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The Texas Citizens Participation Act (“TCPA”)[1], enacted in 2011, is the Texas version of an Anti-SLAPP[2] statute, which have been enacted by over 30 states around the country to protect free speech and the right of association of private citizens under the First Amendment from harassing and baseless litigation aimed at curtailing those rights.

Intended for a worthy and important goal, the statutes were shepherded by an interesting coalition of large media corporations, law professors and civil libertarians. The Texas statute was also passed unanimously by both the Texas House and Senate-indeed, seemingly, everyone can agree that the right of private citizens to exercise their First Amendment rights to free speech and free association should not be chilled by meritless lawsuits.

However, because the wording of the TCPA is so broad (and goes far beyond traditional protections of free speech,) and because the Texas Supreme Court, and various courts of appeal around the state, have not backed down from enforcing the statute, exactly as written, lawsuits one would never expect to infringe upon First Amendment Rights have been tossed out of court.

The result has been to create a tool that arguably has been used to shut down legitimate claims under the guise of protecting citizens’ First Amendment Rights. Practitioners and concerned citizens alike should be aware of the statute and the surprising ways in which it is applied.

The Statutory Provisions.

Some of the key definitions under the TCPA include:

“(2) ‘Exercise of the right of association’ means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

(3) ‘Exercise of the right of free speech’ means a communication made in connection with a matter of public concern.

. . .

(7) ‘Matter of public concern’ includes an issue related to:

(A) health or safety;

(B) environmental, economic, or community well-being;

(C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace.”[3]

Court Decisions and Unintended Consequences.

The Texas Supreme Court first set the example for interpreting the statute and enforcing it-exactly as written-in a seemingly surprising manner in the Coleman decision.[4]

In Coleman, a former employee sued ExxonMobil Pipeline for defamation, alleging that his employer had wrongfully accused him of falsifying records when terminating his employment.

ExxonMobil filed a motion to dismiss the suit under the TCPA. The Texas Supreme Court held the defamation action should be dismissed under the TCPA because the decision to terminate the employee was “related to health and safety, or the environmental, economic, or community well-being” and was a matter of public concern under the plain meaning of the statute, despite the communication of the reasoning for termination being transmitted solely between the management of the company and with Coleman himself.

According to his former employer, Coleman had failed to properly measure or report the correct measurement of petroleum products in a storage tank. That pedestrian reason for his dismissal was transformed into ExxonMobil Pipeline’s First Amendment right to free speech because, under the court’s reasoning and ExxonMobil’s argument, mismeasurement could have led to an accident-thus, meeting the statutory definition of a “matter of public concern” under the portion of the definition which includes the language, “an issue related to: health or safety . . . [or] environmental, economic, or community well-being . . .”

The Coleman decision laid down a marker for the courts of appeal around the state that the plain meaning of the statutory language must be enforced regardless of the impact on seemingly legitimate lawsuits or the original intent of the statute’s drafters.

Elite Autobody Decision.

The Third Court of Appeals at Austin has issued decisions containing possibly the most-extreme examples of the application of the Texas Supreme Court’s logic in interpreting the plain meaning of the TCPA, as laid out in Coleman.

In the Elite Autobody[5] decision, the Austin court of appeals applied Coleman to a TCPA motion to dismiss in a traditional, run of the mill, commercial trade secrets case between two competing Autobody repair shops in Austin, Texas.

Employees left Autocraft to work for Elite. Elite sued Autocraft claiming the employees had stolen trade secrets (typical internal company information including employee pay and personnel information, customer information and alleged compilations of proprietary technical data.) These type of suits generally turn on whether or not the alleged trade secrets actually deserve trade secret protection. However, Autocraft also filed a motion to dismiss under the TCPA.

The court held that the suit was properly dismissed because of the (broad and) plain meaning of the statute, the suit was found to infringe on the departed employees’ right of association because they were free to go to a new employer and their communication of their former employer’s company information was held to be a “communication between individuals” who were joining together to “pursue common interests.”

Despite the fact that the original proponents of the statute had the lofty goal of protecting citizens’ First Amendment rights from harassing and chilling lawsuits, the literal wording of the statute has lead Texas courts to apply it to-and dismiss-routine competition cases, and cases further far afield.

Out-of-Control Helicopter Parenting Condoned or Rendered Unactionable?

The Third Court of Appeals has recently handed down a more extreme example of this philosophy of statutory construction in its decision in Cavin v. Abbott.[6]

The Cavins were upset that their adult daughter, Kristin was dating Bill Abbott. The turn of events that followed is a harrowing reminder of the potential abuse of over-parenting-to say the least.[7] The decision itself demonstrates how far the “plain meaning” of the statute extends.

Kristin, in her mid-20’s was living in an apartment paid for by her parents while attending graduate school at the University of Texas. She met Bill Abbott through work and they began dating. Bill was older than Kristen and Kristen’s parents made it known, with increasing intensity that they did not want the couple to date-despite Kristin’s repeated protestations of her love and requests that they back-off.

Eventually, Kristin’s parents (allegedly) physically assaulted Kristin (on two separate occasions-one of which resulted in her mother’s arrest,) wrote scathing social media posts, and contacted both Bill’s and Kristen’s employers, accusing Bill of being a sociopath and using Marxist mind-control techniques to brainwash their daughter. When family members and friends wrote Kristin to side with her or give her encouragement, the Cavins sued them in lawsuits demanding damages of a million dollars, and more. A myriad of horrifying actions continued. Kristin eventually changed her last name and moved in with Bill, ultimately marrying him. But, Kristen’s parents apparently remained undeterred. The Cavins hired a private investigator and allegedly instructed him to “rattle” Bill by closely following him around, in an open and obvious manner. The Cavins had appeared at Kristin’s work to claim she had been kidnapped and was being held against her will. And, the Cavins recorded and posted a series of videos on the Internet and social media sites discussing the abusive-relationship narrative they were pushing in relation to Kristin and Bill.

Ultimately, Bill and Kristen hired a lawyer to file suit to try to stop Kristen’s parents from pursuing their campaign against the couple. The Abbotts sued the Cavins for conversion, defamation, tortious interference, abuse of process, assault, intrusion on seclusion/invasion of privacy and intentional infliction of emotional distress.

The Cavins filed a motion to dismiss under the TCPA.

The Austin court of appeals dismissed the case, except for the assault claim. The reasoning of the court followed the same logic laid out in Coleman. The court emphasized that the “exercise of the right of free speech” set forth in the statute, as to a matter of “public concern” “includes an issue related to . . . health or safety.” The court held that the communication need only be made “in connection with” an issue related to “health and safety.”

Citing the Coleman precedent, the Austin court stated the Texas Supreme Court has made it clear the TCPA must be enforced, exactly as written. Because the Cavins’ communications about their daughter’s relationship with Bill were literally made in connection with a matter related to their daughter’s health and safety, the TCPA applied and all of the claims had to be dismissed (with the exception of the assault charge relating to a physical altercation with Kristen’s father since the TCPA expressly excepts claims for assault.)

Legacy of Decisions Applying Coleman.

The Supreme Court has made it clear that he statute is to be applied exactly as written-damn the consequences.

Whether you believe the Third Court of Appeals at Austin is on a mission to prod the legislature to revise the TCPA and narrow its broad language, or that they are merely dutifully following Supreme Court precedent, it is also clear that the TCPA is here to stay unless and until it is revised. The TCPA must be incorporated into the litigator’s toolbox and considered very carefully in strategic planning for prosecution or defense of private lawsuits. Citizens in the State of Texas, in turn, should note the application of the courts’ literal interpretation of a well-intentioned law-and both the good and the ill effects, which have resulted.

[1] The Texas Citizens Participation Act, See Tex.Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011.

[2] SLAPP: Strategic Lawsuits Against Public Participation.

[3] See Tex.Civ. Prac. & Rem. Code Ann. §§ 27.001 (2), (3) and (7).

[4] ExxonMobil Pipeline Co. v. Coleman, 512 S.W. 3d 895 (2017).

[5] Elite Autobody LLC v. Autocraft Bodywerks, Inc.,

[6] Cavin v. Abbott, __S.W.3d __, 2017 WL 3044583 (Tex.App.—Austin 2017).

[7] Based upon the “facts” taken as true by the Third Court of Appeals in its decision.

So you are a party to a new civil litigation case, which means you have either sued someone or just been sued.  Your lawyer sends you an email that the Court has just set your case for a non-jury trial for a date in the future.  In the same email, your lawyer asks if you want to pay the jury fee, which usually is nominal, and have the matter set for jury trial, or whether you prefer to have the case remain as a non-jury trial.  It is, after all, the client’s decision on whether to have a jury trial or a non-jury trial.  What do you do?

Both types of trials – jury and non-jury – have advantages and disadvantages.  A non-jury trial, also known as a bench trial or a trial before the Judge, generally is more informal than a jury trial,  shorter than a jury trial, and less expensive to prepare for and conduct.   For example, in a non-jury trial, the lawyers do not have to draft a jury charge (the questions the jury will answer, such as who was responsible for the accident, and the percentage of responsibility each party), or have a “charge conference” with the Judge where each side argues that its proposed jury questions should be included in the jury charge.  The charge conference is conducted outside of the presence of the jury, and can last from several hours to an entire day or more, depending on the case.  After the jury charge is finalized, the Judge will read the jury charge to the jury, the lawyers will make closing arguments, and then the jury will retire to the jury room to deliberate.

None of these time-consuming jury charge issues are present in a bench trial.  However, one of the disadvantages of a non-jury trial is that one person – the Judge – hears all the evidence, weighs the credibility of the witnesses, decides which facts are true and not true, rules on evidentiary issues and objections, applies the law to the facts, decides who should win, and the amount of damages awarded, if any.  In a jury trial, the jury hears the evidence, weighs the credibility of the witnesses, decides which facts are true and which are not, decides who should win, and whether any damages should be awarded.  In a jury trial, the Judge’s role is to preside over the trial, rule on evidentiary objections, and apply the law to the facts after the jury has answered the questions on a jury charge – but in most cases, the Judge does get to decide by his-or-herself which party should win.

There are lots of other issues to be considered in deciding whether to have a jury trial or a non-jury trial.  Additionally, a litigant does not always have a choice regarding which type of trial.  We will discuss the additional factors in upcoming posts in this series.

For better or for worse, I think most would agree that this has been one of strangest and most contentious presidential elections in recent memory. Whichever way the election turns out, history will be made. If Ms. Clinton wins, she will, of course, be the first female President of the United States. It is well documented that if Mr. Trump wins, he will be the oldest President ever to take office.

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What seems to have gone unnoticed this election year is the amount of Texas judicial seats up for re-election. According to Ballotpedia, three Texas Supreme Court seats, three Texas Court of Criminal Appeals seats, and twenty seats in the fourteen district courts of appeal are on the ballot for Election Day. The Texas Supreme Court is the highest court in Texas for all civil matters, and the Texas Court of Criminal appeals is the highest court for all criminal matters.

Each of the three Republican incumbents up for re-election in the Supreme Court (Debra LehrmannPaul Green, and Eva Guzman) have drawn Democratic, Libertarian, and Green party challengers. Again according to Ballotpedia.org, all nine current Supreme Court Justices are Republican. If two or three of the incumbents lose, this could signal a significant shift in the historically conservative Supreme Court.

In the Court of Criminal Appeals, eight of the nine sitting Judges are Republican, with Judge Lawrence Meyers being the lone Democrat on the Court. Judge Meyers is running for reelection, as is Republican Judge Michael Keasler. Republican Judge Cheryl Johnson is not running for reelection, and her seat on the Court of Criminal Appeals has drawn candidates from all four parties.

The Fifth District Court of Appeals, which hears both civil and criminal appeals from the Dallas, Collin, Grayson, Hunt, Kaufman, and Rockwall county district and criminal courts, also has the potential for some change this election. Republican incumbent Justice Lana Myers is being challenged by Democrat Judge Gena Slaughter, the current sitting Judge for the 191st District Court in Dallas County. Republican incumbent Justice David Schenck is being challenged by Democrat Judge Dennise Garcia, the current sitting Judge in the 303rd Family District Court in Dallas County.

Currently, all thirteen sitting Justices on Fifth District Court of Appeals are Republicans. Thus, even if both Judge Slaughter and Judge Garcia win seats, the impact upon the Court as a whole may be small, but the impact upon the parties appearing before the Court may be big. Appeals usually are heard in three-judge panels.  Therefore, rather than facing three Republican Justices for any one case, a party potentially could face a panel containing one or two Democrats.

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Locally, in Dallas County, incumbent Democratic Judge Eric Moye’ is being challenged by Republican Barry Johnson for his spot as Judge of the 14th District Court.  Also, Republican Greg Gorman and Democrat Maricela Moore are battling it out for the 162nd District Court after former Judge Phyllis Lister-Brown passed away.

There are, of course, many more judicial races — too many to cover in this blog post.  But after all is said and done, the question that remains is what difference does it make whether a Judge is a Republican or Democrat?  Or whether a particular Court is dominated by Judges of a particular politicial affiliation?

The answers to these questions could be and probably are the subject of many articles and books.  To the extent one can make generalizations, the quick answer is many believe Republican Judges tend to favor business and Democrat Judges tend to favor individuals.  Republicans tend to favor defendants and Democrats tend to favor plaintiffs. This is far from being universally true, and just like in law school, there are exceptions to every rule and exceptions to the exceptions.

But no matter what you believe, Election Day 2016 no doubt will prove to be interesting on both a national and a local level.