Foster v. Upchurch
| Decision Date | 02 December 1981 |
| Docket Number | No. C-309,C-309 |
| Parties | 7 Media L. Rep. 2533 Ed FOSTER and El Paso Times, Inc., Petitioners, v. Richard UPCHURCH, Respondent. |
| Court | Texas Supreme Court |
Scott, Hulse, Marshall, Feuille, Finger & Thurmond, Richard Munzinger, Carolyn Crinkley and Howell Cobb, III, El Paso, for petitioners.
McMahon, Cox, Tidwell, McCoy, Sharp & Hansen, Bill McCoy, Steven L. Clack and Jerry D. Caddel, Odessa, for respondent.
This is a venue case arising under Tex.Rev.Civ.Stat.Ann. art. 1995, § 29, 1 involving the venue facts required of a public figure in a libel action to controvert a defendant's plea of privilege. The trial court overruled defendants' pleas of privilege and the court of civil appeals affirmed. 613 S.W.2d 22. We reverse the judgment of the court of civil appeals.
While he was a prisoner in the Hudspeth County Jail, Veloz Zuniga received injuries which resulted in his death. A suit was filed by his widow and children against the Hudspeth County Sheriff and Hudspeth County. That suit was subsequently settled.
Almost three years after Zuniga's death, Ed Foster, a columnist for the El Paso Times, wrote an article about the incident. The lead paragraph, however, incorrectly attributed Zuniga's death to the Sheriff of Culberson County, who was in no way involved:
The death nearly three years ago of Juan Veloz Zuniga after the Culberson County sheriff beat him over the head with a sawed-off pool cue set off a furor across much of Texas.
A similar reference appeared later in the story:
Mario Martinez, attorney for the Veloz Zuniga survivors, said Wednesday that Culberson County has made the (settlement) payment to the court's registry, and disbursement is pending out of San Antonio.
All other references in the article correctly attributed the incident to Hudspeth County and the Hudspeth County Sheriff.
At the time of Zuniga's death, Richard Upchurch was the Sheriff of Culberson County and Claymon McCutcheon was the Sheriff of Hudspeth County. Sheriff Upchurch was in no way involved in the incident that resulted in the prisoner's death and the subsequent lawsuit. Although the article did not identify Upchurch by name, reference was made to "the Culberson County sheriff." A few days after the El Paso Times published the article, Foster apologized for his error at the end of a subsequent column. Sheriff Upchurch instituted a suit for libel in Culberson County. Foster and the El Paso Times filed pleas of privilege to be sued in El Paso County.
At the venue hearing, Upchurch was the only witness. Foster's original article and the subsequent apology were received in evidence and Upchurch testified that the first paragraph of the initial story was false. There is no real dispute about that issue in the case. It is also undisputed that Upchurch is a public official within the context of the law of defamation. However, there was no proof offered as to Foster's state of mind or the editorial process involved in the writing of the article so as to point to any malice on Foster's part. The trial court denied Foster's and the Times' pleas of privilege. The court of civil appeals affirmed. The issue now before this Court is whether Upchurch produced evidence of all the venue facts required in a libel case involving a public figure.
Tex.Rev.Civ.Stat.Ann. art. 1995 is the general venue statute of Texas, giving defendants the right to be sued in the county of their domicile. There are, however, a number of exceptions to this statute, and if a plaintiff can bring his or her case within one of the exceptions at a venue hearing, the suit need not be tried in the defendant's county. 1 R. McDonald, Texas Civil Practice § 4.03.1 (rev. 1981). Subdivision 29 of Article 1995 makes libel one such exception. To sustain venue in a libel action, Tex.Rev.Civ.Stat.Ann. art. 1995, § 29 requires the plaintiff to establish the following venue facts: (1) A cause of action for libel accrued; (2) the date of its accrual; and (3) that the plaintiff resided in the county where the suit was filed upon that date. General Motors Acceptance Corporation v. Howard, 487 S.W.2d 708 (Tex.1972); A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939). The venue fact contested here is whether the evidence at the venue hearing established that a cause of action for libel accrued. 2
For a public official to recover in a defamation suit, the plaintiff must prove "that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964). "Reckless disregard" requires proof that a false defamatory statement was made with a "high degree of awareness of (its) probable falsity." Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964). There must be sufficient evidence to conclude that the defendant in fact entertained "serious doubts" as to the truth of the publication. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).
In the present case, no evidence was presented regarding Mr. Foster's state of mind or the editorial process that went into the writing and publication of the article. Upchurch simply relied upon the article itself, arguing that the internal inconsistencies therein...
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