State v. Harper

• Decision Date: 29 June 2018
• Docket Number: No. 16-0647,16-0647
• Citation: 562 S.W.3d 1
• Parties: The STATE of Texas EX REL. George Darrell BEST, Petitioner, v. Paul Reed HARPER, Respondent
• Court: Texas Supreme Court

562 S.W.3d 1

The STATE of Texas EX REL. George Darrell BEST, Petitioner,

v.Paul Reed HARPER, Respondent

No. 16-0647

Supreme Court of Texas.

Argued November 8, 2017

OPINION DELIVERED: June 29, 2018

Rehearing Denied December 21, 2018

As Corrected on Denial of Rehearing December 21, 2018

C. Alfred Mackenzie, Attorney at Law, Waco, TX, Andrew W. Lucas, Somervell County Attorney, TX, for State of Texas.

Mary H. Barkley, Christopher A. Brown, Hanger LLP, Fort Worth, TX, for Respondent Paul Reed Harper.

Joseph R. Larsen, Sedgwick LLP, Houston TX, for Amicus Curiae Freedom of Information Foundation of Texas.

Angela V. Colmenero, Assistant Attorney General, General Litigation Division, Brantley D. Starr, Deputy First Assistant, Attorney General, Cleve Doty, James E. Davis, Office of the Attorney’s General, Jeffrey C. Mateer, First Assistant Attorney General, Nichole Beth Bunker- Henderson, Assistant Attorney General, Administrative Law Division, Scott A. Keller, Office of the Attorney General, Solicitor General, W. Kenneth Paxton Jr., Deputy First Assistant, Attorney General Office of the Attorney General, Austin, TX, for Other interested party Texas Attorney General’s Office.

Justice Brown delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, and Justice Devine joined.

The Texas Citizens Participation Act (the TCPA) allows a defendant to obtain expedited dismissal of certain legal actions for which the party bringing the action does not establish prima facie support. We conclude that this suit to remove a county official from elected office under chapter 87 of the Texas Local Government Code (the removal statute) is a legal action under the TCPA. However, the TCPA does not apply when a government attorney brings an enforcement action in the state’s name. We further conclude that only one of the several allegations against the county official constitutes an enforcement action. Finally, as to the allegations that are not enforcement actions, we conclude that the state’s sovereign immunity does not protect it from the county official’s claim for appellate costs. We affirm the court of appeals' judgment, with a modification.

IBackground

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 TEX. LOC. GOV'T CODE §§ 87.001 –.043. Specifically, Best alleged that Harper violated the district’s bylaws at a board meeting by moving to set the district’s tax rate at zero—even though Harper knew that eliminating the tax revenue would bankrupt or otherwise harm the district. Best also alleged that Harper posted a blog that falsely accused the district’s administrative employees of violating the law. Best argued these actions were enough to remove Harper for incompetency under the removal statute. See id. § 87.013(a)(1).

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 id. §§ 87.012, .015(b); see also Tex. Const. art. V, § 24 (authorizing "the Judges of the District Courts" to remove "county officers" for "incompetency, official misconduct, habitual drunkenness, and other causes defined by law").¹ But it also requires the county attorney to "represent the state" in any removal proceedings that take place. TEX. LOC. GOV'T CODE § 87.018(d) ; see also Garcia v. Laughlin , 155 Tex. 261, 285 S.W.2d 191, 194 (1955) (orig. proceeding) ("Individual citizens have no private interest distinguishable from the public as a whole and have no right to maintain an ouster suit without being joined by a proper state official."). Consistent with that requirement, the Somervell county attorney opted to appear in this case as plaintiff on the state’s behalf. The state adopted Best’s allegations, and it added an allegation that Harper engaged in misconduct by violating the Texas Open Meetings Act when he exchanged certain text messages with other board members. See TEX. GOV'T CODE §§ 551.001 –.146.

Harper filed a motion to dismiss the case under the TCPA. See TEX. CIV. PRAC. & REM. CODE §§ 27.001 –.011. Harper argued that Best filed, and the state joined, the removal petition based on or in response to Harper’s exercise of the right to petition and right of free speech. See id.§ 27.003(a) (authorizing a motion to dismiss an action that "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"). Harper contended that the state could not establish a prima facie case for removal because he did not formally move to set the district’s tax rate at zero, did not author or publish the blog, and did not violate the Open Meetings Act by exchanging text messages with other board members. See id. § 27.005(c) (providing that a court may not dismiss a legal action "if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim"). Harper argued that the trial court should dismiss the removal petition and award him attorney’s fees, costs, and sanctions. See id. § 27.009(a) (instructing that a court dismissing an action shall award attorney’s fees, court costs, and sanctions to a party who obtains dismissal). After conducting an evidentiary hearing, the trial court denied Harper’s motion to dismiss.

Harper filed an interlocutory appeal from that order. See id. § 27.008(b) (authorizing an interlocutory appeal from an order denying a dismissal motion). The court of appeals reversed, holding that the TCPA applies to the state’s removal action and that the state failed to establish a prima facie case for removal. See 493 S.W.3d 105, 111, 116 (Tex. App.—Waco 2016). The court 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. The state moved for rehearing in the court of appeals, arguing for the first time that sovereign immunity protects it from any claim for attorney’s fees, court costs, or sanctions under the TCPA. The court of appeals denied the motion. But while the motion was pending, Harper lost his bid for reelection, and as a result he no longer serves on the hospital district’s board. We granted the state’s petition for review.

IIMootness

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, 102 S.Ct. 1181, 71 L.Ed.2d 353 (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 that he lost his reelection bid and no longer serves on the board. But we must consider issues affecting our jurisdiction sua sponte. M.O. Dental Lab v. Rape , 139 S.W.3d 671, 673 (Tex. 2004) (per curiam). And we have the power, "on affidavit or otherwise," to "ascertain the matters of fact that are necessary to the proper exercise of [our] jurisdiction," even if evidence establishing those facts is not in the trial court’s record. TEX. GOV'T CODE § 22.001(d). Here, the state filed a "status report" with the court of appeals that included an election canvass confirming that Harper lost his reelection bid. Harper does not dispute that he lost the election or that he no longer holds the position.

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...