THE STATE OF TEXAS EX REL. GEORGE DARRELL BEST, PETITIONER, v. PAUL REED HARPER, RESPONDENT
No. 16-0647
IN THE SUPREME COURT OF TEXAS
June 29, 2018
Argued November 8, 2017
JUSTICE
JUSTICE BOYD filed a dissenting opinion, in which JUSTICE JOHNSON and JUSTICE LEHRMANN joined.
JUSTICE BLACKLOCK did not participate in the decision.
The Texas Citizens Participation Act (the TCPA) allows a defendant to obtain
I
Background
When Paul Harper ran for a position on the Somervell County Hospital District Board, he campaigned on pledges to eliminate the tax that supports the district and to replace the district‘s administrative employees. He won the election, joined the board, and allegedly tried to make good on his promises. In response, a county resident named George Best sought to remove Harper from the board by filing this suit under the removal statute. See
The removal statute authorizes any Texas resident who has lived in a county for at least six months to file a petition to remove certain county officers from office (a removal petition). See
Harper filed a motion to dismiss the case under the TCPA. See
Harper filed an interlocutory appeal from that order. See
II
Mootness
Because the state‘s petition seeks to remove Harper from a position he no longer holds, we must first decide whether this case is moot. A case becomes moot when there ceases to be a justiciable controversy between the parties or when the parties cease to have “a legally cognizable interest in the outcome.” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). Mootness occurs when events make it impossible for the court to grant the relief requested or otherwise “affect the parties’ rights or interests.” See Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). A case can become moot at any time, including on appeal. See id. at 166–67. When a case becomes moot, the court loses jurisdiction and cannot hear the case, because any decision would constitute an advisory opinion that is “outside the jurisdiction conferred by Texas Constitution article II, section 1.” Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). But a case “is not rendered moot simply because some of the issues become moot during the appellate process.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). If only some claims or issues become moot, the case remains “live,” at least as to other claims or issues that are not moot. See id.
Both the state and Harper argue that this case remains live. Harper argues we cannot address mootness at all because the trial court‘s record contains no evidence
The state concedes that Harper‘s failed reelection bid renders its removal petition moot. But the state contends that the issue whether the court of appeals properly ordered the trial court to award Harper his costs, attorney‘s fees, and sanctions under the TCPA is not moot. We agree that Harper‘s request for an award of attorney‘s fees and sanctions under the TCPA presents an issue that is separate from the request for removal, and we also agree that this separate issue survives the mootness that would otherwise prevent us from addressing the underlying claim.
We have recognized that in some cases—but not all—a claim for attorney‘s fees “breathes life” into a suit that has become moot in all other respects. Camarena v. Tex. Emp‘t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (concluding that when the claimants prevailed in the trial court before their underlying claims became moot, their claim for attorney‘s fees as prevailing parties remained live even though the underlying claims were moot); see also Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 643 (Tex. 2005) (holding that an attorney‘s-fees claim based on a statute that allows fee awards to non-prevailing parties remains live even after the underlying claim becomes moot); Speer v. Presbyterian Children‘s Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993) (distinguishing Camarena v. Texas Employment Commission and holding that an attorney‘s-fees claim under a prevailing-party statute had become moot along with the underlying claim because the claimant had not prevailed before mootness occurred).
Whether an attorney‘s-fees claim breathes life into an otherwise moot appeal depends first on whether the claimant seeks the fees under a statute that authorizes fees only for a prevailing party or, alternatively, under a statute that permits fees based on equitable principles regardless of who prevails. If the statute allows a non-prevailing party to recover fees under equitable principles, the claim for fees always breathes life into a case that has otherwise become moot, because the trial court must always consider the relative merits of the parties’ positions (among other factors) when exercising its discretion to award fees to either party. Allstate, 159 S.W.3d at 643.
But when the party seeks attorney‘s fees under a prevailing-party statute, the determination whether the attorney‘s-fees claim is moot depends on whether the party prevailed before the underlying substantive claim became moot. As we recognized in Camarena, if the party prevailed before the substantive claim became moot, the party‘s claim for attorney‘s fees under a prevailing-party statute remains a live controversy and a court must consider the claim‘s merits to determine whether the party properly prevailed. See 754 S.W.2d at 151. But as we recognized in Speer v. Presbyterian Children‘s Home & Service Agency, if the party did not prevail before the substantive claim became moot, the party‘s claim for
In this case, Harper seeks fees under the TCPA, which requires the trial court to award court costs, attorney‘s fees, expenses, and sanctions to a party who prevails on its motion to dismiss. See
III
Applicability of the TCPA
The state argues that the court of appeals erred by ordering the trial court to grant Harper‘s motion to dismiss under the TCPA. See
A. TCPA “legal action”
The TCPA permits a party to file a motion to dismiss a “legal action” if the action “is based on, relates to, or is in response to a party‘s exercise of the right of free speech, right to petition, or right of association.”
The TCPA defines a “[l]egal action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.”
Despite the TCPA‘s broad definition, the state argues that a removal petition is not a legal action because it seeks “constitutional” or “political” relief in the form of an order removing an elected official from office rather than “legal or equitable relief” such as damages, an injunction, or declaratory relief. We disagree. A court order requiring the defendant‘s removal or ouster from office is undoubtedly a “remedy.” See State ex rel. Dishman v. Gary, 359 S.W.2d 456, 458–59 (Tex. 1962) (orig. proceeding). And “remedy” is another word for “relief.” See Relief, BLACK‘S LAW DICTIONARY (10th ed. 2014) [BLACK‘S] (defining “relief” as the “redress or benefit[] . . . that a party asks of a court” and noting that “relief” is “[a]lso termed remedy“). Here, the remedy the state seeks is only available because Texas law—specifically, article 5, section 24 of the Texas constitution and chapter 87 of the Texas Local Government Code—provides it. See
Even so, the state argues, applying the TCPA‘s expedited-dismissal provisions to the removal statute “creates a conflict between the two statutory schemes” because the removal statute provides its own protections against meritless petitions. For example, the statute permits a trial court to refuse to issue an order for citation against the county officer.
Harper responds that the removal statute‘s remedies are not exclusive and that the chapter itself contemplates that a defendant can rely on external defenses such as the TCPA. For example, the chapter states that “the proceedings connected with the trial” of a removal petition “shall be conducted as much as possible in accordance with the rules and practice of the court in other civil cases.”
We agree with Harper. The TCPA‘s dismissal provisions complement, rather than contradict, the removal statute.
Finally, the state argues we have stated that a removal petition initiates a unique, “quasi criminal” proceeding “such that ordinarily it admits of no cross action.” See Dishman, 359 S.W.2d at 460. In State ex rel. Dishman v. Gary, the state unilaterally nonsuited its removal petition after the defendant filed a “cross action” asserting, as an affirmative defense, the argument that actions before his election to office could not be the basis for removal. Id. The primary issue in Dishman was whether the defendant‘s “cross action” preserved the trial court‘s jurisdiction, thus enabling it to enter an order reinstating the state‘s removal petition. Id. at 458. We held that it did not, concluding that an ouster suit “admits of no cross action” and that “no statutory provision for a cross action” existed. Id. at 460. We thus found it “difficult to imagine a set of circumstances under which a cross action would properly lie” under the removal statute. Id. at 459. The one scenario where we suggested a “cross action” might “perhaps” be permitted would be where the district attorney had “repeatedly filed and dismissed ouster suits against a defendant for the purpose of harassment,” in which case the trial court would have a common-law basis to dismiss. Id.
Otherwise, we concluded, “it would seem that the only issue presented [in a removal action] would be whether or not the defendant w[as] guilty of the charges brought against him,” and the defendant‘s “cross action” did “not operate to deprive the district attorney of his control of the statutory ouster suit nor serve as a basis for the reinstatement of a suit in which he had taken a voluntary nonsuit.” Id. at 460.
In response to the state‘s reliance on Dishman, Harper argues that even if the removal statute prohibits a counterclaim or “cross action” to a removal petition, a TCPA dismissal motion is not a “cross action.” We need not address this argument, however, because even if a TCPA dismissal motion is a counterclaim or cross action, the TCPA could authorize that counterclaim even if the removal statute does not. We decided Dishman in 1962, see id. at 456, long before the legislature enacted the TCPA in 2011, see Citizens Participation Act, 82d Leg., R.S., ch. 341, §§ 1-4, 2011 Tex. Gen. Laws 961 (codified at
We conclude that it did. The TCPA expressly applies to any “legal action,” and—as we have explained—a removal petition is a legal action. See
B. TCPA “enforcement action”
We now turn to whether a removal petition constitutes an “enforcement action” under the TCPA. See
“Statutory construction is a legal question we review de novo.” See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). “In construing statutes, we ascertain and give effect to the Legislature‘s intent as expressed by the language of the statute.” Id. Statutes do not always include express statements of purpose or directions for construction, but the TCPA includes both. See
One such exemption is that the TCPA “does not apply to an enforcement action that is brought in the name of this state . . . by a county attorney.”
An enforcement is “[t]he act or process of compelling compliance with a law, mandate, command, decree, or agreement.” Enforcement, BLACK‘S; see also THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 590 (5th ed. 2011) (defining “enforce” as “[t]o compel observance of or obedience to: enforce a law“); WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 751 (1961) (defining “enforcement” as “the
The dictionary definitions do not capture the full extent of the legislature‘s intent in this instance. The reason is that our precedent directing us to the dictionaries, see, e.g., Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 893 (Tex. 2017), collides with our precedent directing us to “presume the Legislature selected language in a statute with care and that every word or phrase was used with a purpose in mind.” DeQueen, 325 S.W.3d at 635 (emphasis added). Section 27.010 contains the “enforcement action” exemption, but it also contains three others. See
(a) “an enforcement action” brought in the name of the state;
(b) “a legal action” against certain businesses;
(c) “a legal action” in certain personal injury cases; and
(d) “a legal action” arising out of certain insurance contracts.
Id.
The second, third, and fourth exemptions apply to a “legal action,”
These observations demonstrate that whatever an “enforcement action” is, it must be different from a “legal action.” A “legal action” is “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.”
We conclude that, within the TCPA, the term “enforcement action” refers to a governmental attempt to enforce a substantive legal prohibition against unlawful conduct. This interpretation is consistent with the TCPA‘s text, under which enforcements are but one type of legal action. See
Accordingly, we must next ask whether the petition against Harper seeks to enforce a substantive legal prohibition against unlawful conduct. Under the removal statute, “[a]n officer may be removed for: (1) incompetency; (2) official misconduct; or (3) intoxication on or off duty caused by drinking an alcoholic beverage.”
In his original petition, Best sought Harper‘s removal based on Best‘s allegation that Harper “exhibited incompetency by way of gross ignorance of his official duties and gross carelessness in the discharge of those duties.” See
Best‘s incompetency claims are a transparent retaliation against Harper‘s quixotic political beliefs. Harper opposed the hospital district‘s creation. He put his beliefs into action by running for office, and the voters of Somervell County elected him on a clearly stated anti-tax platform. Best‘s petition alleges Harper did exactly what he told the voters he would do upon taking office. Harper‘s detractors may disagree with his politics, but no law requires elected officials to support the status quo upon arriving in office. Best‘s removal petition was a pretext for forcing Harper to cease acting on the beliefs that won him his office in the first place.
We are not fooled. We doubt anyone else is. Harper‘s refusal to capitulate to Best‘s demands does not render him incompetent. Best thought that the hospital district was important, and he sought Harper‘s removal because he thought that Harper was setting the hospital up for failure, lacked candor, and sometimes communicated less than cordially. Even if a jury agreed that Harper was unfit for office, he would face no criminal or civil penalty other than removal itself. Efforts like Best‘s are attacks on core political speech. But the TCPA “protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (footnote omitted) (citing
Nor are we swayed by the argument that Best‘s incompetency claim included allegations that Harper violated the hospital district‘s bylaws. The bylaws require board members to discharge their duties “in good faith, with ordinary care, and in a manner the director reasonably believes to be in the best interest of the District.” Similarly, the bylaws prohibit members from performing “any act with the intention of harming the District or any of its operations” or “that would make it impossible or unnecessarily difficult to carry on the intended or ordinary business of the District.” Best‘s petition argues Harper violated the bylaws by attempting to set the district‘s tax rate at zero and by accusing
The Somervell County Hospital District Board of Directors may promulgate bylaws pursuant to its authority to “adopt rules governing the operation of the hospital and hospital system and the duties, functions, and responsibilities of district staff and employees.”
In light of our textual conclusion that an enforcement action must be something narrower than a legal action, our general understanding that an enforcement action cannot enforce itself, our specific conclusion that an enforcement action under the TCPA must enforce substantive prohibitions against unlawful conduct, and the legislature‘s clear instruction to construe the TCPA liberally to protect citizens’ rights to participate in government, we conclude the that allegations in Best‘s petition do not amount to an “enforcement action” under the TCPA. See
However, the removal statute also allows removal for “official misconduct,” which may include allegations or evidence that a public official has acted unlawfully.
Best did not allege official misconduct against Harper, but the state did. After it joined Best‘s petition, the state added—as an “official misconduct” ground—the allegation that Harper violated the Open Meetings Act. See
A removal petition is not an “enforcement action” unless it seeks to enforce a substantive legal prohibition against unlawful conduct. The removal grounds alleging Harper‘s incompetency do not meet this definition, which means that the TCPA‘s “enforcement action” exemption does not apply to them. See
We conclude that Harper may benefit from the TCPA‘s expedited-dismissal provisions for the grounds that Best‘s initial removal petition raised, but not for the state‘s additional ground alleging a violation of the Open Meetings Act.
IV
Sovereign Immunity
Because the TCPA applies, we must consider whether Harper can recover appellate fees and costs from the state. The court of appeals’ judgment awarded “judgment against the state of Texas for [Harper‘s] appellate costs that were paid, if any, by [Harper]; and all unpaid appellate court cost[s], if any . . . against the state of Texas.” Similarly, the court of appeals’ opinion remands the case to the trial court for a “determination of Harper‘s request for court costs, reasonable attorney‘s fees, and sanctions.” 493 S.W.3d at 118.
The state argues the award and remand were improper. Because the trial court has not yet made a “determination of” Harper‘s request for costs, fees, or sanctions, see id., we can do no more than speculate whether Harper will actually obtain a judgment for any of these against Best, the state, both, or neither. See id. So we need not consider the state‘s argument that such an award would be improper if entered against the state. Instead, the narrow issue before us is whether sovereign immunity protects the state from the appellate fees and costs that the court of appeals has already awarded to Harper. We conclude it does not.
“Sovereign immunity in Texas embodies two concepts: immunity from liability and immunity from suit.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 93 (Tex. 2012). “[I]mmunity from liability is not jurisdictional and protects [only] from judgments.” Harris Cty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). Hence, immunity from liability “must be pleaded, or else it is waived.” Kinnear v. Tex. Comm‘n on Human Rights ex rel. Hale, 14 S.W.3d 299, 300 (Tex. 2000) (per curiam); see also Tex. Dep‘t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam) (“Like other affirmative defenses to liability, [immunity from liability] must be pleaded or else it is waived.“); Davis v. City of San Antonio, 752 S.W.2d 518, 523 (Tex. 1988) (“[T]he City waived any immunity defense by failing to affirmatively plead it.“).
By contrast, immunity from suit “implicates a court‘s subject-matter jurisdiction” and may “be raised for the first time on appeal.” Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 751, 755 (Tex. 2017); see also Jones, 8 S.W.3d at 638. Absent legislative waiver, and when it applies to begin with, immunity from suit protects the state from suits against it. See Tex. Nat. Res. Conservation Commʼn v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); see also City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). Legislative waiver is effective only if it is “clear and unambiguous.” Tooke v. City of Mexia, 197 S.W.3d 325, 328–29 (Tex. 2006) (citing
The state has not argued that it is immune from liability, but only that it is immune from suit. Thus, the state has waived its immunity-from-liability argument. See Kinnear, 14 S.W.3d at 300 (first citing Jones, 8 S.W.3d at 638; and then citing Davis, 752 S.W.2d at 519–20). The dispositive question, then, is whether the state is immune from suit. If it is, then Harper cannot recover his fees, at least not from the state. But if the state is not immune from suit, then he can.
The state argues that neither the TCPA nor the removal statute contains a legislative waiver of immunity and that immunity from suit therefore protects it from an award of appellate costs. The removal statute requires “the person filing the petition to post security for costs” and further directs that dismissal shall be “at the cost of the person filing the petition.”
Nor, says the state, do any of this Court‘s limitations to immunity‘s scope apply. Reata Construction Corp. v. City of Dallas details a circumstance in which “a governmental entity does not have immunity from suit for monetary claims against it that are ‘germane to, connected with, and properly defensive to’ affirmative claims made by the entity,” to the extent that the claims against the entity offset the entity‘s own claims. City of Dallas v. Albert, 354 S.W.3d 368, 372 (Tex. 2011) (quoting Reata, 197 S.W.3d at 378); see also Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528, 532–33 (Tex. 2012) (per curiam) (noting that Reata applies in “cases where the governmental entity asserts an affirmative claim for monetary relief against which the opponent‘s claims can be offset“).
Harper responds that when the state appeared in this suit, it adopted Best‘s live pleading stating jurisdiction was proper in the trial court. Moreover, Harper argues, the removal statute contemplates that the temporary replacement officer must pay any “costs” associated with the prosecution of an unsuccessful removal action. See
We agree with the state that neither statute waives the state‘s immunity from suit. The portions of the removal statute discussing costs treat the temporary replacement officer as an individual, not as an agent of the state. See
Although neither statute waives the state‘s immunity from suit, that conclusion does not answer the question whether immunity applies in the first place. See Engelman, 514 S.W.3d at 753 (“[S]overeign immunity is a common-law creation, and it remains the judiciary‘s responsibility to define the boundaries of the doctrine.“); Brown & Gay Eng‘g, Inc. v. Olivares, 461 S.W.3d 117, 122 (Tex. 2015) (noting “the doctrine‘s judicial origins“); Reata, 197 S.W.3d at 375 (“[I]t remains the judiciary‘s responsibility to define the boundaries of the common-law doctrine and to determine under what circumstances sovereign immunity exists in the first instance.“). When sovereign immunity is inapplicable due to judicial modification rather than legislative pronouncement, courts characterize the protection‘s absence as arising from abrogation rather than waiver. See Albert, 354 S.W.3d at 375 (“[T]he judiciary has abrogated [governmental entities‘] common law immunity from suit as to certain offsetting claims.“); Taylor, 106 S.W.3d at 696 (“[W]e have not absolutely foreclosed the possibility that the judiciary may abrogate immunity by modifying the common law . . . .“).
Reata is our foundational case discussing abrogation. See generally 197 S.W.3d at 374–77. Under the Reata rule, immunity from suit does not protect the state from counterclaims that are “germane to, connected with, and properly defensive to” certain of the state‘s own claims, but only to the extent that the counterclaims act as a monetary “offset” to the state‘s own claim. Id. at 373. In this case, the state has not asserted any claims against which Harper can counterclaim a monetary offset. Because the state seeks Harper‘s removal rather than an appropriate monetary recovery, the Reata rule does not apply to abrogate the state‘s immunity from Harper‘s counterclaims. But that does not mean that no rule does so.
Significant as it is, Reata is not our only case discussing abrogation, and it does not purport to map the full boundary separating counterclaims that sovereign immunity bars from those it does not. See, e.g., Nazari v. State, ___ S.W.3d ___, ___ (“[W]e have never held that the Reata rule always applies when the government seeks any transfer of funds. . . . [N]or have we ever held that Reata applies only to compensatory damages.“).
As an example of another type of abrogation, Harper cites our per curiam decision in Kinnear v. Texas Commission on Human Rights ex rel. Hale. See generally 14 S.W.3d 299. There, “[t]he Texas Commission on Human Rights sued [Kinnear]
The state responds by citing another of our per curiam opinions, Manbeck v. Austin Independent School District, for its counterargument that a “governmental entity‘s decision to avail itself of a statutory right—without bringing an affirmative claim for monetary damages—does not result in a loss of immunity from a claim for attorney‘s fees.” See generally 381 S.W.3d 528. Manbeck addressed a counterclaim for attorney‘s fees after the state non-suited a judicial appeal from an administrative proceeding that arose under the Texas Workers’ Compensation Act. See id. at 529 (citing
The parties strive to distinguish Kinnear and Manbeck—each arguing that one case or the other answers the TCPA attorney‘s-fees question at issue here. However, neither per curiam opinion addresses the TCPA. And since Manbeck concerned an administrative appeal in the workers’ compensation context, see id. at 529, it does not overrule Kinnear‘s conclusion in the fair-housing context, see 14 S.W.3d at 299. But, the state argues, it is not that Manbeck overrules Kinnear—it is that Reata does, or at least it establishes a new paradigm such that Kinnear is no longer good law. We disagree. Far from overruling Kinnear, Reata cited it—along with Anderson, Clayton & Co. v. State ex rel. Allred, 62 S.W.2d 107, 110 (Tex. 1933), and State v. Humble Oil & Refining Co., 169 S.W.2d 707, 708 (Tex. 1943)—as the foundation for the rule it established. See Reata, 197 S.W.3d at 374–77; see also Nazari, ___ S.W.3d at ___ (listing Anderson, Humble Oil, and Kinnear as “the three principal cases on which Reata relied“). And we have cited Kinnear since. See Rusk, 392 S.W.3d at 97 & n.4 (listing Kinnear among cases establishing that “immunity deprives courts of subject-matter jurisdiction“); Nazari, ___ S.W.3d at ___ (“[W]hile Kinnear involved an abrogation of immunity, it was not the type of abrogation we announced in Anderson and expounded on in Reata.“); see also Jeffrey S. Boyd, Where Sovereign Immunity and Water Development Issues Collide, 39 TEX. ENVTL. L.J. 95, 116 (2009) (“The Texas Supreme Court recently reaffirmed and clarified [Kinnear‘s] holding in Reata . . . .” (emphasis added)).
In Kinnear, sovereign immunity did not protect the state from a claim for attorney‘s fees under the Fair Housing Act. See 14 S.W.3d at 299. On the other hand, in Manbeck, sovereign immunity did protect the state from a claim for attorney‘s fees under the Workers’ Compensation Act. See 381 S.W.3d at 529. Thus, Kinnear and Manbeck stand together—and at most—for the proposition that sovereign immunity
Nor does Reata itself apply to all counterclaims for attorney‘s fees. Rather, Reata establishes that sovereign immunity never protects the state from certain qualifying counterclaims when the state does assert certain claims for monetary recovery. But it does not establish the inverse. That is, Reata does not establish that sovereign immunity always protects the state anytime the state does not assert a claim for monetary recovery. In short, Reata does not hold that a monetary claim is a necessary condition for abrogation in every instance.
So the question whether sovereign immunity protects the state from Harper‘s counterclaim for attorney‘s fees under the TCPA is one of first impression. Based on the TCPA‘s unique status and on the general principles underlying sovereign immunity, we answer that it does not.
As part of its purpose to “safeguard the constitutional rights of persons to . . . participate in government,” the TCPA obligates those who fail to prove a “prima facie case” to pay certain litigation costs. See
Abrogation remains the judiciary‘s responsibility. See Reata, 197 S.W.3d at 375. We have considered abrogation for attorney‘s fees in other contexts—sometimes applying it, sometimes not—but we have never addressed a counterclaim for attorney‘s fees under the TCPA. So while cases like Kinnear and Manbeck are instructive, neither is dispositive. Accordingly, given the TCPA‘s unique role in protecting the democratic processes that allow our state to function, today we conclude that sovereign immunity does not protect the state from a counterclaim for attorney‘s fees under the TCPA.
Because the state was not operating within sovereign immunity‘s bounds when it joined Best‘s suit, the TCPA allows Harper to recover costs against the state pursuant to the TCPA‘s terms. See
(a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:
(1) court costs, reasonable attorney‘s fees, and other expenses incurred
in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.
Id.
The state points to the
* *
The court of appeals reversed the trial court‘s judgment, holding that the TCPA applies to the state‘s removal proceeding and that the state failed to establish a prima facie case for Harper‘s removal. See 493 S.W.3d at 111, 116. It then remanded the case “to the trial court for rendition of an order granting Harper‘s motion to dismiss and for a determination of Harper‘s request for court costs, reasonable attorney‘s fees, and sanctions.” Id. at 118. We affirm the court of appeals’ judgment with the modification that Harper was not entitled to dismissal of or attorney‘s fees for the state‘s allegation that he violated the Open Meetings Act. Because Harper is no longer in office, however, our holding bears only on the trial court‘s determination of court costs,
OPINION DELIVERED: June 29, 2018
Jeffrey V. Brown
Justice