Extending the TCPA to Negligent Hiring, Training, and Supervision: Commentary on Walgreens v. McKenzie

I. Introduction

In Walgreens v. McKenzie, No. 23‑0955 (Tex. May 16, 2025), the Supreme Court of Texas significantly clarified the scope of the Texas Citizens Participation Act (TCPA), Texas’s anti‑SLAPP statute. The decision addresses whether a corporate employer can invoke the TCPA to seek early dismissal of a negligent hiring, training, and supervision (NHTS) claim when the underlying employee conduct consists of allegedly wrongful communications—here, a false accusation of shoplifting and a report to police.

The Court holds that:

• The TCPA applies to a negligent hiring, training, and supervision claim when at least one of the underlying tortious acts by the employee is itself an exercise of the right of free speech as defined by the statute.
• “Based on or in response to” does not mean “entirely based on”; a claim is covered even if it mixes communicative and non‑communicative conduct, so long as the protected communications are a fundamental part of the claim.
• Corporate employers may invoke the TCPA based on their agents’ communications.
• The plaintiff in this case failed to marshal “clear and specific evidence” of negligent hiring, training, or supervision, so the NHTS claim must be dismissed.

This commentary examines the facts, the Court’s reasoning, its treatment of prior precedent, and the broader implications for Texas civil practice—particularly for claims that attempt to hold employers liable for employees’ allegedly wrongful speech, including false police reports and public accusations of crime.

II. Background and Procedural Posture

A. Factual Background

In 2019, respondent Pamela McKenzie was shopping at a Walgreens store in Houston. A Walgreens employee suspected that McKenzie was the same individual who had stolen from the store earlier that day and had returned. The employee called the police and detained McKenzie in the store on suspicion of shoplifting.

After police reviewed surveillance footage, they concluded McKenzie was not the earlier thief and released her. McKenzie alleges that other Walgreens employees had already determined she was not the thief and had told the accusing employee as much, but he called the police and detained her anyway.

McKenzie did not sue the individual employee. Instead, she sued Walgreens, alleging:

• Intentional infliction of emotional distress (IIED),
• Negligence and gross negligence,
• “Respondeat superior/Vicarious liability,” and
• Negligent hiring, training, and supervision (NHTS).

Although her pleadings grouped NHTS under a “Vicarious Liability/Respondeat Superior” count, the courts (and ultimately the Supreme Court) treated NHTS as an independent, direct‑liability theory against the employer.

B. TCPA Motion and Trial Court Ruling

Walgreens filed a TCPA motion to dismiss, arguing that:

• McKenzie’s claims were “legal actions” under the TCPA,
• Those actions were “based on or in response to” communications made in connection with a matter of public concern, namely suspected criminal activity (shoplifting), and
• McKenzie failed to present clear and specific evidence of a prima facie case on the elements of her causes of action.

The trial court denied the TCPA motion in its entirety.

C. Court of Appeals’ Divided Decision

The Fourteenth Court of Appeals (Houston) issued a split decision. A majority held:

• The TCPA applied to McKenzie’s claims for IIED, negligence, gross negligence, and respondeat superior, and she had not established a prima facie case for those causes of action. Those claims were ordered dismissed.
• The NHTS claim, however, was not subject to the TCPA. The court reasoned that negligent hiring and training involve “conduct, not communications,” and concluded that a covered claim must be “entirely based on or in response to” protected speech. Because NHTS also involved Walgreens’ pre‑incident conduct in hiring/training, the court held the claim fell outside the TCPA and remanded it to proceed in the trial court.

The dissenting justice took a different path, reasoning that NHTS is derivative of an underlying tort by the employee. If the employee’s conduct could not support the other tort claims (already dismissed under the TCPA), the NHTS claim should fail as well.

Walgreens petitioned the Supreme Court of Texas for review; McKenzie did not file her own petition, though she raised “cross‑issues” in her response brief.

III. Summary of the Supreme Court’s Opinion

Justice Busby, writing for a unanimous Court, reverses the court of appeals in part and renders judgment dismissing the NHTS claim. The Court’s key conclusions are:

1. The TCPA applies to NHTS claims whenever at least one of the required underlying tortious acts by the employee is based on or in response to the defendant’s exercise of the right of free speech. There is no “entirely based on” requirement.
2. Walgreens, as a corporate employer, can invoke the TCPA based on the communications of its employee acting as its agent.
3. McKenzie failed to produce clear and specific evidence regarding Walgreens’ hiring, training, and supervision practices, the relevant standard of care, breach, or proximate causation. She therefore did not establish a prima facie case for NHTS under TCPA § 27.005(c).
4. McKenzie’s cross‑issues fail: she cannot obtain affirmative relief without her own petition for review; her argument about timeliness is factually incorrect; and she waived the TCPA’s commercial‑speech and bodily‑injury exceptions by raising them for the first time in the Supreme Court. In any event, those exceptions would not apply on these facts.

Accordingly, the Supreme Court:

• Reverses the portion of the court of appeals’ judgment that allowed the NHTS claim to survive,
• Renders judgment dismissing the NHTS claim under the TCPA, and
• Remands for implementation of the court of appeals’ earlier TCPA dismissals of the remaining claims and for any necessary further proceedings.

IV. Detailed Analysis

A. The TCPA Framework and Legislative Amendment

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 and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” (Tex. Civ. Prac. & Rem. Code § 27.002.)

The mechanism for achieving this balance is an early, expedited motion to dismiss “legal actions” that are based on or in response to a party’s exercise of the rights of free speech, petition, or association, coupled with accelerated interlocutory appeal. See McLane Champions, LLC v. Houston Baseball Partners LLC, 671 S.W.3d 907, 914 (Tex. 2023).

The statutory steps are:

1. Coverage (movant’s burden): The movant must show the “legal action” is “based on or is in response to” its exercise of protected rights. § 27.003(a); § 27.005(b).
2. Prima facie case (non‑movant’s burden): If coverage is shown, the plaintiff must establish by “clear and specific evidence a prima facie case for each essential element” of the claim. § 27.005(c).
3. Defenses (movant’s further burden): Even if the plaintiff makes that showing, dismissal can still occur if the movant proves each essential element of a valid defense. § 27.005(d). (This step was not central in Walgreens.)

Two key definitions are central:

• “Legal action” includes “a cause of action.” § 27.001(6).
• “Exercise of the right of free speech” means “a communication made in connection with a matter of public concern.” § 27.001(3).

The Legislature narrowed the TCPA in 2019. Previously, the Act covered actions “based on, relate[d] to, or [in] response to” protected speech. The 2019 amendment deleted “relate[d] to,” tightening the nexus. Compare former § 27.003(a), 2011 Tex. Gen. Laws 961, 962, with current § 27.003(a). Under Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009), the Court presumes statutory deletions are intentional.

In Walgreens, the Supreme Court has its first major occasion after the amendment to explain what “based on or in response to” means and, critically, what it does not mean.

B. Negligent Hiring, Training, and Supervision as a Claim Type

1. Elements and Structure of NHTS

Texas has not yet fully codified or exhaustively defined the elements of NHTS, but the Court relies on prior formulations:

• Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307, 311 (Tex. 2019): any such claim requires proof of (1) the employer’s negligence in hiring, training, or supervising the employee, and (2) the employee’s subsequent negligent act or omission, with both proximately causing the injury.
• Wansey v. Hole, 379 S.W.3d 246, 247 (Tex. 2012): negligent hiring requires “some damages from the foreseeable misconduct of an employee hired pursuant to the defendant’s negligent practices.”

Thus, NHTS is conceptually dual‑layered:

1. Employer’s own negligent conduct (hiring, training, supervision, retention), and
2. Employee’s actionable misconduct (negligence or, possibly, an intentional tort) that was foreseeable and proximately caused plaintiff’s injury.

The Court has previously held that respondeat superior is not an independent cause of action but a theory of vicarious liability. Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130–31 (Tex. 2018). By contrast, NHTS is generally conceived as a direct‑liability claim against the employer, anchored in its own negligent practices. Walgreens assumes that structure, though it remains cautious about definitively stating the full contours of NHTS in Texas.

2. The Alleged Underlying Torts in This Case

McKenzie identifies two key acts by the employee:

1. He accused her of stealing in front of other patrons.
2. He “wrongfully deprived her of her freedom” by falsely accusing her of theft to the police and detaining her until police arrived.

The court of appeals had treated these as alleged negligent acts; it then concluded they were more properly characterized as intentional torts. McKenzie did not seek Supreme Court review of that characterization. The Supreme Court sidesteps the broader question whether an intentional tort by an employee can support an NHTS claim, stating only that it will assume so for purposes of analysis and will not decide the issue. See also Waffle House, Inc. v. Williams, 313 S.W.3d 796, 800–01, 807 (Tex. 2010) (noting negligent supervision/retention claim predicated on assault, but holding Chapter 21 of the Labor Code supplanted that claim in the employment discrimination context).

What matters for the TCPA analysis is that these underlying acts are, in substance, communications about alleged criminal conduct, made to both other patrons and the police.

C. Construing “Based On or In Response To” Under the TCPA

1. Rejecting the “Entirely Based On” Requirement

The court of appeals had held that a claim is subject to the TCPA only if it is “entirely based on or in response to” the exercise of protected rights. Because NHTS also included non‑communicative components (e.g., negligent hiring or training decisions made before the incident), the court concluded the claim fell outside the Act.

The Supreme Court firmly rejects this gloss. The text says “based on or is in response to”—nothing about “entirely”:

“[B]y inserting the word ‘entirely,’ the court of appeals changed the meaning of the language the Legislature chose. In essence, the court of appeals construed the TCPA to apply when protected activity is the only ingredient or only part of the legal action… Nothing in the statutory language itself … supports that limitation.”

Thus, a claim may be mixed—involving both communicative and non‑communicative conduct—and still be covered, so long as the protected communications form a fundamental, necessary part of the claim.

2. What Does “Based On” Mean?

Because the TCPA does not define “based on,” the Court looks to ordinary meaning, citing both dictionaries and courts of appeals:

• “Factually predicated on” (e.g., Apache Corp. v. Apollo Expl., LLC, 2023 WL 3511262 (Tex. App.—Eastland May 18, 2023, no pet.)),
• “Gravamen” of the claim (e.g., Newstream Roanoke 6.125, LLC v. Shore, 2023 WL 5615871 (Tex. App.—Forth Worth Aug. 31, 2023, no pet.)),
• “A main ingredient” or “fundamental part” of the claim (e.g., Ernst & Young, LLP v. Ryan, LLC, 2023 WL 4239350, at *8 (Tex. App.—Houston [1st Dist.] June 29, 2023, pet. denied)).

Drawing on Merriam‑Webster’s Collegiate Dictionary and Epps v. Fowler, 351 S.W.3d 862, 866 (Tex. 2011), the Court endorses these characterizations as helpful in applying the statutory language, though not as a substitute for it.

The Court analogizes to Endeavor Energy, where it had construed a different but related nexus phrase under Chapter 95: a claim “arises from” the use of an improvement to real property if it “depends, in part, on proof that [the] contemporaneous use of an improvement caused the injury.” 593 S.W.3d at 311–12. Likewise, if liability in the NHTS claim depends, in part, on proof of a communication that is an exercise of free speech, the claim is “based on” that communication.

3. What Does “In Response To” Mean?

“In response to” is given its ordinary meaning: “something constituting a reply or a reaction.” Response, MERRIAM‑WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2009); see Ernst & Young, 2023 WL 4239350, at *8. A lawsuit filed as a reaction to, or to remedy harm from, certain speech is “in response to” that speech.

4. Application to the NHTS Claim

The NHTS cause of action in Walgreens has two essential negligent acts:

1. Walgreens’ own negligence in hiring, training, and supervising the employee; and
2. The employee’s tortious accusation and report—communications accusing McKenzie of theft and prompting her detention.

The employee’s communications are plainly “communications made in connection with a matter of public concern”—the “commission of crime.” See Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017) (identifying “commission of crime” as a matter of public concern).

Because McKenzie cannot prevail on NHTS without proving that underlying tortious communication and its causal role, the claim is “based on” the exercise of free speech as the TCPA defines it. It is also “in response to” those communications; she filed suit precisely because of them.

The Court, while acknowledging the seriousness of false criminal accusations, emphasizes that its conclusion results from the breadth of the statutory definition and is not a judgment on the legitimacy of McKenzie’s grievances:

“Wrongfully accusing someone of a crime, especially in public, subjects the innocent person to humiliation, the threat of arrest and detention, and possibly even more dire consequences…. Nevertheless, these allegedly tortious acts undoubtedly consisted of ‘communication[s] made in connection with a matter of public concern.’ … This conclusion is simply a consequence of the statute’s sweep; it in no way suggests that the Court regards McKenzie’s allegations as specious or her experience as insignificant.”

D. Corporate Parties and Vicarious “Exercise” of Free Speech

One subtle but important point is whether a corporate defendant can invoke the TCPA based on an individual employee’s speech, especially when the employee is not a named party.

The statute authorizes a motion to dismiss if a legal action is based on or in response to “a party’s exercise” of a protected right. § 27.003(a) (emphasis added). McKenzie sued Walgreens, not the employee; the employee’s communications are the ones at issue.

The Court answers this by:

• Recognizing that “[c]orporations can act only through human agents.” In re Merrill Lynch Tr. Co. FSB, 235 S.W.3d 185, 188 (Tex. 2007).
• Noting that the TCPA’s purpose refers to “persons,” and under the Code Construction Act, “‘Person’ includes corporation, organization, government … and any other legal entity,” unless context indicates otherwise. Tex. Gov’t Code § 311.005(2); see In re Transcon. Realty Invs., Inc., 271 S.W.3d 270, 272 (Tex. 2008).
• Emphasizing that the Legislature chose the phrase “a party’s exercise” of free speech, not “a natural person’s” or some narrower term. See Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009) (presume Legislature chose words carefully).

Because McKenzie alleged and Walgreens conceded that the employee acted as Walgreens’ agent, his communications are attributed to the corporate party for TCPA purposes. Thus, Walgreens can qualify as the “party” whose protected speech triggered the TCPA.

E. Prima Facie Case and the Failure of the NHTS Claim

1. The “Clear and Specific Evidence” Burden

Once Walgreens carried its burden to show TCPA coverage, the burden shifted to McKenzie. Section 27.005(c) requires her to establish, by “clear and specific evidence,” a prima facie case for each essential element of NHTS.

“Prima facie case” means evidence that, if not rebutted, would be legally sufficient to support a judgment in her favor on each element. “Clear and specific evidence” is more than bare allegations or general averments; it demands concrete, non‑conclusory facts.

2. What McKenzie Needed to Show

Under Endeavor Energy and Wansey, McKenzie had to present evidence on at least these elements:

1. governing Walgreens’ hiring, training, and supervision of this type of employee,
2. Breach of that standard in hiring, training, or supervising the employee who accused her,
3. Employee misconduct (here, the allegedly false accusations and detention), and
4. Proximate causation: that both Walgreens’ negligence and the employee’s tortious conduct were proximate causes of McKenzie’s injuries.

The employee’s alleged conduct (false accusation and detention) was described in detail, but the NHTS theory required specific proof about Walgreens’ corporate conduct.

3. The Evidentiary Gap

The Court finds the record devoid of clear and specific evidence on four key points:

1. Any evidence about the employee’s hiring, training, supervision, or retention by Walgreens;
2. Any evidence of the applicable standard of care for hiring/training/supervising employees tasked with loss prevention or customer interaction;
3. Any evidence of how Walgreens’ actions fell below that standard (breach); and
4. Any evidence connecting such breach to the incident as a matter of proximate causation.

Without such evidence, McKenzie could not meet her TCPA burden. The Court underscores that false accusations of theft are indeed serious and that employers “would be well advised” to train employees to handle such situations carefully. But advisability is not evidence; TCPA requires more than generalized assertions or inferences.

As a result, the Supreme Court holds that the trial court erred in denying Walgreens’ TCPA motion as to NHTS, and it renders judgment dismissing that claim.

F. Cross‑Issues and TCPA Exceptions

1. IIED and the Lack of a Petition for Review

McKenzie argued that the court of appeals improperly dismissed her IIED claim based on absence of physical injury and that mental anguish damages can be recovered without bodily injury in some torts, such as defamation. See Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002).

The Supreme Court does not reach the merits of this argument for two reasons:

• Procedural bar: A party seeking to alter the court of appeals’ judgment must file a petition for review. Tex. R. App. P. 53.1. McKenzie did not do so, so she cannot obtain affirmative relief (i.e., reinstatement of her IIED claim).
• Factual premise: The court of appeals did not dismiss IIED for lack of bodily injury but for failure to show “extreme and outrageous conduct,” a requisite IIED element. See Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017).

2. Timeliness of Walgreens’ Petition

McKenzie contended that Walgreens’ petition was premature because motions for rehearing and en banc reconsideration were still pending below. The record showed those motions were denied on October 12, 2023, and Walgreens filed its petition on December 12, 2023, well within the applicable deadline. The Court rejects the timeliness challenge.

3. Waiver and Inapplicability of TCPA Exceptions

McKenzie raised, for the first time in the Supreme Court, two TCPA statutory exceptions:

• Commercial‑speech exception (§ 27.010(a)(2)), and
• Bodily‑injury exception (§ 27.010(a)(3)).

The Court holds she waived these arguments by failing to raise them in the trial court or the court of appeals. It analogizes to general rules that exceptions or exemptions must be pleaded and preserved:

• Tex. Comptroller of Pub. Accts. v. Att’y Gen. of Tex., 354 S.W.3d 336, 341 (Tex. 2010) (agency waives FOIA exemptions it fails to raise initially);
• Paragon Sales Co. v. N.H. Ins. Co., 774 S.W.2d 659, 661 (Tex. 1989) (policy exclusions and exceptions must be pleaded as affirmative defenses).

Even if not waived, the Court indicates the exceptions would not apply:

• Commercial‑speech exception: Under Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018), the statement or conduct must arise out of a commercial transaction involving the kind of goods or services the speaker provides and be directed at an actual or potential customer. McKenzie did not show that the employee’s statements to police or other patrons about alleged theft arose out of a commercial transaction relating to Walgreens’ goods/services, or that the intended audience was actual/potential customers in that sense.
• Bodily‑injury exception: McKenzie described injuries like elevated blood pressure, fatigue, and sleeplessness. Citing City of Tyler v. Likes, 962 S.W.2d 489, 495–96 (Tex. 1997), the Court notes that “minor physical symptoms…such as difficulty sleeping” are not “serious bodily injuries” sufficient to support mental‑anguish recovery, and by extension are insufficient to trigger the bodily‑injury exception.

V. Precedents and Authorities: How They Shape the Decision

1. TCPA and Statutory Construction Cases

• McLane Champions, LLC v. Houston Baseball Partners LLC, 671 S.W.3d 907 (Tex. 2023): Cited for the basic TCPA procedural framework—early dismissal and expedited review.
• TGS‑NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011): Provides the general rule of statutory construction: give effect to plain meaning, consider the statute as a whole, presume each word has a purpose, and avoid adding words absent from the text.
• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009): Supports the presumption that deletion of “relates to” in the 2019 TCPA amendment is meaningful.
• Intermediate TCPA cases (Newstream Roanoke, Apache Corp., Ernst & Young): Used to illuminate how “based on” and “in response to” have been understood as “gravamen,” “factually predicated on,” and “main ingredient.” The Supreme Court endorses these as helpful but non‑dispositive.

2. Employer Liability and NHTS Cases

• Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125 (Tex. 2018): Clarifies that respondeat superior is not an independent cause of action—relevant to understanding which claims stand or fall on their own.
• Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307 (Tex. 2019): Provides the structural template for NHTS claims and the “arises from” nexus concept, which the Court analogizes to “based on.”
• Wansey v. Hole, 379 S.W.3d 246 (Tex. 2012): Confirms that negligent hiring requires foreseeability of misconduct and resulting damages.
• Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010): Shows the Court’s caution around NHTS when statutory schemes (such as Chapter 21) may supplant common‑law employer‑liability theories.

3. Speech, Crime, and Public Concern

• Brady v. Klentzman, 515 S.W.3d 878 (Tex. 2017): Recognizes “commission of crime” as a matter of public concern. This supports treating the employee’s accusations and police report as TCPA‑protected speech.
• Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002): Cited in McKenzie’s argument on mental anguish damages; the Court notes its rule that defamation per se can support mental‑anguish recovery but finds the argument procedurally barred here.

4. Corporate Personhood and Agency

• In re Merrill Lynch Tr. Co. FSB, 235 S.W.3d 185 (Tex. 2007): Emphasizes that corporations act through human agents; supports imputing an employee’s communications to the corporate party for TCPA purposes.
• In re Transcon. Realty Invs., Inc., 271 S.W.3d 270 (Tex. 2008) & Tex. Gov’t Code § 311.005(2): Confirm that “person” includes corporations unless context suggests otherwise.
• Kappus v. Kappus, 284 S.W.3d 831 (Tex. 2009): Stands for the principle that courts presume the Legislature chooses words intentionally; here, “a party’s exercise” of the right of free speech.

5. Exceptions and Waiver

• Tex. Comptroller of Pub. Accts. v. Att’y Gen. of Tex., 354 S.W.3d 336 (Tex. 2010): Supports the rule that statutory exemptions (FOIA in that case) are waived if not invoked timely.
• Paragon Sales Co. v. N.H. Ins. Co., 774 S.W.2d 659 (Tex. 1989): Analogous rule that policy exclusions/exceptions must be pleaded as affirmative defenses.
• Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018): Defines requirements for the TCPA’s commercial‑speech exception, guiding the Court’s conclusion that it does not fit these facts.
• City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997): Clarifies that minor physical manifestations (e.g., sleeplessness) are not “serious bodily injuries” for damages purposes; informs the Court’s skepticism that such harms trigger the TCPA bodily‑injury exception.
• Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017): Sets out IIED elements including extreme and outrageous conduct.

VI. Complex Concepts Simplified

1. What Is the TCPA (Texas Citizens Participation Act)?

The TCPA is an “anti‑SLAPP” law. “SLAPP” stands for “Strategic Lawsuit Against Public Participation”—lawsuits filed primarily to silence or punish people (or entities) for speaking out or participating in public affairs, rather than to remedy genuine wrongs.

The TCPA allows defendants to seek early dismissal of suits that target:

• Free speech,
• Petitioning the government (e.g., filing lawsuits, reporting to public agencies), or
• Association.

To prevent abuse of the TCPA, the statute also:

• Places the burden on the defendant initially to show the statute applies,
• Requires the plaintiff, once coverage is shown, to come forward with concrete proof of each element of the claim, and
• Permits certain exceptions (e.g., commercial‑speech and bodily‑injury exceptions) to keep some important categories of cases outside the statute’s reach.

2. “Based On” vs. “In Response To”

• “Based on”: The claim’s core depends on the speech. The speech is a “main ingredient” or “fundamental part.” You cannot prove the claim at all without proving the speech.
• “In response to”: The lawsuit is filed as a reaction to the speech. The speech prompted the lawsuit, even if the claim also involves other facts.

The Supreme Court in Walgreens emphasizes that these phrases do not require the claim to be only about the speech; it is enough that speech is a necessary component of liability or the occasion for the suit.

3. What Is a Prima Facie Case with “Clear and Specific Evidence”?

In a TCPA context, a plaintiff cannot survive on vague allegations. “Clear and specific evidence” means:

• Concrete facts, not just conclusions or recitations of legal elements,
• Evidence that could reasonably support a jury finding on each element, and
• Evidence detailed enough to show more than a mere possibility of liability.

For negligent hiring, training, or supervision, this almost always requires:

• Testimony or documents describing how employees are actually hired and trained,
• Evidence of industry or internal standards,
• Evidence of where the defendant deviated from those standards, and
• Explanation of how those deviations foreseeably led to the harm.

4. Negligent Hiring, Training, and Supervision vs. Respondeat Superior

• Respondeat superior makes the employer vicariously liable for an employee’s torts committed in the course and scope of employment. The focus is on the employee’s conduct, not the employer’s internal policies.
• NHTS is a direct‑liability theory against the employer. It alleges the employer acted negligently in:
  • Hiring someone unfit,
  • Failing to train properly, or
  • Failing to supervise or retain properly.
  The focus is on the employer’s own conduct and systems, plus the foreseeability that this negligence would lead to an employee’s misconduct.

In Walgreens, only the direct‑liability NHTS theory remained at issue; the vicarious theories had already been dismissed under the TCPA at the court of appeals and were not before the Supreme Court.

5. TCPA Exceptions: Commercial Speech and Bodily Injury

• Commercial‑speech exception (§ 27.010(a)(2)):
  • Applies when the defendant is primarily engaged in selling or leasing goods/services,
  • The statements or conduct arise out of a commercial transaction related to those goods or services, and
  • The intended audience is an actual or potential customer.
  It is designed to ensure that certain business disputes—e.g., consumer‑protection cases or competitor false‑advertising disputes—are not swept into the TCPA.
• Bodily‑injury exception (§ 27.010(a)(3)):
  • Excludes from the TCPA “a legal action seeking recovery for bodily injury.”
  • “Bodily injury” is generally understood to mean actual physical harm of some significance, not minor symptoms that accompany emotional distress.

Walgreens underscores that exceptions must be timely raised in the trial court to be preserved and that not every claim with some physical manifestation of distress fits the bodily‑injury exception.

VII. Impact and Future Implications

A. Expanded TCPA Reach Over Employer‑Liability Claims

The central doctrinal impact of Walgreens v. McKenzie is that the TCPA will now routinely apply to NHTS (and similar direct‑liability) claims whenever:

1. The alleged underlying employee misconduct consists, at least in part, of communications covered as “free speech” under the TCPA (e.g., defamation, complaints to regulators, reports to police, whistleblowing, public accusations), and
2. The plaintiff sues the employer for negligent hiring, training, or supervision based on that misconduct.

Put differently, a plaintiff cannot avoid the TCPA by repackaging a speech‑based tort against an employee (such as defamation or a wrongful police report) as an NHTS claim solely against the employer.

B. Strategic Consequences for Plaintiffs

• Higher up‑front burden: Plaintiffs asserting NHTS must be prepared, at the very early TCPA stage, to present real evidence about the employer’s hiring and training practices. Waiting for fuller discovery may no longer be viable if the claims are speech‑based.
• Pleading strategy: Plaintiffs may need to:
  • Plead and support traditional torts (e.g., false imprisonment, defamation) alongside NHTS,
  • Anticipate and argue TCPA exceptions from the outset, and
  • Consider whether to sue the employee individually or focus on non‑speech‑based theories (e.g., physical restraint without communication) if available.
  • Evidence planning: Early investigation into company policies, training manuals, and hiring records, possibly via limited TCPA discovery, will be critical.

  C. Advantages for Corporate Defendants

  • Broader TCPA shield: Corporations can invoke the TCPA whenever their employees’ speech on matters of public concern (crime reports, safety complaints, regulatory filings) gives rise to suit—even if the filed claim is styled as negligent hiring or supervision.
  • Early exit opportunities: With a successful TCPA motion, defendants can avoid full discovery and the expense of protracted litigation, and may potentially recover attorney’s fees and sanctions under other TCPA provisions (not discussed at length in this opinion).

  D. Effects on False Accusation / False Imprisonment Litigation

  Cases involving wrongful accusations to law enforcement—like false shoplifting detentions—will now more frequently confront TCPA hurdles. Plaintiffs will have to:

  • Demonstrate clear prima facie evidence of direct negligence in hiring/training, or
  • Find non‑speech‑centered legal theories (e.g., purely physical restraint elements of false imprisonment) that do not depend on the communicative accusation.

  The Court’s recognition that false accusations can be highly serious, yet still qualify as protected speech for TCPA purposes, may spur legislative calls to carve out more explicit exceptions for some types of false reports, especially to law enforcement. For now, however, the statute’s “sweep” remains broad.

  E. Clarification of TCPA Nexus Standard Post‑2019

  The decision provides important guidance on the post‑amendment TCPA nexus:

  • The removal of “relates to” has indeed narrowed the statute, but
  • The remaining “based on or in response to” still covers claims where protected speech is a main ingredient, fundamental component, or factual predicate, even if not the only one.

  This clarification will affect a wide range of torts that are partially but not entirely speech‑based, including:

  • Business disparagement and defamation blended with non‑speech conduct,
  • Negligent misrepresentation claims where communications mix with transactional conduct, and
  • Hybrid torts (e.g., invasion of privacy by publication plus physical intrusion).

  F. Preservation and Exceptions: A Warning for Litigants

  The opinion reinforces a procedural lesson:

  • Raise TCPA exceptions early and explicitly in the trial court, or they will likely be deemed waived.
  • Be precise about injury types: Merely alleging sleep loss or stress‑related symptoms may not be enough to invoke the bodily‑injury exception.

  This will shape how plaintiffs draft pleadings and how they frame their damages (physical vs. purely mental/emotional) when they anticipate or face a TCPA motion.

  VIII. Conclusion

  Walgreens v. McKenzie establishes a clear and influential rule in Texas anti‑SLAPP jurisprudence:

  The TCPA applies to negligent hiring, training, and supervision claims whenever at least one of the required underlying tortious acts is itself “a communication made in connection with a matter of public concern,” and the claim is thereby “based on or in response to” the defendant’s (including a corporate defendant’s) exercise of the right of free speech.

  The Court:

  • Rejects a restrictive “entirely based on” standard for TCPA coverage,
  • Confirms that corporate parties can invoke the TCPA via their agents’ communications,
  • Reiterates that plaintiffs must produce clear and specific evidence of each element of their claims at the TCPA stage—including standards of care, breach, and causation for NHTS, and
  • Emphasizes the importance of timely raising statutory exceptions.

  Practically, the decision broadens the TCPA’s protective reach over employer‑liability claims rooted in employees’ speech—particularly reports of suspected criminal activity—while sharpening the evidentiary and procedural expectations placed on plaintiffs. Normatively, it highlights the ongoing tension between safeguarding robust public participation (including reporting crime) and ensuring meaningful remedies for individuals harmed by false or reckless accusations.

  In the broader Texas legal landscape, Walgreens will stand as a leading precedent on:

  • The interpretation of “based on or in response to” under the post‑2019 TCPA,
  • The treatment of NHTS claims under anti‑SLAPP scrutiny, and
  • The allocation of burdens and preservation rules for TCPA exceptions.

  Future litigants and courts will likely look to this opinion as the primary guide when confronting any claim where employer negligence intersects with employee speech.