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, Appellees

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 (collectively, TDP) sued Michael 

Quinn Sullivan seeking declaratory and injunctive relief and damages arising out of conduct that 

they alleged violated the Texas Election Code. Sullivan filed a motion to dismiss pursuant to 

the Texas Citizens Participation Act. See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011 (the 

TCPA).1 After a hearing, the trial court denied the motion. In two issues, Sullivan asserts that 

the trial court erred by denying the motion to dismiss because the TCPA applies to TDP’s claims 

and TDP failed to produce clear and specific evidence of a prima facie case for each essential 

element of their causes of action. We conclude that Sullivan failed to carry his burden of 

1

 The 86th Legislature amended the Texas Citizens Participation Act. See 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. See id. §§ 11-12, 2019 Tex. 

Gen. Laws at 687. This is one such case. All citations to the TCPA in this opinion are to the

version of the statute in effect before the September 2019 amendments became effective.
2

establishing that the TCPA applies to TDP’s claims. Accordingly, we affirm the trial court’s 

denial of Sullivan’s motion to dismiss.

BACKGROUND

In July 2019, Sullivan made public statements to the effect that then-Speaker of 

the Texas House of Representatives Dennis Bonnen (the Speaker) had offered him an “unethical 

quid pro quo” during a meeting that occurred in June 2019 and that was attended by Sullivan, the 

Speaker, and State Representative Dustin Burrows. Sullivan later made a public statement that 

he had recorded the meeting.

In August 2019, TDP sued Sullivan in Travis County district court seeking 

declaratory and injunctive relief and damages for alleged violations of the Texas Election 

Code. In its petition, TDP alleged that then-Speaker of the Texas House of Representatives 

Dennis Bonnen (the Speaker), during a meeting with Sullivan, was recorded soliciting political 

expenditures and contributions in exchange for government benefits the Speaker would deliver. 

TDP alleged that the recording of the meeting also included comments by the Speaker seeking 

coordination with Sullivan and his political committee, Empower Texans, with respect to 

upcoming elections.

TDP alleged that Sullivan had recorded the meeting and then allowed numerous 

people to listen to the recording and later wrote and published an account of the recorded 

meeting. TDP alleged that, according to people who had listened to the recording or were 

present at the meeting, the Speaker offered valuable government benefits, including media 

credentials permitting people to enter the Texas House Chamber when the House was in session, 

in exchange for political contributions and expenditures against the Speaker’s targeted political 
3

enemies. TDP alleged that the meeting constituted a coordination meeting between political 

actors intended to influence the election or defeat of specific candidates and resulted in the 

formation of a political committee as defined by state law. TDP further alleged that the political 

committee was not registered with an appointed treasurer as required by law and had not

filed required public reports of campaign related activities. Additionally, TDP alleged that the 

Speaker’s conduct and proposed activities violated Texas campaign finance law. TDP did not 

allege that Sullivan’s post-meeting public statements that the meeting had occurred and that he 

had recorded it, or any other of Sullivan’s post-meeting conduct, constituted violations of the 

Texas Election Code. Rather, its allegations of Texas Election Code violations were based on 

the Speaker’s conduct during the meeting, including statements made by the Speaker and the 

activities he proposed during the meeting.2

In its petition, TDP requested a declaration that the activities described in the 

recording violated Texas law and sought an injunction to prohibit any planned or ongoing 

campaign finance violations. TDP also sought damages provided by the Texas Election Code. 

To support its claims, TDP contemporaneously filed a request for production of the full 

recording Sullivan claimed to have made of his meeting with the Speaker.

3

 Sullivan filed a 

general denial and verified plea, which he verified by his affidavit. See Tex. R. Civ. P. 93

(certain pleas to be verified). Thereafter, Sullivan filed a motion to dismiss the suit as having 

no basis in law or fact, see id. R. 91a (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 that although TDP’s allegations of Texas Election Code violations center 

around the Speaker’s conduct, TDP did not name the Speaker as a defendant in the suit.

3

 At the time TDP filed suit, Sullivan had not released a copy of the recording and had 

not permitted TDP to listen to it.
4

When Sullivan objected to TDP’s request that he produce the recording of the 

meeting, TDP filed a motion to compel. After considering the motion and response, the trial 

court ordered Sullivan to produce “the complete, unedited recording of his conversation with the 

Speaker.” In response, Sullivan filed a petition for writ of mandamus, asking this Court to order 

the trial court to withdraw its order. While the petition for writ of mandamus was pending, 

Sullivan released the recording and the Speaker announced that he would not seek reelection.

Because of these developments, TDP informed the trial court that it no longer wished to pursue 

its claims for declaratory and injunctive relief or damages pursuant to the Texas Election 

Code and filed a motion for nonsuit. TDP also filed a motion to dismiss as moot the original 

proceeding then pending in this Court. Sullivan did not oppose the motion to dismiss, and this 

Court dismissed the petition for writ of mandamus as moot. See In re Sullivan, No. 03-19-00739-

CV, 2019 WL 5687890, at *1 (Tex. App.—Austin Nov. 1, 2019, orig. proceeding) (mem. op.).

Sullivan then set a hearing on his motions to dismiss. At the hearing, Sullivan 

withdrew his Rule 91a motion to dismiss but continued to maintain that TDP’s suit was subject 

to the TCPA and requested attorneys’ fees of approximately $15,000 pursuant to the statute.

See Tex. Civ. Prac. & 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 dismissal motion is claim for 

affirmative relief that survives nonsuit). In his motion to dismiss, Sullivan stated that the TCPA 

applied to TDP’s claims because (1) his attendance at the meeting was an exercise of the right to 

petition and (2) his post-meeting “publication of accounts of that meeting, and exposure of the 

misbehavior of the public officials involved [was] an exercise of the right of free speech as it 

directly related to a matter of public concern.” After a hearing, the trial court determined that the 

TCPA did not apply to TDP’s claims for relief under the Texas Election Code or the Texas 
5

Declaratory Judgments Act and denied Sullivan’s claims for attorneys’ fees, costs, sanctions, and 

expenses. This appeal followed.

DISCUSSION

The TCPA protects citizens from retaliatory lawsuits meant to intimidate or 

silence them on matters of public concern. Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 

376 (Tex. 2019); In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The stated 

purpose of the act is to “encourage and safeguard the constitutional rights of persons to petition, 

speak freely, associate freely, and otherwise participate in government to the maximum extent 

permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits 

for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002; see ExxonMobil Pipeline Co. 

v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). To that end, the TCPA provides a 

procedure to expedite the dismissal of a “legal action” that appears to stifle the nonmovant’s 

exercise of the rights protected by the statute. See Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 

2018); see also Tex. Civ. Prac. & Rem. Code §§ 27.003(a), .005(b).

Under the act, a party may file a motion to dismiss a “legal action” if it 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. See Tex. Civ. Prac. & Rem. Code § 27.003(a). Courts review TCPA 

motions using a three-step analysis. Youngkin, 546 S.W.3d at 679. First, the party moving 

for dismissal must show by a preponderance of the evidence that the TCPA applies to the 

legal action against it. Tex. Civ. Prac. & Rem. Code § 27.005(b). If the movant meets that 

burden, the nonmovant must establish by clear and specific evidence a prima facie case for each 

essential element of its claim. Id. § 27.005(c). If the nonmovant satisfies that requirement, the 
6

burden shifts back to the movant to prove each essential element of any valid defenses by a 

preponderance of the evidence. Id. § 27.005(d). “In determining whether a legal action should

be dismissed under [the TCPA], the court shall consider the pleadings and supporting and 

opposing affidavits stating the facts on which the liability or defense is based.” Id. § 27.006(a). 

We review de novo whether each party met its respective burden. See Long Canyon Phase II & 

III Homeowners Ass’n v. Cashion, 517 S.W.3d 212, 218 (Tex. App.—Austin 2017, no pet.).

Does the TCPA apply?

In his TCPA motion, Sullivan argued that TDP’s claims against him are based

on, related to and in response to his exercise of his right to free speech—specifically, his 

post-meeting statements informing the public about the meeting—and his right to petition—

specifically, attending a meeting with government officials.

4

 The applicable version of the 

TCPA defines the “exercise” of each of those rights as the making or submitting of a 

“communication.”

5 The “exercise of the right to free speech” means “a communication made in 

connection with a matter of public concern.” Tex. Civ. Prac. & Rem. Code § 27.001(3). The 

portions of the definition of the “exercise of the right to petition” on which Sullivan relies are: 

(1) “a communication in or pertaining to a legislative proceeding, including a proceeding of a 

legislative committee,” id. § 27.001(4)(A)(iv); (2) “a communication in connection with an issue 

under consideration or review by a legislative, executive, judicial, or other governmental body 

or in another governmental or official proceeding,” id. § 27.001(4)(B); and (3) “any other 

4

 Sullivan did not argue that TDP’s suit was related to any of his speech during the 

meeting and, in fact, disclaimed having “participate[d] in Bonnen’s quid pro quo scheme.”

5

 The TCPA defines “communication” as “the making or submitting of a statement or 

document in any form or medium, including oral, visual, written, audiovisual, or electronic.”

Tex. Civ. Prac. & Rem. Code § 27.001(1).
7

communication that falls within the protection of the right to petition government under the 

Constitution of 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 were either (b) made 

in connection with a matter of public concern or (c) in connection with an issue under 

consideration or review by a legislative proceeding, an issue under consideration or review by a 

legislative body, or that fall within the United States’ or the states’ protection of the right to 

petition government. See id. §§ 27.001, .005(b).

In determining whether Sullivan met his initial burden, we focus on TDP’s 

pleadings, which “are the best and all-sufficient evidence of the nature of the action.” Hersh v. 

Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (“The basis of a legal action is not determined by the 

defendant’s admissions or denials but by the plaintiff’s allegations.” (citations omitted)). From 

TDP’s pleadings we determine whether the factual bases of the challenged claims constitute 

“expression” within the TCPA’s definitions. See Sloat v. Rathbun, 513 S.W.3d 500, 503 (Tex. 

App.—Austin 2015, pet. dism’d). In determining the factual bases for the challenged claims, we 

consider the pleadings and other evidence in the light most favorable to the nonmovant and 

prevailing party below, “favoring the conclusion that [the nonmovant’s] claims are not predicated

on protected expression.” Id. at 504; see Tex. Civ. Prac. & Rem. Code § 27.006(a).

6

6

 Our analysis does not include consideration of the recording of the meeting, which was 

not part of the record before the trial court. Moreover, Sullivan did not rely on the recording 

when attempting to meet his initial burden of showing by a preponderance of the evidence that 

the TCPA applied to TDP’s suit.
8

Exercise of the right of free speech

Sullivan contends that his post-meeting publication of accounts of his meeting 

with the Speaker and his subsequent exposure of “the misbehavior of the public officials 

involved in the meeting” was an exercise of the right of free speech because it was a 

communication made in connection with a matter of public concern. Sullivan reasons that 

because he made a communication that falls within the statutory definition of the exercise of 

free speech, the TCPA applies to TDP’s lawsuit against him. However, for the TCPA to apply 

to the claims TDP asserted, those claims must be based on, relate to, or be made in response to 

a protected communication. See Dallas Morning News, 579 S.W.3d at 376-77 (“The Texas 

Citizens Participation Act is a bulwark against retaliatory lawsuits meant to intimidate or silence 

citizens on matters of public concern.” (citing In re Lipsky, 460 S.W.3d at 586)). To trigger 

the TCPA’s protection, the “legal action” must be “factually predicated on the alleged conduct 

that falls within the scope of [the] TCPA’s definition of ‘exercise of the right of free speech,’

petition, or association.” Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 879 (Tex. App.—

Austin 2018, pet. denied); see Tex. Civ. Prac. & Rem. Code § 27.003(a) (requiring that “legal 

action” be based on, related to, or in response to movant’s exercise of statutory right). Sullivan 

was required to establish a nexus between TDP’s claims and the conduct he contends was 

protected by the statute.

A review of TDP’s petition shows that its claims against Sullivan are not factually 

predicated on either Sullivan’s post-meeting public statements about the meeting with the 

Speaker or any statements he made that exposed “misbehavior of public officials.” TDP’s 

lawsuit did not seek to silence Sullivan when he later spoke out about the meeting but, instead, to 

secure a declaration that the Speaker’s conduct and the activities discussed during the meeting 
9

constituted violations of the Texas Election Code.7 In connection with, and to support, its request

for declaratory relief, TDP also sought to compel Sullivan to release the recording of the meeting

in which Sullivan claimed that the Speaker offered him “an unethical quid pro quo.” Although 

Sullivan argued in his motion that TDP sought damages against him for “blowing the 

whistle” about the misbehavior he alleges took place in the meeting, TDP’s petition seeks no 

such damages. TDP’s claim for damages is based not on Sullivan’s post-meeting statements 

about the meeting with the Speaker but on its belief that the activities the Speaker proposed in 

the meeting would constitute violations of the Texas Election Code. See, e.g., Tex. Elec. Code 

§§ 253.001 (contribution or expenditure in another’s name prohibited; .004 (unlawfully making 

expenditure). TDP sought a declaration that the Speaker’s proposed activities, as described by 

Sullivan, constituted violations of the Texas Election Code and requested damages for those 

violations as provided by statute. See id. §§ 253.131 (liability to candidates), .132 (liability to

political committees).8

We conclude that Sullivan failed to establish by a preponderance of the evidence 

that TDP’s claims are, as he asserted, based on, related to, or in response to his post-meeting 

exercise of his right of free speech as defined by the TCPA.

7

 In fact, the petition does not identify any communication that Sullivan made during the 

meeting that it alleged constituted a violation of the Texas Election Code.

8

 Before TDP non-suited its claims, Sullivan had moved to dismiss them on the ground 

that TDP had not “alleged sufficient facts to establish they are being harmed, or in danger of 

being harmed” nor had they “alleged sufficient facts to establish a violation of the Texas Election 

Code has occurred” or would occur. See Tex. R. Civ. P. 91a (party may move to dismiss cause 

of action on grounds that it has no basis in law or fact).
10

Exercise of the right to petition

The TCPA sets out a number of ways in which a communication can be the 

“exercise of the right to petition.” Tex. Civ. Prac. & Rem. Code § 27.001(4); see also Tervita, 

LLC v. Sutterfield, 482 S.W.3d 280, 283-84 (Tex. App.—Dallas 2015, pet. denied) (noting that 

TCPA broadly defines “the exercise of the right to petition”). Sullivan contends that the TCPA 

applies because he was exercising his right to petition during his meeting with the Speaker. In 

his motion to dismiss, Sullivan asserted, with no evidentiary support, that he was attending “a 

meeting in the Capitol with government officials to discuss the results of the legislative session.”

Thus, Sullivan maintains, his communications were “pertaining to a legislative proceeding,” “in 

connection with an issue under consideration in a legislative proceeding,” or otherwise falling

within the constitutionally protected right to petition the government. In his verification attached 

to his original answer, Sullivan averred that:

I attended a meeting on June 12, 2019 with Texas House Speaker Dennis Bonnen 

and State Rep. Dustin Burrows in Bonnen’s office in the Texas State Capitol.

The meeting was arranged at Bonnen’s invitation. During the meeting, Bonnen 

solicited certain political actions from me, including the withholding of political 

expenditures against him and his allies, the alteration of news coverage of him 

and the legislature, and the targeting of political expenditures against a list of state 

representatives he and Burrows identified. In exchange, Bonnen offered to grant 

Texas House media credentials to reporters for Texas Scorecard, a publication of 

Empower Texans, Inc., of which I am the CEO.

At no point prior to or during the meeting did I solicit Bonnen’s offer, and at no 

point before, during, or after the meeting did I accept the offer, agree to any plan 

of action, or otherwise participate in Bonnen’s quid pro quo scheme.

In an affidavit submitted in support of his motion to dismiss, Sullivan averred that:

I am employed as the CEO of Empower Texans, Inc., a non-profit media 

organization which publishes Texas Scorecard. I attended a meeting on June 12, 

2019 with Texas House Speaker Dennis Bonnen and State Rep. Dustin Burrows 
11

in Bonnen’s office in the Texas State Capitol. The meeting was arranged at 

Bonnen’s invitation. During the meeting, Bonnen made an unethical quid pro quo 

offer to me.

Nothing in either of these affidavits constitutes evidence that the meeting between Sullivan and 

the Speaker was convened for the purpose of “discuss[ing] the results of the legislative session.”

Likewise, there are no allegations in TDP’s petition that Sullivan’s meeting with the speaker 

had any connection to or was convened to discuss any legislative proceeding or any issue under 

consideration or review by a legislative body. Sullivan’s sworn statements unequivocally state 

that the Speaker “arranged” the meeting and that during the meeting he “solicited certain

political actions” from Sullivan. Sullivan produced no evidence that any communications made 

at the meeting were made in connection with a legislative proceeding or issue under review by a 

legislative body.

Moreover, even assuming any of Sullivan’s communications during the meeting 

could constitute “petitioning” activities as defined by the TCPA, Sullivan failed to establish 

that TDP’s claims were based on, related to, or in response to any of his communications. See

Encore Enters., Inc. v. Shetty, No. 05-18-00511-CV, 2019 WL 1894316, at *2 (Tex. App.—

Dallas Apr. 29, 2019, pet. denied) (mem. op.) (defendant must show that plaintiff’s lawsuit 

implicates defendant’s communications); see also Tex. Civ. Prac. & Rem. Code § 27.001(4).

TDP’s claims arise out of, relate to, and are in response to communications made by the Speaker 

and the activities and conduct he proposed during the meeting. In his affidavit Sullivan

expressly disclaims having either solicited the Speaker’s offer, accepted the Speaker’s offer, 

agreed to any plan of action, or otherwise participated in the Speaker’s “quid pro quo scheme.”

The pleadings demonstrate that the gravamen of TDP’s suit was its contention that the Speaker’s 
12

conduct during the meeting constituted violations of the Texas Election Code. See Hersh, 

526 S.W.3d at 467 (plaintiff’s petition is the “best and all-sufficient evidence of the nature of 

the action.’”).

We conclude that Sullivan failed to establish by a preponderance of the evidence 

that TDP’s claims were based 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 satisfy his initial burden of establishing by a 

preponderance of the evidence that the TCPA applies to TDP’s claims, the trial court did not 

err by denying the motion to dismiss. Having concluded that Sullivan failed to meet his initial 

burden, we need not address his other issues regarding whether TDP established a prima facie 

case for each essential element of its claims, whether the trial court should have awarded 

attorneys’ fees, or whether this Court should remand the cause to the trial court for an award of 

sanctions. See Tex. R. App. P. 47.1, 47.4.

__________________________________________

Thomas J. Baker, Justice

Before Chief Justice Byrne, Justices Baker and Triana

Affirmed

Filed: April 6, 2021