State of Texas ex rel Darrell Best v Paul Harper - Paul Harper wins again, this time at the Texas Supreme Court (TCPA/Anti-Slapp) - 6/29/2018

Darrell Best*s incompetency claims are a transparent retaliation

State of Texas ex rel Darrell Best v Paul Harper - Paul Harper wins again, this time at the Texas Supreme Court (TCPA/Anti-Slapp) - 6/29/2018

29 June 2018 at 10:26:46 AM

Judgment from today   (Background) 

A few parts (the state of Texas in this case is Andy Lucas, attorney for Somervell County)

TCPA (Texas Citizens Participation Act)  -aka "Anti-Slapp"

Harper responds that the removal statute’s remedies are not exclusive and that the chapter itself contemplates that a defendant can rely on external defenses such as the TCPA. For example, the chapter states that “the proceedings connected with the trial” of a removal petition “shall be conducted as much as possible in accordance with the rules and practice of the court in other civil cases.” TEX. LOC. GOV’T CODE § 87.018(b). Similarly, either party “may appeal the final judgment to the court of appeals in the manner provided for other civil cases.” Id. § 87.019(a). Harper also points to our statement that “[e]xcept where otherwise provided by statute, the rules of practice governing other civil cases control” in a removal proceeding. Dishman, 359 S.W.2d at 458. We agree with Harper. 

 The TCPA expressly applies to any “legal action,” and—as we have explained—a removal petition is a legal action. See TEX. CIV. PRAC. & REM. CODE § 27.001(6). Accordingly, the TCPA applies to a removal petition. 

Darrell Best

In his original petition, Best sought Harper’s removal based on Best’s allegation that Harper “exhibited incompetency by way of gross ignorance of his official duties and gross carelessness in the discharge of those duties.” See id. § 87.011(2)(A)–(B) (“‘Incompetency’ means: (A) gross ignorance of official duties; (B) gross carelessness in the discharge of those duties[] . . . .”). Incompetency is a basis for removal under the removal statute, but it is not against the law. See id. § 87.013(a)(1). Similarly, while intoxication is also a basis for removal, and while 17 the town drunk might make a lousy official, being the town drunk is not against the law. See id. § 87.013(a)(3).   

Best’s incompetency claims are a transparent retaliation against Harper’s quixotic political beliefs. Harper opposed the hospital district’s creation. He put his beliefs into action by running for office, and the voters of Somervell County elected him on a clearly stated anti-tax platform. Best’s petition alleges Harper did exactly what he told the voters he would do upon taking office. Harper’s detractors may disagree with his politics, but no law requires elected officials to support the status quo upon arriving in office. Best’s removal petition was a pretext for forcing Harper to cease acting on the beliefs that won him his office in the first place.

We are not fooled. We doubt anyone else is. Harper’s refusal to capitulate to Best’s demands does not render him incompetent. Best thought that the hospital district was important, and he sought Harper’s removal because he thought that Harper was setting the hospital up for failure, lacked candor, and sometimes communicated less than cordially. Even if a jury agreed that Harper was unfit for office, he would face no criminal or civil penalty other than removal itself. Efforts like Best’s are attacks on core political speech. But the TCPA “protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (footnote omitted) (citing TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011). Since the incompetency allegations in Best’s petition seek to achieve Best’s political goals rather than to enforce a law, they cannot form the basis of an enforcement action for purposes of the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.010(a). 

enforcement action (note that the allegation was unproven)

Best did not allege official misconduct against Harper, but the state did. After it joined Best’s petition, the state added—as an “official misconduct” ground—the allegation that Harper violated the Open Meetings Act. See TEX. GOV’T CODE § 551.143(a) (“A member . . . of a governmental body commits an offense if the member . . . knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”). This allegation is sufficient to form the basis of an enforcement action. It involves reference to a specific statutory provision that contains a substantive prohibition against certain conduct, and the state alleges Harper violated that prohibition. Whatever the merits of the state’s allegation, it amounts to an “enforcement” of a law—the Open Meetings Act—“brought in the name of this state.” See TEX. CIV. PRAC. & REM. CODE § 27.010(a).  

fees/sanctions etc

The state argues the award and remand were improper. Because the trial court has not yet made a “determination of” Harper’s request for costs, fees, or sanctions, see id., we can do no more than speculate whether Harper will actually obtain a judgment for any of these against Best, the state, both, or neither. See id. So we need not consider the state’s argument that such an award would be improper if entered against the state. Instead, the narrow issue before us is whether sovereign immunity protects the state from the appellate fees and costs that the court of appeals has already awarded to Harper. We conclude it does not. 

sovereign immunity

So the question whether sovereign immunity protects the state from Harper’s counterclaim for attorney’s fees under the TCPA is one of first impression. Based on the TCPA’s unique status and on the general principles underlying sovereign immunity, we answer that it does not.

As part of its purpose to “safeguard the constitutional rights of persons to . . . participate in government,” the TCPA obligates those who fail to prove a “prima facie case” to pay certain litigation costs. See TEX. CIV. PRAC. & REM. CODE §§ 27.002, .005(c), .009. Because the state should not be suing to prevent its own citizens from participating in government—especially when it lacks even a prima facie case against them—and because when it does sue, it risks paying only attorney’s fees (rather than damages or some other uncapped sum), abrogating the state’s sovereign immunity in the TCPA context does not present any grave danger to the public fisc. See, e.g., Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (per curiam) (“[T]he doctrine of sovereign immunity originated to protect the public fisc from unforeseen expenditures that could hamper governmental functions . . . .”). And because the TCPA already contains an express exemption for enforcement actions, nor does abrogation pose a threat to the state’s ability to sanction wrongdoers. See TEX. CIV. PRAC. & REM. CODE § 27.010(a). 

We affirm the court of appeals’ judgment with the modification that Harper was not entitled to dismissal of or attorney’s fees for the state’s allegation that he violated the Open Meetings Act. Because Harper is no longer in office, however, our holding bears only on the trial court’s determination of court costs, reasonable attorney’s fees, and sanctions.  


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