Baltasar D. Cruz v. James Van Sickle, Karl-Thomas Musselman D/B/A Burnt Orange Report and Katherine Haenschen, 15-0129

Cruz sued for libel over a Bor post about Cruz’s candidacy; Bor Defendants and Van Sickle moved to dismiss under TCPA and sought attorney’s fees.
Trial court granted dismissal and awarded TCPA fees to Bor Defendants and Van Sickle; Cruz appealed.
Court of Appeals affirmed dismissal and awarded Van Sickle fees but reversed Bor Defendants’ fees because they were represented pro bono.
Texas Supreme Court granted review to resolve whether pro bono representation bars fee recovery under TCPA §27.009(a)(1).
Petitioners seek reversal and reinstatement of trial court’s fee award; respondents seek affirmance of the fee-denial for Bor Defendants.
Opinion centers on interpreting §27.009(a)(1) and whether the word “incurred” applies to attorney’s fees when representation is pro bono.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §27.009(a)(1) bars fee recovery for pro bono defendants	Musselman argues incurrence includes pro bono fees	Cruz argues pro bono has no effect under last antecedent rule	No; Bor Defendants did not incur fees; fee award to Bor is reversed

Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010) (defines 'incurred' as liable for payment in TCPA context)
Aviles v. Aguirre, 292 S.W.3d 648 (Tex. 2009) (construction of 'incurred' for fees; supports liability notion)
Brown v. Comm'n for Lawyer Discipline, 980 S.W.2d 675 (Tex. App.—San Antonio 1998) (pro bono fees allowed on public policy grounds; discusses public policy)
Union Carbide Corp. v. Synatzske, 438 S.W.3d 39 (Tex. 2014) (absurdity/plain meaning guidance in statutory construction)
City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) (grammar/last antecedent rule guidance)
Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500 (Tex. 2012) (caution against absurd results in statutory construction)
Texas West Oaks Hosp. v. Williams, 371 S.W.3d 171 (Tex. 2012) (last antecedent rule application in statutory interpretation)