2 January 2019 at 7:15:04 PM
When I last wrote about this, Paul Harper had won every single time against the State of Texas, as represented by Andy Lucas in the State of Texas ex rel George Darrell Best v Paul Harper case. To repeat what the Texas Supreme Court said in June 2018,
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).
Rather than accept the decision of the Texas Supreme Court at that time, Andy Lucas, Somervell County Attorney, decided to file a Motion for Rehearing on July 10, 2018. Took time for the court to consider this. They came back with the decision to deny his motion on Dec 21, 2018. For hub and I, this was a nice holiday gift.
The opinion had a few corrections in it that mainly addressed the idea of whether the State of Texas could avoid liability by claiming sovereign immunity. Here is part of that opinion regarding that. (bolding is mine)
“Sovereign immunity in Texas embodies two concepts: immunity from liability and immunity from suit.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 93 (Tex. 2012). “[I]mmunity from liability is not jurisdictional and protects [only] from judgments.” Harris Cty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). Hence, immunity from liability “must be pleaded, or else it is waived.” Kinnear v. Tex. Comm’n on Human Rights ex rel. Hale, 14 S.W.3d 299, 300 (Tex. 2000) (per curiam); see also Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam) (“Like other affirmative defenses to liability, [immunity from liability] must be pleaded or else it is waived.”); Davis v. City of San Antonio, 752 S.W.2d 518, 523 (Tex. 1988) (“[T]he City waived any immunity defense by failing to affirmatively plead it.”). ....
Our cases also recognize that the state’s immunity does not apply in certain situations in which the state “join[s] into the litigation process.” Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 376 (Tex. 2006); see also Kinnear, 14 S.W.3d at 300 (“Because the [state] initiated this proceeding . . . and [the defendant] claimed attorney fees as a consequence of that suit, the jurisdictional question in this case was answered when the [state] filed suit . . . . Thus the issue is whether the [state] . . . is immune from liability . . . .” (emphasis added)). ...
The state has not argued that it is immune from liability, but only that it is immune from suit. Thus, the state has waived its immunity-from-liability argument. See Kinnear, 14 S.W.3d at 300 (first citing Jones, 8 S.W.3d at 638; and then citing Davis, 752 S.W.2d at 519–20). The dispositive question, then, is whether the state is immune from suit. If it is, then Harper cannot recover his fees, at least not from the state. But if the state is not immune from suit, then he can. The state argues that neither the TCPA nor the removal statute contains a legislative waiver of immunity and that immunity from suit therefore protects it from an award of appellate costs. The removal statute requires “the person filing the petition to post security for costs” and further directs that dismissal shall be “at the cost of the person filing the petition.” TEX. LOC. GOV’T CODE § 87.016(c). The state joined Best’s suit, but Best filed the initial petition, so the state argues that the removal statute does not provide a waiver of immunity. Similarly, the TCPA allows a court to award “sanctions against the party who brought the legal action.” TEX. CIV. PRAC. & REM. CODE § 27.009(a)(2) (emphasis added). Because Harper initiated this action, the state also argues that the TCPA does not waive immunity. See also id. § 27.011(a) (“[The TCPA] does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.”).
Nor, says the state, do any of this Court’s limitations to immunity’s scope apply. Reata Construction Corp. v. City of Dallas details a circumstance in which “a governmental entity does not have immunity from suit for monetary claims against it that are ‘germane to, connected with, and properly defensive to’ affirmative claims made by the entity,” to the extent that the claims against the entity offset the entity’s own claims. City of Dallas v. Albert, 354 S.W.3d 368, 372 (Tex. 2011) (quoting Reata, 197 S.W.3d at 378); see also Manbeck v. Austin Indep. Sch. Dist., 381 23 S.W.3d 528, 532–33 (Tex. 2012) (per curiam) (noting that Reata applies in “cases where the governmental entity asserts an affirmative claim for monetary relief against which the opponent’s claims can be offset”). Harper responds that when the state appeared in this suit, it adopted Best’s live pleading stating jurisdiction was proper in the trial court. Moreover, Harper argues, the removal statute contemplates that the temporary replacement officer must pay any “costs” associated with the prosecution of an unsuccessful removal action. See TEX. LOC. GOV’T CODE § 87.016(c). Harper argues this officer is an “agent of the state” and therefore the removal statute contemplates payment by a “governmental entity.” So in Harper’s view, the state stepped beyond the sphere of its immunity when it appeared in the suit. Harper also points to the four-factor analysis we set out in Wichita Falls State Hospital v. Taylor for determining whether language less explicit than “‘sovereign immunity to suit is waived’ . . . may nevertheless waive the State’s immunity from suit,” to argue that the removal statute, the TCPA, or both expressly waives immunity. See 106 S.W.3d at 697–98 (footnote omitted). We agree with the state that neither statute waives the state’s immunity from suit. The portions of the removal statute discussing costs treat the temporary replacement officer as an individual, not as an agent of the state. See TEX. LOC. GOV’T CODE § 87.017. The officer is an agent of the state for purposes of carrying out his job duties, but not for purposes of paying the costs associated with an unsuccessful removal action. Consequently, the removal statute does not contain a “clear and unambiguous” waiver of the state’s immunity from suit. See Tooke, 197 S.W.3d at 328–29. Nor does the TCPA contain a waiver that meets Tooke’s requirements. See id. Harper argues that the TCPA “d[oes] not expressly exempt any governmental entity from its sphere” and that “[i]f the Legislature intended to exempt the government from the TCPA . . . [it] would have clearly stated so.” That argument states precisely the opposite of the presumption that we apply when determining whether the legislature has waived sovereign immunity. See Taylor, 106 S.W.3d at 701 (“[W]e require the Legislature to express its intent beyond doubt and will construe ambiguities in a manner that retains the State’s immunity.”). The TCPA allows for awards of costs, but it does not contain any “clear and unambiguous” legislative basis for awarding costs against the state. See Tooke, 197 S.W.3d at 329. So neither the removal statute nor the TCPA expressly waives the state’s sovereign immunity. Although neither statute waives the state’s immunity from suit, that conclusion does not answer the question whether immunity applies in the first place. See Engelman, 514 S.W.3d at 753 (“[S]overeign immunity is a common-law creation, and it remains the judiciary’s responsibility to define the boundaries of the doctrine.”); Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 122 (Tex. 2015) (noting “the doctrine’s judicial origins”); Reata, 197 S.W.3d at 375 (“[I]t remains the judiciary’s responsibility to define the boundaries of the common-law doctrine and to determine under what circumstances sovereign immunity exists in the first instance.”). When sovereign immunity is inapplicable due to judicial modification rather than legislative pronouncement, courts characterize the protection’s absence as arising from abrogation rather than waiver. See Albert, 354 S.W.3d at 375 (“[T]he judiciary has abrogated [governmental entities’] common law immunity from suit as to certain offsetting claims.”); Taylor, 106 S.W.3d at 696 (“[W]e have not absolutely foreclosed the possibility that the judiciary may abrogate immunity by modifying the common law . . . .”). 25 Reata is our foundational case discussing abrogation. See generally 197 S.W.3d at 374– 77. Under the Reata rule, immunity from suit does not protect the state from counterclaims that are “germane to, connected with, and properly defensive to” certain of the state’s own claims, but only to the extent that the counterclaims act as a monetary “offset” to the state’s own claim. Id. at 373. In this case, the state has not asserted any claims against which Harper can counterclaim a monetary offset. Because the state seeks Harper’s removal rather than an appropriate monetary recovery, the Reata rule does not apply to abrogate the state’s immunity from Harper’s counterclaims. But that does not mean that no rule does so. Significant as it is, Reata is not our only case discussing abrogation, and it does not purport to map the full boundary separating counterclaims that sovereign immunity bars from those it does not. See, e.g., Nazari v. State, ___ S.W.3d ___, ___ (“[W]e have never held that the Reata rule always applies when the government seeks any transfer of funds. . . . [N]or have we ever held that Reata applies only to compensatory damages.”). As an example of another type of abrogation, Harper cites our per curiam decision in Kinnear v. Texas Commission on Human Rights ex rel. Hale. See generally 14 S.W.3d 299. There, “[t]he Texas Commission on Human Rights sued [Kinnear] for violating the Texas Fair Housing Act.” Id. at 299. Kinnear prevailed, and he requested attorney’s fees from the commission under the Fair Housing Act, which provides that a court “may award reasonable attorney fees to the prevailing party.” TEX. PROP. CODE § 301.156. In analyzing whether the state abandoned its immunity from suit by initiating the litigation, we held that “the jurisdictional question . . . was answered when the [state] filed suit, regardless of whether the [state] can ultimately be liable for fees.” Kinnear, 14 S.W.3d at 300. Put differently, when the state “initiated th[e] proceeding” that spurred the attorney’s-fees claim, it was operating outside the bounds of its immunity from suit. Id. And because, as here, the state had waived immunity from liability by failing to plead it, we “render[ed] judgment awarding Kinnear his attorney fees and costs” under the Fair Housing Act. See id. Harper says his counterclaim is “akin” to the one in Kinnear and that he should prevail on that basis. The state responds by citing another of our per curiam opinions, Manbeck v. Austin Independent School District, for its counterargument that a “governmental entity’s decision to avail itself of a statutory right—without bringing an affirmative claim for monetary damages— does not result in a loss of immunity from a claim for attorney’s fees.” See generally 381 S.W.3d 528. Manbeck addressed a counterclaim for attorney’s fees after the state non-suited a judicial appeal from an administrative proceeding that arose under the Texas Workers’ Compensation Act. See id. at 529 (citing TEX. LAB. CODE § 408.021(c)). Finding the Reata rule inapplicable, we “reversed the trial court’s award of attorney fees.” Id. at 533. The parties strive to distinguish Kinnear and Manbeck—each arguing that one case or the other answers the TCPA attorney’s-fees question at issue here. However, neither per curiam opinion addresses the TCPA. And since Manbeck concerned an administrative appeal in the workers’ compensation context, see id. at 529, it does not overrule Kinnear’s conclusion in the fair-housing context, see 14 S.W.3d at 299. But, the state argues, it is not that Manbeck overrules Kinnear—it is that Reata does, or at least it establishes a new paradigm such that Kinnear is no longer good law. We disagree. Far from overruling Kinnear, Reata cited it—along with Anderson, Clayton & Co. v. State ex rel. Allred, 62 S.W.2d 107, 110 (Tex. 1933), and State v. Humble Oil & Refining Co., 169 S.W.2d 707, 708 (Tex. 1943)—as the foundation for the rule it established. See Reata, 197 S.W.3d at 374–77; see also Nazari, ___ S.W.3d at ___ (listing Anderson, Humble Oil, and Kinnear as “the three principal cases on which Reata relied”). And we have cited Kinnear since. See Rusk, 392 S.W.3d at 97 & n.4 (listing Kinnear among cases establishing that “immunity deprives courts of subject-matter jurisdiction”); Nazari, ___ S.W.3d at ___ (“[W]hile Kinnear involved an abrogation of immunity, it was not the type of abrogation we announced in Anderson and expounded on in Reata.”); see also Jeffrey S. Boyd, Where Sovereign Immunity and Water Development Issues Collide, 39 TEX. ENVTL. L.J. 95, 116 (2009) (“The Texas Supreme Court recently reaffirmed and clarified [Kinnear’s] holding in Reata . . . .” (emphasis added)). In Kinnear, sovereign immunity did not protect the state from a claim for attorney’s fees under the Fair Housing Act. See 14 S.W.3d at 299. On the other hand, in Manbeck, sovereign immunity did protect the state from a claim for attorney’s fees under the Workers’ Compensation Act. See 381 S.W.3d at 529. Thus, Kinnear and Manbeck stand together—and at most—for the proposition that sovereign immunity sometimes does and sometimes does not protect the state from counterclaims for attorney’s fees. See Kinnear, 14 S.W.3d at 299; Manbeck, 381 S.W.3d at 528; see also Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 424 (Tex. 2011) (reversing attorney’s fees awarded against a governmental entity when the fees were a “subset” of a “breach-of-contract claim, a claim on which [the claimant could not] recover”). But neither case considers the attorney’s-fees question beyond the statute it addresses. Nor does Reata itself apply to all counterclaims for attorney’s fees. Rather, Reata establishes that sovereign immunity never protects the state from certain qualifying counterclaims when the state does assert certain claims for monetary recovery. But it does not establish the inverse. That is, Reata does not establish that sovereign immunity always protects the state anytime 28 the state does not assert a claim for monetary recovery. In short, Reata does not hold that a monetary claim is a necessary condition for abrogation in every instance. 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). Abrogation remains the judiciary’s responsibility. See Reata, 197 S.W.3d at 375. We have considered abrogation for attorney’s fees in other contexts—sometimes applying it, sometimes not—but we have never addressed a counterclaim for attorney’s fees under the TCPA. So while cases like Kinnear and Manbeck are instructive, neither is dispositive. Accordingly, given the TCPA’s unique role in protecting the democratic processes that allow our state to function, today we conclude that sovereign immunity does not protect the state from a counterclaim for attorney’s fees under the TCPA. Because the state was not operating within sovereign immunity’s bounds when it joined Best’s suit, the TCPA allows Harper to recover costs against the state pursuant to the TCPA’s terms. See TEX. CIV. PRAC. & REM. CODE § 27.009(a). As is relevant here, these are the TCPA’s requirements with regard to fees, costs, and sanctions: (a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party: (1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter. Id. The state points to the limit in section 27.009(a)(2) that courts may only award sanctions against the party who “brought” the action. Id. § 27.009(a)(2). But that limitation appears only in section 27.009(a)(2), which addresses sanctions. See id. Section 27.009(a)(2) does not limit section 27.009(a) as a whole or section 27.009(a)(1), which has its own limit—justice and equity. See id. § 27.009(a)(1). Since no sanctions have yet been awarded, we need not—and do not—address whether the state “brought” this action (as opposed to “joined” it or something else). Instead, we hold that because this is a TCPA action, the state’s sovereign immunity from suit does not protect it from the appellate costs that the court of appeals has already awarded. The court of appeals reversed the trial court’s judgment, holding that the TCPA applies to the state’s removal proceeding and that the state failed to establish a prima facie case for Harper’s 30 removal. See 493 S.W.3d at 111, 116. It then remanded 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.” Id. at 118. 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.
As a side note, to confirm again that the State of Texas not only did not prove its allegation of violation of the Texas Open Meetings Act, but the court determined that he did not. The Texas Supreme Court said that the "allegation" of violating the Open Meetings Act is enough to form the basis of an enforcement action. That is why the opinion exempts attorney fees, etc with regard to the 3rd charge.
From the Texas Open Meetings Handbook of 2018, page 7
In Harper v. Best, 493 S.W.3d 105 (Tex. App.—Waco 2016, pet. granted), the Waco Court of Appeals considered an Open Meetings Act claim based on a series of text messages between Harper and a second county hospital board member, Parker, as well as a series of text messages between Harper and a third board member, Harrison.53 Both sets of text messages concerned public business of the county hospital district.54 The text messages between Harper and Parker referenced communications with a fourth board member, Eugene.55 The state argued, that because the quorum of the county hospital board was four, Harper’s reference to Eugene in communications with Parker established a walking quorum in violation of the Open Meetings Act.56 The court of appeals determined that even assuming the reference to the fourth board member established a walking quorum, the reference did not indicate that deliberations subject to the Open Meetings Act had occurred.57 The court said: “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.”58 Because [n]othing 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,” the court determined that there was no violation of the Act.59
The State of Texas did not prove its case with regard to its allegation.
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