When the Texas Supreme Court in February determined a prosecutor’s libel lawsuit against an East Texas newspaper should be tossed because the article he complained about was “substantially true,” it should have meant the attorney who took that case was entitled to have the losing party pay for the legal services that achieved that result.
But because of one word in the Texas Citizens Participation Act requiring that such attorney fees be “incurred,” Tom Leatherbury, who took the case pro bono once it reached the Texas Supreme Court, wasn’t able to recover any of the roughly $65,000 in fees he would have normally received. When a Polk County District Court judge entered final judgment in that case on June 25, the attorneys who represented journalist Valerie Reddell and Polk County Publishing Company in the lower courts were awarded about $92,000 in attorney fees and Reddell also was awarded $25,000 as a sanction against Tommy Coleman.
Coleman sued the newspaper, alleging it had wrongly reported he was involved in Williamson County’s notorious wrongful prosecution of Michael Morton, who was exonerated of his wife’s murder after spending nearly 25 years in prison.
Leatherbury, who tried unsuccessfully last legislative session to convince lawmakers to amend the statute, said he doesn’t believe there was any specific public policy reason the “incurred” language made it into the final version of the TCPA, and doesn’t believe the legislature necessarily intended to bar pro bono attorneys from recovering fees.
He said he’s planning to try again this session to convince lawmakers to strike the word “incurred” from the statute.
“I’m hopeful that we can get some support in the House and maybe move it along because it really is a very simple fix,” he said. “Awarding pro bono attorney fees would be consistent with the law.”
Marc Fuller, partner at Jackson Walker, has had his own experience with the consequences of the “fees incurred” statutory language in a lawsuit where he represented pro bono the Sahara Reporters Media Group against Kazim Oladotun Oyenuga. Fuller’s co-counsel on that case were Leatherbury and Jackson Walker associate Emily Carlton.
Oyenuga operates pharmacies in North Texas and, according to court documents, is “a Nigerian-born pharmacist whose father was a well-known gold merchant in Nigeria.”
Oyenuga filed suit in Collin County against the media outlet that focuses on serving the African expatriate community, alleging they had defamed him by reporting allegations from multiple third-party sources who accused him of fraud and other financial misconduct.
After Collin County District Judge Andrea Bouressa granted early dismissal in the case in favor of Sahara Reporters and its reporters in January and May 2023, respectively, Fuller filed a motion asking the court to award $50,000 in sanctions against Oyenuga — less than half of the roughly $117,000 in fees that would have been incurred to handle the case — to deter Oyenuga from “continuing to pursue baseless claims merely because he does not like Sahara Reporters’ truthful reporting about him.”
He did not request attorney fees because case law bars it.
The motion cited a December 2014 ruling from Dallas’ Fifth Court of Appeals in Cruz v. Van Sickle. That ruling wiped out an attorney fee award of about $190,000 in a libel case against the liberal-leaning political blog Burnt Orange Report brought by Baltasar Cruz.
Cruz was a Democratic primary candidate in the 2012 race for judge of the 162nd Judicial District Court in Dallas County. He filed suit after the publication reported police had thrown him out of an Elizabeth Edwards book signing event in Dallas.
“The undisputed evidence demonstrates the BOR defendants were being represented pro bono,” the appellate panel held. “Accordingly, they did not incur attorney’s fees under section 27.009(a)(1) because they did not at any time become liable for the attorney’s fees set forth in the invoices.”
In the motion for sanctions in the Oyenuga case, Fuller argued the plaintiff hadn’t offered any evidence “nor any legal authority that even remotely supports any of his claims against Sahara Reporters.”
“Moreover, he has engaged in bad faith litigation conduct in an effort to avoid the consequences of filing baseless claims in this court, such as a frivolous attempt to remove this case to federal court, an improper motion for continuance, and a failed attempt to ‘nonsuit’ his claims on the eve of the hearing on Sahara Reporters’ motion to dismiss,” he argued. “In addition, plaintiff appears unwilling to accept that the court’s May 24 order granting Sahara Reporters’ motion to dismiss effectively ends his ability to litigate those claims in this court.”
In August 2023, Judge Bouressa granted the motion for sanctions against Oyenuga, awarding Sahara Reporters $39,127. As of July 12, the ruling had not been appealed.
Fuller said that even for firms like Jackson Walker that are “committed to an active pro bono First Amendment practice, we just don’t have the resources to take on every deserving case.”
“You can imagine two different scenarios: a defendant who can afford representation exercises their First Amendment rights, gets sued, wins dismissal and under the statute that defendant can get made whole because the fees were incurred,” he said.
On the other hand, he said, a citizen without the means to hire an attorney would have to find a lawyer willing to take the case pro bono knowing fee recovery is off the table.
“The irony is that the Texas citizens who need this law the most don’t have full access to its benefits,” Fuller said. “And that’s where a legislative fix can really help them and fulfill the promise of the statute.”