State v. Paul Reed Harper, 562 S.W.3d 1

Background

Paul Harper was elected to the Somervell County Hospital District Board on an anti-tax platform; George Best filed a removal petition under Tex. Loc. Gov’t Code ch. 87 alleging incompetency based on Harper’s board actions and statements.
The county attorney, appearing for the State, adopted Best’s petition and added an allegation that Harper violated the Texas Open Meetings Act.
Harper moved to dismiss under the Texas Citizens Participation Act (TCPA), arguing the removal petition targeted his rights to free speech and petition; the trial court denied the motion after an evidentiary hearing.
The court of appeals reversed, concluding the TCPA applied and the State failed to establish a prima facie case; it remanded for dismissal and an award of costs, fees, and sanctions to Harper.
Harper subsequently lost reelection, rendering the removal claim moot, but his claim for appellate fees under the TCPA survived because he prevailed on appeal before mootness.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a removal petition is a “legal action” under the TCPA	Best/State: removal is a unique, quasi‑criminal/political proceeding not subject to the TCPA	Harper: removal petition seeks statutory relief and is a judicial pleading; TCPA applies	Held: removal petitions are "legal action" under TCPA; TCPA dismissal available
Whether a removal petition brought by the State is an "enforcement action" exempt from the TCPA	State: joining the petition makes it an enforcement action by the State, so TCPA inapplicable	Harper: not all state‑joined removal petitions enforce a law; TCPA should apply unless the suit enforces a substantive prohibition	Held: "Enforcement action" means attempts to enforce substantive legal prohibitions; incompetency allegations are not enforcement actions, but the Open Meetings Act allegation is an enforcement action and thus exempt
Whether the TCPA conflicts with the removal statute or Dishman (1962)	State: specific removal‑statute procedures and Dishman’s characterization of ouster suits preclude TCPA application	Harper: statutes and practice rules allow other civil defenses; TCPA complements removal statute	Held: No irreconcilable conflict; TCPA complements removal statute despite Dishman (Dishman predates TCPA)
Whether sovereign immunity bars recovery of appellate fees/costs from the State under the TCPA	State: neither removal statute nor TCPA clearly waive immunity from suit; immunity protects State from fee awards	Harper: when State joins suit it subjects itself to possible fee liability; TCPA should permit fee awards against State here	Held: Sovereign immunity does not bar a TCPA fee award against the State in this context; Harper can recover appellate costs/fees awarded by the court of appeals (but not for the Open Meetings Act allegation)

Key Cases Cited

Williams v. Lara, 52 S.W.3d 171 (Tex. 2001) (mootness and justiciable controversy principles)
Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012) (when events make requested relief impossible, case becomes moot)
Camarena v. Tex. Emp’t Comm’n, 754 S.W.2d 149 (Tex. 1988) (attorney’s‑fee claims can keep an appeal live if claimant prevailed before mootness)
In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA protects participation in government and public‑concern speech)
Dishman v. Gary, 359 S.W.2d 456 (Tex. 1962) (historical treatment of ouster suits as admitting no cross action)
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (limits of sovereign immunity and abrogation via offsetting counterclaims)
Kinnear v. Tex. Comm’n on Human Rights ex rel. Hale, 14 S.W.3d 299 (Tex. 2000) (when State initiates suit, immunity from suit may not block attorney’s‑fee recovery under certain statutes)
Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528 (Tex. 2012) (limitations on fee recovery against governmental entities in certain contexts)
Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) (sovereign‑immunity rationale protecting the public fisc)