The Texas Citizens Participation Act (TCPA) remains an important tool for defendants seeking early dismissal and mandatory attorney fee awards. But just how far does its reach extend when regulatory filings are involved? For oil and gas litigators, this question is hardly academic. Nearly every lease dispute, drainage claim, or development controversy involves some interaction with the Railroad Commission of Texas (RRC), creating a constant temptation for defendants to invoke the TCPA’s protections based on their communications with the RRC. The San Antonio Court of Appeals’ recent decision in EOG Resources v. CNH Enterprise Holdings sets a clear boundary, explaining that the 2019 amendments to the TCPA mean exactly what they say: mere causal connection is not enough.
In this recent case, the San Antonio Court of Appeals considered what it means for a claim to be “based on” or “in response to” a party’s right to petition under the TCPA. EOG Res., Inc. v. CNH Enter. Holdings, Ltd., No. 04-24-00160-CV, 2025 WL 2807775 (Tex. App.—San Antonio Sept. 30, 2025, no pet. h.). More specifically, it considered whether CNH Enterprise Holdings, Ltd.’s (CNH) claim for failure to protect from drainage was “based on” or “in response to” EOG Resources, Inc.’s (EOG) communications with the RRC. Generally, the TCPA allows a party who asserts that a claim was filed “based on” or “in response to” its exercise of a constitutionally protected right to file a motion to dismiss the claim and obtain an award of attorney fees.
The Dispute: Adjacent Leases and Alleged Drainage
By way of background, CNH was the lessor under two oil and gas leases, the Hundley Lease and the Gary Lease, and EOG was the lessee. The two leases share a boundary. With regard to the Hundley Lease, CNH argued that it terminated in 2014 as to certain acreage and that EOG had nevertheless drilled additional wells outside the retained acreage after the lease terminated. Alternatively, if the Hundley Lease did not terminate, CNH alleged that EOG had failed to develop the lease as a reasonable prudent operator.
Additionally, CNH alleged EOG failed to protect the Hundley Lease from drainage. Relevantly, in April 2014, EOG obtained a permit to drill the Gary 2H Well on the Gary Lease 148 feet from the boundary of the Hundley Lease. The applicable field rules, however, required a minimum lease line distance of 330 feet. According to CNH, EOG, without notice or consent from the lessors of the Hundley Lease, waived any notice or hearing on the Rule 37 exception, which would allow EOG to drill the Gary 2H Well closer than the field rules minimum lease distance of 330 feet. The Gary 2H Well was ultimately completed as a producer only 150 feet from the lease line of the Hundley Lease. The fracture stimulation operations extended over 150 feet from the wellbore. Accordingly, CNH alleged that, if the Hundley Lease did not terminate, the Gary 2H Well caused substantial drainage to the lands covered by the Hundley Lease.
EOG’s Argument: RRC Filings Invoke the TCPA
EOG sought to dismiss the failure to protect from drainage claim pursuant to the TCPA, contending that it was exercising its “right to petition” when it filed its application for a drilling permit and a Rule 37 exception with the RRC and that CNH’s failure to protect from drainage claim was “based on” and “in response to” EOG’s exercise of its right to petition. Notably, CNH dropped the failure to protect claim, but a question remained regarding whether EOG was entitled to an award of attorney fees under the TCPA.
The appellate court explained that the purpose of the TCPA is to encourage and protect constitutional rights, including the right to petition, and also to protect the rights of a person to file legitimate claims. It noted that the three-step analysis applicable to a TCPA motion requires the movant to show that the TCPA applies by showing that the legal action or claim “is based on or in response to” the movant’s exercise of its right to, in this case, petition. Once the movant establishes that the TCPA applies, the burden is on the nonmovant to show “by clear and convincing evidence a prima facie case for each essential element of its claim.” If that burden is satisfied, the burden shifts back to the nonmovant to establish an affirmative defense as a matter of law. Only the first step of the TCPA analysis was at issue in this case—whether the TCPA applies to CNH’s failure to protect claim. Additionally, the parties agreed that EOG’s filings with the RRC, including its application for a permit and Rule 37 exception, were communications and an exercise of EOG’s right to petition under the TCPA. Thus, the only remaining question was whether CNH’s claim was based on or in response to EOG’s communications with the RRC.
The “Gravamen” Test: What the 2019 Amendments Really Mean
The appellate court began its analysis by noting that the Legislature amended the TCPA in 2019 to narrow the required connection between the claim filed and the protected activity by deleting the “broadest connective language––’relates to.’” Relying on the Texas Supreme Court’s recent Walgreens v. McKenzie, 713 S.W.3d 394, 400 (Tex. 2025) decision, the San Antonio Court of Appeals reiterated that to be “based on” or “in response to,” the exercise of the protected right must be “the ‘gravamen’ of the claim…be ‘factually predicated on’ the exercise…or that the exercise be a ‘main ingredient’ or ‘fundamental part’ of the claim.” Because the “gravamen” of CNH’s failure to protect claim was EOG’s alleged breach of its obligation to protect the Hundley Lease by failing to drill an offset well to prevent drainage, and not EOG’s communications with the RRC, the appellate court found that the claim was not “based on” or “in response to” EOG’s exercise of its right to petition.
Pleading Precision: The Court Rejects But-For Causation
EOG argued that CNH’s failure to protect claim fell under the broader claim for breach of the implied covenant to protect the leasehold from field-wide drainage, including the duty to drill more wells, re-work existing wells, seek regulatory action, seek a Rule 37 exception from the RRC or other administrative relief, which could challenge the drilling of the Gary 2H Well itself. The court rejected EOG’s argument, noting that what matters is what CNH actually pled. Because CNH did not actually make that the basis for its failure to protect claim, the TCPA did not apply. Thus, although EOG’s communications with the RRC led to the approval of the Gary 2H Well that allegedly caused the drainage that gave rise to CNH’s claim, the court found the nexus between the action and the protected activity insufficient to invoke the TCPA.
This case clarifies the limits of the TCPA after the 2019 amendments. Specifically, it makes clear that a TCPA motion to dismiss cannot be predicated on conduct with only a tangential or indirect link to the claim, even if that conduct was a step in the sequence of events giving rise to the claim. EOG’s RRC filings “started the ball rolling,” but that but-for causation was too attenuated, especially where the actual complained-of conduct (failure to drill an offset well) was another step removed from the communications themselves.
EOG Resources v. CNH Enterprise Holdings offers guidance on pleading strategy for practitioners on both sides. Defendants should recognize that regulatory filings will not shield every claim touching on RRC-approved activity. Rather, the gravamen analysis demands that the protected communication itself, not merely its downstream consequences, form the heart of the plaintiff’s complaint. Conversely, plaintiffs can insulate drainage and development claims from TCPA dismissal by focusing their pleadings on affirmative obligations (e.g., the duty to drill offset wells, the duty to protect) rather than on challenging the regulatory approval process itself. The decision also highlights the importance of precision in drafting a cause of action. For instance, had CNH alleged that EOG breached its duty by failing to seek administrative relief or oppose the Rule 37 exception, the outcome might have been different.