Weaver v. AIDS Services of Austin, Inc., 3-91-129-CV

• Citation: 835 S.W.2d 798
• Decision Date: 12 August 1992
• Docket Number: No. 3-91-129-CV,3-91-129-CV
• Parties: Mark WEAVER and Citizens Against Pornography, Inc., Appellants, v. AIDS SERVICES OF AUSTIN, INC., Appellee.
• Court: Court of Appeals of Texas

Page 798

835 S.W.2d 798

Mark WEAVER and Citizens Against Pornography, Inc., Appellants, v. AIDS SERVICES OF AUSTIN, INC., Appellee.

No. 3-91-129-CV.

Court of Appeals of Texas,

Austin.

Aug. 12, 1992.

Rehearing Overruled Sept. 23, 1992.

Wm. Charles Bundren, Dallas, Bill Malone, Jr., Austin, for appellants.

Elizabeth Beck, Brown Maroney & Oaks Hartline, Austin, for appellee.

Before CARROLL, C.J., and ABOUSSIE and B.A. SMITH, JJ.

CARROLL, Chief Justice.

Mark Weaver and Citizens Against Pornography, Inc. (CAP) challenge a summary judgment rendered in favor of Aids Services of Austin, Inc. (ASA) in which the trial court ruled that ASA was not a state actor when it excluded Weaver from its "safer-sex" workshops. The trial court subsequently issued an injunction permanently barring Weaver and other CAP members ¹ from attending or otherwise interfering with ASA's safer-sex workshops, and from entering the premises of the Metropolitan Community Church while ASA is occupying the premises. We will affirm the trial-court judgment.

I. BACKGROUND

ASA is a private, nonprofit corporation created to provide services to people with AIDS, and to educate both the general public and target groups about AIDS prevention. Beginning in 1987, ASA contracted with Travis County and the City of Austin to perform a number of AIDS-education services, as well as public health and welfare services for persons with AIDS and their families. The contract called for ASA to conduct safer-sex workshops to provide information on AIDS, to teach safe-sex techniques, and to encourage healthy lifestyles.

Weaver is a well-known and vocal opponent of homosexuality. Because of concerns that Weaver's presence would discourage others from participating, ASA representatives contacted Weaver and requested that he not attend the workshops. On November 20, 1987, Weaver nonetheless tried to attend a safer-sex workshop held at the Metropolitan Community Church. When Weaver arrived at the church, an ASA representative asked him to leave; Weaver refused and the representative called the police. A police officer arrived, and asked Weaver to leave; when Weaver refused, the officer arrested him for criminal trespass. Nothing in the record suggests that Weaver engaged in any disruptive conduct at the church. Weaver has stated that his intent was to observe the workshop activities so that he could "inform the general public about how its public officials were spending public funds."

After his expulsion from the November 20th workshop, Weaver threatened to attend a workshop scheduled for the following month. Consequently, ASA initiated this declaratory judgment suit, seeking both a declaration of its rights to exclude Weaver and an injunction to prevent Weaver from attending future workshops, trespassing on premises where workshops are being held, publicizing the identities of those attending the workshops, and otherwise interfering with the workshops. See Uniform Declaratory Judgments Act, Tex.Civ.Prac. & Rem.Code Ann. §§ 37.001-.011 (1986 & Supp.1992). Weaver filed a counterclaim under title 42, sections 1983 and 1988, alleging that by excluding him from the workshops, ASA violated his federal and state constitutional rights of free speech, assembly, and association under color of state law. See U.S. Const. amend. I; Tex. Const. art. I, § 8; 42 U.S.C. §§ 1983, 1988 (1988).

The parties filed cross-motions for summary judgment. The district court denied Weaver's motion and granted ASA's motion, ruling that ASA is a private entity and, consequently, is entitled to exclude Weaver from its workshops and premises. The trial court also issued a permanent injunction prohibiting Weaver from further interfering with the workshops or trespassing on the premises of the Metropolitan Community Church. Finally, the trial court awarded ASA $37,200 in attorney's fees.

II. DISCUSSION

In his first three points of error, Weaver argues that the trial court erred as a matter of law ² in finding insufficient state action and, thus, granting summary judgment for ASA because (1) the workshop was a limited public forum, (2) ASA and the State were joint participants in depriving Weaver of his constitutional rights, and (3) the evidence demonstrates that ASA engaged in state action under the Texas Constitution.

Weaver contends that ASA was so substantially involved with state activity that its actions in removing him from the safer-sex workshops, having him arrested, and seeking a restraining order and injunction against him constitute state action for the purposes of constitutional adjudication. ASA responds that the trial court properly granted summary judgment in its favor because ASA is a private entity, not a state actor, and consequently was entitled to exclude Weaver from its workshops. We agree.

"[A] private actor cannot actionably suppress first amendment rights." Albright v. Longview Police Dept., 884 F.2d 835, 841 (5th Cir.1989). Because the constitutional protection of free speech applies only to actions of governmental entities, this Court can grant Weaver's requested relief only if it finds state action. See Lugar v. Edmondson, 457 U.S. 922, 936, 102 S.Ct. 2744, 2752, 73 L.Ed.2d 482 (1982); Flagg Bros. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Therefore, we must decide whether the claimed infringement of Weaver's constitutional rights is fairly attributable to the State.

Although the United States Supreme Court has not formulated a precise test for identifying what degree of state involvement is sufficient to convert a private person's conduct into state action, three lines of state-action doctrine emerge from the Supreme Court cases: the "symbiotic relationship" doctrine, the "public function" doctrine, and the "nexus theory."

The Supreme Court has applied the "symbiotic relationship" doctrine to cases in which the government has "so far insinuated itself into a position of interdependence [with the private entity] that it must be recognized as a joint participant in the challenged activity." Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 861, 6 L.Ed.2d 45 (1961). Under the "public function" doctrine, when the state entrusts a private individual or group with the performance of functions that are traditionally governmental in nature, the acts of the individual or group become clothed with state action. See Flagg Bros v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). And under the "nexus theory," if the government is sufficiently involved in, encourages, or benefits from the actor's conduct, the private party's conduct will be deemed a state act subject to governmental review. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974).

Although these doctrines guide our resolution of this cause, we note that the Supreme Court indicated in Burton that whether state action exists in a particular situation can be determined only "by sifting facts and weighing circumstances." 365 U.S. at 722, 81 S.Ct. at 860. Accordingly, we must sift the facts and weigh the circumstances in the present cause to determine whether ASA's actions with respect to Weaver involve state action.

Weaver bases his claims of state action on his arrest for criminal trespass, the injunctions against him, and ASA's contractual relationship with the City of Austin and Travis County. ³ First, Weaver claims that the State participated with ASA in assisting and encouraging Weaver's arrest for criminal trespass and in obtaining the injunction against him. He contends that these actions establish a nexus between the State and ASA's discriminatory conduct. Weaver makes these assertions, however, without pointing to any evidence that any government official coerced, encouraged, or even suggested the actions taken by ASA representatives. Thus, we reject Weaver's contention.

Weaver next points to the existence of the contracts between ASA, the City of Austin, and Travis County as evidence of state action. The first contract between ASA and these governmental entities was effective from May 1, 1987, through September 30, 1988, and provided ASA with $136,579 of city and county funds. The second contract was effective from October 1, 1988, through September 30, 1989, and it increased funding to $234,836.

The contracts spell out the services that ASA contracted to perform for the city and county, one of which is the safer-sex workshop at issue in this cause. In addition to listing services to be performed by ASA, the contracts discuss program objectives, funding and budget matters, and require ASA to maintain records of expenses related to the contract. The contracts also require ASA to submit documents such as an operational plan and quarterly progress reports to the funding agencies for review.

Although the contracts regulate ASA in many ways, they impose virtually no conditions on how to structure or run the workshops. With respect to the safer-sex workshops, the 1987 contract states only the following:

5. Conduct safe sex workshops.

Target groups: All.

Note: For gay and bisexual men and women, workshops will focus on safe sex techniques and encourage healthy lifestyles. For heterosexual men and women, information on AIDS will be provided within a larger context of human sexuality and/or contraception issues.

The 1988 contract speaks to the safer-sex workshops only in terms of the number of workshops ASA must offer during the contract's term.

In Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Supreme Court found no state action in a situation factually similar to the one in this cause. In that case, the Court held that a private, nonprofit school whose income was derived ninety percent from public funding, and which public authorities regulated, did not commit state action when it fired a counselor. 457 U.S. at 831, 102 S.Ct. at 2765. That school had contracts...