CROSSOVER: Defending the TCPA Motion: Out-of-State Counsel’s Signature Is Not a Nullity for Filing Deadlines

Musk v. Brody, 03-24-00392-CV, March 20, 2026.

On appeal from the 459th District Court of Travis County, Texas.

Synopsis

The Third Court of Appeals held that a motion to dismiss filed under the Texas Citizens Participation Act (TCPA) is not a nullity merely because it was signed by an out-of-state attorney whose pro hac vice motion was pending or forthcoming at the time of filing. Because the trial court subsequently granted the pro hac vice admission, the signature defect was cured, and the motion was deemed timely filed within the 60-day statutory window.

Relevance to Family Law

While the TCPA began as a tool for media defendants, it has become a frequent weapon in high-conflict family law litigation—particularly in cases involving “tortious” conduct between spouses, such as defamation, stalking, or invasions of privacy regarding parental fitness. In high-net-worth divorces, parties often retain specialized out-of-state “reputation management” counsel or boutique litigators who may not be licensed in Texas. This ruling provides critical protection for the practitioner who must meet the strict 60-day TCPA filing deadline: a signature from out-of-state counsel will not result in a “procedural death penalty” or a waived dismissal right, provided the pro hac vice motion is eventually granted.

Case Summary

Fact Summary

Benjamin Brody sued Elon Musk for defamation in Travis County following social media posts where Musk suggested Brody was involved in a “false flag” operation involving neo-Nazi groups. Musk sought to dismiss the suit under the TCPA. Musk’s motion to dismiss was filed within the 60-day statutory deadline; however, the signature line bore the name of Alex Spiro, a New York attorney who was not yet admitted pro hac vice in Texas. The motion noted “pro hac vice forthcoming” next to Spiro’s name and listed a Texas-licensed attorney, Emiliano Delgado, below the signature block, though Delgado did not sign.

Brody moved to strike the TCPA motion, arguing it was a nullity because it lacked the signature of a licensed Texas attorney at the time of filing. By the time the trial court heard the issue, Spiro’s pro hac vice motion had been granted. The trial court denied the motion to strike but ultimately denied the TCPA motion on other grounds. Musk appealed the denial of the TCPA motion, and Brody cross-appealed the timeliness/nullity issue.

Issues Decided

The court addressed whether a TCPA motion to dismiss is a nullity—and therefore untimely—if it is signed by an out-of-state attorney before their pro hac vice motion is formally granted by the trial court.

Rules Applied

• Texas Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code § 27.003(b): Requires a motion to dismiss to be filed within 60 days of service.
• In re AutoZoners, LLC, 694 S.W.3d 219 (Tex. 2024): Discussed the limits of trial court discretion regarding pro hac vice admissions but did not address the “nullity” of a signed pleading when admission is later granted.
• TNT Bestway Transp., Inc. v. Whitworth, 1999 WL 374158 (Tex. App.—Dallas 1999): Persuasive authority holding that subsequent pro hac vice admission cures signature defects.
• Texas Policy on Procedural Defects: The Texas Supreme Court disfavors disposing of cases based on harmless procedural defects, preferring a resolution on the merits whenever reasonably possible.

Application

The court distinguished this case from In re AutoZoners, noting that the Supreme Court of Texas in that instance dealt with a denied pro hac vice motion. Here, the trial court had actually granted the out-of-state attorney’s admission. The Third Court of Appeals looked to the Dallas Court of Appeals’ reasoning in Bestway, which found that once a lawyer is admitted pro hac vice, that admission “cures” the defect of their earlier signature on filings.

The court further noted that the Texas Supreme Court has recognized that signature blocks in Texas courts “frequently” include out-of-state attorneys with pending or forthcoming motions. To hold that such a motion is a nullity would be to ignore the reality of modern multi-jurisdictional practice and would run counter to the overarching Texas policy of prioritizing the merits of a dispute over technical “traps.” Because the trial court exercised its discretion to admit the attorney, the initial “defect” in the signature was not fatal to the 60-day filing deadline.

Holding

The court held that the signature of an out-of-state attorney on a motion to dismiss does not render the motion a nullity or untimely, provided the trial court subsequently grants the attorney’s pro hac vice motion.

The court further held that because the pro hac vice motion was granted, the TCPA motion was properly before the trial court and was filed within the statutory period.

Practical Application

For family law practitioners, this case is a shield against aggressive “strike” motions when coordinating with out-of-state co-counsel. If your client insists on bringing in a high-profile specialist for a custody-related defamation claim or a business-valuation dispute that triggers the TCPA, you do not need to panic if the 60th day arrives before the pro hac vice order is signed. However, the best practice remains having the Texas attorney of record sign the motion to avoid the cost and delay of litigating a motion to strike.

Checklists

Securing the TCPA Deadline with Out-of-State Counsel

• Verify the Deadline: Confirm the 60-day window from the date of service of the “legal action” (which may be a counter-petition or a motion in a SAPCR).
• Dual-Signature Blocks: Always include both the out-of-state attorney and the Texas attorney of record in the signature block.
• Texas Counsel Signature: Ensure the Texas-licensed attorney signs the motion electronically or physically to bypass the “nullity” argument entirely.
• Prompt Pro Hac Vice Filing: File the pro hac vice motion and pay the required fee to the State Bar of Texas simultaneously with or before the TCPA motion.
• Status Notation: If out-of-state counsel must sign, include the notation “pro hac vice pending” or “forthcoming” to demonstrate transparency to the court.

Defending Against a “Nullity” Challenge

• Cite Musk v. Brody: Use this case to argue that a subsequent grant of pro hac vice status relates back to the date of filing.
• Demonstrate Lack of Prejudice: Argue that the procedural defect is “harmless” under the In re A.C.T.M. standard.
• Request a Cure Period: If the trial court is hesitant, request leave to amend the signature block under Texas Rule of Civil Procedure 63.

Citation

Elon Musk v. Benjamin Brody, No. 03-24-00392-CV, 2026 WL [N/A] (Tex. App.—Austin Mar. 20, 2026, no pet. h.).

Full Opinion

View the Full Opinion Here

Family Law Crossover

In the “silver bullet” era of family law, the TCPA is frequently used to stay discovery and seek dismissal of “retaliatory” claims filed during a divorce. For example, if a Husband sues a Wife for “tortious interference” with his business during a property division, or “libel” regarding allegations of abuse, the Wife may file a TCPA motion. If the Wife hires an elite out-of-state firm to handle the high-stakes defamation aspect, the Husband might attempt to strike the motion as a nullity if the out-of-state lawyer signs it before their Texas admission is finalized. Musk v. Brody prevents the Husband from using this technicality to avoid the TCPA’s fee-shifting and dismissal provisions. It essentially “weaponizes” the TCPA’s broad protections by ensuring that the right to speak (and the right to out-of-state counsel) is not easily defeated by a clerk’s processing time for a pro hac vice application.

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