I attended the hearing on August 20, 2019 for State of Texas ex rel Darrell Best v Paul Harper. (Note that I am the wife of Paul Harper, as well as the owner of Somervell County Salon and writer of any and all blog entries here with "Salon" as the writer name). The Texas Supreme Court had already ruled in December of 2019 that the judgement went against the State of Texas and this hearing was to determine court costs, attorney fees and sanctions. I took some notes while I was sitting here, there are rough and not complete, but I wanted to write them down while fresh in my mind . When/if the court transcript is made available, will update this. The first time these matters were due to be heard was the month before, but a thunderstorm blew through town the night before and knocked out all the electricity. Mary Barkley and Chris Brown are Harper's attorneys. Andy Lucas' attorney is C Alfred McKenzie. Darrell Best was not represented by any attorney.
The first part of the hearing was deciding some pre-trial matters, such as dismissing TOMA, motion to dismiss expert testimony and scope of the remand.
Chris Brown opening statement. Brief roadmap: 5 years of litigation. Texas Supreme Court ruled in favor of Paul Harper: atty fees, court costs and sanctions. on Texas Citizens Participation Act, Harper specifically opposed tax to be levied. District created. Harper decided to run and was slected to the board in May 2014. 4 months later Darrell Best filed a lawsuit including (NOTE THESE WERE BEST'S ALLEGATIONS) 1. Harper made motion to set the tax rate at zero 2. Wrote blog post critical of hospital administration. After the lawsuit was filed, Andrew Lucas represented the State of Texas. The State dopted for all purposes the 2 allegations of Darrell Best and added a misconduct charge based on alleged TOMA violations, w text messsages. In response, Harper did a TCPA motion to dismiss bassed on exercise of right of petition and freedom of speech. The trial court deniied the motion. Waco (10th court of appeals) reversed the trial court. The State of Texas (as represented by Andy Lucas) then appealed to the Texas Supreme Court for a petition for review. Texas Supreme Court said it was transparent retaliation, that "We are not fooledand we doubt anyone else is". Harper did not do a motion, he didn't author the blog post and did not violate TOMA. ..Harper has incurred $227,000.85 incurred over last 5 years, only seeking fees since June 2019, not seeking fees since June. Discussion of attorney fees per hour and using Arthur Adnerson factors, evidence that the amounts are reasonable, any time not directly related to defense of TCPA or in defense of TOMA.
Roland Johnson gave expert testimony, former presidetn of State Bar of Texas. 58% of attorney fees, conservative approach given complexity. Sanctions. Nature of underlying actions, TCPA requires award of sanctions suficient to deter. Good faith or Bad Baith, frivolousness, reasonableness of out of pocket expense. Impact of sanctions, magnitude of sanctions. No proper basis for ... suit by Best, no proper basis to adopt, no investigation. ... 1st amendment rights trampled. Other hospital ... didn't speak out necause they decided to leave board rather than run for. Lawsuit used againt to suppress some political beliefs. It put in same position, they would do it again. Significant sanctions against State of Texas and Best is warranted.
McKenzie: I don't represent Best, Andy Lucas does not represent Best.
Exhibit 10: accurate account of lack of motion by Harper approved by board (minutes). Exhibit 1: Citation of constable: County Attorney Lucas listed as attorney for Darrell Best. Did law enforcement interview? No. Exhibit 2: State of Texas appeared in case. Paragraph 2 adopts for all purposes. Oct 1, 2014 additional TOMA allegations. Any law enforcement investigation? No. Any notice? Exhibit 4: Transcript of that hearing. Not allowed to participate in 501a vote. Reinstated in January 2015. Meeting on January 15 to evaluate the CEO. Def Exh 1: Application for Temporary Restraining Order. Hankins received less votes. TRO denied, judge said it was attempted prior restraint that waas taught in first year of law school. Effect of lawsuit, more than one person to buy a house $30,000. "Political move to get me to quit". Frustrating, annoying, both parents died. Using my tax dollars to stop me. Others scared they were going to get sued. TOMA - concerned text messages with others. No other board members faced any civil or criminal allegations, only Harper. No other board members. Appeals court,... should be open to happening in the future. No investigation.
Ron Hankins wrote the petition for removal., Best sent to Lucas, nothing to validate petition. Exhibit 3: text messages. Darrell Best colored coded the messages (text in black, text in blue), Not a result of sworn or subpoenaed. Mr Best interpreted the text messages, based on an open records request. Best color coded the messages, the state did not verify the Best interpretations. ... ruling that there was no violation of TOMA.
Chip Harrison: Against creation of hospital district, creation did not follow state law, goals to improve services and balance budget. Basis of lawsuit "a joke" Darrell Best tooth and nail to distupt, Affect on Harrison: I didn't have an extra 25 grand. Deductible with insurance policy. Andy Lucas brought me down to his office, and threatened me re: Toma. Guy from meeting who threatened me offered me a job after. Ray Reynolds needed to be removed. Constable counted bullets and she didn't have enough to defend. Removal suit-perception. State joining suit, craziest thing. County attorney joined frivolous suit esp like Best drew up. Makes me sick to my stomach, houses is up for sale. 135 ,meetings, executive committtee, me, Paul and John. Not one time suggested hospital be closed or damanged. No merit to removal suit. Negative feedback, closing hospital cheap shot. Any crackpot can get the county atttorney to file a suit. Lucas :I didn't file any case against you: Harrison: Threatened to the day I was in your office. Frivolous lawsuit.
John Parker testimony: Exhibit 10: Chief Deputy would sue me. Oppposed to what they were being told; If you don't agree with what's (...) you beter not run. Emotional reaction: Paul didn't do anything wrong, the video of the *motion* is on the WWW, watch it. discussion of costs, future appellant costs. ...
Sanctions insurance here does not come into play. Good faith or bad faith. Best got something from Hankins, walked it over, wasn't sure what was going to happen, not here to defend. Could this have ended at any stage? Hankins said the county attorney has complete discretion on what to do. Here Harper is again having to defend rights under that statute? Chilling effect on public interest when people want to participate. They understood chilling effect. Chill happend on removal. Ended with judgement of trial court. Sanctions necessary to deter. Extent to which state continued to advance positioin not grounded in law. Amount- significaant 70-80 % of attorney fees gave some understanding to deter what's going on because nothing has deterred it today. .. I am not surprised anymore what the state is doing. If removal action is finished, TCPA, only issues left are State liability or scope of exception. If only issue is breadth of enforcement exception actions, damage had already been done. Immunity from suit: Witnesses continuing to take away first amendment rights. Hankins thought his clients were the county commissioners. Ways to settle and dismiss at any stage. Cold county atrny make claim go away? Whag would a good faith attorney have done? Did this man write the blog? Did this man make a motion? Enforcement at the Texas Supreme Court. Merits of the case analyzed not for purposes of re-litigating. Case didn't come as a criminal procedure. (Lucas) didn't see arresting Harper. Learned a lot; if filed now would want a criminal and take into account first amendment rights. Commissioners court has made an allocatioin, is paying Mr McKenzie's fees. Kept county judge apprised because of interest to collect from Somervell County. Conceding legal obligation from the county? Attorney General did not respond at all.
Deposition testimony: Andrew Lucas was deposed, as the representative of the State of Texas, and part of his testimony was read into the record by Harper's attorneys. Also, Ron Hankins was deposed and part of his testimony was read into the record, including his comments on prosecutorial discretion.