## IN THE SUPREME COURT OF TEXAS

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### No. 1 8

- 0 656

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### C REATIVE 

### O IL 

### & G AS 

### , LLC AND 

### C REATIVE 

### O IL 

### & G AS 

### O PERATING 

### , LLC , P ETITIONER S 

### ,

v. 

### L ONA 

### H ILLS 

### R ANCH 

### , LLC, R ESPONDENT

══════════════════ ════════════════════════ O N P ETITION FOR R EVIEW FROM THE C OURT OF A PPEALS FOR THE T HIRD D ISTRICT OF T EXAS

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Argued September 19 , 201 9

J USTICE B LACKLOCK delivered the opinion of the Court. The 86th Legislature recently amended the Texas Citizens Participation Act (TCPA)

. Act of May 17, 2019, 86th Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684. The prior version of the
statute continues , however, to control cases filed before September 1, 2019. Id. §§ 11

– 12, 2019 Tex. Gen. Laws at 687

. This is one such case . It requires consider ation of statutory text that h as been repealed but remains operative, though for a limited time only. The question is whether the erstwhile version of the TCPA applies to certain counterclaims alleged in a dispute over an oil and gas lease

. T he answer to that question depends on whet her each counter claim is “based on , relates to, or is in response to” the “ exercise of the right of free speech ” or the “exercise of the right to petition ,” as the governing statutory text defines those concepts

. T EX
. C IV
. P RAC
. & R EM
. C O DE § 27.003(a). As explained below, w e conclude that the court of appeals properly dismissed one2 counterclaim but that the others should have been allowed to proceed. The judgment of the court of appeals is affirmed in part and r eversed in part, and the case is remanded to the trial court for further proceedings.
I. Background Respondent Lona Hills Ranch, LLC (Ranch) entered into an oil and gas lease with Petitioner

- lessee Creative Oil & Gas, LLC (Lessee). Petitioner Creative Oil & Gas Operating, LLC (Operator) was the operator of the only producing well on the lease

. 1 The Ranch sued the Operator in a trespass and trespass to try title action, seeking a ruling that the lease was terminated due to cessation of production . The Lessee intervened , and the Ranch later filed an amended petition dropping its claims against the Operator and instead asserting them against the Lessee

. The Lessee and the Operator brought various counterclaims that essentially a mounted to two claims. The first claim was that the Ranch falsely told third

- party purchasers of production from the lease that the lease was expired and that payments on the purchases should stop. The seco nd claim was that the Ranch breached the lease by filing this suit and by bringing an administrative action in the Railroad Commission seeking a ruling that the lease had terminated. 2 The second claim asserted that these adversarial actions breached section 11 of the lease , which requir ed Lona

1 The Lessee is the sole member and owner of the Operator.

2 The Railroad Commission ultimately dismissed the Ranch’s complaint. As the court of appeals explained, “the Railroad Commission issued a final order concluding that the Operator had presented a ‘good faith claim’ to operate the Lease and dismissing the complaint. This conclusion was based, in part, on the Railroad Commission’s finding that the Operator’s operat ions during the time the well was not producing had been ‘adequate to extend the term of the lease.’” Lona Hills Ranch, LLC v. Creative Oil & Gas Operating, LLC , 549 S.W.3d 839, 842 (Tex. App.

— Austin 2018, pet. granted)

.3 Hills to give the Lessee notice of a breach and an opportunity to cure prior to co m mencing litigation. The Ranch filed a TCPA motion to dismiss the counterclaims. As to the first claim, i t argued its statement s to third parties about the lease were an “exercise of the right of free speech,” which the TCPA define s as “a c ommunication made in connection with a matter of public

concern .” T EX
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. & R EM
. C O DE § 27.001(3). As to the second claim, t he Ranch argued that the filing of th is suit and the Railroad Commission action were both an “exercise of the right to petition , ” as the TCPA defines it

. See id. § 27.001(4). The motion was denied by operation of law , and the Ranch appealed. The court of a ppeals agreed with the Ranch that the communications to third parties were an “exercise of the right of free speech” covered by the TCPA. Lona Hills Ranch, LLC v. Creative Oil & Gas Operating,
LLC , 549 S.W.3d 839 (Tex. App.

— Austin 2018, pet. granted). The court of appeals construed the appellees’ briefing as failing to take direct issue with the Ranch’s contention that its communications with third parties involved a “matter of public concern

. ” I d. at 845

– 46. The court viewed appellees’ briefing as focused on the argument that their counterclaims were premised on the breach of the notice and cure provision , not on the communications to third parties . As a result, the court of appeals did not add ress the matter

- of

- public

- concern question s explore d below . The
court rejected the appellees’ contention that the counterclaim s were premised solely on the alleged breach of the lease . The court concluded that the counterclaim s related to communications with third parties w ere premised on the Ranch’s “exercise of the right of free speech” under the TCPA

. Id. at 846

– 47. Proceeding to whether the counterclaimants had established a prima facie case under the TCPA , the court of appeals held that the claims failed and should have been dismissed4 because (1) the Operator was not a party to the lease and could not assert a breach of that contract, and (2) the Lessee failed to identify a provision of the lease that was violated. Id. at 847. Regarding the Operator’s counterclaim concerning the filing of this suit and the Railroad Commission action, the court of appeals concluded that this claim was in response to the exercise of the right to petition. Id. at 848. After determining t he TCPA applied, the court held the Operator could not make out a prima facie breach

- of

- contract case because it was not a party to the lease containing the notice and cure provision. Id. As to the Lessee, the court of appeals held that this claim did not fall under the TCPA because it was not “factually predicated” on the Ranch’s right to petition. Id. According to the court of appeals , the Lessee’s claim was not predicated on the right to petition because the Ranch had cont ractually agreed to limit its right to petition under the notice and cure provision of the lease

. Id. C onsistent with these rulings, the court of appeals dismissed all the Operator’s counterclaims and dismissed the Lessee’s counterclaim premised on

commu nications with third parties. II. Discussion A. T he TCPA Under the TCPA, 3 a party may file a motion to dismiss a “ legal ac t ion ” that is “based on, relates to, or is in response to a party’s exercise of the right of free speech [ or the ] right to petition.”
T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.003(a). A “legal action” can consist of an entire lawsuit or a subsidiary action such as a counterclaim

. Id. § 27.001(6).

3 All references to the TCPA are t o the version that applies to this dispute. As noted above, the TCPA was amended in 2019. Act of May 17, 2019, 86th Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684. Indeed, section 27.001(7) was completely rewritten. These amendments do not apply to this case. See id. §§ 11

– 12, 2019 Tex. Gen. Laws at 687 (providing that amendments apply to actions filed on or after September 1, 2019).5 As the TCPA uses it, t he phrase “ ‘ exercise of the right of free speech ’ means a communication made in connection with a matter of public concern.” Id. § 27.001(3).

“ ‘Communication’ includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). Under section 27.001(7), “Matter of public concern” includes an issue related to: (A) health or safety; (B) environmental, economic, or community well

- being; (C) the government; (D) a public official or public figure; or (E) a good, product, o r service in the marketplace. Id. § 27.001(7). “Exercise of the right to petition” includes “a communication in or pertaining to” “a judicial proceeding,” “an official proceeding, other than a judicial proceeding, to administer the law,” and “an executive or other proceeding before a department o f the state or federal government or a subdivision of the state or federa l government.” Id. § 27.001(4)(A)(i)

– (iii). The TCPA mandates that a trial court deciding a motion to dismiss “ shall consider the pleadings and supporting and opposing affidavits” filed by the parties. Id. § 27.006(a). The statute requires a three

- step decisional process. Under the first step, t he trial court must dismiss the action “if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of . . . the right of free speech [or] the right to petition.” Id. § 27.005(b). But under the second step, the court may not dismiss the action if the

non - moving party “establishes by clear and specific evidence a prima facie case for each essential element of the claim.” Id. § 27.005(c). U nder the third step , the movant can still win dismissal if he establish es “by a preponderance of the evidence each essential element of a valid defense to the6 nonmovant’s claim.” Id. § 27.005(d). If the court orders dismissal, it shall award to the moving party reasonable attorney’s fees and other c osts and expenses, as well as sanctions. Id. § 27.009 (a). The court may also award costs and fees to the non

- moving party if it finds that the motion to dismiss was frivolous or solely intended for delay. Id. § 27.009(b). Section 27.009 was also amended in 2019. See supra note 3

. An order denying a TCPA motion to dismiss is subject to interlocutory appeal. Id. § 51.014(a)(12). If , as occurred here, the trial court does not rule on a motion to dismiss within a prescribed time, the motion is deemed overruled as a matter of law and the moving party may thereafter pursue an appeal. Id. § 27.008( a ).
Th e text of the TCPA dictates the outcome of this case. We consider issues of statutory construction de novo

. Adams v. Starside Custom Builders, LLC , 547 S.W.3d 890, 894 (Tex. 2018)

. “In TCPA appeals, we have decided whether communications are matters of public concern under

a de novo standard of review, suggesting that the determination is one of law.” I d. at 897

. B. The Counterclaim s Regarding Communications with Third Parties Some of t he Lessee’s and the Operator’s counterclaims alleged they were damaged when the Ranch communicated to third parties that the lease expired. U nder the first step of the TCPA analysis , the court of appeals concluded that th ese counterclaim s w ere based on, related to, or in response to the Ranch’s exercise of the right of free speech. 4 Proceeding to the second step, the court of appeals concluded that the counterclaims should be dismissed because the Lessee and the

4 549 S.W.3d at 847 (“As such, the Ranch established by a preponderance of the evidence that the Operator and the Lessee’ s counterclaims are ‘based on, relate[] to, or [are] in response to’ the Ranch’s ‘exercise of the right of free speech. ’ ”).7 Operator failed to establish by clear and specific evidence a prima facie case for each essential element of the counter claim s . 549 S.W.3d at 847. The Lessee and the Operator contend that their counterclaim s were not based on, related to, or in response to “ a communication made in connection with a matter of public concern .” At the outset, we are satisfied that th e se “ matter

- of

- p u blic

- concern ” arguments are properly before

us. The Lessee and the Operator have contended in the trial court, the court of appeals, and this
Court that th e ir counterclaim s did not involve a n exercis e of the right of free speech under the
TCPA

. T hey emphasi ze the matter

- of

- public

- concern arguments in this Court , whereas th ey did not do so in the court of appeals

. T he Ranch ’s briefing , however, does not contend that the Lessee and the Operator somehow waived or failed to preserve their right to argue in this Court that the communications at issue did not involve matter s of public concern. While the court of appeals should not be faulted for declining to directly address the matter

- of

- p ublic

- concern question based on how the case was presented in that court, both parties in this Court brief ed the question as if it is properly presented . That is at least arguably the case

. 5 Rather than finding waiver sua sponte , we will decide the dispositive legal question the parties ask us to decide.

5 As we read their brief in the court of appeals, the Lessee and the Operator repeatedly argued that their counterclaims were not based on an exercise of the right of free speech under the TCPA but were instead based exclusively on an alleged breach of a contract with the Ranch. T he initial burden was on the Ranch as appellant to establish that the trial court erred in denying the Ranch’s TCPA motion to dismiss. To the extent the Lessee and the Operator as appellees had any burden to establish that their counterclaims did not involve an exercise of the right of free speech, th ey r aised that issue , although it certainly could have been argued more expansivel y, as it has been in this Court

. See Adams , 547 S.W.3d at 89 6 (“[Petitioner] was not required on appeal or at trial to rely on precisely the same case law or statutory subpart t hat we now find persuasive.”); Greene v. Farmers Ins. Exchange , 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“Green e contends that Farmers should be precluded from raising any arguments about premium charges, form policies, and endorsements because they were not m entioned in the trial court or the court of appeals. We disagree. We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”).8 For the reasons explained below, the Ranch’s communications to third parties about an oil and gas lease , on which some of the counterclaims are based, did not involve matter s of public concern under the TCPA. Well

- recognized principles of statutory construction inform this conclusion

. As with any statute, courts must apply the TCPA “as written” and “refrain from rewriting text that lawmakers chose.” Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 443 (Tex. 2009)

. This means enforcing “the plain meaning of the text unless a different meaning is supplied by statutory definition , is apparent from the context, or the plain meaning would lead to an absurd or nonsensical result.” Beeman v. Livingston , 468 S.W.3d 534, 538 (Tex. 2015) . The
TCPA “ assigns detailed definitions to many of the terms it employs, and we must adhere to
stat utory definitions.” Adams , 547 S.W.3d at 894

. This “ text

- based approach to statutory construction requires us to study the language of the specific provision at issue, within the context of the statute as a whole, endeavoring to give effect to every word, clause, and sentence.” Ritchie v. Rupe , 443 S.W.3d 8 56, 867 (Tex. 2014). “It is not the Court’s task to choose between competing policies addressed by legislative drafting. We apply the mandates in the statute as written.” In re Tex. Dep ’ t of Family & Protective
Servs. , 210 S.W.3d 609, 614 (Tex. 2006) (or ig. proceeding) (citation omitted) . As written, t he
TCPA applies to a wide variety of claims , Adams , 5 47 S.W.3d at 894 , including a ny claim that is “based on, relates to, or is in response to” a party’s “ exerci se of the right of free speech. ” T EX
. C IV
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. & R EM
. C ODE §§ 27.003(a) , 27.005 (b). “The TCPA provides its own definition of ‘exercise of the right of free speech’” that “ is not fully coextensive with the constitutional free

speech right protected by the First Amendment to the U.S. Constitution and article I, section 8 of the Texas Consti tution.” Adams , 547 S.W.3d at 892. T he TCPA professe s a purpose to “encourage9 and safeguard . . . constitutional rights,” T EX
. C IV
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. C ODE § 27.00 2, but the statute’s scope is dictated by its text, not by our understanding of the constitution. See Youngkin v. Hines , 546 S.W.3d 675, 681 (Tex. 2018) (“It does not follow from the fact that the TCPA professes to safeguard the exercise of certain First Ame ndment rights that it should only apply to constitutionally guaranteed activities. ” ). The TCPA defines “ exercise of the right of free speech ” to mean “ a communication made in connection with a matter of public concern. ” T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.001(3). The question presented is whether the Ranch’s communications to third parties regarding the alleged termination of the lease were “in connection with a matter of public concern.” The statute provides that “ ‘[ m ] atter of public concern ’ includes an issue related to ” “ environmental, economic, or community well

- being ,” “ the government ,” or “ a good, product, or service in the marketplace.”
T EX
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. P RAC
. & R EM
. C ODE § 27.001 (7) (B), (C), (E)

. The Ranch contends that its communications regarding the lease’s alleged termination are covered by the TCPA because they involve the lease and its products, both of which are “a good, product, or service in the marketplace.” Of course , n early all contracts involve “ a good, product, or service. ” But the statute refers to a “good, product, or service in the marketplace

. ” T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.001(7) (E) (emphasis added). S ection 27.001(7)(E) does not encompass every “good, product, or service , ” but only those “in the marketplace.” Id. If possible, t he words “in the marketplace” must not be treated as surplusage. ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 8 9 5 , 899 (Tex. 2017) (per curiam) ; Cont’l Cas. Ins. Co. v. Functional Restoration As socs. , 19 S.W.3d 393, 402 (Tex. 2000). Every word in a statute is presumed to have a purpose and should be given effect if reasonable and possible. Tex as Workers ’ Comp. Ins. Fund v. Del Indus., Inc. ,10 35 S.W.3d 591, 593 (Tex. 2000). Black’s Law defines “ marketplace” as “[ t ]he business environment in which goods and services are sold in competition with other suppliers .” Marketplace , B LACK ’ S L AW D ICTIONARY (11th ed. 2019) (emphasis added). The “in the marketplace” modifier suggests that the communication about goods or services must have some relevance to a wider audience of potential buyers or sellers in the marketplace , as opposed to communications of relevance only to the parties to a particular transaction. Given the “in the marketplace” modifier, the TCPA ’s reference to “a good, p roduct, or service” does not swallow up every contract dispute arising from a communication about the
contract

. By referring to communications made in connection with goods, products, o r services “in the marketplace,” the definition confirms that the right of free speech involves communications connected to “a matter of public concern.” Moreover, s ection 27.001(7) states only that a matter of public concern “includes” certain enumerate d topics, such as “a good, product, or service in the marketplace.” The words following “includes” are illustrative of what is meant by “matter of public concern,” but they do not purport to supply a comprehensive definition of that phrase. The legislatu re is of course free to define “matter of public concern” to include matters of purely private

concern. For that matter, t he legislature could declare that its use of “dog s ” include s cats. We are bound by the TCPA’s instruction that “matter of public concern” must be interpreted to include issues related to a good, product, or service in the marketplace. T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.001(7) (E). The words “good, product, or service in th e marketplace , ” however, do not paradoxically enlarge the concept of “matters of public concern” to include matters of purely private concern. As explained above, the “in the marketplace” modifier suggests that the communication must have some relevance t o a public audience of potential buyers or sellers

.11 To the extent any doubt remains about the meaning of “good, product, or service in the marketplace,” our understanding of th ose words is further confirmed by their context. They appear not in isolation but as part of the statute’s explanation of what is meant by “matter of public
concern.” E ven when a statute provides its own definition or explanation of a term

— here the phrase “matter of public concern”

— i n applying that definition , we should n ot ignore altogether the common meaning of the words being defined , unless th e statutory text compels otherwise

. Statutory definitions must be interpreted in light of the ordinary meaning of the word being defined. A legislature can define terms however it wants. However, when seeking to understand statutory definitions, “the word being defined is the most significant element of the definition’s context.” Courts should not consider the meaning of the term to be de fined in total isolation from its common usage. We presume that a definition of a common word accords with and does not conflict with the ordinary meaning unless the language clearly indicates otherwise. In re Ford Motor Co

. , 442 S.W.3d 265, 271 (Tex. 20 14) (orig. proceeding) (footnotes omitted) (quoting A NTONIN S CALIA & B RYAN G ARNER , R EADING L AW 232 (20 12 ) )

. Thus, w hen construing the TCPA’s list of the kinds of things meant by “matter of public concern,” we should not ignore the common meaning of the words being defined . The phrase “matter of public concern” commonly refers to matters “of political, social, or other concern to the community,” as opposed to purely priv ate matters. Brady v. Klentzman , 515 S.W.3d 878, 884 (Tex. 2017) (citations omitted)

. I n seeking to understand the meaning of “good, product, or service in the marketplace,” we must not ignore altogether this ordinary meaning of “matter of public

concern .” Imagine a statute appl icable to “dogs.” The statute says “dog s ” include “ wild dog s , stuffed animal s , or pet s .” One literal , grammatically permissible reading of this text would be that “dogs” means cats (or fish or snakes) as long as the y are stuffed animals or pets. But courts would be12 reluctant to a dopt that reading of the text because of the context in which it appears. The context is a definition of the word “dogs,” and in that context there is little doubt the explanatory list refers to stuffed dogs and pet dogs, not to their feline counterparts. Similarly, the words “good, product, or service in the marketplace” may in isolation be amenable to two textually permissible interpretation s

— one that includes many purely private economic matters and one that does not. As explained above, t he latter reading of the text is superior because it gives meaning to the words “in the marketplace.” That reading is also preferable because it comports with the text’s contex t within the statute’s explanation of the w ell

- worn phrase “matter of public concern

. ” Applying this understanding of the TCPA’s use of the phrase “ good, product , or service in the market place, ” the Lessee’s and the Operator ’s counterclaims allegedly involving the exercise of free speech are not covered by the TCPA. T he counterclaim s are based on private business communications to third

- party purchase r s of a single well’s production. T hese communications allegedly caused the third

- party purchasers to refuse to pay the Lessee and the Operator their share of the proceeds from this production. The counterclaims alleged that the Ranch’s “wrongful actions” prevented the Lesse e “from receiving the proceeds of sales of oil and gas from the Lease and from producing and selling oil and gas from the Lease and receiving its portions of the proceeds of such sales

. ” They alleged that the Ranch “wrongfully prevent[ed] the purchasers o f oil and gas production from the Lease from paying [the Operator] for the proceeds of sales of production.” In support of these claims , David Pawelek, the CEO of the Lessee and the Operator, submitted an affidavit stating the Lessee and the Operator had been denied their share of the proceeds of sales under the lease because two third

- party purchasers of the production refused to disburse funds. The refusal allegedly occurred because the Ranch “has written these oil and gas13 purchasers claiming that the lease has terminated and threatening to sue them if they pay these sales proceed s or any future sales proceeds they receive from this lease to” the Lessee or the Operator. The record is devoid of allegations or evidence that t he dispute had any relevance to the broader marketplace or otherwise c ould reasonably be characterized as i nvolving public concerns. On the contrary, the alleged communications were made to two private parties concerning modest production at a single well

. 6 These communications, with a limited business audience concerning a private contract dispute, do not relate to a matter of public concern under the TCPA. We have previously held that private communications are sometimes covered by the
TCPA. E.g. , Exx onMobil Pipeline Co. , 512 S.W.3d 8 9 5; Lippincott v. Whisenhunt , 462 S.W.3d 507 (Tex. 2015) (per curiam)

. T hese prior cases involved environmental, health, or safety concerns that had public relevance beyond the p ecuniary interests of the private parties involved. See ExxonMobil Pipeline Co. , 512 S.W.3d at 898, 901 (concluding that private statements by movants concerning plaintiff’s alleged failure to gauge a storage tank related to a matter of public concern due to “ser ious safety and environmental risks” ); Lippincott , 462 S.W.3d at 509

– 10 (concluding
t hat alleged improper provision of medical services by a health care professional are matters of public concern). Moreover, the statutory definition expressly includes issues related to “health or

6 The Pawelek affidav it stated: The purchasers of the oil and gas production from this lease have refused to pay [the Lessee and the Operator] any of their part or the part of any of the other owners of interests in this lease of these sales proceeds that they presently hold a nd that exceed $10,000 as to [the Lessee’s] part alone. There are around 800 barrels of oil in the tanks on the lease that the actions in breach of the lease by [the Ranch and its owner] have prevented [the Lessee and the Operator] from selling and receiv ing the proceeds of such sales. The oil and gas purchasers Texican and DCP have refused to [] disburse these funds to [the Lessee and the Operator] because [the Ranch] has written these oil and gas purchasers claiming that the lease has terminated and thr eatening to sue them if they pay these sales proceeds or any future sales proceeds they receive from this lease to [the Lessee or the Operator].14 safety,” and “environmental, economic, or community well

- being,” T EX
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. & R EM
. C ODE § 27.001(7) (A)

– (B) , concerns that are not implicated on this record. 7 The Ranch argues the counterclaims implicate economic well

- being under section 27.001(7)(B) because the claims affect the economic interest of the parties and others with a n interest in the well. But as noted, not every communication related somehow to one of the broad catego r ies s e t out in section 27.001(7) always regards a matter of public co nc ern. A priv a te contract dispute affecting only the fortunes of the private parties involved is simply not a “matter of public concern” under any tenable understanding of those words. In sum, the counterclaim s relating to the Ranch’s communications with third parties w ere not covered by the TCPA. Accordingly , the p ortion of the court of appeals ’ judgment dismiss ing these counterclaims is reversed

. C . The “Right to Petition” Counterclaim s In addition to claiming damages resulting from communications with third parties, t he counterclaims alleged that the Ranch breached section 11 of the lease by commencing litigation in the Railroad Commission and in this case. Section 11 provide d for written notice of any alleged breach and an opportunity to cure prior to litigation

.

7 The Ranch’s managing member C.V. Sheffield, III submitted an affidavit in support of the Ranch’s motion to di smiss stating there was a leak on a heater vessel at the well “resulting in a constant drip” of an unidentified liquid. This de minim i s reference to some sort of drip does not rise to the level of an issue related to “health or safety” or “environmental w ell

- being” under section 27.001(7) of the Act. See ExxonMobil Pipeline Co. , 512 S.W.3d at 898, 901 (concluding that defamation claim concerning an alleged failure to gauge storage tanks related to a matter of public concern given testimony that such failu res “create serious safety and environmental risks” because “tanks could overfill, causing noxious and flammable fluid to spill onto the ground,” and because tanks are gauged “to reduce the potential environmental, health, safety and economic risks associa ted with” such a negative outcome).15 Th e court of appeals concluded that the Operator’s counterclaim regarding the alleged breach of the lease’s notice

- and

- cure provision fell within the TCPA because it was in response to the Ranch’s exercise of the right to petition . 549 S.W.3d at 848. The c ourt then reasoned that the claim should be dismissed because the Operator , as a non - party to the lease , cannot recover for breach of it

. 549 S.W.3d at 848. The court of appeals correctly disposed of this claim

. The TCPA permits a motion to dismiss a counterclaim if it “is based on, relates to, or is in response to a party’s exercise of the

. . . right to petition.” T EX
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. C ODE § 27.003(a). The Act defines “exercise of the right to petition” to include “ a communication in or pertaining to : (i) a judicial proceeding; (ii) an official proceeding, other than a judicial proceeding, to administer the law; [or] (iii) an executive or other proceedin g before a department of the state or federal government or a subdivision of the state or federal government

. ” Id . § 27.001(4)(A). The f ilings by the Ranch in this lawsuit and in the administrative proceeding before the Railroad Commission we re an exerci se of the right to petition as defined by the TCPA

. The Operator’s counterclaim premised on th ose filings is therefore based on, relate d to , or in response to the Ranch’s exercise of the right to petition. T he court of appeals correctly determined that the Operator’s counterclaim alleging violation of section
11 of the lease failed be cause the Operator was not a party to the lease and did not present clear and convincing evidence as to why is should benefit from that lease

. 8 A ccordingly , the portion of the court of appeals ’ judgment dismissing this c ounterclaim is affirmed

.

8 The Operator concedes in it s petition for review that its “counterclaim might be legally deficient because Operator does not own an interest in the lease and as such is not in privity of contract with [the Ranch].” It again concedes in its main brief that it “does not own an interest in the lease” and its “counterclaim might be legally deficient.” Further, the Operator makes no attempt to establish that it was a third

- party beneficiary to the lease.16 The Lessee, who was a party to the lease , also asserted a counterclaim alleging violations of s ection 11. T he court of appeals held that this counterclaim was not covered by the TCPA and th at the trial court did not err in declining to dismiss it . 549 S.W.3d at 848. T he Ranch did not timely file a cross

- petition challenging this adverse ruling , so we do not consider it.
III. Conclusion and Disposition The judgment of the court of appeals is affirmed in part and reversed in part . The case is remanded to the trial court for further proceedings.

____________________________________ James D. Blacklock Justice

OPIN ION DELIVERED: December 20, 2019