TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00643-CV

Karen Neyland, Susan Sinclair, Phyllis Watts, and Connie Causin, Appellants

v.

Nancy Thompson, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. D-1-GN-13-001409, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING

C O N C U R R I N G O P I N I O N

As members of the judiciary, it is our duty to enforce the plain meaning of the laws

the Legislature prescribes. See First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008)

(“When interpreting a statute, we look first and foremost to the plain meaning of the words used.

‘If the statute is clear and unambiguous, we must apply its words according to their ordinary

meaning’ in a way that gives effect to everyword, clause, and sentence.”)(quoting State v. Shumake,

199 S.W.3d 279, 284 (Tex. 2006)). The majority opinion has carried out this duty and, for that

reason, I concur in the Court’s judgment. Nevertheless, it is difficult to turn a blind eye to a

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I do not agree with the majority’s opinion that statements made by Neyland, Sinclair, and 1

Watts to a reporter relate to “economic” or “community well-being” as those terms are used in the

TCPA. Statements about a purely private economic matter are not, in my opinion, within the purview

of the TCPA and are distinguishable from the type of “matter of public concern” involved in

Schimmel v. McGregor, 438 S.W.3d 858, 859 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)

(involving statements made by attorney for HOA that could have had city-wide impact on property

values). Nevertheless, because the majority ultimately concludes that Thompson failed to establish

a prima facie case of defamation on the basis of these statements, and I agree with that conclusion,

I concur in the judgment.
situation where, as here, the Legislature may not have anticipated all of the consequences that

naturally flow from application of the plain meaning of its own statute—the Texas Citizens

Participation Act (TCPA)—and the impact the statute will have on litigation in Texas. I write

separately, therefore, to call the Legislature’s attention to an overly broad statute that will negatively

impact litigation in Texas for years to come unless it is amended.

As the majority recognizes, the TCPA is an “anti-SLAPP” statute, meaning that if

a defendant is targeted by a “Strategic Lawsuit Against Public Participation,” also commonly

referred to as a “SLAPP” suit, the defendant can move for dismissal and attorney’s fees if the action

is “based on, relates to, or is in response to [the defendant’s] exercise of the right of free speech,

right to petition, orright of association.” Tex.Civ. Prac. & Rem.Code §§ 27.003(a), .009(a). The idea

behind the TCPA, which undoubtedly fueled the overwhelming support it had in the Legislature, is a

noble one—we, as a State, wish to protect those who are targeted with lawsuits of questionable merit

in retaliation for their participation in public matters. The problem is that this overarching purpose

seems to have been lost in translation by the Legislature because of the exceedinglybroad definitions

it gave to a number of the essential terms used in the TCPA.

The first example of these broad definitions is the phrase “exercise of the right to

petition,” which is defined as “communications in or pertaining to . . . a judicial proceeding.” Id.

§ 27.001(4). If we are to construe these wordsliberally, astheLegislature has directed, id. § 27.011(b),

or even simply apply the plain meaning of the words the Legislature chose, this definition would

encompass a potentiallylimitless range of communications in nearly any legal proceeding, including

those that are far removed from any form of public participation guaranteed by the Constitution.

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This definition could potentially include all demand letters, cover letters, and e-mails relating to

litigation in some way. For that matter, the definition could conceivably extend to communications

between private parties if it could be argued that those communications referred to a judicial

proceeding, regardless of whether the private parties are even involved in the litigation.

The TCPA’s definition of the “exercise of the right of association” is similarly

expansive. According to the Legislature, it means “a communication between individuals who join

together to collectively express, promote, pursue, or defend common interests.” Id. § 27.001(2).

Taken literally, it is conceivable that this definition could encompass, for example, any internal

communications in a business. If an employee e-mails another employee about something related

to the business of the company in which they are both employed, have they not made a

communication as a result of joining together to collectively pursue a common interest? Likewise,

when two parents orally discuss a problem their son or daughter is having with a particular teacher

at school, have they not joined together to express, pursue, or defend a common interest and made

a communication pursuant to that endeavor?

Obviously, the application of the TCPA to these hypothetical situations can lead to

absurd results and ignores the underlying context and purpose of the statute—“to encourage and

safeguard the constitutionalrights 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 personsto file meritoriouslawsuitsfor demonstrable injury.” Id. § 27.002 (emphasis added).

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At least one of our sister courts has recognized that the TCPA should not be interpreted in 2

a vacuum, but instead it should be interpreted in line with its stated purposes. See Cheniere Energy,

Inc. v. Lotfi, 449 S.W.3d 210, 216 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (refusing to find

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In my view, the TCPA should operate in a way that is consistent with this stated purpose; the

problem with that view is that nowhere in the definitions contained within the TCPA are these

considerations included. The only definition that comes close to matching the statute’s stated

purpose is the “exercise of the right of free speech,” which is defined as a “communication made in

connection with a matter of public concern.” Id. § 27.001(3). That definition is in line with the

purpose and context of the statute with regard to the constitutional underpinnings of protected

free speech. But the Legislature did not stop there—it further defined a “matter of public concern”

to include “economic” or “community well-being” or a “service in the marketplace.” Such broad

terms have forced courts, like the majority here, to conclude that disputes between an HOA and

its property manager involve the right to free speech because it is relevant to “economic” or

“community well-being.” It is difficult to reconcile such a conclusion with the stated purposes of

the TCPA. Moreover, if all that is required is a relation to “economic well-being,” without further

limitation on that term, then why would it not apply to a family’s discussions about its budget, a

TCPA applicable on claim that decision in terminating employee was exercise of right of association).

I agree with this reasoning, which is firmly grounded in cases from the supreme court and this Court.

See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex. 2011) (“It is a fundamental

principle of statutory construction and indeed of language itself that words’ meanings cannot be

determined in isolation but must be drawn from the context in which they are used.”); Molinet

v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011) (“The plain meaning of the text is the best expression

of legislative intent unless a different meaning is apparent from the context or the plain meaning

leadsto absurd or nonsensical results.”); Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132,

133 (Tex. 1994) (“Words in a vacuum mean nothing. Only in the context of the remainder of the

statute can the true meaning of a single provision be made clear.”); Texas Bd. of Chiropractic

Exam’rs v. Texas Med. Ass’n, 375 S.W.3d 464, 474 (Tex. App.—Austin 2012, pet. denied);

Garza v. Texas Boll Weevil Eradication Found., Inc., Nos. 03-11-00787-CV, 03-11-00788-CV,

03-11-00789-CV, 03-11-00790-CV, 2012 WL6726685, at *4-5 (Tex. App.—Austin Dec. 19, 2012,

no pet.) (mem. op.).

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private company’s disclosures to its investors, and other private communications that do not

implicate constitutional concerns related to public participation?

The hypothetical situations and communications to which the TCPA could apply

are endless based on the broad language used by the Legislature. It seems that any skilled litigator

could figure out a way to file a motion to dismiss under the TCPA in nearly every case, in the hope

that the case will not only be dismissed, but that the movant will also be awarded attorneys’ fees.3

In short, it is difficult to imagine that the Legislature intended for the TCPA to turn civil litigation

practice in general on its head; yet that is the natural consequence of the language used in the statute.

As a Court, it is not our role to change the words used by the Legislature, but it is our

responsibility to point out to the Legislature when its words do not match the stated purpose of the

law it enacted and have unintended consequences on civil litigation throughout the State. Words

matter, and because they do, I call upon the Legislature to remedy the breadth of the TCPA by

revisiting the definitions used in Section 27.001.

__________________________________________

Scott K. Field, Justice

Before Justices Puryear, Goodwin, and Field

Filed: April 7, 2015

Even if the motion to dismiss is not granted, the TCPA gives the movant a right to appeal

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that ruling to an intermediate appellate court, further delaying proceedings. See Tex. Civ. Prac. &

Rem. Code § 27.008.

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