### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00936
- CV

Michael Quinn Sullivan , Appellant

v. Texas Democratic Party and Ana
- Marie Ramos , Appellee s

FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 19
- 004577 , THE HONORABLE KARIN CRUMP , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Texas Democratic Party and Ana

- Marie Ramos (collect i vely, TDP) sued Mich ael Quinn Sullivan seeking d eclar atory and injunctive relief and d amages ar isin g out of conduct that they alleged viol a ted t he Texas Electi on Code. Sullivan filed a motion to dismiss p ursuant to
the Texas Citizens Participation Act. See Tex. Civ. Prac. & R em. Code §§ 27.001

- .011 (the TCPA). 1 After a hearing, the trial court denied the motion. In two issues , Sullivan a s se rts tha t
the trial court erred by denying the motion to dismiss because the TCPA applies to TDP ’ s cl aims
and TDP failed to produce clear and speci fic evidence of a prima facie case for each essential
element of their causes of action. We conclude that S ul liva n failed to car ry his burden of

1 The 86th Legis lature amended the T exas Cit izens Pa rti cipation Act. See Act of May 17, 2019, 86 th Leg., R .S., ch. 37 8, 2019 Tex. Gen. Laws 684. The prior version of t he statute continues, however, to control cases filed before September 1, 2019

. See id. §§ 11

- 12, 2019 Te x. Ge n. Laws at 68 7. Thi s is one such case. All cit ations to the TCPA in th is opinion are to th e v ersion of the statu te in effect before the Se ptembe r 2019 amendments be came effective

.2

establ ishing that the TCPA applies to TDP ’ s claims. Accordi ngly, we affi rm the trial court ’ s denial of Sullivan ’ s motion to dismiss.

BACKGROUND

In July 2019, Sullivan ma de public statem ents to the eff ect that then

- Speake r of
the Texas House of Represen t atives Dennis Bonnen (the Speaker) had offered him an “ unet hical quid pro quo ” dur ing a meeting that occurred in June 2019 and that was attended by Sulliv an, the Speak er, and State Repres e ntative Dustin Burrows. Sul l ivan l ater made a public statement that he had recorded the meeting.

In August 2019, TDP sued Su llivan in Travis County district court seekin g de claratory and injunctive r elief and damage s for al leged viol ati ons of the T exas Elec tion
Code. In its petit i on , TD P alleged that then

- Spea ker of the T e xas House of Representatives
Denni s Bonnen ( the Speaker ) , during a meeting with Sullivan , was recorded s o l iciting poli tical expend it ures and contributions in exchange for government benefit s the Spea ker would del i ver. TDP all eged that the recording of the meeting also included comments by the Speaker seeking
coordin ation with Sullivan and his poli tical comm i t tee, Empower T exans, with respect to upcoming elections.

TDP alleged that Sullivan had record ed the me eti ng and th en allowe d numero us people to li sten to the recording and later wrote and publi s hed an account of the record e d meeting. TDP alle ge d t hat, according to people who had listen ed to the recording or were present at the meeting, the Speaker o ffered va luabl e government benefits, including media

cr edentials permitting people to enter the Te xa s House C hambe r whe n the H o use was in session, in exchange for poli tical contributions and expenditures against the Speaker ’ s tar geted political3

enem ies

. T DP all ege d that the meeting cons tituted a coordination meeting between political
actors intended t o inf

luence the election or d efe at of spec ific ca nd idates and resulted in the
for mation of a political co mmittee as defined by state law. TDP further alleged that the political
committe e was not registe red with a n appointed treasurer as required by law an d had not
filed requ ired publ i c reports of campai gn related activities. Additionally , TDP alleged that the Speaker ’ s conduct and proposed activities violated Texas ca mpai gn finance law. TDP did not
alle ge that Sullivan ’ s post

- meeting public statements th at the meeting had occurred and tha t he
had recorded it , or any other of Sull ivan ’ s post

- meeting conduct, cons tituted violations of the
Texas Election Code. Rather , i t s alle gations of Tex as Election Code violations were ba sed on
the S peaker ’ s conduct duri ng the meeting, including s t atem ents made by the Spea ker and the activities he proposed during the meeting. 2

In its petition, TDP requested a declaration th at the ac tivities described in the

re co rding viola ted Texas law and s ought an injunction to pr ohib it any planned or ongoing
campa ign finance violations. TDP also sought damages provided by the T e xas Election Code. To support its claims, TDP contempora neo u sly f iled a request f

or production of the full

re cording Sullivan cl aimed to have made of his mee ting with the Speaker

. 3 Sullivan filed a general denial and verified ple a , which he verif ied by his affidavit. See Tex. R. Civ. P. 93 (certain p leas to be v e rifie d). Th er eafter , S ullivan filed a motion to d ismiss the suit as having

no basis in law or fact , s ee id. R. 91 a (dismissal of baseless causes of action) , and a motion to
dismiss pursuant to the TCPA , see Tex. Civ. Prac. & Rem . Code § 27.003

.

2 We note tha t although TDP ’ s allegat ions of Texas Election Code vio lations center aro und the Sp ea ker ’ s conduct, TDP did not name the Speaker as a defe ndant in the s uit

.

3 At the time TDP filed suit, Sullivan had not released a copy of the re cording and had not permitted TDP to listen to it.4 When Su l livan obj ect ed to T DP ’ s request that he produce the recording of the

m eeting, TDP filed a motion to compel. A f te r considering the motion and respon se, the trial court ordered Sullivan to prod uce “ the comp lete, un edited recording of his conversation with t he Spe ake r. ” In response, Sullivan filed a petitio n for writ of manda mus, asking this Court to order
the tr ial cou rt to withdr aw it s order. Whi le the petition for writ of mandamus was pen ding, Sullivan released the recording and the S peaker announced th a t he w oul d not seek ree lection.
Because of these d evelopment s, TDP in f ormed the trial court that it no longer wish ed to pursue
its claims for declar atory and injunctive relief or damages pursuant to the Texas Electio n Code and file d a motion for nonsuit

. TDP a lso file d a motion to dismiss as moot the ori ginal proceedi ng th en pending in this Court

. Sullivan did no t o ppose the motion to dismiss, and this
Court dismissed the petition for writ of mandamus as moo t. See In re Sullivan , No. 03

- 19

- 00739

- CV, 20 19 WL 56878 90, at *1 (Tex. App.

— Austin Nov. 1, 2019, ori g. p roceeding) (mem . op.).

Sullivan then set a hearing on his motion s to dismiss . At the hearing, Sullivan
withdrew his Rule 91a motion to dismiss but continued to main tain that TD P ’ s suit was su bj ec t

to the T CPA and requested attorneys ’ fees of approxim ately $15,000 pursu ant to the statute.
See Tex

. Civ . Pr ac. & Rem. Code § 27.009 ; Hawxhurst v. Austin ’ s Boat Tours , 550 S.W.3d 220, 232 n.4 (Tex. App.

— Austin 2018, no pet.) (holding TCPA di smiss al mo ti on is cla i m for
affirmative rel ief that survives nonsui t). In his motion to dismiss, Sullivan st ated that the TCPA applied to TDP ’ s cla ims because (1) his atten dance at the meeting was an exercise of the right to petition and (2) his post

- meeting “ publi ca tion of a c counts of that meeting, and exposure of the
misbehavior of the public officials involved [ was] an e xercise of the right of free speech as it directly re lated to a matter of public conce r n. ” After a hearin g , the trial cour t determined that the
T C PA did no t appl y to TDP ’ s claims for r elief under the Texas Election Cod e or the T exas5

Declaratory Judgments Act and deni ed Sullivan ’ s claims for attorneys ’ fees, costs, sanctions, and expenses. This appeal followed.

D ISCUSSION

The TCPA protects citi ze ns from r e talia tory lawsuits mean t to inti midate or
sile nce them on mat ters of public concern. D allas Morning News, Inc. v. Hall , 579 S.W.3d 370, 376 (Tex. 2019) ; In re Lipsky , 460 S.W.3d 579, 584 (Te x. 2015) (orig. pro ceeding). The stated purpose of t he act is t o “ enc ourage an d safegua rd the constitutional rights of persons to petition , speak freel y, as sociate freely, and otherwise participate in govern ment to the maximum extent permitted by law and, at th e same time, protect the righ ts of a person to fi l e merito rious lawsuits
for demon strable i njury. ” Tex. Civ. Prac. & Rem. C ode § 27.002 ; see Exxo nMobil Pipeline Co.
v. C olem a n , 512 S.W.3d 895, 898 (Tex. 2017) (per curi am). To that en d, th e TCPA pro vides a procedure t o expedite the dismissal of a “ leg al action ” that a ppears to stifle t he nonmovant ’ s exercise of the rights protected by the statute. See Youngk in v. Hines , 546 S.W.3d 6 7 5 , 679 (Tex. 2018) ; see also Te x. Civ. Prac. & Rem. Code §§ 27.003(a) , . 005(b).

Under the act, a party may file a moti on to dismi ss a “ legal action ” if it is based on, relates to, or is in response to a pa rty ’ s exercise of the right of free speech, right to petition , or right of association. See Tex. Civ. Prac. & Rem. Code § 27.003(a) . Court s review TCPA motions using a t hr ee
- st ep analysis. Youngkin , 546 S.W .3d at 679 . First, the party moving
for di smissal must show by a preponderance of the evidence tha t th e TCPA applies to the legal action a gainst it. Tex. Civ. P rac. & Rem. Code § 27.005 (b) . If the movant meet s tha t burden, t he non movan t must establish b y clear an d specific evidence a prima facie case for each

essent ial ele ment of its claim. Id. § 27.005(c) . If the nonmovant satisfies that requireme nt, th e6

burden shi f

ts back to the mov ant to prove each es sential e le ment of a ny valid de fenses by a
prepon derance of the evidence. Id. § 27.00 5(d)

. “ In determin ing whet her a legal action should
be dismissed under [the TC PA], the court shall consider the ple adings and supp orting and opposing affidavits stating the facts o n which t he liab ilit y or defense is ba sed. ” Id

. § 27.006(a)

. We review de no vo whether each party met its resp ective bu rden. See Long Canyon Phase II &
III Homeowners Ass ’ n v. Ca shion , 517 S.W.3d 212, 21 8 (Tex. App.

— Austin 2017 , no pet.)

.

Does the TC

PA apply?
In hi s TCP A mot ion, Sullivan argued that TDP ’ s claims again st him are based

on, related to and in respon se to his exercise of his right to fr ee speech

— specifically , his post

- me eting state ments informing the public about the meeting

— a nd his righ t to petiti on

— specifically , a tt en ding a meeting with gove rn ment officials

. 4 The applicable version of th e TCPA de fines the “ exercise ” of each of th ose r ights as the making or submitting of a

“ c ommunication

. ” 5 T he “ exercise of the right to free speech ” me an s “ a comm unication made in
connecti on with a matter of public concern

. ” Tex. Civ. Prac. & Rem. Code § 27.001(3)

. The
p o r tion s of the def

inition of the “ exercise of the right to petition ” on which Sullivan reli es a re: (1) “ a communi cation in or per taini ng to a leg islative proceedin g , including a proceeding of a legi slat ive committe e , ” id. § 27.0 01(4) (A)(iv) ; (2) “ a commun ica tion in connection with an issue under consideration or review by a leg islative, exec utive, j udicial, or other governmental body

or i n another go vernme nt al or of ficial proceeding, ” id. § 27.001(4) (B) ; and (3) “ any other

4 Sullivan did not argue tha t TDP ’ s suit was r elated to an y of his speech duri ng the meeting and, in fact, disclaime d having “ parti cipate [d] in Bonnen ’ s quid pro quo scheme

. ”

5 The T CPA defines “ communi cation ” as “ th e making or submitt i ng o f a statement or document in any form or m edi um, incl uding o ral, vi sual, written, audiovisual, or elect ron ic. ” Tex. Civ. P rac. & R em. Code § 27.001(1)

.7

communication that falls within the protection of the right to petition government under th e Constituti on o f the United States or the constitution of this state , ” id. § 27 .001(4) (E)

. Thus, to

meet his initial burden, Sullivan was required to prove by a preponderance of the evidence that
TDP ’ s claims (a) are based on or related to Sullivan ’ s communications that wer e either (b) made
in connection with a matter of public c o nc ern or (c) in connection w ith an issue under
consideration or review by a legislat ive proceedi ng, an is sue under consider ation or review by a legislative body, or that fall within the United S tates ’ or th e state s ’ protection of the right to pet ition gov e rn ment

. See id. §§ 27.001 , .005(b).

In det ermining whether Sullivan met his initial burden, we focus o n TDP ’ s pleadings, which “ are the best and all

- sufficient evidence of the nature of the a cti on. ” Hersh v.
Tatu m , 526 S.W.3d 462, 46 7 (Tex. 2017) ( “ Th e b asis of a legal a c tion is not determined by the
defe ndant ’ s admission s or denials but by the plai ntiff ’ s allegations. ” (c itations om itted)). From
TDP ’ s pleadings we determine whether the fact ual ba ses of the chall enged claims constitute

“ expression ” wi t h i n the T CPA ’ s definitions. See Sloat v. Rathbun , 513 S.W.3d 500, 503 (T ex. App.

— Austin 2015, pet. d ism ’ d) . In determinin g the factual b ases for the chall enged claims, we
consider the pleading s and other evidence i n the light most fa vorable to the nonmo v an t and
p revailing party bel ow, “ favoring the conclusion that [the nonmo vant ’ s] claims are not predicat e d on protected exp ression. ” Id. at 504 ; see T ex. Civ. P rac. & Rem. Code § 27.00 6(a)

. 6

6 Our analysis does no t include consider ation of the recording of the meeting, which was not part of the re cord before the trial court

. Moreover, Sullivan did no t rely on the re cording when att empting to meet his ini tial burden of s howing by a preponderance of the evidence tha t th e TCPA applie d to TDP ’ s su it.8

Ex erc ise of the right of free speech

Sulliva n contends that his post

- meeting publicatio n of accounts of his meeting with the Speak er and his sub sequent exposure of “ the misbehav ior of the public off icials
involved in the me etin g ” was an exercise of the right of free sp eech because it was a
communica tion made in co nnection with a ma tter of pu blic concern. Sullivan reasons that
because he made a communication that falls within the st atutory definition of the exercise of
free sp eech, the TCPA a p plies to TDP ’ s lawsuit agai nst him

. However, f or the TCPA to app ly

to th e claims TDP asser ted, those claims must be based on, relat e to, or be made in response to

a protected communication

. Se e Dallas Morning N ews , 5 7 9 S .W.3d at 376

- 77 ( “ The Texas
Ci ti zens Participation Act is a bulwa rk against retaliatory lawsuits meant to i n timidate or sile nce citizens on matters of public concern

. ” (citing In re Lipsky , 460 S.W.3 d at 586 ) )

. To trigger
the TCPA ’ s protection, the “ legal action ” m ust be “ factually predicated on the all eged conduct

t h at falls w ithin the scope of [the] T CPA ’ s d efinition of ‘ exercise of the right of free speech, ’ petition , or asso ciation. ” Grant v. Pivo t T ech. Sols., Ltd. , 556 S .W.3d 865, 879 (Tex. App.

— Austin 2018, pet. denied) ; see Tex. Civ. Pr ac. & Rem. Code § 27.003(a) ( requi ring that “ legal

ac tion ” be based on , rela ted to, or in response to movant ’ s exercise of statutory righ t). Sullivan was required to establish a nexus between TDP ’ s claims and the condu c t he c ontends was protected by the statute

.

A review of TDP ’ s petiti on shows that its c laims against Sullivan are not fac tually predicated on either Sullivan ’ s post

- meeting pub li c sta tements about the meeting wi th the Spea ker or any statements he made that exposed “ misbehav i or of public officials. ” TDP ’ s lawsuit did not seek to sil ence Sull i van when he l ater s pok e out about the me e ting but, instead, to

secure a declaration that the Speaker ’ s c o nduct and the activitie s discussed during th e meeting9

constitute d violati ons of the Te xas Electi on Code. 7 In connect ion with, and to support, its req uest
for decla ratory r e l ief, TDP also sou ght to co mpel Sullivan to release the recording of the meeting
in wh ic h Su llivan claimed that the Speaker offe red him “ an unethica l quid pro quo. ” Although Sullivan argued in his motion that TDP sought damages ag ainst him for “ b l owing t h e whistle ” about th e mis behavior he alleges took place in the meet ing, TDP ’ s petitio n seeks no such damages. TDP ’ s c laim for damages is based not on Sulliva n ’ s post

- me eting state ments about the meeting with the Speake r b ut on its belie f that the activi tie s the Speaker proposed in the meeting would cons titute violati ons of the T e xas Election Code

. See, e.g. , T e x. Elec. C ode § § 253.0 0 1 ( contribution or expenditure in anoth er ’ s name p rohibited ; .0 04 (unlawfully making expenditure)

. TDP sough t a decl ara tion t h at the Speak er ’ s proposed ac tivit ies , as described by
Sullivan , constitut ed violati ons of the T exas Election Code and re ques ted d amages for those
violations as prov ide d by statute. See id. § § 253.131 (liabi lity to ca ndi d ates) , . 132 (li ability to politica l committees). 8

We c onclude that Sullivan failed to establish b y a preponderance of the evidence
that TDP ’ s claims are , as he asserted, based on, related t o, or in re spo nse to his post

- meetin g exercise of h is right of free speech as defined by t h e TCPA.

7 In fact, the petition does not identify any communication th at Sullivan made during the meeting th at it allege d cons titut ed a violation of the Texas Election Code.

8 Before TD P non
- suited its claims, Sullivan ha d moved to di smiss them on the gr ound that TDP had not “ alleged sufficient facts to establish they are being harmed, or in danger of bein g harmed ” nor ha d the y “ alleged sufficient facts to establish a violation of the Texas El ection Code has occurr ed ” or w ould occur. See T ex. R. Civ. P . 91a (party may move to dis m iss caus e of action on g rounds that it has no basis in law or fact).10

Exercise of the right to petition

T he TCP A sets out a nu mber of wa ys in which a communication can be the

“ exerc ise of the right to petition. ” Tex . C iv. P rac. & Rem. Code § 27.001(4) ; see a lso Te rvita, LLC v. Sutterfield , 482 S.W.3d 280, 283

- 84 ( Tex. App.

— Dallas 2015, pet. denied) (noting that
TC PA broadl y de fines “ the exercise of the right to peti tion ” ). Sullivan contend s that the TCPA applies because he w as exercising his right to p etit io n during his meeting with the Speaker. In
his motio n to d ism iss , Su llivan asserted, with no evidentiary support, tha t he was att ending “ a meeting in the Capitol with government o fficials t o discuss the results of the l egi slative session. ”
T hus, Sul livan mai ntains, his commu nications were “ pertaining to a l egisl ati v e proceeding , ” “ in
connection with an issu e under consi deration in a legislative proceeding , ” or ot herwise falling
wi thin the co nstitutionally pr otected right t o petition the government. In hi s verification attached to his original answer, Sulliv a n av erre d that :
I attended a meeting on June 12, 2019 with Texa s Hou se Speaker Dennis Bonnen and State Rep. Dustin Burrow s in Bonnen ’ s office in the Texas S t ate Capitol. The meeting was arranged at Bon nen ’ s invi tation. During the meeting, Bonnen solicite d ce rta in p olitical actions from me, including the withholding of political expendit ures against him and his allies, the alter ation of news coverage of him and the legis lature, and the targeting o f poli tical expenditures again st a list of state representat ives h e a nd Burrows identified. In exchange, Bon nen off ered to grant T exas House media c redentials to repor ters for Texas Sco r ecard , a p ublication of Empower Texa ns , I n c. , o f which I am the CEO.
A t no point prior to or during t he meeting did I solicit Bon nen ’ s off er, and at no poi nt before, during, or after the meeti ng did I acc ept the offer, agree to any plan of action, or othe rwise parti cipate in Bonnen ’ s quid pro quo scheme.

In an affidavit sub mitted in support of his motion to dismiss, Sullivan aver red tha t :

I am emp loyed as the CEO of Empower T exans, Inc., a non

- profit media organization which publishes T exa s Scorecard . I at tended a m eeting on June 12, 2019 with T exa s House Speaker Dennis Bonn en an d State Rep. Dustin Burrows11

in Bonnen ’ s office in the Texas Sta te Capitol. T he meeting was arranged at Bon nen ’ s in vi tati on . During the meeti ng, Bon nen made an un ethical quid pro q uo offer to me.
Nothing in either of these affidavits constitutes evid e nce t ha t the meeting between Sullivan and the Speaker was conve n ed for the purpose of “ discuss[ing] the res ults of the le gislative session

. ”
Li kew ise, the re are no al legatio n s in TDP ’ s petition that Sullivan ’ s meeting with the speaker
had any connection t o or was con vened to discuss any legislative proceeding or any i ssue under
consideration or review by a legislative body. Sullivan ’ s sworn statements unequivocally st ate

t hat the Speak er “ arranged ” the meeting and that d uring t h e meeting he “ solicited cer tain political actions ” from Sullivan. Su llivan produced n o evi denc e that any commun ications made
at the meeting were ma de in connection with a legis lative proceeding or i ssue under re view by a legislative body.

Moreover, eve n assu mi ng any of S ullivan ’ s com m unication s durin g the meeting
could constitute “ petiti on ing ” ac tivities as defined by the TCPA, Sullivan fa iled to e sta blish
that TDP ’ s claims wer e based o n, related to, or in respons e to any of his communi cations

. See
Encore Enters. , Inc. v. Shetty , No. 05

- 18

- 00511

- CV, 2019 WL 1894316, at *2 (Te x. App.

— Dall as Apr. 2 9, 2019, p et. denied) (mem. op.) (defendant must show that plainti ff ’ s lawsuit imp licates defe ndant ’ s communicatio n s); see al so Tex. Civ. Prac. & Rem. Code § 27.001 (4)

. T DP ’ s claims a ri se o ut of , relate to, and are in respon se to communications m a de by the S peaker
and the activities and con duct he proposed during th e meeting. In his affidavit Sul livan expressly disclaims havin g either solicited the Spea ker ’ s offer , acc epted the Speaker ’ s of fer, agreed to any plan of action, or otherwise participa t ed in the Speaker ’ s “ quid pro quo scheme. ”
T he p leadings demonstrate that the g ravamen of TDP ’ s sui t was its contention that the S peaker ’ s12

conduct during the meeting constitut e d violations of the Te xas Election Code

. See Hersh , 526 S.W.3d at 467 (plaintif f ’ s pet it ion is the “ best and all

- sufficient evidence of the nature of
the action. ’ ” ).
We conclude that Sull ivan failed to es tablish by a p reponderance of the evidence
that TDP ’ s claim s were ba sed on , related to, or in response to Sullivan ’ s exercise of his right to petition as defined in the TCPA.

CONCLUSION

Because Sullivan failed to sati sfy his initial bur den of estab lishing by a
pre pon derance of the eviden ce that the TCPA appl ies to TDP ’ s cl a ims, the trial court did not

err by denying the motion to dismiss. Having concluded that Sul livan failed to meet his initial burden, we need not address his other iss ues regarding whether TDP estab lished a prima facie
case for each essential element o f i t s claims , whether the tr ial court should have awarded

att orneys ’ f

ees , o r whether th is Court should r emand the cause to the trial court for an award o f
sanctio ns. See Tex. R. App. P. 47.1, 47.4

.

_______________ ___________________________ T hom as J. Baker , Justice
Before Chief Justice Byrne, Justice s Baker and Tr iana
Affirmed
Filed: April 6, 2021