Paul Reed Harper v. George Darrell Best
493 S.W.3d 105
Tex. App.2016Background
- Paul Harper was elected to the Somervell County Hospital District board on a platform to reduce the district tax rate to zero; he later said at a board meeting he "would vote for zero."
- George Best filed a citizen petition to remove Harper under Chapter 87 (incompetency/official misconduct); the State substituted in to prosecute the removal and added an Open Meetings Act allegation based on Harper’s text messages; a blog critical of the hospital (owned by Harper but operated by his wife) was also cited.
- Harper moved to dismiss under the Texas Citizens Participation Act (TCPA), arguing the removal petition targeted his exercise of free speech and the right to petition; the trial court denied the motion.
- On interlocutory appeal, the court considered (1) whether the TCPA applied (the State argued the suit was an "enforcement action" exempt from the TCPA) and (2) whether the State presented clear and specific evidence to make a prima facie case for removal (incompetency or official misconduct).
- The court concluded the removal petition was not an "enforcement action" exempting it from the TCPA, Harper’s statements (meeting comment, texts, blog) implicated protected speech/petitioning, and the State failed to prove incompetency or official misconduct by clear and specific evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of TCPA (enforcement-action exception) | State: removal is an enforcement action to compel compliance with bylaws/duties, so TCPA §27.10 exemption applies | Harper: removal is ouster, not an enforcement action to compel compliance, so TCPA applies | TCPA applies; removal is not an "enforcement action" exempt under §27.10 |
| Whether petition is "based on, related to, or in response to" protected rights | State: case law shows TCPA typically targets certain suits; this removal is different | Harper: his meeting remark, blog, and texts are communications on matters of public concern/public proceedings | Harper met burden by preponderance: communications implicated free speech/right to petition |
| Whether State produced "clear and specific evidence" of incompetency (gross ignorance/carelessness) | State: Harper’s zero-tax remarks, texts, and blog show he sought to dismantle the district and violated duties | Harper: statements were opinions, not official actions; no motion, vote, or other official act; blog run by wife; no evidence of gross ignorance/carelessness | State failed to produce clear and specific evidence of incompetency; dismissal required |
| Whether State produced "clear and specific evidence" of official misconduct (Open Meetings Act violation) | State: texts show a walking quorum and circumvention of Open Meetings Act (sec. 551.143) | Harper: texts do not show deliberations by a quorum; references do not prove secret deliberations | State failed to show clear and specific evidence of official misconduct under Open Meetings Act; dismissal required |
Key Cases Cited
- Garcia v. Laughlin, 285 S.W.2d 191 (Tex. 1955) (state must be joined in ouster suits by citizens)
- Harper v. Taylor, 490 S.W.2d 227 (Tex. App.—Beaumont 1972) (courts should avoid substituting judgment for elected officials on discretionary political decisions)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA two-step framework and standards for motion to dismiss)
- De Anda v. State, 131 S.W.3d 198 (Tex. App.—San Antonio 2004) (incompetency requires more than mere error in judgment)
- Tautenhahn v. State, 334 S.W.2d 574 (Tex. Civ. App.—Waco 1960) (distinguishing removal where board deliberately set insufficient tax funding)