court Should Take the Case The Bailey Firm argues the decision creates a conflict with the Amarillo court's Carlson decision on analogous facts, that the exemption's scope is a recurring issue on which nonmovants will keep relying, and that the Court should resolve the split and give lower courts guidance on the proper order of the TCPA's burden-shifting analysis (Petition for Review, PDF pp. 14-15; Reply Brief (Petitioner), PDF p. 2). The Clark Firm answers that nearly all courts agree with the decision below and no important legal question is presented (Response to Petition, PDF pp. 8-9). ## Practice Area Tags defamation, civil-procedure ## Procedural Posture/Vehicle Petition for review from the Eleventh Court of Appeals following an interlocutory appeal of the denial of a TCPA motion to dismiss (Tex. Civ. Prac. & Rem. Code § 51.014(a)(12)). The Court requested and received merits briefing, granted the petition on October 2, 2026 and set oral argument for December 3, 2026. ## Amicus Involvement None --- Source: The SCOTX Report, https://scotxreport.com/cases/25-0534. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.