From the 10th Court of Appeals opinion
Right. The District Court made no attempt to determine anything about the TCPA and didn't even require Lucas to follow the law regarding the steps he should have taken to prove his case.Enforcement Action
The TCPA provides exceptions to the application of the statute. As relevant to this case, the TCPA “does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.10(a) (West 2014).1 So before determining whether the trial court erred in denying Harper’s motion to dismiss, we must first address the State’s contention at trial and on appeal that it is exempt from the application of the TCPA, and thus Harper is not entitled to a dismissal, because the State brought an enforcement action against Harper.
The question is: what is an enforcement action? That phrase is not defined by the statute. Words and phrases that are not defined by statute and that have not acquired a special or technical meaning are typically given their plain or common meaning. In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015); FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 633 (Tex. 2008).
The State contends the word “enforcement” should be given its plain meaning. according to the definition supplied in Black’s Law Dictionary. There, the word “enforcement” means “the act or process of compelling compliance with a law, mandate, command, decree, or agreement.” BLACK’S LAW DICTIONARY (10th ed. 2014). And what the State is seeking to compel enforcement of is Harper’s compliance with the hospital district’s by-laws and Harper’s duty as a board member. Using the above definition of enforcement, the State’s argument continues, Chapter 87 of the Local Government Code, regarding removal of officers, is the State’s legal tool to compel Harper’s compliance.
But when using the above definition of enforcement, there is nothing in the removal statute with which the State is seeking to compel Harper’s compliance. There are many exemplary enforcement provisions in the various codes in Texas that specify how to obtain compliance with their provisions. See e.g. TEX. HEALTH & SAFETY CODE ANN. § 12.0145 (West 2010); TEX. INS. CODE ANN. § 43.461 (West 2009); TEX. PROP. CODE ANN. § 209.006 (West 2014); TEX. WATER CODE ANN. § 7.002 (West 2008). A removal action, however, is not one of them. Removing Harper from the board of directors for the hospital district does not result in compliance with his duties as a board member. Rather, it seeks ouster from the position, not compliance with it. Harper cannot comply with his duties if he is no longer a board member.
Further, this removal petition is not an enforcement action for the alleged Open Meetings Act violation. There is an entirely different procedure to be followed for such an enforcement action. See TEX. GOV’T CODE ANN. § 551.141 et seq. (West 2012). If the Act was violated, which we address later herein, this suit is not the method to bring an “enforcement action” in regard to that alleged violation.
Accordingly, under the facts of this case, because the removal of Harper as a hospital district board member under Chapter 87 of the Local Government Code is not an act or a process which compels compliance with a law or mandate, etc., the petition for removal is not an “enforcement action” and is not an exception to the TCPA.
1 There is nothing in the record to show that the trial court overruled Harper’s motion to dismiss because it determined the removal action was an enforcement action under the TCPA.
Interestingly, the Texas Attorney General's office agreed with that definition of enforcement action and said so in a filing on a different case. (See p 44 of the 2015 Administrative Law handbook)
If Lucas had followed the law regarding a TOMA (Texas Open Meetings Act) violation, which he did not, and then it turned out that a judge had ruled that Paul was in violation, the enforcement action would then still not be to remove him from office, but he very well could have faced other penalties. How, in other words, do you do an enforcement action against something that has not yet been proven to be true? That was the whole point of Lucas calling for a jury trial in the future. Another example. Suppose someone believes you owe child support. Shouldn't the movant have to prove that and then take the resulting court document to the child support bureau to then have paying that child support enforced?
What the Texas Supreme did was change the definition of what an enforcement order is from what the 10th court of appeals said. From the Texas Supreme Court opinion.
And therein, again, lies the rub. An UNPROVEN allegation by the State of TExas does not equal a PROVEN allegation that then leads to an action that can be enforced. Otherwise, couldn't this *enforcement action" be used against just about anything without any type of requirement that, first, the person alleging the action has to follow already existing law and prove their case or second, that they should, in the aspect of the TCPA, have had to follow the TCPA law to prove to some extent that they had a case and this was not frivolous? I believe the Texas Supreme Court was wrong and I wonder if they were trying to "split the baby" with this?B. TCPA “enforcement action”
We now turn to whether a removal petition constitutes an “enforcement action” under the TCPA. See id. § 27.010(a) (stating that the TCPA “does not apply to an enforcement action that is brought in the name of this state . . . by . . . a county attorney”). If it does, Harper cannot invoke the TCPA’s protections. See id. The state joined Best’s petition, but that does not necessarily make this suit an enforcement action. Unlike “legal action,” the TCPA’s definitional subsection does not include an entry for the term “enforcement action.” See generally id. § 27.001. Nor have we previously considered its meaning. “Statutory construction is a legal question we review de novo.” See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). “In construing statutes, we ascertain and give effect to the Legislature’s intent as expressed by the language of the statute.” Id. Statutes do not always include express statements of purpose or directions for construction, but the TCPA includes both. See TEX. CIV. PRAC. & REM. CODE §§ 27.002, .011. The TCPA’s purpose “is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Id. § 27.002 (emphasis added). We must construe the TCPA “liberally to effectuate its purpose and
intent fully.” Id. § 27.011(b). The TCPA includes several exemptions. One such exemption is that the TCPA “does not apply to an enforcement action that is brought in the name of this state . . . by . . . a county attorney.” Id. § 27.010(a). Because the
legislature did not define “enforcement action,” we must determine the term’s “common, ordinary meaning.” City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 261 (Tex. 2018). “To determine a statutory term’s common, ordinary meaning, we typically look first to [its] dictionary definitions . . . .” Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 35 (Tex. 2017). The common meaning applies “unless a more precise definition is apparent from the statutory context.” Oncor, 539 S.W.3d at 261; see also Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 765 (Tex. 2014) (“We rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results.”). An enforcement is “[t]he act or process of compelling compliance with a law, mandate, command, decree, or agreement.” Enforcement, BLACK’S; see also THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 590 (5th ed. 2011) (defining “enforce” as “[t]o compel observance of or obedience to: enforce a law”); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 751 (1961) (defining “enforcement” as “the compelling of the fulfillment (as of a law or order)”). Applying the Black’s dictionary definition, the court of appeals concluded that “there is nothing in the removal statute with which the State is seeking to compel Harper’s compliance,” because “Harper cannot comply with his duties if he is no longer a board member.” 493 S.W.3d at
The dictionary definitions do not capture the full extent of the legislature’s intent in this instance. The reason is that our precedent directing us to the dictionaries, see, e.g., Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 893 (Tex. 2017), collides with our precedent directing us to “presume the Legislature selected language in a statute with care and that every word or phrase was used with a purpose in mind.” DeQueen, 325 S.W.3d at 635 (emphasis added). Section 27.010 contains the “enforcement action” exemption, but it also contains three others. See TEX. CIV. PRAC. & REM. CODE § 27.010. The TCPA does not apply to:
(a) “an enforcement action” brought in the name of the state;
(b) “a legal action” against certain businesses;
(c) “a legal action” in certain personal injury cases; and
(d) “a legal action” arising out of certain insurance contracts.
The second, third, and fourth exemptions apply to a “legal action,” id. § 27.010(b)–(d), a term the TCPA defines, see id. § 27.001(6). But the first applies to something different: an “enforcement action.” Id. § 27.010(a). We must assume the legislature used a different word because it intended a different meaning. See DeQueen, 325 S.W.3d at 635. Otherwise, the legislature would have said “legal action” all four times.
These observations demonstrate that whatever an “enforcement action” is, it must be different from a “legal action.” A “legal action” is “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” TEX. CIV. PRAC. & REM. CODE § 27.001(6). It would be difficult to write a more capacious definition, and even more so to conceive one for an undefined term. So the definition of an “enforcement action” cannot exceed the broad definition the TCPA gives for “legal action.” See id. Nor can the two terms share the same meaning. See DeQueen, 325 S.W.3d at 635. Hence, a TCPA “enforcement action” must be a subtype of legal actions in general. That is, the term “enforcement action” must mean something less than “any legal action brought by the state.”
Otherwise, “enforcement action” and “legal action” would mean the same thing. We conclude that, within the TCPA, the term “enforcement action” refers to a governmental attempt to enforce a substantive legal prohibition against unlawful conduct. This interpretation is consistent with the TCPA’s text, under which enforcements are but one type of legal action. See id. § 27.001(6). It also accords with the TCPA’s self-expressed purpose, which “is to encourage and safeguard constitutional rights”—not to impede the criminal or civil proceedings that law enforcement or other government agencies initiate. See id. § 27.002. Under this definition, a removal petition is not an “enforcement action” in the abstract. Instead it is a procedural device, and as such a party cannot initiate a removal action to enforce the removal statute itself. There is a range of conduct—some unlawful and some not—for which a public official may properly face removal under the removal statute. And as discussed above, the TCPA is available by default since removal actions are legal actions. However, when a removal action has its basis in unlawful conduct, the “enforcement action” exemption renders the TCPA inapplicable.
Accordingly, we must next ask whether the petition against Harper seeks to enforce a substantive legal prohibition against unlawful conduct. Under the removal statute, “[a]n officer may be removed for: (1) incompetency; (2) official misconduct; or (3) intoxication on or off duty caused by drinking an alcoholic beverage.” TEX. LOC. GOV’T CODE § 87.013(a).
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 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) Nor are we swayed by the argument that Best’s incompetency claim included allegations that Harper violated the hospital district’s bylaws. The bylaws require board members to discharge their duties “in good faith, with ordinary care, and in a manner the director reasonably believes to be in the best interest of the District.” Similarly, the bylaws prohibit members from performing “any act with the intention of harming the District or any of its operations” or “that would make it impossible or unnecessarily difficult to carry on the intended or ordinary business of the District.”
Best’s petition argues Harper violated the bylaws by attempting to set the district’s tax rate at zero and by accusing the district’s administration of violating the law. The Somervell County Hospital District Board of Directors may promulgate bylaws pursuant to its authority to “adopt rules governing the operation of the hospital and hospital system
and the duties, functions, and responsibilities of district staff and employees.” TEX. HEALTH & SAFETY CODE § 286.075. Although violation of an organization’s internal rules concerning “duties, functions, and responsibilities” may expose the violator to liability, the rules are just that— rules. Though they may sometimes overlap with Texas statutes, regulations, or common-law obligations, the bylaws appear nowhere within these bodies of law. Instead, they arise byagreement of the board of directors. Indeed, the bylaws include numerous references to actionsrequired by law or the bylaws. In sum, the bylaws are not legal prohibitions against unlawfulconduct, and they do not elevate the allegations in Best’s petition to an “enforcement action.” SeeTEX. CIV. PRAC. & REM. CODE § 27.010(a).
In light of our textual conclusion that an enforcement action must be something narrowerthan a legal action, our general understanding that an enforcement action cannot enforce itself, ourspecific conclusion that an enforcement action under the TCPA must enforce substantive.prohibitions against unlawful conduct, and the legislature’s clear instruction to construe the TCPAliberally to protect citizens’ rights to participate in government, we conclude the that allegationsin Best’s petition do not amount to an “enforcement action” under the TCPA. See id.However, the removal statute also allows removal for “official misconduct,” which may include allegations or evidence that a public official has acted unlawfully. TEX. LOC. GOV’T CODE87.013(2); see also id. § 87.011(3) (defining “[o]fficial misconduct” as “intentional, unlawfulbehavior relating to official duties” including “intentional or corrupt failure, refusal, or neglect ofan officer to perform a duty imposed on the officer by law”). An allegation premised on unlawfulconduct rather than behavior undesirable in a public official can form the basis of an “enforcementaction” for purposes of the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.010(a).Best did not allege official misconduct against Harper, but the state did. After it joinedBest’s petition, the state added—as an “official misconduct” ground—the allegation that Harperviolated the Open Meetings Act. See TEX. GOV’T CODE § 551.143(a) (“A member . . . of a
governmental body commits an offense if the member . . . knowingly conspires to circumvent thischapter by meeting in numbers less than a quorum for the purpose of secret deliberations inviolation of this chapter.”). This allegation is sufficient to form the basis of an enforcement action.
It involves reference to a specific statutory provision that contains a substantive prohibition againstcertain conduct, and the state alleges Harper violated that prohibition. Whatever the merits of thestate’s allegation, it amounts to an “enforcement” of a law—the Open Meetings Act—“brought inthe name of this state.” See TEX. CIV. PRAC. & REM. CODE § 27.010(a).
A removal petition is not an “enforcement action” unless it seeks to enforce a substantive legal prohibition against unlawful conduct. The removal grounds alleging Harper’s incompetencydo not meet this definition, which means that the TCPA’s “enforcement action” exemption doesnot apply to them. See id. But under the same definition, the state’s additional ground allegingofficial misconduct based on violations of the Open Meetings Act is an enforcement action. So theenforcement-action exemption renders the TCPA inapplicable to the state’s additional ground. Seeid.
We conclude that Harper may benefit from the TCPA’s expedited-dismissal provisions forthe grounds that Best’s initial removal petition raised, but not for the state’s additional groundalleging a violation of the Open Meetings Act.
From Joseph Larson's amicus brief to the Texas Supreme Court.
The removal suit was not an enforcement action.
The State argues that the removal statute “initiates a political action” (Petitioner’s Brief on the Merits p. 26). However, in direct contradiction of this position, the State argues that the removal lawsuit was an enforcement action.
However, the State was not enforcing any law, either by means of punishing to secure compliance and deter further illegal conduct from this or other parties or by seeking injunctive relief to secure compliance. The State recognizes this problem and argues that it was enforcing the removal statute itself.” (Petitioner’s Brief on the Merits,
p. 23.) This is not enforcing a law, but a county attorney’s opinion of proper opinion to be expressed by an elected official. This case is handily distinguishable from cases where courts have found the enforcement exception applies. While there is a case pending before the Third Court of Appeals on applicability of the TCPA in a Texas Election Commission fine resulting from failure to register as a lobbyist,1 the court of appeals opinion remains the only reported case to address
Texas’ enforcement action exemption. However, the Texas enforcement exception is similar in language to California’s section 425.16(d), which provides that “[t]his section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.” The Texas Anti-SLAPP statute, in large measure, was patterned after the California law because the California statute had been through twenty years of judicial interpretation and legislative modifications to adequately address the competing public interests at play. Courts have explained that the California exemption was included to address concerns that the statute “might impair the ability of state and local agencies to enforce certain consumer protection laws … and protect the consumer and/or public.”
People v. McGraw-Hill Companies, Inc., 228 Cal. App. 4th 1382, 1387 (2014)
(internal quotation marks and citation omitted). In California, the enforcement action exemption has been applied in several kinds of cases, including one where “the Attorney General filed a complaint against an attorney to obtain an order to make him stop filing lawsuits under California’s unfair competition law.” People ex rel. Lockyer v. Brar, 115 Cal. App. 4th 1315, 1316, 9 Cal. Rptr. 3d 844, 845 (2004) (holding that the enforcement action exemption applied) and another where the state filed a lawsuit for statutory violations related to inflated credit ratings. People v. McGraw-Hill Cos., Inc., 228 Cal. App. 4th at 1386. Both were held to be enforcement actions such that the California Anti-SLAPP statute did not apply. The classification created by the Anti-SLAPP statute’s exemption for enforcement actions bears directly on furthering the State’s legitimate interest in allowing the government to pursue actions to enforce laws, unencumbered by delay, intimidation or distraction. See, e.g., People v. Health Labs of N. Am., Inc., 87 Cal. App. 4th 442, 104 Cal. Rptr. 2d 618 (2001).
Petitioner complains in his brief that the court of appeals opinion only gives examples of cases regarding enforcement actions, with no analysis, but we don’t see from the State a single case supporting the theory of the enforcement action is
enforcing the removal statute. The State’s principal case of City of Montebello v. Vasquez, 376 P.3d 624, 631 (Cal. 2016), which involved a City trying to evade a motion to dismiss under California’s Anti-SLAPP, certainly doesn’t support the
theory, and is actually more aligned with Respondent’s position. The State cannot enforce any code of speech, topics to discuss, positions to argue. The enforcement response to a violation of TOMA would be an indictment or injunctive relief under Chapter 551 of the Texas Government Code. The removal lawsuit filed against Mr. Harper is not an enforcement action.