616 S.W.3d 14
Tex. App.2020Background
- Incumbent Sylvester Turner and challenger Anthony Buzbee were mayoral candidates in Houston’s 2019 election; 27 billboards displaying Turner’s image and an "AlertHouston" public-safety message appeared before the election.
- Buzbee sued Turner and billboard owner Clear Channel, alleging the billboards were unreported campaign contributions in violation of the Texas Election Code (seeking damages under §253.131 and injunctive relief under §273.081) and asserting a civil-conspiracy claim.
- Turner and Clear Channel moved to dismiss under the Texas Citizens Participation Act (TCPA), also arguing lack of standing and mootness because the billboards were removed.
- The trial court granted the TCPA motions, dismissed Buzbee’s claims without prejudice, and awarded fees; Buzbee appealed.
- On appeal the court held Buzbee had pleaded sufficient facts to establish standing for his monetary claims but his injunctive claim became moot; dispositive on the merits, the court held a TCPA non-movant cannot rely solely on pleading allegations to meet the prima facie evidentiary burden and affirmed dismissal because Buzbee offered no evidence beyond his petition.
- The court also affirmed denial of Buzbee’s conditional request for limited discovery, reasoning he had relied on pleadings and only sought discovery if the court disagreed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to pursue damages under Tex. Elec. Code §253.131 | Buzbee: as a declared candidate harmed by expenditures made in opposition to him, he has standing | Defendants: Buzbee lacked standing (e.g., not yet a ballot-listed opposing candidate under other subsection) | Court: Buzbee pleaded sufficient, particularized facts to establish standing for §253.131(c) and related conspiracy claim; standing exists at filing |
| Mootness of injunctive relief | Buzbee: injunction sought to prevent unlawful campaign spending | Defendants: billboards were removed before hearing, so injunctive relief is moot | Court: injunctive claim moot post-removal and post-election; prospective relief no longer available |
| TCPA prima facie burden—may non-movant rely solely on pleading? | Buzbee: pleading allegations alone suffice to meet the TCPA non-movant’s prima facie burden | Defendants: non-movant must present clear and specific evidence beyond allegations | Court: Held allegations alone are insufficient; non-movant must present evidence legally sufficient to support a rational inference that asserted facts are true; dismissal affirmed because Buzbee produced no supporting evidence |
| Request for limited discovery under TCPA | Buzbee: good cause for targeted discovery; evidence is in defendants’ control | Defendants: request conditional and untimely; plaintiff said pleadings suffice so discovery unnecessary | Court: no abuse of discretion in denying conditional discovery where plaintiff relied on pleadings and requested discovery only if court disagreed; dismissal proper |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (prima facie under TCPA requires enough detail/evidence to support a rational inference that an allegation is true)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (framework for plea to the jurisdiction; pleadings may establish jurisdiction unless challenged by evidence)
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (TCPA burden-shifting and dismissal procedure)
- Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (movant may rely on plaintiff’s pleadings to show TCPA applies)
- Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012) (voluntary cessation doctrine; defendant must show conduct could not reasonably be expected to recur to mooth claims)
- Williams v. Lara, 52 S.W.3d 171 (Tex. 2001) (standing must exist at every stage of the proceedings)