*1 210 punish verdict or lesser guilty
to a not INC., ENERGY, (“The Charif Bone, CHENIERE at 837 77 S.W.3d ment. Ray Individually, Greg Souki, obviously felt that counsel appeals court of ford, Individually, Appellants mitigating more have introduced should evidence, to believe there is no reason but v. existed.”). that such evidence LOTFI, Appellee. Azin his ineffective assistance
To
prevail
claim,
ap
an
present
needed
appellant
No. 01-13-00515-CV.
affirmatively demon
record that
pellate
actions were not
that his counsel’s
strates
Texas,
Appeals
Court
strategy.
trial
See Mal
on sound
based
(1st Dist.).
Houston
62-63;
lett,
affirmatively alleged ineffec demonstrate
tiveness). By failing provide any indica mitigat good-character
tion of whether appellant available to ing evidence was evidence, appellant what constituted not established that his trial counsel has failing rendered ineffective assistance evidence at trial. See to introduce such 434; Narvaiz, Rodriguez 840 S.W.2d at State, (Tex.App. (“Without pet.) no record Amarillo what, any, mitigating if evi evidence of appellant and coun dence was available to offering for not such evidence sel’s reasons existed, is unable to overcome appellant that counsel’s conduct presumption range of reasonable falls within the wide State, assistance.”); Beard v. professional (Tex.App.-Amarillo 'd) overruling ap (noting, ref claim, that pellant’s ineffective assistance “cite appellant did not us mitigating that favorable evi illustrating existed”). actually dence appellant’s overrule third issue. We
Conclusion of the trial judgment We affirm the court.
In this appeal, Souki accelerated Rayford challenge the trial court’s denial of their motion to dismiss the claims against them Chapter under 27 of the Civil Code, Practice and Remedies which is an anti-SLAPP statute entitled “Actions In- volving the Exercise of Certain Constitu- tional Rights” and commonly referred to as the Texas Citizens’ Participation Act (TCPA). See generally Tex. Civ. Prac. & (West 27.001-.011 Supp. 2014).1 (1) contend that properly invoked the TCPA establish- Hoeg, Ryan Matthew L. R. McBrearty, ing, by preponderance evidence, LLP, Houston, TX, Andrews Kurth for that Lotfi’s against claims them are relat- Appellants. ed to their exercise of the “right of associa- Slobin, Shellist, M. Todd Martin A. Shel- tion” and Lotfi present failed to clear Slobin, LLP, Houston, TX, list Lazarz for specific support each ele- Appellee. ment of her prima facie case of tortious interference summary to avoid dismissal. JENNINGS, Panel consists of Justices We affirm. SHARP, and BROWN.
Background
OPINION
Lotfi, Cheniere’s former assistant gener-
counsel,
al
sued the company for “breach
BROWN,
HARVEY
Justice.
contract, fraud,
inducement,
of.
fraud in the
Appellants filed a motion for rehearing
enrichment,
unjust
pending disability
10,
of our memorandum opinion of June
discrimination and retaliation claims under
rehearing
Their motion for
is over-
chapter 21 of the Texas Labor Code.” Lot-
ruled. The
opinion
memorandum
of June
fi claimed that she was fired from Cheni-
10, 2014, withdrawn,
and the following
ere in
for reporting
retaliation
improper
substitute opinion is issued in its place.
activities within the company, including
Azin Lotfi
employer,
sued her
Cheniere
unauthorized disclosures of confidential
Inc.,
Energy,
claiming her employment
company information to the son of Cheni-
wrongfully
was
terminated. She also sued ere’s CEO and board chairman.
In addi-
co-workers,
two of her
Charif Souki
suing
and tion to
her former employer, Lotfi
Rayford,
Greg
for tortious interference
asserted a tortious
interference
claim
employment
CEO,
with her
Souki,
Cheniere.
Cheniere’s
Charif
25, 2013,
denied);
interlocutory
1. The TCPA
ap
pet.
authorizes this
Direct Commercial
cf.
Television,
Robinson,
Estates, LLC,
peal. See KTRK
Inc. v.
Funding,
v.
Inc. Beacon Hill
No.
12-00896-CV,
(Tex.
(Tex.App.-Houston
ford’s § 27.003. PRAC. & Rem.Code Ann. Tex. Civ. Thus, plead- based on the filed affidavits. expressly stated Legislature The Texas evidence, ings but without additional stat- enacting for this anti-SLAPP purpose Ray- the Souki and the trial court denied ute: They appeal that ford’s motion to dismiss. is to encour- purpose chapter The of this order. safeguard age constitutional petition, speak free- rights persons Purpose The Text Stated partic- and otherwise ly, associate of the TCPA the maximum government ipate See The is an anti-SLAPP law. TCPA and, by law permitted extent Servs., Witt, 404 Inc. v. Rehak Creative time, rights person of a protect same (Tex.App.-Houston [14th 719 S.W.3d for demon- file meritorious lawsuits denied). is an “SLAPP” Dist.] injury. strable Against acronym “Strategic Lawsuits Legislature § 27.002. The defined Id. filed Participation,” Public which are suits See id. by covered the statute. socially active indi against politically and § 27.001. The “exercise goal prevailing viduals—not with in the as “a is defined association” but, instead, chilling those the merits who communication between individuals Amendment activities. individuals’ First collectively express, pro- join together to Canan, Penelope George Pring W. & inter- mote, common pursue, or defend Partic Strategic Against Lawsuits Public 27.001(2). § ests.” Id. (“SLAPPS’): ipation An Introduction for that Lotfi’s Bench, Rayford contend Bridgeport 12 Bystanders, Bar and them (1992). against claim stat tortious interference L.Rev. Anti-SLAPP 938 to, on, ... in re- relate[d] states was “based utes have been enacted several to” their of association sponse “deter law past over the two decades to therefore, summary dis- was, subject to brought primarily ... to chill suits Ray- missal. See id. 27.003.'Souki and burden to establish “clear specific argue ford have met their evi- evidence” the elements of her prima facie burden, dentiary through affidavit against case them to avoid dismissal. Tex. concerning substance and 27.005(c). Civ. Prac. & of a communication between Statutory construction is question qualify them that would as an exercise of Shumake, law we review de novo. State v. but, instead, of association (Tex.2006). When the mere fact that Lotfi and statute, construing a our objective is to positions as held in-house counsel at give determine and legislative effect to Cheniere: intent. See Nat’l Liab. & Fire Ins. v.Co. Lotfi’s tortious interference claim Allen, (Tex.2000). In directly intent, determining Legislature’s we *4 predicated upon attorney/client com- look to the plain meaning of the statute’s place munications that took between words. ATex. & M Sys. Univ. v. Koseo (the Souki representative) client and 835, (Tex.2007). glu, 233 S.W.3d 840-41 (the Furthermore, Rayford attorney). plain “The meaning of the text is the best those confidential communications di- expression legislative intent unless a rectly concerned whether to continue to meaning different apparent is from the retain Lotfi one of lawyers Cheniere’s plain context or the meaning leads to ab (i.e., whether to continue to associate surd or nonsensical results.” Molinet v. Lotfi). Thus, with the tortious interfer- Kimbrell, (Tex.2011). 356 S.W.3d 411 necessarily ence claim is directly and give We cannot provision one meaning out on, to, based related or in response to harmony or inconsistent with other pro Appellants’ exercise of asso- visions, even if it might susceptible ciation. such a construction standing alone. Direct Funding, Commercial Inc. v. Beacon Hill Standard of Review LLC, Estates, 14-12-00896-CV, No. parties’ pleadings We consider the *2 (Tex.App.-Houston WL at [14th when reviewing ruling affidavits on a order). 24, 2013, Jan. Additionally, Dist.] motion to dismiss. Tex. Civ. Prac. & we interpret “must not the statute in a 27.006(a). § Souki and any part manner that renders of the stat Rayford bore the initial burden of demon ute meaningless superfluous.” Colum strating applicability the TCPA’s to Lotfi’s Colinas, bia Med. Las Ctr. Inc. v. Ho 27.005(b); § claim them. See id. (Tex.2008). gue, 271 S.W.3d Newspaper Holdings, Crazy Inc. v. Hotel Ltd.,. Living, Assisted Rayford Fail to Meet Their (Tex.App.-Houston 2013, pet. [1st Dist.] Burden to Obtain Dismissal denied). They required were to show a only pleadings The relevant in included preponderance of the evidence that Lotfi’s on, to, appellate record are Lotfi’s amended claim was based related or in re verified petition, Rayford’s Souki and mo- sponse to their exercise of the right of dismiss, tion to response. association. Tex. Lotfi’s Civ. Prac. & RemlCode 27.005(b). inquiry This chose not to submit Ann. question support we affidavits in of their motion to Newspaper review de novo. dismiss; therefore, Holdings, 416 if Only we contention that conclude Souki and met their joined together bur communicated when den, do we analyze whether Lotfi met her to act in furtherance aof common interest the exercise of Instead, statutory definition of they rely on the unverified.
remains or, finally, that evidentiary right of to meet their pleading Lotfi’s association— response is in to an burden, para- her claim relates or specifically us pointing 10, 11, 15, 21 of Lotfi’s of association. exercise of the graphs alleged by The petition. facts verified assertions Only one of the five factual are summarized paragraphs Lotfi in these Rayford could be upon by relied as follows: oc- read to indicate that a communication (cid:127) Septem- started at Cheniere Lotfi The last assertion is that Souki curred. re- being personally 2011 after ber Rayford “made the decision” to termi- by Rayford; cruited so, and, re- doing “exacted nate Lotfi (cid:127) violations of Cheniere’s Lotfi raised may her. It be that Souki venge” and Eth- Business Conduct (1) Code was the result of “a Rayford’s decision
ics, ir- accounting documentation and (2) individuals communication” “between is- regularities, compliance and other join together” for the who sues, which lead to her termination pursuing, or de- expressing, promoting, retaliation; their “common interests.” fending (cid:127) initially stated it would company Ann. Tex. Civ. Prac. & Rem.Code company Lotfi the full amount of pay 27.001(2). supports al- But the record Lotfi, which, according to
stock owed example, ternate conclusions as well. For *5 under the Restrict- only possible was may had diver- Rayford Souki and have if Agreement Grant she ed Stock seeking interests in Lotfi’s removal gent “without being were' terminated company: arguably the Souki could from Cause,” then, thereafter, quickly dismissing personal have had a interest revoked; termination was given allegation Lotfi Lotfi’s that Souki’s (cid:127) highest” Lotfi received “one of the infor- given company son was confidential mation, to a non-
year-end given Rayford’s bonuses interest in hav- whereas in December 2012 senior executive could have been to ing Lotfi dismissed nothing to warrant a “for and did further the financial interests Cheniere termination; and Cause” for cause invalidated given that dismissal (cid:127) right compen- Lotfi’s to merit-based bonus < Rayford Souki and made the decision ' matter, evidence on the sation. Without Lotfi; they exacted re- to terminate Rayford the extent to which Souki and her; the claim that
venge on and she interest acted in furtherance of a common for “cause” is false. was fired simply unknown. is responds Rayford Lotfi that Souki and pleadings Because we are to view the provided any “have not evidence to estab- most to light filed in and evidence favorable lish that the instant lawsuit was' non-movant, we conclude that the lim- Ray- exercise of Souki' and response to the pleading in Lotfi’s fail to clearly ited assertions rights, ford’s First Amendment establishing of meet the movants’ burden they preponderance have not met the communication, words, they acted they In that had a evidence standard.” other she interest, a common Rayford’s reliance in furtherance of contends that Souki and related that Lotfi’s claim them is pleading on the factual assertions in her is right of association. to their exercise of inadequate to establish that a communica- Holdings, 416 S.W.3d at occurred, Newspaper Rayford tion that Souki and supporting collectively act in 80. Absent affidavit joining together were to contentions, Rayford have their Souki and required a common interest —as is to meet to meet their burden obtain dis- establish that a occurred, failed communication that Souki Rayford joined missal. were to- gether collectively pursue common in- Evidentiary Burden be Met Cannot terests, or that suit was Lotfi’s related to Attorney Reliance on Status their exercise of the of association. Nor do agree we that attempt to avoid the can absolved meeting their evi- conclusion that failed meet their dentiary by arguing burden that providing evidentiary Rayford’s on by relying burden such evidence would also reveal “indisput- attorneys Lotfi’s to bridge status as ably privileged communications.” evidentiary They gap. argue that “ev- court ery to have considered the issue has Rayford wears two hats at Cheniere: he recognized constitutionally-pro- that both general counsel and a senior applies directly tected association president. roles, vice Given his dual his legal to both client’s choice of counsel to view whether it was in the company’s it, and a represent and advise in- client’s interest to retain as an employee Lotfi legal teractions with its chosen counsel.” any may advice he provided have on that Rayford explain contention not, se, per legal issue is advice. See interaction counsel legal with invokes Lisk, Derek When Does Texas Attor- to association follows: ney-Client Privilege Protect Communica- was necessary Appellants [I]t Counsel?, tions with In-House 68 Tex. specific offer evidence of the communica (2005) (“In-house B.J. counsel fre- Nor, Rayford. tions between Souki and hat, wear one quently perform- more than matter, party for that ever should have ing other duties in addition to providing disclose what are the details of indis services.”); see also United States v. putably privileged communications be Davis, (5th Cir.1981) F.2d corporate and the corpo tween officers (attorney who his acts as client’s business *6 general to rate counsel establish that acting legal advisor is not in capacity); In their communications constitute the ex Inc., re Tom’s Foods 345 B.R. 798-99 of the right ercise of association under (Bankr.M.D.Ga.2006) (holding that commu- the TCPA. serving nications with on attorney corpora- seeking
tion’s board of directors were busi- advice). advice, legal ness not company’s Because the was lawyer, the him discussions between Rayford’s corporate status as counsel Lotfi, about about whether to not and Rayford does excuse Souki lawyer, to retain as a continue Lotfi are they prove qualify their burden to had a attorney/client examples classic of con- ing joined pursue communication and to a sultations that constitute the exercise of common interest. If contention their was Moreover, right of association. be- privi that communication involved a cause the and the decision discussions communication, leged, attorney-client actually concerned selection of legal affidavit; have in an yet could stated so counsel, they independently constituted they failed to an affidavit in provide sup the exercise of the of association of their to dismiss. 4A port motion Cf. Forms, Commentary, Tex. West’s Busi (2d
We do a agree Litigation not that bare asser ness 24.2.11.60 ed. June 2014) (“Counsel of counsel can tion involvement meet is well-advised to file one Affidavit(s) Rayford’s evidentiary more burden to based this form to to be of provision tion that out Anti-SLAPP Motion to causes accompany [an] harmony provi with other Dismiss.”); (lawyer-client Evid. 503 or inconsistent Tex.R. Valdez, Borden, sions); v. Inc. Med. Ctr. Las Coli privilege); Columbia of nas, (Tex.App.-Corpus 720-21 S.W.2d S.W.3d writ) (“[N]ot 1989, no all state- Christi Cheniere, Indeed, against Lotfi’s lawsuit a by made communications ments and Souki, way in any does not are attorney privileged, an client to express Legislature’s decla implicate the party resisting on the discov- burden is of of this statute: to purpose ration was, ery that the communication to show rights per protect “the constitutional fact, privilege.”).2 protected freely, speak associate petition, sons either an affidavit establish Without participate govern and otherwise communication occurred qualifying that a ” .... & ment Tex. Civ. Prac. attorney-client commu privileged that Marklund, 27.002; .§ see Jardin regarding occurred Cheniere’s nication (Tex.App.-Houston 770-73 counsel, Ray- choice of 2014, no that pet.) (stating [14th Dist.] Rayford’s gen as reliance on status ford’s history, purpose, lan legislative TCPA’s meet does not their evidentia- eral counsel support all conclusion guage, and context ry To hold otherwise would be to burden. right of association” that “exercise of the that every communi presumption create a that requires commu defined TCPA attorney in-house meets the cation with an interest and does public nication concern definition of “exercise TCPA’s communications); apply private not but claim “related of association” Law Ass’ns see Combined Enforcement subject to” to sum such communications 03-13-00105-CV, Sheffield, Tex. v. No. mary dismissal. Tex. & Rem. Civ. Prac. 411672, at *2 n. 1 (Tex.App. 2014 WL 27.001(2). that the Accepting Code Ann. (mem. filed) op.) Austin Jan. (1) a broad would TCPA has such reach does limit (stating that text of TCPA require ignore provision us to scope). specifically requiring support agree the terms “citizen” and contrary We a motion dismiss larger “participation” contemplate public purpose stated of the stat explicitly Further, ute, purpose. the stated namely, protection to balance the requirement the statute indicates a First Amendment the communication all have to file lawsuits to re some nexus between individuals *7 general- to and the & used invoke the TCPA injuries. dress their Tex. Civ. Prac. 27.005(b), 27.002; First ly recognized parameters §§ Di of Amend- Ann. Rem.Code Otherwise, any protections. Funding, ment commu- rect Commercial 2013 WL 407029, decision-making nication (rejecting statutory part *2 construc that is at client”); Corp., vice or In v. Credo services to re Tom's See also Pownell Petroleum 09-CV-01540-WYD-KLM, Inc., (Bankr.M.D.Ga. WL No. 2011 Foods 345 B.R. (D.Colo. 17, 2011) (stat Mar. at *2 2006) seeking (holding communications that attorney-client ing privilege does not that "the protected by business advice were not attor protect communications related to business ney-client privilege); also see Restatement advice”); Baptist BancorpSouth Ins. Health (Third) Governing Lawyers § Law Servs., Inc., (N.D.Miss. 270 F.R.D. (requiring a communication be "for that, 2010) (stating questions privilege obtaining purpose providing legal setting, inquiry corporate in a "the critical attorney-client privi to invoke the assistance” any particular facili whether communication lege). legal predominantly tated the rendition of ad in an process employment dispute (“TCPA”) Participation Texas Citizen Act —to just example name one be used to apply does not to the claim of appellant, —could summary Lotfi, draw within the TCPA’s dismiss Azin against- appellees, Charif Souki procedures private implicating al suits only Greg Rayford, for tortious interfer- Cordia, private issues. Pickens v. 433 ence with employment her contract. See Cf. (Tex.App.-Dallas 184-85 Tex. Crv. Prac. & 27.001- (Vernon pet.) (holding no protection TCPA .011 Supp.2014). “exercise of the speech” of free did Chapter Under 27 of the Texas Civil apply not to suit over content of appel Code, Practice and Remedies which is enti- lant’s blog, which he made allegedly tled “Actions Involving the Exercise of disparaging comments about his family Certain Constitutional Rights,” a party members, because those communications may file a motion to legal dismiss a action concern). public
were not matter of on, to, that is “based relates or is in re- Because failed to sponse party’s to [the] exercise of meet their burden of establishing, by a of speech, right free petition, or right of evidence, preponderance of the that their 27.003(a) association.” Id. (emphasis communications fell within statutory added). motion, After a hearing on the definition of exercise of the of associ- trial court must dismiss the action if the ation, the trial court did not err denying moving party “shows by preponderance their motion to dismiss. of the evidence” that the action is Given our conclusion that Souki and on, to, “based relates response or is in Rayford failed to meet their evidentiary party’s exercise” of: burden, we do reach Ray- not (1)the right speech; of free ford’s regarding second issue whether Lot- (2)the right petition; prima fi established a facie case of tortious interference. (3)the right of association. 27.005(b) added). §Id. (emphasis
Conclusion Because Souki failed to itself, In the legislature ex- burden, meet their evidentiary the trial pressly purpose: stated its court in denying did err their motion The chapter this is to encour- to dismiss under the TCPA. We affirm. age safeguard the constitutional rights persons petition, speak free- JENNINGS, Justice joining the ly, associate par- otherwise majority opinion concurring ticipate government to the maximum separately. and, permitted by extent law SHARP, Justice joining majority time, protect same of a per- opinion and the concurrence. son to file meritorious lawsuits for de- injury. monstrable *8 JENNINGS, Justice, TERRY concurring. added). Thus, (emphasis Id. 27.002 the join
I opinion, the lead but sepa- encourage write TCPA serves to protect that, rately emphasize given to specific only the rights” “constitutional to “free language and expressly stated to speech,” “petition,” and “association.” See Const, protect only I; the rights constitutional to U.S. amend see also Tex. Const. association, speech, I, free petition, §§ the art. evidence that specific clear and
Moreover, by the Texar- show explained including the for each essential Appeals, “[b]y genuine of he had a case kana Court addition, govern in if the participate In phrase ‘otherwise element of the claim. 27.002, legislature ment’” in section granted, plain- motion to dismiss only constitutionally protect” to “intended wrongly brought the lawsuit tiff who has to such a rise[ freedoms “that protected ] pay attorney’s fees may required to [they] partic can be considered level that of the defendant. government.” in Whisenhunt ipation current law relat- 2973 amends C.S.H.B. (Tex.App.
Lippincott,
participation
ing
encouraging public
to
filed). Indeed,
in his
-Texarkana
right
by protecting person’s
citizens
intent,
of the
sponsor
of
statement
speech, right
to petition,
free
of
explained:
law-
merit less
right
association
from
heart
our
participation is the
Citizen
arising
actions taken in
suits
fur-
from
petitioning the
democracy. Whether
rights.
those
therance of
a traditional news
writing
government,
Comm,
Affairs,
Analy-
Bill
on State
Senate
article,
quality
on the
commenting
sis,
Leg., RS
Tex. H.B.
82nd
business,
in the
involvement of citizens
added). Thus,
pur-
(emphasis
broader
society.
benefits our
exchange
idea[s]
Participation
the Texas
pose of
Citizen
silencing
lawsuits aimed at
Yet frivolous
Strategic Lawsuits
stop
Act is to
such
in these activities are
those involved
Against
Participation.
Public
common, and are a
becoming more
democracy.
our
growth
to the
threat
Here,
complained-of
acts of Souki
age has created a more
The Internet
alleged
regard
in
to their
and searchable record
permanent
employ-
tortious interference with Lotfi’s
partic-
as citizen
public participation
their
ment contract do not at all concern
democracy
through
ipation
grows
in
petition,
speak
constitutional
journalism,
citizen
self-publishing,
“and otherwise
freely,
associate
Unfortunately,
speech.
other forms of
i.e.,
in
government,”
engage
participate
legal system,
aimed at
abuses
Lotfi’s
public participation.
citizen or
citizens,
these
have
also
silencing
Rayford has
lawsuit
Souki and
grown. These lawsuits are called Stra-
with their constitutional
nothing to do
Partic-
tegic
Against
Lawsuits
Public
public partic-
in citizen or
right
engage
ipation or
suits.
“SLA[P]P”
that Souki
ipation.
allegation
And Lotfi’s
the District of
Twenty-seven states and
Rayford tortiously interfered with her
acts, most
passed
Columbia have
similar
any
rea-
contract cannot
employment
either
“Anti-
commonly known as
attempt
as an
sonable sense be read
Participation
SLAPP” laws or “Citizen
them, prevent
them
strategically silence
Acts” that allow defendants in such
public partic-
in citizen or
engaging
from
than
cases to dismiss cases earlier
would
associating
ipation, prevent them
possible,
limiting
otherwise be
thus
way
in-
other
purposes,
such
costs and fees. The Texas Citizen Par-
rights.
upon their constitutional
fringe
defendants—
ticipation Act would allow
Rayford claim
Regardless,
exercising
a result of
who are sued as
attempt
an
lawsuit constitutes
that Lotfi’s
speech
to free
or their
asso-
their constitutional
to thwart
petition
government
file a
—to
In the
suit,
in. the TCPA.
ciate as defined
motion to dismiss the
at which
TCPA,
broadly and
legislature does
required to
point
plaintiff
would be
*9
vaguely define the “exercise of the right
change
for
interests,”,
our “common
there
association”
“a
communication between
is no
right
constitutional
to engage in crim-
join
who
together
collectively
behavior,
individuals
inal
wrongs,
commit civil
or oth-
express, promote, pursue, or defend com- erwise inflict injury upon
Impor-
others.
mon interests.” See Tex.
& Rem.
tantly,
legislature
expressly included
Prac.
Civ.
27.001(2).
alone,
Standing
within the
purpose
stated
of the TCPA its
Code Ann.
this
appear
awkward definition does
to,
time,
intent
“at the
protect
same
include communications that are not con-
rights of a person to file meritorious law-
stitutionally protected and do not concern suits for
injury.”
demonstrable
Id.
However,
citizen
public participation.
Construing the definition of “exercise of
27.001(2)
we cannot read section
in iso-
right
of association” in section
lation.
necessarily
The TCPA
contem-
27.001(2)
isolation,
in
without any regard
communication,
plates
any
as dis-
legislature’s
expressly
pur-
stated
27.001(2),
cussed in section
must involve
pose of the
in
TCPA
section 27.002 to
constitutionally protected rights and citi-
protect
rights,”
“constitutional
would cer-
zen or public participation.
tainly lead to absurd results. As explained
' As
in
opinion,
noted
the lead
when con by the Texarkana
Appeals:
Court of
statute,
struing a
objective
our
is to deter
The statement of intent confirms the
give
legislative
mine and
effect to
intent.
concept gathered
reading
from
the stat-
Allen,
See Nat’l Liab. & Fire Ins.
v.Co.
ute as a whole
Legislature
that the
was
(Tex.2000).
Although the
attempting by this law protect
a citi-
“plain meaning
text
is the best
zen’s public participation.[ Otherwise,
]
intent,”
expression
legislative
of the
this is
dismissals,
pre-discovery
fees,
attorney’s
not true when “a
meaning
ap
different
and sanctions would loom over any
parent from the
plain
context or the
mean
plaintiff filing an action for private de-
ing leads to absurd or nonsensical results.”
famatory speech, which would have the
Kimbrell,
Molinet v.
356 S.W.3d
chilling
private
meritorious
(Tex.2011).
effect of
And we “must
interpret
def-
suits,
amation
a result neither intended
any
statute
a manner that renders
required
nor
under the TCPA.
part
meaningless
of the statute
super
fluous.” Columbia Med. Ctr. Las Coli
Whisenhunt,
Here, reading the entirety, TCPA its also be reading absurd. Such a would the broad definition of “exercise of the actually serve to thwart meritorious necessarily of association” is restrict- lawsuit for injury demonstrable in which a ed the expressly stated plaintiff alleges that persons two or more “to encourage safeguard engaged in a civil wrong involving a com- constitutional rights persons to petition, could, munication. The defendants at the speak freely, least, associate very and other- add unnecessary delay and ex- participate government wise pense lawsuit, to the max- plaintiffs to a no matter imum extent 'permitted by meritorious, that, law.” Tex. how simply asserting Civ. Prac. & (emphasis 27.002 in committing acts, their eomplained-of added). Although citizens most certainly they were exercising of associa- do have a First Amendment by engaging asso- tion in a communication “to bring ciate to about political collectively social and express, promote, pursue, or *10 inter- “common private, their own defend” by half. is too clever This
ests.” definition the extent To association” “exercise 27.001(2) read as possibly can section not constitu- communications including concerning citi- tionally protected and, thus, be participation, public zen or and un- expense to add by litigants used litigation, delay to meritorious necessary interlocutory appeal, via especially drop the definition could legislature least, very At the altogether. the TCPA legislature could although repetitive, qualifying to include the definition revise in the definition repeating language, protect of the TCPA stated “constitutional encourage the use of necessary, such a Although not rights.” “protect to further change would serve to file meritorious person of a injury” from demonstrable lawsuits for abuse would otherwise those who Act and use Participation Texas Citizen expense unreasonably delay and add it to resulting from their injuries to claims for (cid:127) wrongs. private, civil JENNINGS, J., concurring, joined by SHARP, J. ZAPATA, Appellant
Israel Texas, Appellee. The STATE No. 04-13-00780-CR. Texas, Appeals Court Antonio. San 8, 2014. Oct.