Briefs Filed from Both Sides with the 10th Court of Appeals
Briefs were filed from both sides and on November 4, 2015, oral arguments were heard by the justices on the appeals court.
Andy Lucas as the State of Texas brief
Lucas, as the State of Texas, essentially argued that Removal Actions are exempt from the TCPA, that the TCPA was not intended to apply to a removal action, and that the State established a clear and specific case for removal.
The county attorney is charged with representing the State of Texas in all cases in the district and inferior courts in their respective counties. Tex. Const. Art. 5 §21. County officers may be removed by Judges of the district courts for incompetency, official misconduct, habitual drunkenness, or other causes defined by law, upon the cause therefore being set forth in writing and the finding of its truth by a jury. Tex. Const. Art. 5 §24. A petition for removal of the officer must be filed by a resident of the county in the district court alleging specific grounds for removal. Tex. Loc. Gov’t Code §87.015. The trial for the removal of the officer must be brought in the name of the State of Texas on the relation of the filing
citizen with the county attorney representing the State. Tex. Loc. Gov’t Code 7.018.
As have mentioned elsewhere, it was entirely discretionary for Andrew Lucas to take on Darrell Best’s petition. He could have ignored it as specious and frivolous and realized Best was trampling upon the first amendment of the constitution. 158
The remedy of ouster protects the interests of the people as a whole and guards the public welfare by ousting incumbents who wrongfully hold office, to the injury of the public, and the remedy belongs to the State in its sovereign capacity. State ex rel. Hancock v. Ennis, 195 S.W.2d 151 (Tex.App.‐San Antonio 1946, writ
refused). The right is a “public right” as distinguished from a “private right” and the attorney for the State maintains exclusive control of the suit 2. The TCPA was not intended to apply to the facts as presented in this removal case.
The TCPA was enacted to curb so‐called “SLAPP suits,” which commentators have defined as “legally meritless suits designed, from their inception, to intimidate and harass political critics into silence.”
Oral Arguments Nov 4 2015-Lucas told the 10th Court of Appeals justices that he didn't have to pursue the case
We showed up at the Waco 10th Court of Appeals early on November 4, 2015 . I had been there once before, in support of a local resident named Joelle Ogletree, so I remembered that the courtroom was spacious, with the justices sitting behind a dais at the front, and about 3‐4 rows of seats on each side. Paul’s attorneys were there, the lead attorney, Mary, had come prepared with a poster and presentation on just what the TCPA was and how this case fit the criteria. What was odd to me was that when Andy Lucas came in, instead of sitting on the other
side of the room, he sat on our side, behind Mary. There was one appeal that was being heard before us, so we patiently waited for them to make their case before the court.
I did not know that the justices would, besides hearing the case presented to them, be asking questions. In fact, it was wonderful that they did, because they were able to find out particulars from both Paul’s attorneys and from Andy Lucas that they would not have known in a different court venue, as, for example, Andy Lucas wouldn’t have been questioned in district court.
About whether other districts paid no taxes‐ Hood County doesn’t. (In fact, a couple of the Somervell County Commissioners had previously gone to Lake Granbury Medical Center to discuss a 3rd party deal before the hospital district passed. They wanted to try to get the same no‐tax hospital district deal that Hood County has.) About 3rd party private hospitals run by business. One judge liked that.
One of the most fascinating parts of the hearing was when Lucas was asked by the justices his motivations and actions regarding the petition. “Did you Have to Act On the Petition?
Asked if he *had* to act on the petition. At first he said yes, and then he said no he didn’t have to
Asked about why he did it. Said he was concerned that Paul was trying to harm the district (hospital?)
Asked if he would have done the same if it was a drunk. He said he didn’t know. What’s absurd about that answer is that intoxication is one of the 3 valid reasons for trying to remove an elected official from office, and Lucas apparently didn’t take that seriously.
Lucas threatened Harper in the hallway after the court hearing. We were standing there with Paul's attorneys and Andy said "“I’m still going to go after Paul with a jury trial after this is over”. Arrogance. As if the appeal was a mere blip in the road that prevented him from harassing Paul some more with a jury trial.
Before the Ruling, Insurance Company Required Harper to offer to settle
Paul Harper put in an offer to settle May 2016
Paul was called by his attorney in May 2016 and told that the insurance company wanted to make a settlement offer to Andy Lucas. The offer was actually pretty good. The insurance company would forgo the entire amount of the lawsuit sans the 25k that Paul was owed and another 25k. Paul did not want to do it as he was certain he would win out in the Motion for Rehearing that Lucas had filed, but the insurance company said that if he didn’t, they could decide not to cover any more of the lawsuit. The offer was made, and astoundingly, Lucas turned it down. He said there was no money to pay it, and he’d ride it out. I have to think he must have thought Paul was making the offer because he thought he would lose and that gave Lucas confidence to ignore the offer.
Alternatively, Somervell County was also involved in a lawsuit with Luminant over property taxes at that time, and were cutting back on other government services in response.
10th Court of Appeals Opinion April 2016 "We Agree with Harper"
On April 21, 2016, the appeals court ruled in Paul’s favor on all counts and issued a judgement against the State
IN THE TENTH COURT OF APPEALS
No. 10-15-00105-CV PAUL REED HARPER, Appellant
v. GEORGE DARRELL BEST, Appellee
From the 249th District Court Somervell County, Texas Trial Court No. C10369
O P I N I O N
George Best filed a petition to remove Paul Reed Harper as a board member of the Somervell County Hospital District. The State of Texas assumed the role of plaintiff pursuant to section 87.018(b) and (d) of the Texas Local Government Code. TEX. LOC. GOV’T CODE ANN. § 87.018(b), (d) (West 2008). Harper filed a motion to dismiss pursuant to the Texas Citizens Participation Act or TCPA (also known as the “Anti-SLAPP” statute), see TEX. CIV. PRAC. & REM. CODE ANN. § 27.001, et seq. (West 2014), alleging that the removal petition was based on Harper’s exercise of his right to petition and/or his right of free speech. Id. §27.005(b). After a hearing, the trial court overruled Harper’s motion to dismiss because the trial court did not “think the County or the State brought this with any animosity to try to prevent anything.” Because the trial court erred in denying Harper’s motion to dismiss, the trial court’s order is reversed and this case is remanded to the trial court for the rendition of an order granting Harper’s motion to dismiss and to consider Harper’s request for court costs, reasonable attorney’s fees, and sanctions. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a) (West 2014).
Harper was unhappy with the operations of the Somervell County Hospital District. In particular, he was unhappy with being taxed to operate the hospital. He ran for election as a hospital district board member. He ran on the platform that he would vote to set the hospital district tax rate at zero. The State alleged that once elected, Harper tried to fulfill his campaign promise. At a board meeting, he allegedly responded to a motion to set the tax rate with the comment, “I’d vote for zero.” Later, a blog posted by Harper’s wife was critical of the hospital administrator and other board members. Further, at some point, Harper had text communications with other board members regarding what he believed were various problems with the hospital district and the hospital and its administration. Best, a citizen of Somervell County, filed a petition to remove Harper as a board member of the hospital district pursuant to Chapter 87, Subchapter B of the Texas Local Government Code alleging Harper was incompetent by gross ignorance of his official duties and gross carelessness in discharging those duties. See TEX. LOC. GOV’T CODE ANN. §§ 87.013 and 87.015 (West 2008). The basis of Best’s petition was that Harper’s efforts to set the tax rate at zero were contrary to the continued existence of the hospital which, in turn, was contrary to the bylaws of the hospital district.
The State subsequently appeared in the suit and amended the style of the case to reflect that the petition for removal was brought in the name of the State and on the relation of Best. See id. § 87.018(b), (d); see also Garcia v. Laughlin, 285 S.W.2d 191, 194 (Tex. 1955) (“Individual citizens have no private interest distinguishable from the public as a whole and have no right to maintain an ouster suit without being joined by a proper state official.”). The State added a claim that Harper violated the Open Meetings Act by communicating with other board members by text. In layman’s terms, the State takes the position that, by trying to reduce or eliminate the hospital district tax, Harper committed treason against the hospital district which, once elected, Harper had taken an oath to protect. Or, in other words, the State’s argument is that by not voting to tax the citizens to allow for the continued existence of the hospital,
Harper has failed in his duties to the hospital district.
This case presents a new question in the evolution of a citizen’s interaction with government. On one side of the issue is a courthouse that is open to all types of suits; including suits for the removal of incompetent elected officials. On the other side is the use of the judicial process to stop citizens who choose to speak out on subjects of political importance. The question, as applied to this suit, is whether we have arrived at the place where an unhappy politically active citizen who runs for office and is elected in a general election can then be charged as incompetent when, as an elected officeholder, the elected official tries to constrain or even eliminate the organization to which he was elected. If the State of Texas can maintain a suit to hold an elected official incompetent under these circumstances, we have effectively criminalized the ability to shrink government by the political process. Historically there would be no way to summarily stop such a suit.
However, even before recent legislation to provide a summary means to stop such suits from going forward, the Beaumont Court of Appeals explained why courts should not get involved in this type of dispute over essentially political decisions. See Harper v. Taylor, 490 S.W.2d 227, 229-230 (Tex. App.—Beaumont 1972, no writ). The issue in Harper v. Taylor involved the sufficiency of the evidence to remove members of a school board for their decision to remove a superintendent. In arriving at a determination that the appellees’ remedy was political, not judicial, the appellate court stated:
Ours is a system of checks and balances and was devised by men who feared too much concentration of power and dispersed it at some cost, at times, to efficiency in government. No division of our democracy, and no individual, be he judge or otherwise, has any monopoly on the knowledge of the route society must take to reach a better and more just
way of life. When public officials manifestly violate their duty, courts must have the courage to remove them or negate their actions. But where in a discretionary decision, such as here, the most that can be said is that perhaps poor judgment was used; for the courts to fly in and substitute their judgment for that of elected officials would be to undermine the very foundation of our political system. For over the long haul, we hew to the belief that the wisdom and instincts of the electorate is preferable to any other system of government devised by man. Id. at 230. The pro- and anti-superintendent factions could be compared to the tax and no-tax factions in this case.
This case addresses that concern headlong and forthright under new legislation to protect the participation of citizens in the political discourse on topics of public concern. We conclude the government cannot proceed with this type litigation against a citizen engaged in that public discourse, even when that citizen is trying to dismantle the entity to which they are elected.
TEXAS CITIZEN PARTICIPATION ACT
In three issues on appeal, Harper asserts the trial court erred in denying Harper’s motion to dismiss because the claims
against Harper were based on, related to, or were in response to Harper’s right to petition government and his right to free speech; the State did not present “clear and specific evidence” of a prima facie case of its claims; and if it did,
Harper’s affirmative defense of legislative immunity exempts Harper from the claims.
The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015). The Act provides a special procedure for the expedited dismissal of such suits. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a) (West 2014) (“If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.”). A twostep process is initiated by the motion of a defendant who believes that the lawsuit is in response to the defendant's exercise of First Amendment rights. Lipsky, 460 S.W.3d at 586. Under the first step, the burden is on the movant, typically a defendant, to show "by a preponderance of the evidence" that the plaintiff's claim "is based on, relates to, or is in response to the [defendant’s] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b) (West 2014); Lipsky, 460 S.W.3d at 586-87. If the defendant is able to demonstrate that the plaintiff's claim implicates one of these rights, the second step shifts the burden to the plaintiff to establish by “clear and specific evidence a prima facie case for each essential element of the claim in question." TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) (West 2014); In re Lipsky, 460 S.W.3d at 587.
Within defined time limits, the trial court must rule on the motion and must dismiss the plaintiff's claim if the defendant's constitutional rights are implicated and the plaintiff has not met the required showing of a prima facie case. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005 (West 2014); In re Lipsky, 460 S.W.3d at 587. In determining whether the plaintiff's claim should be dismissed, the trial court is to consider the pleadings and any supporting and opposing affidavits. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a) (West 2014); In re Lipsky, 460 S.W.3d at 587.
The TCPA provides exceptions to the application of the statute. As relevant to this case, the TCPA “does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.10(a) (West 2014).1 So before determining whether the trial court erred in denying Harper’s motion to dismiss, we must first address the State’s contention at trial and on appeal that it is exempt from the application of the TCPA, and thus Harper is not entitled to a dismissal, because the State brought an enforcement action against Harper.
The question is: what is an enforcement action? That phrase is not defined by the statute. Words and phrases that are not defined by statute and that have not acquired a special or technical meaning are typically given their plain or common meaning. In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015); FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys.,
255 S.W.3d 619, 633 (Tex. 2008).
The State contends the word “enforcement” should be given its plain meaning
1 There is nothing in the record to show that the trial court overruled Harper’s motion to dismiss because it determined the removal action was an enforcement action under the TCPA.
according to the definition supplied in Black’s Law Dictionary. There, the word “enforcement” means “the act or process of compelling compliance with a law, mandate, command, decree, or agreement.” BLACK’S LAW DICTIONARY (10th ed. 2014). And what the State is seeking to compel enforcement of is Harper’s compliance with the hospital district’s by-laws and Harper’s duty as a board member. Using the above definition of enforcement, the State’s argument continues, Chapter 87 of the Local Government Code, regarding removal of officers, is the State’s legal tool to compel Harper’s compliance.
But when using the above definition of enforcement, there is nothing in the removal statute with which the State is seeking to compel Harper’s compliance. There are many exemplary enforcement provisions in the various codes in Texas that specify how to obtain compliance with their provisions. See e.g. TEX. HEALTH & SAFETY CODE ANN. § 12.0145 (West 2010); TEX. INS. CODE ANN. § 43.461 (West 2009); TEX. PROP. CODE ANN. § 209.006 (West 2014); TEX. WATER CODE ANN. § 7.002 (West 2008). A removal action, however, is not one of them. Removing Harper from the board of directors for the hospital district does not result in compliance with his duties as a board member. Rather, it seeks ouster from the position, not compliance with it. Harper cannot comply with his duties if he is no longer a board member.
Further, this removal petition is not an enforcement action for the alleged Open Meetings Act violation. There is an entirely different procedure to be followed for such an enforcement action. See TEX. GOV’T CODE ANN. § 551.141 et seq. (West 2012). If the Act was violated, which we address later herein, this suit is not the method to bring an “enforcement action” in regard to that alleged violation.
Accordingly, under the facts of this case, because the removal of Harper as a hospital district board member under Chapter 87 of the Local Government Code is not an act or a process which compels compliance with a law or mandate, etc., the petition for removal is not an “enforcement action” and is not an exception to the TCPA.
DISMISSAL UNDER THE TCPA
We now move to a discussion regarding whether the State’s case should be dismissed. As stated previously, there is a two-step process to determine whether the suit should be dismissed. Under the first step, Harper contends he showed by a preponderance of the evidence that the removal petition was based on, related to, or in response to Harper’s exercise
of his right of free speech and his right to petition. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b) (West 2014); In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015).
The State does not dispute that the removal petition was based on, related to, or in response to Harper’s exercise of his right to free speech and right to petition. Rather, the State argues that the TCPA does not apply to this case because case law has developed to reflect the statute’s “intended application” such as in suits for damages, suits that limit the public’s “right to know,” and suits against non-public officials. In construing a statute, we give effect to the Legislature's intent,2 which requires us to first look to the statute's plain language. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015); Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). If that language is unambiguous, we interpret the statute according to its plain meaning. Id. We presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted. Lippincott, 462 S.W.3d at 509; In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). The TCPA's purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits. In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015). See TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (West 2014). It protects citizens from retaliatory lawsuits that seek to intimidate or silence
them on matters of public concern. Lipsky, 460 S.W.3d at 584. The language of the statute3 is unambiguous as to its purpose and how to obtain a dismissal; thus, we interpret it 2 “Legislative intent” is the phrase commonly used. It may be more appropriate to think of it as the “legislative purpose” of the statute. See Ray v. State, 419 S.W.3d 467, 468-469 (Tex. App.—Waco 2013, pet. ref’d) (discussing legislative intent and legislative purpose regarding the necessity defense). The purpose of the statute is generally more objective than the nebulous concept of the collective “intent” of a legislative body when there could be any number of intentions of individual legislators. But we will use the commonly referenced term.
3 “The purpose of this chapter is 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 ANN. § 27.002 (West 2014). “If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a) (West 2014). according to its plain language. The State’s suit attempts to remove Harper due to what he said regarding a matter before the hospital district board. Based on the plain language of the statute, this case falls within the statute’s parameters. Contrary to the State’s argument, simply because case law has not yet developed to reflect a dismissal based on the TCPA in a case such as this, does not mean the statute does not apply. Further, the State’s argument seeks to
limit the statute’s applicability when we are directed to apply it liberally. TEX. CIV. PRAC. & REM. CODE ANN. § 27.011 (West 2014); Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).
Based on or Relates to Free Speech or Right to Petition
We now discuss whether Harper met his burden to show by a preponderance of the evidence that the removal suit was based on, related to, or was in response to Harper’s exercise of his right of free speech or his right to petition. The definition of the right of free speech has two components: (1) the exercise must be made in a communication and (2) the communication must be made in connection with a matter of public concern. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3) (West 2014); Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). A communication includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(1) (West 2014). It need not be made solely in a public forum. Lippincott, 462 S.W.3d at 509. A matter of public concern includes an issue related to health
or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7) (West 2014).
Additionally, as it pertains to this case, the exercise of the right to petition is defined as a communication in or pertaining to a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity. Id. (4)(A)(v).
Harper argues that under these definitions, his oral statement made during the hospital district board meeting regarding the tax rate, his alleged blog post about the hospital district, hospital officials, and fellow board members, and his text messages about the hospital district were exercises of his right to free speech and his right to petition. We agree with
Each action complained of was an oral, written, or electronic communication made either in a public or private forum. According to Harper’s affidavit attached to his motion to dismiss, the hospital district funds in part and oversees the operations of the Glen Rose Medical Center. The Medical Center has provided care to the residents of Glen Rose and the surrounding area for over 65 years. Thus, Harper’s statement that he would “vote for zero” as the new tax rate for the hospital district is related to economic or community well-being and was made during a hospital district board meeting the by-laws of which require notice be given to the public before meetings of the board. Further, assuming without deciding the blog post was either written by or directed by Harper as the State alleges, it is a communication made in exercise of Harper’s right to free speech. Statements made about the administration of the hospital, about the hospital board members, or about the hospital itself pertain to matters of public concern, such as economic or community well-being, or public officers, as defined by the TCPA. Likewise, the texts messages discussed board policies and practices, and the actions or inactions of hospital administrators. These also pertain to matters of public concern, such as economic or community well-being, or public officers, as defined by the TCPA.
Based on our review of the petitions, exhibits, and affidavits, Harper has shown by a preponderance of the evidence that his statement at the board meeting, the blog, and the text messages were communications of public concern, and thus, the removal petition was based on, related to, or was in response to Harper’s exercise of his right of free speech or his
right to petition.
The burden to defeat a dismissal under the TCPA now shifts to the State to establish by “clear and specific evidence a prima facie case for each essential element of the claim in question." TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) (West 2014); In re Lipsky, 460 S.W.3d 460 S.W.3d 579, 587 (Tex. 2015). The phrase “clear and specific evidence” is not defined and is not a recognized evidentiary standard. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) (West 2014); Lipsky, 460 S.W.3d at 589. Although it sounds similar to clear and convincing evidence, the phrases are not legally synonymous. Lipsky, 460 S.W.3d at 589. However, proof by clear and specific evidence is not simply “fair notice” of a claim. Id. at 590. Rather, under the clear and specific evidence standard, a plaintiff must provide enough detail to show the factual basis for the plaintiff’s claim. Id. at 591. This is not an elevated standard, does not categorically reject circumstantial evidence, and does not impose a higher burden of proof than that required of the plaintiff at trial. Id. With this standard in mind, we turn to whether the State established a prima facie case for each essential element of its claim for removal by clear and specific evidence.
As previously stated, in determining whether the plaintiff's claim should be dismissed, the trial court is to consider the pleadings and any supporting and opposing affidavits. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a) (West 2014); In re Lipsky, 460 S.W.3d at 587. No affidavit was attached to or presented in support of the petition or supplemental petition for removal. No affidavits were presented in opposition to Harper’s motion to dismiss. Instead, the State relies on testimony presented at a hearing on the State’s motion to temporarily suspend Harper pending a jury trial on the removal petition. The hearing to temporarily suspend Harper occurred a few months prior to the hearing on Harper’s motion to dismiss. The State relies on the testimony from the earlier hearing to show that it established by clear and specific evidence a prima facie case for each essential element of its petition for removal.4 Incompetence
Chapter 87 of the Local Government Code governs the removal of county officers from office. See TEX. LOC. GOV’T CODE ANN. ch. 87 (West 2008). There is no dispute that Harper is a county officer covered by this statute. See id. § 87.012 (West 2008). According to the statute, an officer may be removed for incompetency, official misconduct, or intoxication. Id. § 87.013. Removal based on intoxication is not an issue in this case. As it pertains to this case, “incompetency” is defined by statute as gross ignorance of official duties or gross carelessness in the discharge of those duties. Id. § 87.011. A finding of incompetency, however, requires more than mere error in judgment. De Anda v. State, 131 S.W.3d 198, 202 (Tex. App.—San Antonio 2004, no pet.).
As stated previously, George Best alleged in his initial petition for removal, which the State adopted when it substituted itself in place of Best, that Harper was incompetent by gross ignorance of his official duties and gross carelessness in discharging those duties. Quoting the hospital district’s by-laws, the petition alleged that, as a director of the hospital district board, Harper was required to “discharge the director’s duties in 4 We have grave doubts about whether the State can use, under the guise of “judicial notice,” the testimony from the
hearing to temporarily suspend Harper pending the outcome of the removal petition. However, with or without the testimony, the result is still the same; and neither party has complained about or objected to the use of the testimony.
Accordingly, we will resolve the issues without regard to the manner the evidence was brought before the trial court. We note, however, that the proper way to have a trial court consider testimony from a prior hearing is to properly authenticate a transcription of the testimony and enter it into evidence. See Davis v. State, 293 S.W.3d 794, 798 (Tex. App.—Waco 2009, no pet.). good faith, with ordinary care, and in a manner the director reasonably believes to be in the best interest of the District.” (emphasis in petition). According to the petition, Harper’s “stated intention” to set the tax rate at zero and a blog post that accused the hospital administration of illegal activity were “clearly not in the best interest of the District.” The petition also listed the prohibited activities of a director as stated in the hospital district’s by-laws. The lists of prohibited activities include: do any act in violation of the by-laws; do any act with intention of harming the hospital district; or do any act that would make it impossible or unnecessarily difficult to carry on the intended or ordinary business of the hospital district. Although not clearly articulated in the petition, it appears that Best believed Harper’s statement about the tax rate and the blog post were acts prohibited by the by-laws. The State also added an allegation in its supplemental petition that Harper’s text messages to other board members constituted incompetence because Harper advocated a position contrary to the hospital district’s bylaws.
The State argues on appeal that Harper’s attempt to set the tax rate at zero was an official act as a director for the hospital district and, as a director, Harper was prohibited from harming the hospital district and its operations. The State also argues that Harper was harming the hospital district and its operations by his text message to another board member cknowledging that if they could not stop the tax, the voters should have the opportunity to have a say in paying the tax or dissolving the hospital district. acknowledged in that text that dissolution of the hospital district “would likely close the hospital.”
But there was no evidence that Harper did anything; no evidence that Harper took an official action or made an official motion about which Best and the State complain that demonstrated Harper’s incompetence. Earl Ray Reynolds, the hospital’s administrator, testified at the hearing for temporary suspension that there was a meeting of the board of directors to set the hospital district tax rate which had been previously set by a temporary board. Reynolds recalled that, as a part of the discussion on the tax rate, Harper suggested that the tax rate be set at zero. Reynolds and Best, who also testified at the hearing, agreed there was no vote on Harper’s suggestion. Best testified that a motion was made to set the tax rate and Harper “jumped in” and said, “I’d vote for zero.” Best acknowledged that the chair did not recognize Harper, no one seconded Harper’s statement, and the discussion as to the tax rate ended. Further, the board ultimately voted to set the tax rate at an amount greater than what the temporary board had set.
This is not like the situation in Tautenhahn v. State, 334 S.W.2d 574, 585 (Tex. Civ. App.—Waco 1960, writ ref’d n.r.e.) where the appellate court found the evidence to be sufficient to support the removal of certain school board trustees for incompetency. There, the trustees deliberately set (moved, seconded, discussed, voted, and approved) a tax
rate at an amount which was insufficient to operate the school for the entire term. Here, Harper simply made a statement about what tax rate he would support. There was no motion, no second, no discussion, and no vote.5 As to the text message, Harper testified that, although he only recalled making the statement as to the voters deciding dissolution, he agreed that dissolution of the hospital district would likely close the hospital. This text, however, was not an official act or a call to action by the other board members. Harper stated he was not trying to influence the other board members. His testimony was that he tries to convince people of his way of thinking at the board meetings.
Accordingly, the State did not establish by clear and specific evidence that Harper’s comment about setting a tax rate of zero or his text message acknowledging possible or probable closure of the hospital if the voters wanted dissolution of the district constituted gross ignorance of or gross carelessness in discharging Harper’s official duties.
As to the blog post, the State argues that the information depicted in it could have only come from Harper and showed Harper’s “complete disdain for the entity he is charged with representing both competently and with good faith.” The domain for the blog was owned by Harper, but the blog was operated and managed by Harper’s wife, Debbie. Further, although Harper had told Debbie what had happened at the board meeting where he made the zero tax rate comment, the opinions expressed in the blog
5 We express no opinion on whether the outcome of this proceeding or the analysis would be any different if Harper had formally taken some action to lower or reduce the district’s tax rate. were Debbie’s. When asked if he could keep Debbie from posting her opinions, Harper testified, “It doesn't matter what I think. What she wants to post, she can post. That's her business, it's not mine.” Witnesses for the State could not say that Harper ran the blog and posted the opinion. Consequently, the State did not establish by clear and specific evidence
that Harper was grossly ignorant of or grossly careless in discharging Harper’s official duties due to the opinions posted in the blog.
Further, we note that the hospital board oath does not require loyalty to the existing board members or officers of the hospital. Even if it was shown that the statements were Harper’s or could be attributed to him, he is not prohibited from seeking a change in administration and management of the district board or hospital by stating his perception of the
problems of the current board and hospital administration.
Accordingly, because the State did not establish incompetency by clear and specific evidence, the trial court erred in denying Harper’s motion to dismiss the petition to remove on those grounds.
The State also alleged in its supplemental petition that Harper should be removed from office for committing official misconduct because he violated the Open Meetings Act. “Official misconduct” means intentional, unlawful behavior relating to official duties by an officer entrusted with the administration of justice or the execution of the law. TEX. LOCAL GOV’T CODE ANN § 87.011(3) (West 2008). The term includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed on the officer by law. Id.
The State attached a series of text messages between Harper and board member, John Parker, and a series of text messages between Harper and another board member, Chip Harrison, to its supplemental petition. The State alleged that within those two sets of communications, a “walking discussion” between the three board members is seen and a dialogue with a fourth board member is referenced. Citing section 551.143 of the Texas Government Code, the State argued that this was an attempt by Harper to circumvent and thus violate the Open Meetings Act.
Generally, every regular, special, or called meeting of a governmental body shall be open to the public. TEX. GOV’T CODE ANN. § 551.002 (West 2012). As it pertains to this case, a meeting is “a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed.” Id. § 551.001(4)(A). A quorum is a majority of a governmental body. Id. (5). Section 551.143 provides that a member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent the Open Meetings Act by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of the Act. TEX. GOV’T CODE ANN. § 551.143 (West 2012). At first glance, it appears that Harper may have committed an offense by texting the two other board members. However, this provision has been construed to apply to members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of that body. Tex. Att’y Gen. Op. GA-0326, *2 (2005). See Esperanza Peace and Justice Center v. City of San Antonio, 316 F. Supp. 2d 433, 476 (W.D. Tex 2001); see also Asgeirsson v. Abbott, 773 F. Supp. 2d 684, 706-707 (W.D. Tex. 2011); Willmann v. City of San Antonio, 123 S.W.3d 469, 478 (Tex. App.—San Antonio 2003, pet. denied).
A quorum of the district’s board consists of at least four members. The texts supplied by the State show conversations between Harper and Parker and Harper and Harrison. Both sets of texts involve conversations about the tax rate and other matters regarding the hospital district and the hospital. At one point in a text to Parker, Harper stated, “I told chip [sic] [Harrison] and Eugene I had a number of motions, did not get into what they were[.] I think we are still good at this point.” Eugene was another district board member.
The State argues that this reference to Eugene established a “walking quorum” and thus, the State argues, Harper violated section 551.143 of the Open Meetings Act. Assuming without deciding that the reference established a “walking quorum,” in order to violate section 551.43, the “walking quorum” still must conduct “deliberations.” TEX. GOV’T CODE ANN. § 551.143 (West 2012). A deliberation is defined by the Act as a verbal exchange concerning an issue within the jurisdiction of the governmental body or any public business. Id. § 551.001(2). This reference to Eugene does not indicate that deliberations were conducted. Harper mentioned in his text that he told Eugene that he had several motions but that he did not “get into” the subject of those motions. Nothing was presented to show that an exchange occurred between Harper and Eugene about an issue within the jurisdiction of the board or any public business, particularly the issues discussed with Parker and Harrison. Thus, the State did not establish by clear and specific evidence that Harper committed official misconduct by violating section 551.143 which would be a violation of the Open Meetings Act.
Accordingly, the State did not establish by clear and specific evidence that Harper committed official misconduct under the removal statute, TEX. LOCAL GOV’T CODE ANN. §§ 87.013(a); 87.011(3) (West 2008), and the trial court erred in overruling Harper’s motion to dismiss on that ground. Harper’s first and second issues are sustained.6
Having determined that the trial court erred in failing to dismiss the State’s petition for removal, the trial court’s order denying Harper’s motion to dismiss signed on March 11, 2015 is reversed. This proceeding is remanded to the trial court for rendition
6 Because we sustain Harper’s second issue, we need not address his third issue regarding Harper’s affirmative defense of legislative immunity. of an order granting Harper’s motion to dismiss and for a determination of Harper’s request for court costs, reasonable attorney’s fees, and sanctions.
Before Chief Justice Gray,
Justice Davis, and
Reversed and remanded
Opinion delivered and filed April 21, 2016 [CV06
The Judgment went against the State of Texas
This Court has reviewed the briefs of the parties and the record in this proceeding as relevant to the issues raised. Because it
is the opinion of this Court that there was error in the judgment of the trial court; it is the judgment of this Court that the
judgment signed by the trial court on March 11, 2015 is reversed and remanded to the trial court for further proceedings.
It is further ordered that Paul Reed Harper is awarded judgment against the State of Texas for Paul Reed Harper’s appellate
costs that were paid, if any, by Paul Reed Harper; and all unpaid appellate court cost, if any, is taxed against the State of
A copy of this judgment will be certified by the Clerk of this Court and delivered to the trial court clerk for
SHARRI ROESSLER, CLERK
Nita Whitener, Deputy Clerk.
State of Texas Filed Motion for Rehearing in the 10th Court of Appeals May 2016
Motion for Rehearing was filed on May 2016, the 10th COA asked for a response from Harper, and State of Texas Motion for Rehearing was denied on July 13, 2016.
Brief from Andy Lucas on Motion for Rehearing from the 10th court of appeals There were, besides others, two very bizarre arguments made in this brief. One is that maybe the TCPA wasn’t a legal action. The second was that “denying a citizen’s right to petition for removal of a public official is contrary to the purpose of the TCPA.” The Texas Supreme Court ruled
that TCPA IS a legal action. And the issue is simply ridiculous about whether Darrell Best was denied his right to petition for removal of a public official. Of course he was entitled to do so, but Lucas did not have to choose to join his petition. Gives the appearance that perhaps behind the scenes it had already been decided to press forward by any means to try to remove Paul, regardless of whether it violated constitutional protections.
Response to State’s Motion for Rehearing 10th court of appeals
Paul’s attorneys main points were
1. The State Relinquished Sovereign Immunity ..................................... 1
A. State Waived Immunity from Suit When it Became a Plaintiff ..................................................................... 2
i. The County Attorney Was Not Obligated to Continue the Removal Suit ....................................................... 4
ii. State Must Be Held to Same Standards as All Other Litigants ............................................................................ 5
B. The State Waived Immunity from Liability By Failing to Plead It ...................................................................... 6
C. Governmental Entities Are Not Exempt from the TCPA ..................................................................................... 7
i. TCPA Waives Sovereign Immunity ......................................... 7
ii. The Removal Statute Should Not Limit Procedures Available to Defendants .................................................. 10
2. Remand for a Determination of Costs, Reasonable Attorneys’ Fees, and Sanctions Tacitly Concludes that
Such an Award against the State is Proper ........................................ 11
3. The State’s Arguments Regarding Application of the
TCPA and Preemption, if Not Waived, Lack Merit ......................... 13
A. The TCPA Applies in Any Suit in Which an Exception Does Not Apply ...................................................... 13
B. The Removal Action is a Legal Action .................................. 14
C. Preemption Does Not Apply ................................................... 16
Where a state voluntarily files a suit, the defendant will be entitled to plead and prove all matters properly defensive. Id. This includes the right to make any defense by answer or cross‐complaint germane to the matter in controversy. Id. Governmental immunity does not protect the government when it files suit because it would be “fundamentally unfair to allow a governmental entity to assert 3 affirmative claims against a party while claiming it had immunity as to the party’s claims against it.”
See Reata Const. Corp., 197 S.W.3d at 375‐76.
Here, the Somervell County Attorney, in his discretion, could have dismissed the case, as the power to control the litigation is vested solely with the County Attorney. The County Attorney chose not to dismiss, and instead moved forward with the case. The affirmative decision to move forward as Plaintiff bars the State’s argument that sovereign immunity from suit shields the State. When any party, including the State, uses the legal system to intimidate and silence another person, such manipulation threatens core values of democracy – the right to freely speak and petition the government. The TCPA protects citizens from meritless lawsuits filed against them for exercising their First Amendment right to petition, speak, and associate. The attorney’s fees, costs, and sanction award is designed to reimburse the costs of defending the improper legal action and to deter the party who brought the legal action from similar future retaliatory lawsuits. See TEX. CIV. PRAC. & REM CODE. § 27.009(a)(1)(2) (awarding attorney's fees and costs incurred); see generally Judiciary & Civil Jurisprudence Comm., Bill Analysis, Tex. H.B. 2973, 82d Leg., R.S. (2011) (explaining that SLAPP actions “chill public debate because they cost money to defend” and that H.B. 2975 would help remedy the effects such suits have upon citizens' rights). This Court’s judgment, which remands the case to the trial court for rendition of an order
granting Harper’s motion to dismiss and for a determination of Harper’s request for court costs, reasonable attorney’s fees, and sanctions against the State upholds the Legislature’s purpose of the TCPA and is in harmony with sovereign immunity law.
3. The State’s Arguments Regarding Application of the TCPA and Preemption, if Not Waived, Lack Merit The sole purpose of a motion for rehearing is to provide the appellate court an opportunity to correct any errors on issues already presented. Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 560 n.3 (Tex. App. – Tyler 2007, pet. denied). It is not proper to raise a new issue for the first time in a motion for rehearing. In re M.T., 290 S.W.3d 908, 910 (Tex. App.—Tyler 2009, no pet.). Only a complaint that arises from the court of appeals’ judgment itself, may be raised in a motion for rehearing. Bunton v. Bentley, 153 S.W.3d 50, 53 (Tex. 2004). The State’s additional arguments on rehearing, that: 1) the TCPA would unduly restrict criminal prosecutions; 2) a removal suit is not a “Legal Action” subject to the TCPA; and 3) the TCPA is preempted by the removal statute, have been waived as they are being raised for the first
time in the State’s Motion for Rehearing. TEX. R. APP. P. 33.1(a). To the extent these arguments are proper for rehearing, the State’s Motion for Rehearing should still be denied for the following reasons.
A. The TCPA Applies in Any Suit in Which an Exception Does Not Apply
The State argues that because this Court concluded that the removal suit is not an “enforcement action,” criminal prosecutions would be unduly restricted by anti‐SLAPP motions to dismiss. While this may be true, it should hardly be 14 surprising or fear inducing. The TCPA is a broadly intended statute and is designed to be used defensively in any suit in which it has not been expressly prohibited. Had the Legislature intended to exempt all prosecutorial actions, it would have specifically done so. The government has protections in place within the procedure of the TCPA to withstand a motion to dismiss as long as it can prove by “clear and specific evidence a prima facie case for each essential element of the claim.” TEX. CIV. PRAC. & REM. CODE § 27.005(c).
If, in this case, the State had been able to establish a case for each element of its claim for removal, dismissal would not be proper. The TCPA applies to all cases in which it has not specifically been exempted from use, including criminal prosecutions.
States Reply to Harper's Response to Motion for Rehearing 10th court of appeals
A few points.
The State tried to argue again that they didn’t file the removal action. Right, they didn’t file the petition of George Darrell Best, but Andrew Lucas chose to take it on as well as add an additional TOMA charge. Lucas attorneys, (for he at this point had contracted with a legal firm to represent him rather than himself) also argued that the State had sovereign immunity. Also argued that the Anti‐slapp motion by Harper didn’t ask specifically for the judgement to be against the State. Lucas attorneys wanted the 10th court of appeals to withdraw their
opinion and modify judgement to remove taxation of appellate costs against the State.
Andy Lucas changes the stylings of the lawsuit after he lost in 10th court of appeals
I found this interesting. In every case style that included Lucas as the State of Texas, he styled the case as “The State of Texas on the relation of George Darrell Best, Plaintiff. Except for the Motion for rehearing, which was styled as if it was a case between Harper and Best
The 10th Court of Appeals was not confused by this, but instead set it right in their ruling which denied State of Texas Motion to Rehear. Notice the proper style is "State of Texas ex rel George Darrell Best".
The State of Texas has filed a motion for rehearing in this appeal TEX R APP P 49.1. We requested a response. Id 49.2 The parties briefing has caused us to realize that the style of the case used in the opinion and judgment does not properly reflect the parties in this proceeding. Accordingly, this order bears the proper style of the appeal. We will not, however, withdraw and re-issue the opinion or judgment based on this technical correction to a non-substantive portion of the opinion or judgment
Motion for Rehearing Denied by !0th Court of Appeals (bolding mine)
IN THE TENTH COURT OF APPEALS
PAUL REED HARPER, Appellant
THE STATE OF TEXAS EX REL GEORGE DARRELL BEST, Appellee
From the 249th District Court
Somervell County, Texas
Trial Court No. C10369
The State of Texas has filed a motion for rehearing in this appeal. TEX. R. APP. P. 49.1. We requested a response. Id. 49.2. The parties’ briefing has caused us to realize that the style of the case used in the opinion and judgment does not properly reflect the parties in this proceeding. Accordingly, this order bears the proper style of the appeal. We will not, however, withdraw and re‐issue the opinion or judgment based on this technical correction to a non‐substantive portion of the opinion or judgment.
Further, in their role of zealous advocates, the parties have made various characterizations about our opinion and judgment and have argued about what various statements mean. We do not resolve the conflicting interpretations herein. The interpretations presented by the parties have either been decided by the judgment and are subject to review by the Texas Supreme Court or were not properly before us in the appeal because they had not been addressed by the trial court, and in our role as a reviewing court, it would not be appropriate for us to decide the issues in the first instance.
We will, however, comment on one of the conflicting interpretations because, due to the nature of the briefing, there is evidence of some confusion.
We adjudged appellate costs solely against the State of Texas and did not make the relator, George Darrel Best, jointly and severally liable for costs. TEX. R. APP. P. 43.4. The State had not asserted sovereign immunity from liability, as opposed to immunity from suit, and we are not inclined to take that issue up on motion for rehearing. See Tex. DOT v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (“Like other affirmative defenses to liability, [immunity from liability] must be pleaded or else it is waived.”); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405
(Tex. 1997). Nevertheless, the briefs have advocated their respective party’s position about the ability, if any, of the trial court on remand to award attorney’s fees, court cost, expenses, and sanctions against the State. We expressly decline to address this issue because the trial court has not determined what the amounts are and whether the amounts will be assessed against specific parties or whether it will be assessed jointly and severally against multiple parties. Accordingly, it would be premature, as merely an advisory opinion, for us to attempt to resolve that issue at this point in the proceeding.
The State’s motion for rehearing is denied.
Before Chief Justice Gray,
Justice Davis, and
Order issued and filed July 13, 2016
Lucas called Harper's Attorney After Motion for Rehearing Denied Sep 9 2016
Andy Lucas, who had already turned down a different settlement offer made before the appeals court came back with his motion for a rehearing shot down, had his own offer to make on September 9, 2016. Lucas called Paul’s attorneys . Paul rejected the below.
1. Lucas had hoped that the Texas Attorney General’s office would take on his case. They said no.
2. Although Lucas had been spending county funds on an outside attorney, Somervell County apparently told him (with no public meeting) that they weren’t going to spend any more money on that.
3. Lucas was asking if Paul would agree to just hold Best responsible and not the State of Texas.
4. Overall, Lucas said the county had no more money to spend on this. Keep in mind that this was during the time they were in a lawsuit with Luminant, who was seeking to pay significantly less property taxes and it was causing budget cuts and reductions at all levels.
5. Seemed like Lucas was fishing to see how the judgement was to be enforced, and fishing for an appropriate settlement offer.