Another Goofy Action Andy Lucas, Somervell County Attorney, Took as the State of Texas in State of Texas Ex Rel Best v Harper Somervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas

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Another Goofy Action Andy Lucas, Somervell County Attorney, Took as the State of Texas in State of Texas Ex Rel Best v Harper

2 December 2019 at 8:29:42 AM

To understand how laughable the following is, you have to know a bit about the Texas Citizens Partiicpation Act, or known as Anti-Slapp.  From Digital Media Law

The Texas Citizens Participation Act, H.B. No. 2973, allows you to counter a SLAPP suit against you based on your statements in exercise of your right of free speech, petition, or association. The statute provides for a special motion to dismiss, and allows (with some exceptions) for a stay of discovery proceedings while your motion is being considered. If your motion to dismiss is successful, the court will award you attorneys' fees, court costs, and possibly punitive damages against the party that filed the lawsuit.

The statute allows for dismissal of suits based on any type of communication, in any medium, that is: related to a "matter of public concern"; or pertaining to or in connection with any governmental proceeding or issue being considered by any governmental branch; or between individuals “who join together to collectively express, promote, pursue, or defend common interests."

As a matter of process, what happens?  The person who believes his or her free speech, freedom of petition, etc rights are being violated via a frivolous SLAPP type suit files a special motion to dismiss under the TCPA (Texas Citizens Participation Act) within 60 days of being served with the lawsuit. If the motion to dismiss succeeds, the court will grant attorney fees. What happens in Texas Courts with the anti-slapp motion?

Texas courts follow a two-step process when deciding a motion to dismiss under the anti-SLAPP law. First, you (as the party looking to invoke the anti-SLAPP statute) must show “by a preponderance of the evidence” that the plaintiff's claim is "based on, relates to, or is in response to" your exercise of the speech/petition/association rights described above. Once you successfully show that your online writing involves the exercise of those rights, the burden shifts to the plaintiff for step two. The plaintiff must establish "by clear and specific evidence" a prima facie case for each part of his or her original claim; if the plaintiff fails to show this, the court will dismiss the claim.

In this case, the State of Texas, adopting for all purposes Best's claims, and adding a charge of its own, brought a removal suit against Harper. All three of the charges involved freedom of speech and freedom to petition. There was an initial hearing, and then Harper filed an anti-slapp motion to dismiss. on October 27, 2014. Again, in the year 2014. The District judge RULED AGAINST HARPER'S  ANTI-SLAPP MOTION on January 8, 2015. At that point, Harper took the next step in TCPA process, which was to file an appeal on March 19, 2015. The State of Texas, as represented by Andy Lucas and later also by C Alfred MacKenzie, who Lucas hired at taxpayer expense, lost in the 10th court of appeals, and lost at the Texas Supreme Court, with the judgment going against the State of Texas each time.  I think everybody knows from civics classes that the Texas Supreme Court is the highest court of its kind in Texas and thus is the final arbitrator for state lawsuits. Thus, for arguing the merits of the case, pro or con, the Texas Supreme Court is the last stop. What Lucas could do, and he did, was ask the Texas Supreme Court to reconsider it's final order, done on 6/29/2018,  through a rehearing. The Texas Supreme Court denied his motion to rehear on December 21, 2018. That meant that the arguing about the case pro and con was done. The only actions that remained were not about re-arguing the case but about the attorney fees, court costs and sanctions, to be decided at a final hearing at the district court level.

On Feb 27, 2019, Lucas as the State of Texas filed a "Response to Defendant's Anti-Slapp Motion to Dismiss and Original Answer of State of Texas to Counter-Claim of Paul Reed Harper". I laughed when I saw it because essentially the State of Texas was trying to re-argue the case. What had Lucas failed to do in the first place? When Harper filed his first anti-slapp motion to dismiss, Lucas was supposed to be prepared to come to court and establish by "clear and specific evidence a prima facie case FOR EACH PART OF HIS OR HER ORIGINAL CLAIM. If the plaintiff fails to show this, the court will dismiss the claim". Lucas did NOT do this. He was apparently not prepared to assert or show why the points in the frivolous petition against Harper were 1 or not. Later comments by higher courts show this, such as this one from the 10th court of appeals

....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..... 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 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.....

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. 

At least to me, it didn't seem like Lucas took the Anti-Slapp motion to dismiss seriously at the time, and he sure seemed unprepared to press his case. As the person who wrote the blog post that was included in the suit, I KNEW Lucas was wrong, and knew that no effort had been made, at even a basic level, to ASK ME about the blog post. Made me feel like maybe it's because I'm female, since at one point during the Lucas had asked Harper if he had "admonished" me not to write on my blog.  

So back to this motion that Lucas as the State of Texas decided to file in March of 2019 that appeared to want to argue the case some more. The time, IF Lucas wanted to answer the anti-slapp motion would have been WHEN, in 2014, Harper filed the original motion. It's ludicrous in appearance to argue anti-slapp AFTER THE TEXAS SUPREME COURT ALREADY RULED. Again, the only actions left were NOT to, somehow go back and argue this case AGAIN all the way up the chain but to establish the judgment against the State of Texas, including what monies were owed for attorneys, court costs and sanctions. If, after the final judgment hearing, the State of Texas wanted to appeal because they didn't like what the district judge ruled, that could have been done. But Lucas decided NOT TO APPEAL. Therefore, this case is done. 


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