# Fourth Court of Appeals **San Antonio, Texas** CONCURRING OPINION
N o. 04

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- CV Damien HERRERA and Blaine Castle, Appellants

v. Judy Stahl and Sue HensleyAppellees Judy STAHL and Sue Hensley, Appellees From the 166th Judicial D istrict Court, Bexar County, Texas Trial Court No. 2012

- CI

- 05750 Honorable Michael E. Mery, Judge Presiding Opinion by: Sandee Bryan Marion, Justice Concurring O pinion by : Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice Delivered and Filed: July 16, 2014 I concur in the court’s judgment; however, I write separately because I do not believe the Texas Citizens ’ Participation Act (the Act) applies, or was meant to apply , in a case such as this

. In 2011, the Texas Legislature recognized that Strategic Lawsuits Against Public Participation (SLAPP suits), “ aimed at silencing” citizens who exercise their “ ‘ constitutional rights

. . . to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law , ’ ” w ere becoming more common

. Whisenhunt v. Lippincott , 416 S.W.3d 689, 696, 698 (Tex. App.

— Texarkana 2013, pet. filed) (quoting S ENATE C OMM
. ON S TATE A FFAIRS , B ILL A NALYSIS , T EX
. H.B. 2973 , 82d Leg., R

. S

. (2011) , T EX
. C IV
. P RAC
. & R EM
.Concurring Opinion 04

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C ODE A NN
. § 27.002 (West Supp. 2013) ) . The l egislature promulgated the Act ( an “ Anti

- SLAPP ” law ) as a shield to pr otect citizens who exercise their constitutional rights to communicat e for the purpose of addressing common interests, about matters of public concern , or in judicial, official , or other public proceedings. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27.002 ( “Purpose” ) ; id. § 27.001 (“Definitions”)

. In this appeal, A ppellants posture themselves as the “citizens” targeted by a SLAPP suit instigated by A ppellees. But there is nothing in the record to support A ppellants’ contention that
A ppellees are attempting to “chill” A ppellants’ efforts before the City of San Antonio zoning administrators or to hinder the efforts of the Chesapeake Condominium o wners from “a ssociati ng” for the purpose of pursuing the Association’s common interests. To the contrary, the evidence shows A ppellants are using the Act as a sword to s ilence A ppellee s and prevent them from speaking freely. Although the merits of Appellees’ lawsuit have not been decided at the trial level, their suit alleges numerous failures by the Association, Herrera, and Castle to act in the best interest of the condominium owners and to comply with the Association’s by

- laws. The essence of A ppellees’ defamation allegations i s that A ppellants are besmirching them in an effort to ostracize them from the other condominium owners and ruin A ppellees’ reputations because A ppellees “have dared to question ” Herrera’s and the Association’s unfair treatment of certain residents

. A ppellees’ speech criticizing Appellants’ conduct , and Appellees’ lawsuit against the Association, Herrera, and Castle , are the type s of speech and lawsuit s th e Act was meant to safeguard

. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27.002

. On the other hand, the Act was not meant (1) to be misused as a sword to seek a dismissal of defamation claims as Appellants attempt to do, or (2) to protect the leaders agains t whom socially active citizens speak out. Therefore, under these circumstances, the Act does not appl y .

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-Concurring Opinion 04

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T he constitutional right s “ to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law ” at issue here are Appellees ’ , n ot A ppellants ’

. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27.002

.
Patricia O. Alvarez, Justice

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