Tex. Ethics Comm'n v. Sullivan
| Decision Date | 05 November 2015 |
| Docket Number | NO. 02-15-00103-CV,02-15-00103-CV |
| Parties | TEXAS ETHICS COMMISSION APPELLANT AND APPELLEE v. MICHAEL QUINN SULLIVAN APPELLEE AND APPELLANT |
| Court | Texas Court of Appeals |
FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
In this appeal, we are asked to determine the appropriate venue for an administrative respondent's appeal by trial de novo of a state agency's final administrative decision. We conclude that venue of the administrative respondent's appeal by trial de novo was mandatorily set in Travis County because the administrative respondent failed to proffer prima facie proof that heresided in Denton County at the time the cause of action accrued. Because the trial court concluded otherwise, we reverse the trial court's order denying the state agency's motion to transfer venue and remand for further proceedings.
Michael Quinn Sullivan is the president of Empower Texans, a self-described "new media," nonprofit corporation located in Austin that seeks to "educate citizens about actions and activities of Texas elected officials" by scoring them based on a "fiscal responsibility index." The Texas Ethics Commission (the TEC) is a constitutionally created state agency, which is part of the legislative branch of Texas government, that is charged with administering and enforcing statutes governing elections and related governmental processes. See Tex. Const. art. III, § 24a; Tex. Gov't Code Ann. § 305.035(a) (West 2013), §§ 571.001, 571.061 (West 2012).
In March 2012, two members of the Texas House of Representatives filed sworn complaints against Sullivan with the TEC, alleging that Sullivan received compensation for directly contacting legislators, on behalf of Empower Texans, to influence specific legislation in 2010 and 2011 and that Sullivan had failed to register as required by the lobbyist-registration laws. See Tex. Gov't Code Ann. §§ 305.003(b), 305.035(c) (West 2013); see also id. §§ 305.035(a), 571.061(a)(1), 571.122 (West 2012) (). The TECheld a formal hearing and issued a unanimous, final decision on July 21, 2014, concluding that Sullivan twice had failed to register as a professional lobbyist, even though he directly communicated with legislators on behalf of Empower Texans to influence specific legislative action, and assessing a $10,000 civil fine. See id. § 305.032 (West 2013), §§ 571.132, 571.173 (West 2012). Sullivan received the final decision the same day it was issued.
On August 22, 2014, Sullivan appealed the TEC's final decision by filing a petition in a district court in Denton County, where he alleged he resided. See id. § 571.133(a) (West 2012). Sullivan alleged that his "cause of action" was a "de novo appeal of the [TEC's] July 21, 2014 Final Order pursuant to Tex. Gov't. Code § 571.133." The presiding, district-court judge was Judge Steve Burgess. As a result of Sullivan's petition, the TEC's final decision was automatically vacated. See id. § 2001.176(b)(3) (West 2008).
The TEC filed a motion to transfer venue to Travis County, supported by the affidavits of the TEC's executive director and an investigator hired by the TEC, alleging that Sullivan resided in Travis County and that mandatory venue, therefore, lay in Travis County. See id. § 571.133(a); Tex. R. Civ. P. 86.1, 87.3(a), 88. The TEC's executive director attached to her affidavit four different lawsuits filed by Sullivan against the TEC and its individual commissioners, relying on venue statements he made in those pleadings to support the TEC's assertion that Sullivan resided in Travis County. These lawsuits were notconsidered by the TEC during its administrative enforcement action. The executive director also verified and attached the TEC's final decision against Sullivan. In response, Sullivan attached his affidavit in which he averred that he is a resident of Denton County. Although Sullivan objected to the investigator's affidavit,2 he did not object to the executive director's affidavit or her attachments in his response to the TEC's motion to transfer venue. In its reply in support of its venue arguments, the TEC attached more evidence purporting to show that Sullivan resided in Travis County, none of which was a part of the underlying administrative enforcement proceeding.
Sullivan then filed an agreed motion to realign the parties because the TEC "still bears the burden of proof in this case," which Judge Burgess granted. See Tex. Gov't Code Ann. § 571.129 (West 2012) (). The TEC filed a "First Amended Pleading as Realigned Plaintiff" and asserted that Sullivan failed to register as a lobbyist in 2010 and 2011 as statutorily required.
Sullivan then filed a motion to dismiss the TEC's failure-to-register claim, arguing that the TEC violated the Texas Citizens' Participation Act (the TCPA),an anti-SLAPP statute,3 by filing a legal action based on Sullivan's exercise of his First Amendment rights.4 See Tex. Civ. Prac. & Rem. Code Ann. § 27.003 (West 2015). Sullivan also requested attorneys' fees, court costs, and sanctions against the TEC. See id. § 27.009(a) (West 2015).
On February 18, 2015, Judge Burgess held a hearing on the venue and dismissal motions, signed an order denying the motion to transfer venue, and orally granted the motion to dismiss. Five days later on February 23, 2015, the TEC filed a motion to recuse Judge Burgess, arguing that on the evening of February 18, 2015, a reporter for the Fort Worth Star-Telegram tweeted about the hearing and noted that Judge Burgess followed Sullivan on Twitter: "Looks like the Denton judge who threw out [Sullivan], ethics complaint, [Judge Burgess], is [a Sullivan] Twitter follower." See generally Tex. R. Civ. P. 18b(b) (). Eleven minutes after the reporter's tweet, Sullivan's attorney responded with this tweet: "I bet [Judge Burgess] also communicates, at least semi-annually, with the [TEC]." The next day at 5:57 a.m., the reporter posted on Twitter that Judge Burgess had deleted his Twitter account: "1 day after ruling in [Sullivan's] favor without disclosing he's aTwitter follower, judge deletes account." The regional presiding judge assigned a judge to hear the motion to recuse, and the assigned judge granted the motion. See Tex. R. Civ. P. 18a(g)(1). On March 9, 2015, the regional presiding judge assigned Judge David Cleveland, a senior district judge, to preside in the appeal by trial de novo of the TEC's final decision. See Tex. R. Civ. P. 18a(g)(7).
Two days later on March 11, 2015, Sullivan moved for an award of attorneys' fees as a prevailing party under the TCPA based on Judge Burgess's prior oral grant of his motion to dismiss at the hearing on February 18, 2015, and further moved for sanctions against the TEC. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). Sullivan averred that his quick action was necessitated by the statutory, 30-day deadline under which the court was required to rule on his motion to dismiss after the date of the February 18, 2015 hearing or risk that it would be denied by operation of law. See id. §§ 27.005(a), 27.008(a) (West 2015). The TEC filed a motion to reconsider its motion to transfer venue on March 17, 2015.
The next day, Judge Cleveland held a hearing to address Sullivan's motion for attorneys' fees, his motion to dismiss, and the TEC's motion to reconsider. Sullivan argued that the only pending issue was his motion for attorneys' fees because application of the TCPA had been finally decided by Judge Burgess; thus, any written order granting the motion to dismiss and awarding attorneys' fees was "a ministerial task." Sullivan also asserted that the TEC's motion to transfer venue could not be reconsidered because further venue motions werebarred by the rules. See Tex. R. Civ. P. 87.5. In summary, Sullivan argued that "[t]here's no reason to undo Judge Burgess'[s] orders." Although Judge Cleveland stated at the hearing that he did not "think the case ought to be dismissed," he considered the pleadings and affidavits and signed an order on March 18, 2015, granting Sullivan's motion to dismiss under the TCPA, awarding him "- 0 -" in court costs and attorneys' fees, and awarding no sanctions against the TEC. Judge Cleveland did not expressly rule on the TEC's motion to reconsider the venue determination, but the order included language that "any relief not expressly granted herein is denied." Neither Sullivan nor the TEC requested findings of fact and conclusions of law. See Tex. Civ. Prac. & Rem. Code Ann. § 27.007 (West 2015); Tex. R. Civ. P. 296. Both the TEC and Sullivan appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 27.008; Tex. Gov't Code Ann. § 2001.901(a) (West 2008); Tex. R. App. P. 25.1(c).
When an administrative respondent files an appeal by trial de novo from a final decision of the TEC, he must file the petition "in a district court in Travis County or in the county in which the respondent resides." Tex. Gov't Code Ann. § 571.133(a); see also Tex. Civ. Prac. & Rem. Code Ann. § 15.016 (West 2002). In its first issue, the TEC asserts that this mandatory venue provision operated to place venue solely in Travis County because Sullivan did not reside in Denton County at the time the cause of action accrued; thus, because Denton County was a county of improper venue under section 571.133(a), the TEC argues thatJudge Burgess erred by denying its motion to transfer and that Judge Cleveland erred by denying its motion to reconsider the venue ruling. See In re Reynolds, 369 S.W.3d 638, 647 (Tex. App.—Tyler 2012, orig. proceeding) (discussing trial court's authority to reconsider denial of motion to transfer...
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