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At a Glance:
State ex rel. Best v. Harper
June 29, 2018
562 S.W.3d 1
Texas Supreme Court
Published Opinion

State ex rel. Best v. Harper

Supreme Court of Texas.

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


Paul Reed HARPER, Respondent

No. 16-0647


Argued November 8, 2017




Rehearing Denied December 21, 2018


As Corrected on Denial of Rehearing December 21, 2018


Attorneys & Firms

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

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.

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 Devine joined.

The Texas Citizens Participation Act (the TCPA) allows a defendant to obtain *5 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.



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. 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. *6 § 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 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.



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.” 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 *7 that he lost his reelection bid and no longer serves on the board. But we must consider issues affecting our jurisdiction sua sponte. 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. Texas Employment Commission and holding that an attorney’s-fees claim under a prevailing-party statute had become moot along with the underlying claim because the claimant had not prevailed before mootness occurred).

Whether an attorney’s-fees claim breathes life into an otherwise moot appeal depends first on whether the claimant seeks the fees under a statute that authorizes fees only for a prevailing party or, alternatively, under a statute that permits fees based on equitable principles regardless of who prevails. If the statute allows a non-prevailing party to recover fees under equitable principles, the claim for fees always breathes life into a case that has otherwise become moot, because the trial court must always consider the relative merits of the parties’ positions (among other factors) when exercising its discretion to award fees to either party. Allstate, 159 S.W.3d at 643.

But when the party seeks attorney’s fees under a prevailing-party statute, the determination whether the attorney’s-fees claim is moot depends on whether the party prevailed before the underlying substantive claim became moot. As we recognized in 847 S.W.2d at 229–30.

In this case, Harper seeks fees under the TCPA, which requires the trial court to award court costs, attorney’s fees, expenses, and sanctions to a party who prevails on its motion to dismiss. See id.


Applicability of the TCPA

The state argues that the court of appeals erred by ordering the trial court to grant Harper’s motion to dismiss under the TCPA. See id. § 27.003(a). We also conclude that, while one allegation against Harper constitutes a TCPA “enforcement action,” the remaining allegations do not. See id. § 27.010(a).

A. TCPA “legal action”

The TCPA permits a party to file a motion to dismiss a “legal action” if the action “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.” TEX. CIV. PRAC. & REM. CODE § 27.002.

The TCPA defines a “[l]egal action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” Id. Better Bus. Bureau of Metro. Dall., Inc. v. Ward, 401 S.W.3d 440, 443 (Tex. App.—Dallas 2013, pet. denied) (holding that the definition “is broad and evidences a legislative intent to treat any claim by any party on an individual and separate basis”).

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 official from office rather than “legal or equitable relief” such as damages, an injunction, or declaratory relief. We disagree. A court order requiring the defendant’s removal or ouster from office is undoubtedly a “remedy.” See TEX. CIV. PRAC. & REM. CODE § 27.003(a).

Even so, the state argues, applying the TCPA’s expedited-dismissal provisions to the removal statute “creates a conflict between the two statutory schemes” because the removal statute provides its own protections against meritless petitions. For example, the statute permits a trial court to refuse to issue an order for citation against the county officer. TEX. GOV’T CODE § 311.026(b) (providing that when a general provision irreconcilably conflicts with a special or local provision, “the special or local provision prevails ... unless the general provision is the later enactment and the manifest intent is that the general provision prevail”). So in the state’s view, we cannot apply the TCPA to a removal petition without intruding “into a field governed by a specific law adopted pursuant to a constitutional mandate.”

Harper responds that the removal statute’s remedies are not exclusive and that the chapter itself contemplates that a defendant can rely on external defenses such as the TCPA. For example, the chapter states that “the proceedings connected with the trial” of a removal petition “shall be conducted as much as possible in accordance with the rules and practice of the court in other civil cases.” Dishman, 359 S.W.2d at 458.

We agree with Harper. The TCPA’s dismissal provisions complement, rather than contradict, the removal statute. *10 The rule that a specific provision controls over a general provision applies only when the statutes at issue are ambiguous or irreconcilable. See TEX. CIV. PRAC. & REM. CODE § 27.003(a). These provisions do not conflict.

Finally, the state argues we have stated that a removal petition initiates a unique, “quasi criminal” proceeding “such that ordinarily it admits of no cross action.” See Id. at 460.

In response to the state’s reliance on Dishman, 359 S.W.2d at 460 (suggesting that courts have the *11 common-law power to dismiss “ouster suits [brought] against a defendant for the purpose of harassment”). A court’s TCPA-authorized power to dismiss an action based on the defendant’s exercise of his free-speech and petition rights can surely do the same. Nothing in the constitution or in the removal statute precludes the legislature from granting such power; the question here is whether it did so in the TCPA.

We conclude that it did. The TCPA expressly applies to any “legal action,” and—as we have explained—a removal petition is a legal action. See TEX. CIV. PRAC. & REM. CODE § 27.001(6). Accordingly, the TCPA applies to a removal petition.

B. TCPA “enforcement action”

We now turn to whether a removal petition constitutes an “enforcement action” under the TCPA. See id. § 27.010(a) (stating that the TCPA “does not apply to an enforcement action that is brought in the name of this state ... by ... a county attorney”). If it does, Harper cannot invoke the TCPA’s protections. See id. The state joined Best’s petition, but that does not necessarily make this suit an enforcement action. Unlike “legal action,” the TCPA’s definitional subsection does not include an entry for the term “enforcement action.” See generally id. § 27.001. Nor have we previously considered its meaning.

“Statutory construction is a legal question we review de novo.” See Id. § 27.002 (emphasis added). We must construe the TCPA “liberally to effectuate its purpose and intent fully.” Id. § 27.011(b). The TCPA includes several exemptions.

One such exemption is that the TCPA “does not apply to an enforcement action that is brought in the name of this state ... by ... a county attorney.” Id. § 27.010(a). Because the legislature did not define “enforcement action,” we must determine the term’s “common, ordinary meaning.” Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 765 (Tex. 2014) (“We rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results.”).

An enforcement is “[t]he act or process of compelling compliance with a law, mandate, command, decree, or agreement.” Enforcement, BLACK’S; see also THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 590 (5th ed. 2011) (defining “enforce” as “[t]o compel observance of or obedience to: enforce a law”); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 751 (1961) (defining “enforcement” as “the *12 compelling of the fulfillment (as of a law or order)”). Applying the Black’s dictionary definition, the court of appeals concluded that “there is nothing in the removal statute with which the State is seeking to compel Harper’s compliance,” because “Harper cannot comply with his duties if he is no longer a board member.” 493 S.W.3d at 111.

The dictionary definitions do not capture the full extent of the legislature’s intent in this instance. The reason is that our precedent directing us to the dictionaries, see, e.g., TEX. CIV. PRAC. & REM. CODE § 27.010. The TCPA does not apply to:

(a) “an enforcement action” brought in the name of the state;

(b) “a legal action” against certain businesses;

(c) “a legal action” in certain personal injury cases; and

(d) “a legal action” arising out of certain insurance contracts.


The second, third, and fourth exemptions apply to a “legal action,” id. § 27.010(b)–(d), a term the TCPA defines, see id. DeQueen, 325 S.W.3d at 635. Otherwise, the legislature would have said “legal action” all four times.

These observations demonstrate that whatever an “enforcement action” is, it must be different from a “legal action.” A “legal action” is “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” DeQueen, 325 S.W.3d at 635. Hence, a TCPA “enforcement action” must be a subtype of legal actions in general. That is, the term “enforcement action” must mean something less than “any legal action brought by the state.” Otherwise, “enforcement action” and “legal action” would mean the same thing.

We conclude that, within the TCPA, the term “enforcement action” refers to a governmental attempt to enforce a substantive legal prohibition against unlawful conduct. This interpretation is consistent with the TCPA’s text, under which enforcements are but one type of legal action. See § 27.002. Under this definition, a removal petition is not an “enforcement action” in the abstract. Instead it is a procedural device, and as such a party cannot initiate a removal action to enforce the removal statute itself. There is a range of conduct—some unlawful and some not—for which a public official may properly face removal under the removal statute. And as discussed above, the TCPA is available *13 by default since removal actions are legal actions. However, when a removal action has its basis in unlawful conduct, the “enforcement action” exemption renders the TCPA inapplicable.

Accordingly, we must next ask whether the petition against Harper seeks to enforce a substantive legal prohibition against unlawful conduct. Under the removal statute, “[a]n officer may be removed for: (1) incompetency; (2) official misconduct; or (3) intoxication on or off duty caused by drinking an alcoholic beverage.” TEX. LOC. GOV’T CODE § 87.013(a).

In his original petition, Best sought Harper’s removal based on Best’s allegation that Harper “exhibited incompetency by way of gross ignorance of his official duties and gross carelessness in the discharge of those duties.” See id. § 87.011(2)(A)–(B) (“ ‘Incompetency’ means: (A) gross ignorance of official duties; (B) gross carelessness in the discharge of those duties[ ]....”). Incompetency is a basis for removal under the removal statute, but it is not against the law. See id. § 87.013(a)(3).

Best’s incompetency claims are a transparent retaliation against Harper’s quixotic political beliefs. Harper opposed the hospital district’s creation. He put his beliefs into action by running for office, and the voters of Somervell County elected him on a clearly stated anti-tax platform. Best’s petition alleges Harper did exactly what he told the voters he would do upon taking office. Harper’s detractors may disagree with his politics, but no law requires elected officials to support the status quo upon arriving in office. Best’s removal petition was a pretext for forcing Harper to cease acting on the beliefs that won him his office in the first place.

We are not fooled. We doubt anyone else is. Harper’s refusal to capitulate to Best’s demands does not render him incompetent. Best thought that the hospital district was important, and he sought Harper’s removal because he thought that Harper was setting the hospital up for failure, lacked candor, and sometimes communicated less than cordially. Even if a jury agreed that Harper was unfit for office, he would face no criminal or civil penalty other than removal itself. Efforts like Best’s are attacks on core political speech. But the TCPA “protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.” TEX. CIV. PRAC. & REM. CODE § 27.010(a).

Nor are we swayed by the argument that Best’s incompetency claim included allegations that Harper violated the hospital district’s bylaws. The bylaws require board members to discharge their duties “in good faith, with ordinary care, and in a manner the director reasonably believes to be in the best interest of the District.” Similarly, the bylaws prohibit members from performing “any act with the intention of harming the District or any of its operations” or “that would make it impossible or unnecessarily difficult to carry on the intended or ordinary business of the District.” Best’s petition argues Harper violated the bylaws by attempting to set the district’s tax rate at zero and by accusing *14 the district’s administration of violating the law.

The Somervell County Hospital District Board of Directors may promulgate bylaws pursuant to its authority to “adopt rules governing the operation of the hospital and hospital system and the duties, functions, and responsibilities of district staff and employees.” TEX. CIV. PRAC. & REM. CODE § 27.010(a).

In light of our textual conclusion that an enforcement action must be something narrower than a legal action, our general understanding that an enforcement action cannot enforce itself, our specific conclusion that an enforcement action under the TCPA must enforce substantive prohibitions against unlawful conduct, and the legislature’s clear instruction to construe the TCPA liberally to protect citizens’ rights to participate in government, we conclude the that allegations in Best’s petition do not amount to an “enforcement action” under the TCPA. See id.

However, the removal statute also allows removal for “official misconduct,” which may include allegations or evidence that a public official has acted unlawfully. TEX. CIV. PRAC. & REM. CODE § 27.010(a).

Best did not allege official misconduct against Harper, but the state did. After it joined Best’s petition, the state added—as an “official misconduct” ground—the allegation that Harper violated the Open Meetings Act. See TEX. CIV. PRAC. & REM. CODE § 27.010(a).

A removal petition is not an “enforcement action” unless it seeks to enforce a substantive legal prohibition against unlawful conduct. The removal grounds alleging Harper’s incompetency do not meet this definition, which means that the TCPA’s “enforcement action” exemption does not apply to them. See id. But under the same definition, the state’s additional ground alleging official misconduct based on violations of the Open Meetings Act is an enforcement action. So the enforcement-action exemption renders the TCPA *15 inapplicable to the state’s additional ground. See id.

We conclude that Harper may benefit from the TCPA’s expedited-dismissal provisions for the grounds that Best’s initial removal petition raised, but not for the state’s additional ground alleging a violation of the Open Meetings Act.


Sovereign Immunity

Because the TCPA applies, we must consider whether Harper can recover appellate fees and costs from the state. The court of appeals’ judgment awarded “judgment against the state of Texas for [Harper’s] appellate costs that were paid, if any, by [Harper]; and all unpaid appellate court cost[s], if any ... against the state of Texas.” Similarly, the court of appeals’ opinion remands the case to the trial court for a “determination of Harper’s request for court costs, reasonable attorney’s fees, and sanctions.” 493 S.W.3d at 118.

The state argues the award and remand were improper. Because the trial court has not yet made a “determination of” Harper’s request for costs, fees, or sanctions, see id. So we need not consider the state’s argument that such an award would be improper if entered against the state. Instead, the narrow issue before us is whether sovereign immunity protects the state from the appellate fees and costs that the court of appeals has already awarded to Harper. We conclude it does not.

“Sovereign immunity in Texas embodies two concepts: immunity from liability and immunity from suit.” Davis v. City of San Antonio, 752 S.W.2d 518, 523 (Tex. 1988) (“[T]he City waived any immunity defense by failing to affirmatively plead it.”).

By contrast, immunity from suit “implicates a court’s subject-matter jurisdiction” and may “be raised for the first time on appeal.” Kinnear, 14 S.W.3d at 300 (“Because the [state] initiated this proceeding ... and [the defendant] claimed attorney fees as a consequence of that suit, the jurisdictional question in this case was answered when the [state] filed suit[ ].... Thus the issue is whether the [state] ... is *16 immune from liability....” (emphasis added) ).

The state has not argued that it is immune from liability, but only that it is immune from suit. Thus, the state has waived its immunity-from-liability argument. See Davis, 752 S.W.2d at 519–20). The dispositive question, then, is whether the state is immune from suit. If it is, then Harper cannot recover his fees, at least not from the state. But if the state is not immune from suit, then he can.

The state argues that neither the TCPA nor the removal statute contains a legislative waiver of immunity and that immunity from suit therefore protects it from an award of appellate costs. The removal statute requires “the person filing the petition to post security for costs” and further directs that dismissal shall be “at the cost of the person filing the petition.” TEX. CIV. PRAC. & REM. CODE § 27.009(a)(2) (emphasis added). Because Harper initiated this action, the state also argues that the TCPA does not waive immunity. See also id. § 27.011(a) (“[The TCPA] does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.”).

Nor, says the state, do any of this Court’s limitations to immunity’s scope apply. Reata applies in “cases where the governmental entity asserts an affirmative claim for monetary relief against which the opponent’s claims can be offset”).

Harper responds that when the state appeared in this suit, it adopted Best’s live pleading stating jurisdiction was proper in the trial court. Moreover, Harper argues, the removal statute contemplates that the temporary replacement officer must pay any “costs” associated with the prosecution of an unsuccessful removal action. See 106 S.W.3d 692, 697–98 (Tex. 2003) (footnote omitted).

We agree with the state that neither statute waives the state’s immunity from suit. The portions of the removal statute discussing costs treat the temporary replacement officer as an individual, not as an agent of the state. See Tooke, 197 S.W.3d at 329. So neither the removal statute nor the TCPA expressly waives the state’s sovereign immunity.

Although neither statute waives the state’s immunity from suit, that conclusion does not answer the question whether immunity applies in the first place. See Taylor, 106 S.W.3d at 696 (“[W]e have not absolutely foreclosed the possibility that the judiciary may abrogate immunity by modifying the common law....”).

Reata rule does not apply to abrogate the state’s immunity from Harper’s counterclaims. But that does not mean that no rule does so.

Significant as it is, Reata applies only to compensatory damages.”).

As an example of another type of abrogation, Harper cites our per curiam decision in Kinnear and that he should prevail on that basis.

The state responds by citing another of our per curiam opinions, Id. at 533.

The parties strive to distinguish Reata....” (emphasis added) ).

In Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 424 (Tex. 2011) (reversing attorney’s fees awarded against a governmental entity when the fees were a “subset” of a “breach-of-contract claim, a claim on which [the claimant could not] recover”). But neither case considers the attorney’s-fees question beyond the statute it addresses.

Nor does Reata does not hold that a monetary claim is a necessary condition for abrogation in every instance.

So the question whether sovereign immunity protects the state from Harper’s counterclaim for attorney’s fees under the TCPA is one of first impression. Based on the TCPA’s unique status and on the general principles underlying sovereign immunity, we answer that it does not.

As part of its purpose to “safeguard the constitutional rights of persons to ... participate in government,” the TCPA obligates those who fail to prove a “prima facie case” to pay certain litigation costs. See TEX. CIV. PRAC. & REM. CODE § 27.010(a).

Abrogation remains the judiciary’s responsibility. See Manbeck are instructive, neither is dispositive. Accordingly, given the TCPA’s unique role in protecting the democratic processes that allow our state to function, today we conclude that sovereign immunity does not protect the state from a counterclaim for attorney’s fees under the TCPA.

Because the state was not operating within sovereign immunity’s bounds when it joined Best’s suit, the TCPA allows Harper to recover costs against the state pursuant to the TCPA’s terms. See TEX. CIV. PRAC. & REM. CODE § 27.009(a). As is relevant here, these are the TCPA’s requirements with regard to fees, costs, and sanctions:

(a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:

(1) court costs, reasonable attorney’s fees, and other expenses incurred *20 in defending against the legal action as justice and equity may require; and

(2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.


The state points to the limit in section 27.009(a)(1), which has its own limit—justice and equity. See id. § 27.009(a)(1). Since no sanctions have yet been awarded, we need not—and do not—address whether the state “brought” this action (as opposed to “joined” it or something else). Instead, we hold that because this is a TCPA action, the state’s sovereign immunity from suit does not protect it from the appellate costs that the court of appeals has already awarded.

* * *

The court of appeals reversed the trial court’s judgment, holding that the TCPA applies to the state’s removal proceeding and that the state failed to establish a prima facie case for Harper’s removal. See Id. at 118. We affirm the court of appeals’ judgment with the modification that Harper was not entitled to dismissal of or attorney’s fees for the state’s allegation that he violated the Open Meetings Act. Because Harper is no longer in office, however, our holding bears only on the trial court’s determination of court costs, reasonable attorney’s fees, and sanctions.

Justice Lehrmann joined.

Justice Blacklock did not participate in the decision.

Justice Lehrmann, dissenting.

The Court thinks this suit to remove Paul Harper from office is a mere “pretext” and “transparent retaliation against Harper’s quixotic political beliefs.” Ante at 13. And because the state should not have pursued the suit, it should have to reimburse Harper’s attorney’s fees and court costs and, perhaps, pay additional sanctions. Ante at 6–8. Maybe it should. Maybe that’s a good result for Harper. But “the common good is best served by faithful adherence to the rule of law, and not by individual judges seeking good in individual cases.” Hon. Thomas M. Reavley & Ryan S. Killian, Against the Rule of Judges, 68 BAYLOR L. REV. 661, 669 (2016) (emphasis added). To reach its good result in this case, the Court ignores the governing statute’s language and undermines our well-established sovereign-immunity precedent. Applying the statute’s language and our carefully constructed immunity doctrine, I would hold that the Texas Citizens Participation Act does not apply to this enforcement action; and even if it did apply, sovereign immunity bars Harper’s counterclaim for fees, costs, and sanctions.1 I respectfully dissent.

*21 I.

Enforcement Action

The Texas Citizens Participation Act (TCPA) “does not apply” to “an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.” TEX. LOC. GOV’T CODE § 87.013(a)(1), (2). The first issue is whether this Chapter 87 removal action is an “enforcement action.” If it is, Harper cannot recover his costs, fees, or sanctions under the TCPA because the TCPA “does not apply.”

The TCPA does not define “enforcement action.” Considering its common, ordinary meaning and its statutory context, the Court construes the term to mean a legal action that attempts “to enforce a substantive legal prohibition against unlawful conduct.” Ante at 12. Although I cannot fully join the Court’s reasoning,2 I agree *22 that its definition adequately captures the term’s common, ordinary meaning.3 But I do not agree with the Court’s application of that definition.

The Court agrees that this Chapter 87 removal action is an enforcement action to the extent it seeks removal based on Harper’s alleged “official misconduct,” because his alleged misconduct arises from “unlawful” actions in violation of the Texas Open Meetings Act.4 Ante at 14–15. But the Court *23 holds that this is not an enforcement action to the extent it seeks removal based on Harper’s alleged “incompetency” because incompetency “is not against the law.” Ante at 13. According to the Court, Harper could seek dismissal and recover attorney’s fees, costs, and sanctions under the TCPA to the extent the state sought removal based on incompetency allegations, but not to the extent the state relied on misconduct allegations. Ante at 14–15. By inventing this dichotomy, the Court finds a way to allow Harper to recover at least some costs and fees under the TCPA.5 But it does so only by ignoring Chapter 87’s governing provisions, which—for both incompetency and misconduct—permit removal only to enforce an officer’s statutorily imposed “official duties.”

Chapter 87 describes three grounds for removal: “incompetency,” “official misconduct,” and “intoxication on or off duty caused by drinking an alcoholic beverage.” TEX. LOC. GOV’T CODE § 87.013(a). As the Court notes, the statute defines official misconduct to mean “intentional, unlawful behavior,” but the remainder of that definition explains that the behavior must relate “to official duties by an officer entrusted with the administration of justice or the execution of the law. The term includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed on the officer by law.” Id. § 87.011(3) (emphases added). In the very *24 same way, the statute defines incompetency as “gross ignorance of official duties;” “gross carelessness in the discharge of those duties;” or “unfitness or inability to promptly and properly discharge official duties because of a serious physical or mental defect that did not exist at the time of the officer’s election.” Id. § 87.011(2) (emphases added).

The Court simply ignores this statutory language and suggests that Chapter 87’s incompetency ground permits removal merely for “behavior undesirable in a public official.” Ante at ––––. But according to the statute’s language, the behavior that justifies removal—whether based on incompetency or misconduct—must involve the officer’s failure to fulfill the office’s “official duties.”6 “A finding of guilt, or the sustaining of the allegation or cause of any one of such charges, by a verdict of the jury, would authorize and justify the judgment for removal.” Huntress v. State, 88 S.W.2d 636, 648 (Tex. Civ. App.—San Antonio 1935, no writ) (emphasis added).

A county officer’s “official duties” are substantive duties imposed by statutory law. A failure to fulfil those duties runs afoul of that law. The Texas Constitution provides that county officers’ duties shall be “prescribed” or “regulated” by the legislature. TEX. HEALTH & SAFETY CODE §§ 282.050, .041(a). Before taking office, a board member must take an oath “to faithfully and impartially discharge the duties of a board member.” Id. § 282.022(a)(1).

When the state pursues a Chapter 87 suit to remove a board member from office, it seeks to compel compliance with the officer’s “official duties,” regardless of whether it alleges incompetency or misconduct. TEX. CIV. PRAC. & REM. CODE § 27.010(a).


Sovereign Immunity

After holding that an incompetency-based removal action under Chapter 87 is not an enforcement action and thus the TCPA applies, the Court then holds that immunity from suit does not protect the state from Harper’s TCPA counterclaim *25 for attorney’s fees, costs, and sanctions.7 This holding represents a radical departure from our immunity jurisprudence. 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. Upholding our well-reasoned and well-established immunity jurisprudence, I would hold that sovereign immunity from suit bars Harper’s counterclaim because the state does not seek any kind of monetary damages or recovery against which his claim could provide an offset.

As the Court explains, immunity from suit is jurisdictional and, absent waiver, prevents courts from exercising jurisdiction over a claim against the state. Ante at 15. We defer to the legislature to waive the state’s immunity, and any such waiver is effective only when it is clear and unambiguous. Ante at 15. The Court correctly concludes that neither the TCPA nor Chapter 87 clearly and unambiguously waives the state’s immunity. Ante at 17. Yet the Court decides to “abrogate” immunity against Harper’s counterclaim for attorney’s fees, costs, and sanctions under the TCPA. Ante at 17–18.

The Court begins its discussion of this issue with the general assertion that “immunity does not apply in certain situations in which the state ‘join[s] into the litigation process.’ ” Ante at 15 (quoting Reata rule does not apply here, however, because the state has not asserted any monetary claims against which Harper’s counterclaims could provide an offset. Ante at 17.

But the Court then asserts that Manbeck reflect that “sovereign immunity sometimes does and sometimes does not protect the state from counterclaims for attorney’s fees.” Ante at 17, 18–19. Purporting to address an issue of “first impression,” the Court announces a narrow holding that immunity from suit does not reach a counterclaim for attorney’s fees under the TCPA. Ante at 19. In support *26 of this holding, the Court claims to be promoting the TCPA’s purpose to protect the constitutional rights of those who participate in government and require those who fail to prove a prima facie case to pay litigation costs. Ante at 19. And because the state “risks paying only attorney’s fees,” the Court believes its TCPA-specific rule abrogating immunity “does not present any grave danger to the public fisc.” Ante at 19.

The Court reveals its true motivation, however, by expressing its own view that the state “should not be suing to prevent its own citizens from participating in government—especially when it lacks even a prima facie case against them.” Ante at 19. While the Court certainly has the power to “abrogate” sovereign immunity however it wants, its decision in this case undermines the distinction we have recognized between the scope of immunity and a waiver of immunity. The Court’s result-oriented decision to abrogate immunity in this case confuses our immunity jurisprudence, ignores the principles on which immunity is based, and eschews the deference we have consistently given to the legislature to decide whether and when to waive immunity.

This Court has carefully crafted the immunity doctrine, especially over the past few decades. Long ago, the Court stated quite broadly, and without any real analysis, that when “a state voluntarily files a suit and submits its rights for judicial determination, it will be bound thereby, and the defense will be entitled to plead and prove all matters properly defensive. This includes the right to make any defense by answer or cross-complaint germane to the matter in controversy.” 14 S.W.3d at 300.

After Id. at 377 (emphases added).

As this Court and the courts of appeals have confirmed, Nazari, 561 S.W.3d at 507.

But here, the Court carves out an exception applicable only to counterclaims for costs, attorney’s fees, and sanctions under the TCPA. The fact that Harper seeks only that relief, however, does not justify the Court’s holding, at least not according to our post-Reata, immunity from suit bars Harper’s counterclaims because *28 the state has not sought any kind of monetary relief against which Harper’s recovery could provide an offset.

The Court, however, concludes that the legislature’s purpose in enacting the TCPA justifies the Court’s decision to abrogate the state’s immunity from suit against TCPA counterclaims. Ante at 17. Unlike the Court’s misplaced reliance on the TCPA’s purpose to construe the statutory term “enforcement action,” see supra n.2, the Court relies on that purpose here to shift the responsibility for its own policy decision. The Court cannot claim to be promoting the legislature’s purpose when—as the Court itself agrees—the legislature did not waive the state’s immunity from suit in the TCPA. See ante at 17. Nor does anything about the TCPA suggest that the legislature wanted the Court to treat the TCPA differently than any other statute that allows for an award of attorney’s fees. To the contrary, the legislature has made clear its view (and we have consistently and repeatedly agreed) that we cannot find that a statute waives immunity unless it does so by “clear and unambiguous” language. TEX. GOV’T CODE § 311.034. Because the legislature has not clearly and unambiguously waived immunity in the TCPA, the Court cannot genuinely claim to be promoting the legislature’s purpose by judicially abrogating immunity the legislature has not waived. See supra n.3. Because the legislature has not waived immunity in the TCPA, the Court’s implementation of its own purposes contradicts the legislature’s purpose by waiving the state’s immunity when the legislature has chosen not to waive it.

To be sure, the Court has authority to abrogate sovereign immunity in whole or in part, but its holding today represents a sea change from our current immunity jurisprudence. I cannot join the Court’s cavalier approach to such a well-established and important doctrine.



I am sympathetic to the Court’s desire to allow Paul Harper to recover the fees and costs he incurred defending this removal action, but sympathy cannot determine the outcome of this case. The question we must decide is whether Harper can recover those losses under the TCPA. Because this Chapter 87 removal action is an “enforcement action” regardless of the grounds asserted, the TCPA “does not apply.” And even if it did apply, the state’s immunity from suit bars Harper’s counterclaim for court costs, attorney’s fees, and sanctions because the state neither sought nor obtained any monetary recovery that an award to Harper could offset. Because Harper’s counterclaim presents the only issue that is not now moot in this case, I would reverse the court of appeals’ judgment remanding the case for an award of costs, fees, and sanctions and render judgment dismissing this case. Because the Court holds otherwise, I respectfully dissent.



The parties agree that a hospital district board member is “a county officer[ ] ... whose office is created under the constitution or other law of this state.” See TEX. LOC. GOV’T CODE § 87.012(15). Without deciding the issue, we accept the parties’ construction for purposes of this case.


For the reasons the Court explains, I agree that this case is not moot and that it constitutes a “legal action” under the TCPA.


In particular, I do not join the Court’s reliance on “that last redoubt of losing causes, the proposition that the statute at hand should be liberally construed to achieve its purposes.” Rodriguez, 480 U.S. at 525, 107 S.Ct. 1391.

Because of its misplaced reliance on the TCPA’s purpose, the Court confuses the claim’s nature with its merits. The Court holds that the attempt to remove Harper for “incompetency” is not an “enforcement action” under the TCPA because it lacks merit and is based solely on the defendant’s exercise of his right to free speech. See, e.g., ante at 13 (characterizing the claim as a “pretext for forcing Harper to cease acting on those beliefs that won him his office in the first place”), 13 (characterizing the claims as “attacks on core political speech”). But the question of whether the claim has merit is relevant to the trial court’s decision whether to dismiss the claim, not to whether the TCPA applies in the first place. See §§ 27.003(a), .005(b). Under the Court’s purpose-based reasoning, the enforcement-action exemption will never apply if the defendant is entitled to dismissal, and thus the exemption means nothing at all. If the suit is an enforcement action but is based on the defendant’s free speech, the exemption would not apply but the defendant would always meet the prerequisite for dismissal. If it is an enforcement action and is not based on free speech, the exemption would apply and the defendant would not be entitled to dismissal. In other words, under the Court’s construction, the exemption would merely prevent the TCPA from applying to claims that would not be subject to dismissal under the TCPA anyway.


I do not agree, however, with the Court’s suggestion that a substantive legal prohibition must appear in some “specific statutory provision” and must be enforceable by “criminal or civil penalties.” Ante at 14, –––– (emphasis added). “Substantive” does not mean “statutory,” and “substantive” requirements are not enforceable only by “criminal convictions and civil penalt[ies].” Substantive law is the “part of the law that creates, defines, and regulates the rights, duties, and powers of parties.” Substantive Law, BLACK’S LAW DICTIONARY (10th ed. 2014). It is the counterpart of “procedural law,” which “prescribe[s] the steps for having a right or duty judicially enforced, as opposed to the [substantive] law that defines the specific rights or duties themselves.” Procedural Law, BLACK’S LAW DICTIONARY (10th ed. 2014).

If the Court intends to suggest that an enforcement action must seek to enforce a statutory obligation or prohibition, that suggestion ignores the term’s common, ordinary meaning. The Legislature commonly uses the term to refer to actions to enforce not just statutory obligations, but rules, orders, and a variety of other substantive legal duties. See, e.g., TEX. INS. CODE § 843.461(b); see also id. § 848.201(b) (same for enforcement actions against a health care collaborative). In short, in common usage, the phrase “enforcement action” includes government actions to compel compliance with more than just statutory prohibitions. But as I explain, a Chapter 87 removal suit is an enforcement action under either approach because it seeks to enforce statutorily imposed official duties.


The court of appeals held that this suit is not an enforcement action because it sought to remove Harper from his elected position rather than to compel him to comply with the position’s duties. See TEX. WATER CODE §§ 7.003, .302, .303, .310 (granting state agency “enforcement” authority, including authority to pursue an “enforcement action” to “suspend or revoke a license, certificate, or registration”). While a removal action may not “compel compliance” by forcing the defendant to perform certain actions, it does “compel compliance” by preventing the defendant from continuing to violate the standards that require those actions.


The Court makes no effort to explain how—or even whether—Harper or any similar defendant could effectively segregate costs and fees incurred defending against incompetency allegations from those incurred defending misconduct allegations. Although Harper’s failure to segregate would not necessarily preclude recovery at this point, Harper must at least provide “sufficiently detailed information” to enable the trial court to make that distinction. Kinsel v. Lindsey, 526 S.W.3d 411, 428 (Tex. 2017).


Chapter 87 does not further define the “intoxication” ground for removal. This Court explained long ago that this ground “in effect declares habitual drunkenness to be a disqualification from holding such offices,” as opposed to a “declaration of delinquency” or a lack of “capacity or character.” Trigg v. State, 49 Tex. 645, 669 (1878). In context, this ground would appear to apply when the officer’s alcohol usage affects his ability to fulfill his official duties, but as the State does not seek to remove Harper under this ground we need not address it here.


The court of appeals awarded Harper his appellate costs and remanded the case with instructions that the trial court dismiss the claims and determine “Harper’s request for court costs, reasonable attorney’s fees, and sanctions.” At the beginning of its immunity discussion, the Court suggests that its holding applies only to the judgment awarding appellate costs because the trial court has not yet made a determination of trial costs, fees, and sanctions. Ante at 15. But we must decide now whether immunity bars that claim even though the trial court has not yet made that determination because the trial court has no jurisdiction to even consider the issue if immunity from suit bars Harper’s claim. So as the Court’s conclusion confirms, its immunity holding necessarily relates not only to the award of appellate costs but also to “the trial court’s determination of court costs, reasonable attorney’s fees, and sanctions” on remand. Ante at 20.


The court of appeals in Id. The Commission’s immunity from suit was not at issue, and the Court referred to that issue (“the jurisdictional question”) only in the one quoted sentence, in passing, and without citing any authority.


See also City of Angleton v. USFilter Operating Servs., Inc., 201 S.W.3d 677, 678 (Tex. 2006) (per curiam) (same).

End of Document