577 S.W.3d 305
Tex. App.2019Background
- Omar Weaver Rosales, a Texas-licensed attorney, sent demand letters to multiple medical providers alleging their websites violated the ADA and WCAG and demanding $2,000 to avoid suit.
- Seven recipients filed grievances; the Chief Disciplinary Counsel (for the Commission for Lawyer Discipline) filed a district-court disciplinary petition alleging violations of Texas Disciplinary Rules (including rules prohibiting dishonesty/misrepresentation, practicing under a misleading trade name, improper influence, threatening disciplinary action for advantage, and asserting frivolous claims).
- Rosales moved to dismiss under the Texas Citizens Participation Act (TCPA), claiming his letters were protected communications on matters of public concern; he submitted the letters and a self‑affidavit stating his beliefs about ADA applicability.
- The Commission argued the TCPA did not apply (government-enforcement exemption, immunity, and Sullivan precedent) and, alternatively, that it had established a prima facie case; the trial court granted dismissal under the TCPA and awarded fees.
- The court of appeals held the TCPA applies to the Commission’s disciplinary suit, rejected the Commission’s exemption and immunity arguments, found the Commission had established by clear and specific evidence a prima facie case of professional misconduct, and reversed and remanded because Rosales failed to prove a TCPA defense by preponderance.
Issues
| Issue | Plaintiff's Argument (Commission) | Defendant's Argument (Rosales) | Held |
|---|---|---|---|
| Whether the TCPA applies to the Commission’s lawyer-discipline proceeding | TCPA enforcement-action exemption or immunity prevents TCPA from applying | The disciplinary petition is a TCPA-covered legal action; the letters are protected speech on public concern | TCPA applies; exemption limited to four named prosecutors; Rule 17.09 immunity does not bar TCPA application |
| Whether the Commission met its TCPA burden to show a prima facie case of professional misconduct | The petition and exhibits (letters) and related facts establish each element by clear, specific evidence | Movant argued letters are protected and not actionable; defendant disputed sufficiency | Commission met its burden: clear and specific evidence supports prima facie case on alleged rule violations |
| Whether Rosales established a valid TCPA defense by preponderance (no misconduct) | N/A (Commission asserted prima facie case) | Rosales offered a conclusory affidavit asserting belief and denying dishonesty, arguing unsettled law on ADA/websites | Rosales failed to prove defense by preponderance; affidavit was conclusory and inadequate; statements in letters were at least misrepresentations |
| Whether Sullivan v. Texas Ethics Commission controls to bar TCPA | Sullivan showed TCPA inapplicable to certain de novo appeals of administrative orders | Rosales relied on Sullivan to support dismissal | Sullivan is distinguishable; here Commission filed suit seeking affirmative relief, so TCPA applies |
Key Cases Cited
- S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843 (Tex. 2018) (explaining TCPA burden-shifting and steps)
- State v. Harper, 562 S.W.3d 1 (Tex. 2018) (interpreting TCPA’s definition and scope of “enforcement action”)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (defining “clear and specific evidence” and “prima facie case” under the TCPA)
- Sullivan v. Texas Ethics Comm’n, 551 S.W.3d 848 (Tex. App.—Austin 2018) (narrow holding on TCPA in context of de novo appeals of administrative orders)
- Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) (noting WCAG are non‑binding private guidelines)
- Molinet v. Kimbrel, 356 S.W.3d 407 (Tex. 2011) (statutory construction and absurdity doctrine)