614 S.W.3d 233
Tex. App.2020Background
- Dec. 28, 2018: During a press conference outside HISD headquarters, Steve Striever walked up to Harris County Treasurer Orlando Sanchez and poured water on Sanchez’s head. Sanchez sued for assault (offensive physical contact), mental anguish, and exemplary damages.
- Striever moved to dismiss under Texas Rule of Civil Procedure 91a and the Texas Citizen’s Participation Act (TCPA), arguing the suit related to his exercise of free speech/association at a public protest.
- The trial court granted dismissal under both Rule 91a and the TCPA and awarded attorney’s fees (including conditional appellate fees) to Striever.
- Sanchez appealed. Justice Meagan Hassan issued a concurring-in-part and dissenting-in-part opinion: she agreed the Rule 91a dismissal was erroneous but disagreed with the majority that the TCPA dismissal and the fees award should stand.
- Hassan would (a) reverse the Rule 91a dismissal, (b) affirm the TCPA dismissal (finding the water‑pouring was an exercise of speech/association under the TCPA), and (c) remand for Rule 91a fees to Sanchez while leaving Striever’s TCPA fee award intact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal under TRCP 91a was proper (no basis in law or fact) | Sanchez: pleaded assault by offensive contact (intentional water pour); allegations and inferences suffice; no requirement to plead or prove physical injury for offensive contact | Striever: claim lacks legal/factual basis; no demonstrable injury or recoverable damages; 91a dismissal appropriate | Hassan: Rule 91a dismissal was erroneous; Sanchez’s pleading, taken as true, states a valid assault claim |
| Whether TCPA applies (claim "based on, relates to, or in response to" exercise of free speech/association) | Sanchez: TCPA inapplicable because pouring water is not protected speech; Striever judicially admitted it was not speech; no evidence linking suit to protected exercise | Striever: conduct occurred at a public press conference/protest about HISD; his act was a communication in connection with a matter of public concern and thus falls within TCPA definitions | Hassan: TCPA applies — under the statute’s broad definitions the water-pouring occurred in connection with a public‑concern communication/association; Striever met preponderance burden and Sanchez declined to meet his burden under prong two |
| Standard and scope of TCPA analysis (statutory definitions v. First Amendment limits) | Sanchez: TCPA should not cover non‑lawful conduct like assault; constitutional First Amendment limits should inform TCPA’s scope | Striever: TCPA’s text defines covered "communication" broadly; courts must apply statutory definitions without importing constitutional limits | Hassan: Courts must follow the TCPA’s plain, broad definitions and not import narrower First Amendment boundaries; therefore TCPA can reach conduct occurring in public protest context |
| Attorney’s fees award (Rule 91a and TCPA) | Sanchez: Rule 91a mandates fees to the prevailing party (he prevailed on 91a), so trial court’s award to Striever under 91a should be vacated and remanded to determine Sanchez’s recoverable fees | Striever: entitled to mandatory TCPA fees/costs upon dismissal; 91a award could be treated as a single combined award by the trial court | Hassan: If TCPA dismissal stands, Striever is entitled to TCPA fees; because 91a dismissal was erroneous, Sanchez is entitled to recover his Rule 91a fees and the case should be remanded for determination of those fees |
Key Cases Cited
- Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651 (Tex. 2020) (explains Rule 91a legal/factual basis standards)
- City of Dallas v. Sanchez, 494 S.W.3d 722 (Tex. 2016) (discusses Rule 91a review and pleading construction)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA purpose and expedited‑dismissal framework)
- Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 (Tex. 2018) (TCPA’s statutory definitions may differ from constitutional First Amendment scope)
- Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (civil assault elements mirror criminal assault statute)
- City of Watauga v. Gordon, 434 S.W.3d 586 (Tex. 2014) (offensive contact, not physical injury, is gravamen of assault/battery claim)
- Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967) (explains personal indignity as basis for recovery without physical injury)
- Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) (outlines TCPA three‑step dismissal process)