The Texas Supreme Court Friday ruled against an effort to remove from office a county hospital district trustee who wanted to zero out the district’s tax rate.
The court, in a 5-3 decision, said the state of Texas, which had joined the Somervell county attorney in the removal lawsuit, failed to establish a case for the trustee’s removal and might owe attorney’s fees to the former trustee under the state’s “anti-SLAPP” statute.
The case was being watched by media organizations, which viewed the trustee’s actions as protected political speech. The Freedom of Information Foundation of Texas said in an amicus brief that the removal lawsuit is “the very type of strategic lawsuit against public participation that the Texas Citizen Participation Act was passed to defend against.”
The TCPA was enacted in 2011 and allows for quick dismissal of meritless lawsuits based on communications about issues of public concern. It also is known as the state’s “anti-SLAPP” law, a reference to so-called strategic lawsuits against public participation.
Somervell County voters approved the hospital district in May 2013 and Paul Reed Harper was sworn in as a trustee one year later. At an August 2014 meeting he moved to set the district’s tax rate at zero. His motion was not acted upon and the board set the maximum tax rate at .1195 per $100 valuation.
“Detractors may disagree with his politics, but no law requires elected officials to support the status quo upon arriving in office.”
—Justice Jeff Brown
County resident George Best file the petition to remove Harper, alleging that Harper violated the district’s bylaws with his motion on the zero tax rate. The removal statute authorizes any Texas resident who has lived in a county for at least six months to file a lawsuit to remove certain county officers for incompetency, official misconduct, habitual drunkenness and other causes defined by law.
The Somervell county attorney opted to appear in the case as plaintiff on the state’s behalf. The state added an allegation that Harper had violated the Texas Open Meetings Act when he exchanged text messages with other board members.
Harper filed a motion to dismiss the case under the TCPA, which provides for quick dismissal of a lawsuit based on a party’s exercise of their free speech rights. The trial court denied Harper’s motion and he appealed to the Waco Court of Appeals, which reversed.
The Supreme Court agreed with the court of appeals that the expedited-dismissal provisions of the TCPA apply to Best’s initial removal petition – but not for the state’s additional allegation that Harper violated the Open Meetings Act. Because Harper is no longer in office, the court limited its holding to the trial court’s future determination of court costs and attorney fees.
The state had argued that the TCPA didn’t apply because a lawsuit under the state’s removal statute is an “enforcement action” to which the act expressly does not apply. The court disagreed and determined that the removal lawsuit is a “legal action” under the act.
“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 officials from office rather than ‘legal or equitable relief’ such as damages, an injunction or declaratory relief. We disagree,” said Justice Jeff Brown, writing for the majority.
Brown said claims that Harper should be removed from office for incompetency “are a transparent retaliation against Harper’s quixotic political beliefs.” Harper ran for the office on a clearly stated anti-tax platform and then did exactly what he told the voters he would do, the court said.
“Harper’s detractors may disagree with his politics, but no law requires elected officials to support the status quo upon arriving in office,” Brown said.
On the state’s claim of sovereign immunity from Harper’s counterclaim for attorney’s fees under the TCPA – an issue of first impression – the court said the state is not immune because of the act’s “unique role in protecting the democratic processes.”
Brown was joined by Chief Justice Nathan Hecht and Justices Paul Green, Eva Guzman and John Devine. Justice Jimmy Blacklock did not participate in the decision.
Justice Jeffrey Boyd filed a dissenting opinion, joined by Justices Phil Johnson and Debra Lehrmann. Boyd accused the majority of tailoring its decision to reach a “good” result in the case. He said the removal suit is an enforcement action not covered under the TCPA’s expedited dismissal provisions.
“Contrary to the Court’s assertions, this suit to remove Harper from the district’s board – whether based on incompetency or misconduct – seeks to compel compliance with that position’s official duties. It is thus an enforcement action under the term’s common, ordinary meaning, and the TCPA ‘does not apply’” under the statute, Boyd said.
Boyd also criticized the court’s ruling denying the state immunity as a “radical departure” from established jurisprudence. He said the Legislature did not waive the state’s immunity from suit in the TCPA.
“Although this Court certainly has authority to alter sovereign immunity’s contours, the Court alters them here – and drastically so – simply because the Court believes the state should have to pay Harper’s costs, fees, and sanctions,” said Boyd.
Mary Barkley and Chris Brown of Fort Worth’s Cantey Hanger represented Harper. C. Alfred Mackenzie of Waco served as special counsel to the state.
Read the court’s majority opinion here and the dissenting opinion here.