Here's a letter I wrote to officials on a couple of Texas Lege committees on May 23 2019 regarding changes to the Anti-Slapp law
Hopefully, no one at any level of government is dumb enough to do what Andy Lucas as the State of Texas did. But if they do, I believe the person being wrongly targeted would have a good legal action to take to say that the TCPA applies to them for their use, despite the actions of the Texas Legislature.3/23/2019
To: Jeff Leach, Jessica Farrar, Yvonne Davis, Julie Johnson, Matt Krause, Morgan Meyer, Victoria Neave, Reggie Smith, James White (Texas House of Representatives Judiciary and Civil Jurisprudence Committee) and Joan Huffman, Bryan Hughes, Brian Birdwell, Brandon Creighton, Pat Fallon, Bob Hall, Eddie Lucio Jr, Jane Nelson and Judith Zaffirini ((Senate Committee on State Affairs) and Joe Moody
As an introduction, imagine that you as an elected official have a SLAPP lawsuit filed against you, particularly on the basis of what you believe is violation of your freedom of speech and petition. You should have the ability, as any other citizen, to file a timely anti-slapp motion to dismiss, expect that the plaintiff must timely answer your response, have to prove a prima facie case of the charges, and, if you win, have to pay your attorney fees, court costs, and sanctions. After all, you didn’t bring the SLAPP suit, but should be able to defend yourself.
The proposed bill changes to the TCPA/Anti-Slapp law, HB2730 (Leach), SB2162 (Paxton) and HB3547(Moody) are ill considered, particularly four parts where the plaintiff of the lawsuit can non-suit before he/she has to prove their case prima facie, does not have to be assessed sanctions, plaintiff has unlimited amount of time to reply, and also because at least one bill exempts elected officials from being able to file a response. Because SLAPP suits are, by their nature, designed to force costs (attorney, court) onto the defendant and particularly for frivolous reasons, because the defendant has to expend money and time to fight against those charges, there should continue to be the requirement that the bringer must prove charges and if not, the case be dismissed. Egregiously, if the plaintiff’s case is not proven and it was brought in violation of freedom of speech grounds, they should have to pay sanctions; the point is to stop these types of cases from coming up again and again.
Example: A local Somervell County elected hospital district board member, Harper, had, and ran on, the view that the district should try to get the same deal as a neighboring hospital district of paying little or no taxes and having a 3rd party hospital deal. (Not unusual: Senator Birdwell is familiar with this as he lives in Hood County, where he pays no hospital district taxes because of a deal with Lake Granbury Medical Center). Another local citizen, Best, didn’t like what Harper said at a board meeting, nor what Harper’s wife said on her blog (2 freedom of speech & petition issues), and filed a petition to remove him from office on the basis of incompetence. The petition would have gone nowhere but the local county attorney , Lucas, chose to pick it up and added a TOMA charge. Harper rightly filed an anti-slapp motion to dismiss.
Lucas told the 10th court of appeals in oral arguments, when asked if he had a choice whether to join Best’s petition said that he did, and that he had done it because he thought Harper would harm the district. The TOMA charge, then, was apparently brought as another way to force Harper to remove himself as an elected official. (The court ruled that Harper had not violated TOMA- see page 7 https://www.texasattorneygeneral.gov/si ... k_2018.pdf)
Approximately 4 years later, December 2018 , the Texas Supreme Court ruled that TCPA applied, with the exception of the TOMA complaint, which they said fell under enforcement act exemption. The ruling was against the State of Texas. http://www.txcourts.gov/media/1443049/160647cr.pdf
Notably, from the Texas Supreme Court’s opinion
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).
And the State of Texas, ie Lucas?
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.
Not all elected officials have deep pockets, especially those at a local level, and some might quit out of hand instead of fighting a lawsuit on ethical grounds. Elected officials should be able to defend themselves against spurious lawsuits and especially when brought on the basis of freedom of speech-an elected official has less rights to freedom of speech than any other citizen?? The SLAPP bringer should not be able to non-suit before the hearing or be able to answer without a specified deadline, which essentially rewards them for possibly violating constitutional rights and penalizes the defendant. They should have to prove a prima facie case and if they’re right, then justice is done. If not, then the defendant, as winner who didn’t him or herself bring the case in the first place, being awarded court costs, attorney fees and sanctions must continue to be the rule, so that this type of lawsuit doesn’t happen again.