Opinion issued August 20, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00846-CV

———————————

DAVID GORDON SCHMIDT D/B/A ABC BONDING COMPANY AND 

GREENBRIAR EQUITIES, LLC, Appellants

V.

BRENDA CRAWFORD, CARLOS PEREZ, ANTHONY WILLIAMS,

ANNIE J. BUTLER, ANTHONY FRANCO, AMBRIA FIKE, DEBRA 

JOHNSON, VICTORIA WELLS, MILDRED ENGLISH, OTTIS 

WILLIAMS, RANDY L. LASTER, PABLE MURILLO, EMMA MURILLO, 

CRAIG COOPER, NELSON MARTIN ARMSTRONG, MAZEN BREIR, 

BENITO MARTINEZ, TANYA PEDROZA, SERGIO PEDROZA, 

CAROLYN ETHERIDGE, LOUISE SEALS, TERRY MOORE, MARIA 

RAMIREZ, PETE GARCIA, DENISE BALDWIN, WILLIAM T. 

ETHERTON, PATRICIA ETHERTON, SHARON WILLIAMS, 

HELEODORA CRUZ, HATTIE HEMPHILL, AGUSTINA ROBERTS, 

LOUIS ROBERTS, EMILY JOHNSON, IRIS EDITH SEGUNDO, JOANNA 

LOAEZA, KEVIN WILLIAMS, RITA WILLIAMS, YOLANDA 

CARRIERE, ANTHONY CITTI, JUAN CISNEROS, BRANDY JOHNSON, 

JOHN GHOLSTON, ANSON FURMAN, IVIE BELL, LAURA DIAZ, 

DARLENE ALEJANDRO, JESSE DELEON, CYNTHIA DELEON, JESUS 

VEGA, BEVERLY VEGA, RAY PERFECTO, BRIDGET NWOKO, 

NEMIAH CLARK, EARLEAN WILLIAMS, LAKESHEA CLARK, PETE 
2

GONZALES, PAT LEE, MARY VICTORIAN, TIFFANY JOHNSON, 

ELIAS GAMINO, TIFFANY CHENIER, MURALINE PETER, VICTOR 

REYES, VERONICA SMITH, JIMMIE ENGLETT, VELVET HILTON, 

STEPHEN LACY, LEROY VANTERPOOL, PATRICIA WESLEY, 

SAMMIE L. ABRAHAM, EDITH M. ABRAHAM, BRENDA BROWN, 

JESUS SILVESTRE, FELICITA AGUILAR, GABINO SALAZAR, 

JOSEFINA M. NOWLIN, SANDRA DORRON, JESUS VELAZQUEZ, 

BONNIE CEPHUS, JOSEPHINE ROCHA, LEON JACOBSON, LINDA 

JACOBSON, OLIVIA SIMS, CONSTANCE GAY, ENSLEY CLINTON, 

LLEWEL WALTERS, MAURO REYNERIO FERNANDEZ CRUZ, 

ANTHONY THOMPSON, JUAN CARLOS RIOS RAMIREZ, PHILLIP C. 

CLARK, BEATRICE PENA, CAROL ASKEW, BRIAN CORMIER, 

STEVEN CRUZ, LEROY WELLS, HAROLD KINNARD, PLUSHATTE 

DAVIS, DEIDRE DOBBINS, DAVID SPAULDING, MICHAEL KOSSA, 

DIANA KOSAS, SERAFIN LUNA, DEBORAH BERRYHILL, O’KEEFE 

ALLEN, CHRISTOPHER P. VANA, SR., GRACE HAMILTON, BELINDA 

SPENCER, RENORA RIGGINS, IVONNE JACKSON, EDITH ORDONEZ,

WILBER ORDONEZ, TESSIE LYNCH, KATHERINE SANDERS, 

CHARLES MOURNING, ILIANA PEREZ, TIBURCIA ZAYALA, 

CHRISTOPHER GREEN, DONALD SHELTON, DONALD CREDEUR, 

AVIS BATTLE, GRACE PHILLIPS, DAROLYN LEWIS, RAYMOND 

LEWIS, JR., MICHAEL MILLER, ESTHER DOUBLIN, MARCOS ORTIZ, 

ROBERT SANCHEZ, ROSALINDA SANCHEZ, TIFFANY SHANNON, 

ALTHA DAVIS, HERMAN DAVIS, NELSON HEBERT, MELVIN 

HERRERA, JUANITA CANO, PATRICE BOYCE, EDSON 

DRONBERGER, CHARLOTTE WYNN, JACQUELINE HILL, ATANACIO 

RUIZ, ELOISA RUIZ, ROBERTO HERNANDEZ, CLEMENTINA 

HERNANDEZ, JIM SILVA, LUZ BATALLA, ISMAEL MEDINA, 

HORTENCIA RODRIGUEZ, ALFRED WATSON, JERRY ESCALANTE, 

LLOYD CASTILOW, LUIS PENA, CAREY MURRAY, LUZ WILDMAN, 

CARL EARL, ISMAEL AVELLANEDA, KENDALIA DAVIS, GAIL FRITZ, 

LEE CARTWRIGHT, ORFILIA MIRANDA, JAINELL LETRYCE

VELAZQUEZ BUTLER, COURTNEY MITCHELL, TRAVIS WATERS, 

DEBBIE WATERS, ANTHONY NORRIS, SHARON A. NORRIS, 

ADELMIRA SALINAS, SARAH LANDRY, GLORIA GARCIA, JOEL 

ZAMARRIPA, GERARDO ROMO, PHILLIP ROSS, LAKEISHA ROSS, 

EARLINE DURANT WATKINS, GERARDO MARQUEZ, NILZA 

RODRIGUEZ, JANNETTE BROWN, VICTOR H. ESTRADA, BLANCA A. 

ESTRADA, ANNE CLARE, JAMES CLARE, CHARLENE TALBOTT, 

MARIA VELEZ, GREG HILLIGIEST, RANDY WILSON, SAUL 
3

AGUILERA, HARLENE BRADY, MARY FLOWERS, JIMMIE SMITH, 

BETTY R. SMITH, CYNTHIA JENKINS, CLARENCE MCDADE, 

CHARLES O. MCDONALD, LARS WESTERBERG, ETHEL O’QUINN, 

JEFFREY GLOVER, KATRINA GLOVER, LAURA LIGGETT, BRENDA 

TRUSSEL, DALE TRUSSELL, CECELIA ROSE, VANESSA BOURDA, 

FRANCISCO CAMPOS, CONNIE CAMPOS, SAMMY J. COLLINS, 

FELICIA BOWMAN, KENDALL WILKINS, TYRONSA WILKINS,

ANDREW TAYLOR, MARQUE JOHNSON, BEVERLY HENSLEY, 

YVONNEYA BROWN, COURTNEY HERNANDEZ, ALBERT ROWAN, 

TONI OWENS, JIMMY KIRKENDOLL, JOAN L. KIRKENDOLL, MARY 

ANN EDJEREN, THELMA HOUSLEY, KENNETH JOHNSON, JUDITH 

ANN WALKER, LESLIE BROWN, DEBORAH EATON, STUART 

WILLETT, JOSE TORRES, DIANA SALINAS, ERSKINE VANDERBILT, 

CAROLINE TUNSEL, CATHY JONES, GAIL UDOSEN, REGINA 

FULTON, HECTOR REYES, LUCIO TORRES, JR., ERNESTO LARA, 

JACKIE THORNTON, ALFREDO DIMAS, NANCY TAYLOR, REGINALD 

COLE, CATHLYN COLE, GERALD SMITH FOR THE ESTATE OF 

EARNEST D. SMITH, FAUCINDA VENCES, THUYVI VINH, MAIDA 

KHATCHIKIAN, CARL EARL, TROY KING, DIANA ROMERO, SANDRA 

PYLE, GARY DIAL, MARIA MENDEZ, ANTHONY HARRIS, KEENA 

HARRIS, KATHERINE STEWART, MARY CURRIE, SIVERAND 

STERLING, JR., LARRY TANKERSLEY, LESLIE JONES, GONZALO 

PENA, JOHN LONG, BEVERLY LONG, TERRY RANDLE, AND FELICIA 

FRANK, Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Case No. 2018-31381
4

DISSENTING OPINION

Appellants, David Gordon Schmidt, doing business as ABC Bonding 

Company (“ABC”), and Greenbrier Equities, LLC (“Greenbrier”) (collectively, 

“appellants”), sold bail bonds and bail bonding services to appellees1in this case.

ABC, by its own count, has provided bail bonds and bail bonding services to 

thousands of people for many years using a process that follows a “relatively 

common pattern.” ABC “collateralizes the bond obligations [that] it posts on behalf 

of criminal defendants by obtaining indemnity obligations secured by deeds of trust” 

and it “files these deeds of trust in the Harris County real property records to perfect 

the indemnity obligation[s].” ABC has sold to Greenbrier the right to collect on the 

debts of ABC’s customers. When 250 of ABC’s customers filed suit against 

appellants to quiet title and for fraudulent liens, fraud, negligent misrepresentation, 

unfair debt collection practices, “constitutional violations,” and a declaratory 

judgment, appellants moved to dismiss appellees’ claims under the Texas Citizens’

Participation Act (“TCPA”).

2

 The trial court properly denied appellants’ motion.

 

1 Due to the large number of appellees in the instant case, I do not address them 

individually by name.

2 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011.
5

In their sole issue in this interlocutory appeal,3appellants contend that the trial 

court erred in denying their motion to dismiss4appellees’ claims. Because appellees’

claims fall within a statutory exemption for commercial speech,

5

and thus are 

exempted from the application of the TCPA’s dismissal scheme, I would hold that 

the TCPA does not apply to any of appellees’ claims and the trial court did not err 

in denying appellants’ motion to dismiss.6 Because the lead opinion holds otherwise, 

I respectfully dissent.

Background

The acronym SLAPP stands for “Strategic Lawsuits Against Public 

Participation” and refers to lawsuits that are brought for the purpose of silencing 

citizens who are exercising their First Amendment freedoms. See Jardin v. 

 

3 See id. §§ 27.008, 51.014(a)(12).

4 See id. § 27.003.

5 See id. § 27.010(b).

6 See Santellana v. CentiMark Corp., No. 01-18-00632-CV, 2019 WL 1442228, at *3 

(Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.) (mem. op.) (commercial 

speech exemption constitutes independent ground “that can fully support a trial 

court’s denial of a motion to dismiss filed pursuant to the TCPA”); see also 

Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996) (appellate courts 

may consider issues “that are presented to the trial court and preserved for review 

on appeal”); Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 884–85 (Tex. App.—

Austin 2018, pet. filed) (plaintiffs argued to appellate court “that the trial court could 

have properly denied the . . . [TCPA] motion to dismiss . . . for three additional, 

independent reasons,” and although “the trial court did not expressly rule on these 

alternative grounds when it denied the motion,” appellate court could still determine 

“whether [such] grounds support[ed] the trial court’s decision to deny 

the . . . motion to dismiss”); Cavin v. Abbott, 545 S.W.3d 47, 71 (Tex. App.—Austin 

2017, pet. denied).
6

Marklund, 431 S.W.3d 765, 769–70 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(internal quotations omitted); see U.S. CONST. amend. I (“Congress shall make no 

law . . . abridging the freedom of speech, or of the press; or the right of the people 

peaceably to assemble, and to petition the Government for a redress of grievances.”); 

see also TEX. CONST. art. I, § 8 (“Every person shall be at liberty to speak, write or 

publish his opinions on any subject, being responsible for the abuse of that privilege; 

and no law shall ever be passed curtailing the liberty of speech or of the press.”),

§ 27 (“The citizens shall have the right, in a peaceable manner, to assemble together 

for their common good; and apply to those invested with the powers of government 

for redress of grievances or other purposes, by petition, address or remonstrance.”). 

The TCPA, an anti-SLAPP statute7 passed by the Texas Legislature in 2011, 

purports to protect the rights of citizens by providing for the quick and inexpensive 

dismissal of meritless suits and the shifting of legal costs to parties that file the

meritless suits. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.002 (“The purpose 

of [the TCPA] is to encourage and safeguard the constitutional rights of persons to 

petition, speak freely, associate freely, and otherwise participate in 

government . . . .”), 27.003(a) (allowing party to file motion to dismiss where “legal 

action is based on, relates to, or is in response to a party’s exercise of the right of 

 

7 See In re Lipsky, 411 S.W.3d 530, 536 n.1 (Tex. App.—Fort Worth 2013, orig. 

proceeding) (referring to TCPA as “anti-SLAPP legislation” (internal quotations 

omitted)), mand. denied, 460 S.W.3d 579 (Tex. 2015) (orig. proceeding).
7

free speech, right to petition, or right of association”); Jardin, 431 S.W.3d at 769–

70 (“The TCPA establishes a mechanism for early dismissal of frivolous lawsuits 

that threaten the free exercise of [citizens’ constitutional] rights.”); Cheniere Energy, 

Inc. v. Lotfi, 449 S.W.3d 210, 212 (Tex. App.—Houston [1st Dist.] 2014, no pet.). 

The purpose of the TCPA is to prevent powerful interests from filing retaliatory 

lawsuits against people for speaking freely, associating freely or for exercising their 

right to petition. See In re Lipsky, 460 S.W.3d 579, 584, 586 (Tex. 2015) (orig. 

proceeding); Univ. Plant Servs., Inc. v. Dresser-Rand Grp., Inc., 571 S.W.3d 346, 

357 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Backes v. Misko, 486 S.W.3d 

7, 16–17 (Tex. App.—Dallas 2015, pet. denied).

In their petition, appellees allege that they are the owners of certain homestead 

properties. In order to “obtain a bond to post bail for a loved one,” appellees 

approached ABC. Appellees were each charged a “bond fee” and “were asked to 

sign a document in order for [a] bond to be posted” by ABC. (Internal quotations 

omitted.) Specifically, ABC required each appellee to sign a blank deed of trust as 

collateral in the event that the bond is forfeited and ABC becomes responsible for 

paying the face amount of the bond. Appellants “intentionally left key portions of 

the document[s] blank when [they were] signed” so that appellants could “change[] 

the amount listed on the deeds of trust to double the amount of each bail bond.”
8

Appellees further allege that “[t]hey were not asked if they wished to use their 

home[s] as collateral” for obtaining the bonds; but, instead, were merely told that 

ABC “would post . . . bond[s] for their loved one[s]” and appellees “would start 

receiving . . . bill[s] for the bond fee[s].” (Emphasis omitted.) According to 

appellees, appellants defrauded them “into signing illegal and invalid deeds of trust 

to attempt to secure a bail bond loan.” Appellants then filed the deeds of trust in the 

Harris County real property records to secure the bail bonds that ABC had posted. 

Appellees allege that each deed of trust serves as a lien and cloud on each of their 

homesteads, in conflict with the Texas Constitution. Further, appellants colluded 

“to carry out unlawful foreclosures on [invalid] liens” on appellees’ properties. 

Because appellants filed numerous illegal and invalid liens to secure bail bond loans,

appellees bring claims against appellants to quiet title and for fraudulent liens, fraud, 

negligent misrepresentation, unfair debt collection practices, “constitutional 

violations,” and a declaratory judgment.

Appellants moved to dismiss all of appellees’ claims collectively,

8

asserting 

that all of appellees’ claims are based upon appellants’ “filing [of] deeds of trust to 

obtain allegedly fraudulent liens” and the “filing and recording [of] documents with 

 

8 As the lead opinion correctly notes, “[i]n the trial court, [appellants] moved to 

dismiss [appellees’] entire suit, and [appellants] appeal from the trial court’s denial 

of their motion. The same allegations underlie all of [appellees’] claims.” 

(Emphasis added.)
9

the clerk’s office” implicates appellants’ exercise of the right to free speech and the 

right to petition. (Internal quotations omitted.) See TEX. CIV. PRAC. & REM. CODE 

ANN. §§ 27.003, 27.005(b). And, as such, appellees were required to, and did not, 

come forward with clear and specific evidence to establish a prima facie case on 

each essential element of their claims. See id. § 27.005(c).

In response to appellants’ motion, appellees asserted that appellants’ right to 

free speech and right to petition were not implicated by their claims to quiet title and 

for fraudulent liens, fraud, negligent misrepresentation, unfair debt collection 

practices, “constitutional violations,” and a declaratory judgment. And even if the 

TCPA does apply to appellees’ claims, they are exempt due to the statute’s 

commercial speech exemption. See id. §§ 27.003(a), 27.005(b), 27.010(b).

In their reply, appellants asserted, inter alia, that the commercial speech 

exemption did not apply to appellees’ claims and appellees failed to prove the 

commercial speech exemption by a preponderance of the evidence.

After a hearing, the trial court denied appellants’ motion, concluding that

appellants had failed to show by a preponderance of the evidence that appellees’

claims are based on, relate to, or in response to appellants’ exercise of the right of 

free speech, the right to petition, or the right of association. Thus, the trial court

concluded that the TCPA does not apply to appellees’ claims and reasoned that it 

need not reach the “‘second step’ analysis where the burden shifts to [appellees] to 
10

make a prima facie case on the elements of their claim[s].”9 (Emphasis omitted.)

Although the trial court did not reach the commercial speech exemption in its 

analysis, the issue was clearly before the trial court below.10 See id. § 27.010(b); 

Santellana v. CentiMark Corp., No. 01-18-00632-CV, 2019 WL 1442228, at *3 

(Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.) (mem. op.) (commercial 

speech exemption constitutes independent ground “that can fully support a trial 

court’s denial of a motion to dismiss filed pursuant to the TCPA”); see also 

Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996) (appellate courts 

may consider issues “that are presented to the trial court and preserved for review 

on appeal”); Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 884–85 (Tex. App.—

Austin 2018, pet. filed) (plaintiffs argued to appellate court “that the trial court could 

have properly denied the . . . [TCPA] motion to dismiss . . . for three additional, 

independent reasons,” and although “the trial court did not expressly rule on these 

alternative grounds when it denied the motion,” appellate court could still determine

“whether [such] grounds support[ed] the trial court’s decision to deny the . . . motion 

 

9 See Epperson v. Mueller, No. 01-15-00231-CV, 2016 WL 4253978, at *8–9 (Tex. 

App.—Houston [1st Dist.] Aug. 11, 2016, no pet.) (mem. op.) (defendant must first 

show applicability of TCPA, i.e., that plaintiff’s claim is “based on, relates to or is 

in response to the [defendant’s] exercise of: (1) the right of free speech; (2) the right 

to petition; or (3) the right of association,” and if initial showing is made, burden 

shifts to plaintiff to establish “by clear and specific evidence a prima facie case for 

each essential element of his claim” (internal quotations omitted)).

10 In fact, appellants and appellees have both fully briefed in our Court the issue of 

whether the commercial speech exemption applies to the instant case.
11

to dismiss”); Cavin v. Abbott, 545 S.W.3d 47, 71 (Tex. App.—Austin 2017, pet.

denied).

Commercial Speech Exemption

In the trial court below, appellees challenged the applicability of the TCPA to 

their claims, asserting that their claims fall under the TCPA’s statutory exemption 

for commercial speech. On appeal, appellees assert that the commercial speech 

exemption is an independent ground that supports the affirmation of the trial court’s 

denial of appellants’ motion to dismiss.

The TCPA does not apply to certain types of “commercial speech.” In fact, 

under the commercial speech exemption, the TCPA does not apply:

to a legal action brought against a person primarily engaged in the business of 

selling or leasing goods or services, if the statement or conduct arises out of 

the sale or lease of goods, services, . . . or a commercial transaction in which 

the intended audience is an actual or potential buyer or customer.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b); see State ex rel. Best v. Harper, 

562 S.W.3d 1, 11 (Tex. 2018) (if TCPA exemption applies, movant cannot invoke 

TCPA protections); Morrison v. Profanchik, No. 03-17-00593-CV, --- S.W.3d ---, 

2019 WL 2202210, at *2 (Tex. App.—Austin May 22, 2019, no pet. h.) (“If an action 

falls under a TCPA exemption, the TCPA does not apply and may not be used to 

dismiss the action.”). As the Texas Supreme Court has explained, the “exemption 

applies only to certain communications related to a good, product, or service in the 

marketplace—communications made not as a protected exercise of free speech by 
12

an individual, but as commercial speech which does no more than propose a 

commercial transaction.” Castleman v. Internet Money Ltd., 546 S.W.3d 684, 690 

(Tex. 2018) (emphasis internal quotations omitted); see also N. Cypress Med. Ctr. 

Operating Co. GP v. Norvil, No. 01-18-00582-CV, --- S.W.3d ---, 2019 WL 

2292630, at *3 (Tex. App.—Houston [1st Dist.] May 30, 2019, pet. filed); 

Whisenhunt v. Lippincott, 474 S.W.3d 30, 42 (Tex. App.—Texarkana 2015, no pet.) 

(for commercial speech exemption to apply, “statement must be made for the 

purpose of securing sales in the goods or services of the person making the 

statement” (internal quotations omitted)); Backes, 486 S.W.3d at 21.

In determining whether the commercial speech exemption applies, we 

examine whether:

(1) appellants were primarily engaged in the business of selling or 

leasing goods,

(2) appellants made the statement or engaged in the conduct on 

which the claim is based in the their capacity as sellers or lessors

of those goods or services,

(3) the statement or conduct at issue arose out of a commercial 

transaction involving the kinds of goods or services that 

appellants provide, and

(4) the intended audience of the statement or conduct were actual or 

potential customers of appellants for the kinds of goods or 

services that appellants provide.

Castleman, 546 S.W.3d at 688. Here, the burden of proving the applicability of the 

exemption is on appellees, as the party asserting it. See Schimmel v. McGregor, 438 
13

S.W.3d 847, 857 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); see also 

Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL 

3118601, at *10 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. denied) 

(proponent must establish applicability of commercial speech exemption by 

preponderance of evidence).

Appellees argue that the commercial speech exemption applies to their claims

because appellants are “primarily engaged in the business of selling . . . bond 

services” or bail bonds and appellants engaged in the conduct on which appellees’

claims are based in their capacity as sellers of such goods and services. See 

Castleman, 546 S.W.3d at 688. In their petition,11 appellees allege that they own 

certain homestead properties, they each went to ABC to “obtain a bond to post bail,” 

and, as part of their transaction with ABC, they each pledged property, by signing a 

blank deed of trust, to obtain the desired bond. According to appellees, appellants 

defrauded them “into signing illegal and invalid deeds of trust to attempt to 

secure . . . bail bond loan[s],” and appellants then filed the deeds of trust in the Harris 

County real property records to secure the bail bond that each appellee had sought

and that ABC had posted. Appellees allege that each deed of trust serves as a lien 

 

11 See TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a); Newspaper Holdings, Inc. v. 

Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston [1st 

Dist.] 2013, pet. denied) (pleadings and evidence to be reviewed in determining if 

commercial speech exemption applies).
14

and cloud on each of their homesteads, in conflict with the Texas Constitution. And 

as a result of their commercial transaction with appellants, appellees brought suit 

against appellants for filing numerous illegal and invalid liens to secure bail bond 

loans and asserted claims to quiet title and for fraudulent liens, fraud, negligent 

misrepresentation, unfair debt collection practices, “constitutional violations,” and a 

declaratory judgment.

Notably, appellants describe ABC’s bail bonding services in detail in their

own motion to dismiss and its accompanying affidavit, including explaining that the 

lien-filing process is a part of their business practices—a process which is at the 

heart of appellees’ claims. In their motion, appellants explain that “ABC is a bail 

bonding company [that] has provided services to countless residents in Harris 

County.” ABC files deeds of trust provided in connection with its customers’ bond 

applications in the Harris County real property records.

Schmidt, a bail bondsman and the sole proprietor of ABC, further testified by 

affidavit attached to appellants’ motion to dismiss:

ABC is in the bail bonding business. A criminal bail bond is undertaken 

by a licensed professional bail bondsman . . . . [When] [a] criminal bail 

bond is normally undertaken, the bondsman, such as [Schmidt], 

becomes liable to the relevant court for the full amount of the 

bond . . . should [the criminal defendant] fail to appear before the court.

. . . In deciding whether to issue a . . . bail bond, ABC assess[es] 

the . . . risk[] that [a criminal] defendant will fail to appear [for court] 

against the risk that [ABC] may have to pay the full amount of the 

bond. . . . [Thus,] [b]onds of . . . certain size[s] require . . . ABC [to] be 
15

assured that the person or persons requesting the bond[s] have [a] 

sufficient ability to pay either the full bond fee[s] or the ability to pay 

the fee[s] over time.

Further, according to Schmidt, in certain instances, ABC requires a person 

requesting a bond to have “sufficient assets or be sufficiently creditworthy to fulfill 

[his] indemnity obligation[] should the bond [be] forfeit[ed] and [ABC] be 

responsible for paying the entire face amount [of the bond].” And “[t]he process in 

which ABC provides bail bonds when it requires additional security [from its 

customers],” proceeds as follows:

(1) “An individual is criminally charged”;

(2) “A concerned family member or acquaintance will contact ABC, 

seeking a bail bond”;

(3) “ABC will have the family member or acquaintance come to 

[the] office where the details of the bond process are explained. 

Should the individual decide to go forward with the bond 

application, ABC will request that [he] act as a guarantor for the 

bond obligation that ABC undertakes”;

(4) “If the family member or acquaintance agrees, ABC will then 

have him . . . execute several documents”;

(5) “These documents contain detailed covenants and 

representations regarding the scope and extent of the guarantor’s 

potential liability to ABC should the bond be forfeited. These 

covenants and representations include, without limitation: 1) a 

promise to indemnify and hold ABC harmless from every claim, 

demand, liability, cost, or charge that ABC might incur by virtue 

of having executed the bond; 2) a promise to place, upon 

demand, funds necessary to meet every claim, demand, liability, 

cost [or] charge that ABC might incur on account of having 

executed the bond; 3) a promise to remain liable to ABC so long 
16

as there remain[s] any liability, potential liability, or loss 

resulting from the execution of the bond; and 4) . . . [p]rovide a 

security interest in the property pledged in connection with the 

bail application to secure the payment of all claims, demands, 

liabilities, costs, charges, legal fees”;

(6) “Should the guarantor have any questions regarding the scope or 

extent of their indemnity obligation to ABC, [he] will be told by 

ABC that [his] obligation includes not only the bond amount but 

also any and all fees, costs, and expenses ABC would incur in 

the event of bond forfeiture. If asked, the guarantor will also be 

told that the total cost of these fees, costs, and expenses could 

total up to double the amount of the bond being posted”; and

(7) “In certain situations, ABC will request additional collateral 

from a family member who is a property owner. In these 

situations, the guarantor will, provide ABC with a deed of trust 

for property securing [his] indemnity obligation[]. Critically, 

each deed of trust contains an explicit representation that the 

pledged property forms no part of any property owned, used or 

claimed by grantor as exempted from forced sale under the laws 

of the [S]tate of Texas.”

(Fourth alteration in original) (Internal footnotes and quotations omitted.) 

Moreover, once “[a] concerned family member or acquaintance” has finalized and 

executed the documents provided to him, “ABC will execute a bail bond on the 

[criminal] defendant[’s] behalf.” At that time, ABC will also “file[] the deed[] of 

trust provided [by the concerned family member or acquaintance] in connection with 

the bond application in the Harris County real property records.” And when the 

obligation related to the bail bond “ha[s] been completely satisfied and/or 

terminated, ABC . . . file[s] a release of lien.”
17

Appellants’ assertion that ABC “sells bail bonding services” and does not

engage in the “sell[ing]” of “the filing of deeds of trust” is unavailing. The pleadings 

and evidence establish that “ABC is in the bail bonding business,” Schmidt is a 

“licensed professional bail bondsman,” and the selling of bail bonds or bail bonding

services, according to appellants, themselves, is dependent upon “the documents 

executed to protect the bondsman’s financial interests should there be a bond 

forfeiture.” To be sure, but for ABC approving of its customer’s bond application

and posting a bond, there would be no lien being filed in the Harris County property 

records. Thus, appellees’ claims are against appellants, who are primarily engaged 

in the selling of goods or services, i.e., bail bonds or bail bonding services, and 

appellants engaged in the conduct on which appellees’ claims are based, i.e., the 

improper filing of fraudulent and invalid deeds of trust or liens, in their capacity as 

the seller of bail bonds or bail bonding services. See Castleman, 546 S.W.3d at 688.

Next, appellees argue that the commercial speech exemption applies to their 

claims because the statement or conduct at issue in the instant case arises out of a 

communication or transaction involving the kind of services that appellants provide. 

See id. According to appellees, appellants’ “act[s] of recording . . . fraudulent and 

invalid deeds of trust [are] a direct and virtually contemporaneous consequence from 

their act[s] of selling bail bonds [or bail bonding services] because the liens [filed 

by appellants] serve as a means to secure payment on the bond[s]” and “[t]he liens 
18

are executed and created during the same time period in which the bond[s] [are]

issued to [ABC’s] customer[s], then recorded just days after.”

As previously noted, Schmidt, a bail bondsman and the sole proprietor of 

ABC, testified, by affidavit, that when a concerned family member or acquaintance 

of a criminal defendant seeks a bail bond from ABC, that person executes several 

documents with ABC, including documents under which the person becomes “a 

guarantor for the bond obligation that ABC undertakes.” “In certain situations, ABC 

will request additional collateral from a family member who is a property owner.” 

Under such circumstances, ABC has the person execute a deed of trust for the 

particular property that he owns. Once the concerned family member or 

acquaintance has finalized and executed the documents provided to him by ABC,

ABC then executes a bail bond on the criminal defendant’s behalf and “files the 

deed[] of trust provided [by the concerned family member or acquaintance] in 

connection with [his] bond application in the Harris County real property records.” 

And when “the guarantor’s obligation[] to ABC ha[s] been completely satisfied 

and/or terminated, ABC . . . file[s] a release of lien.” Further, ABC confirms that it 

remains “in possession of the application packet[]” that its customer has completed. 

Thus, appellants’ statement or conduct at issue, i.e., the improper filing of fraudulent 

and invalid deeds of trust or liens, arises out of the commercial transactions 
19

involving the goods or services, i.e., bail bonds or bail bonding services, that 

appellants provide. See id.

Finally, appellees argue that the commercial speech exemption applies to their 

claims because appellants “directed their fraudulent liens toward[] their customer 

base” and they put “the customer on notice that should [his] bond be forfeited, 

[a]ppellants would foreclose on the lien.” Thus, appellees constituted the “intended 

audience because the deed[s] of trust [themselves were] used as . . . means to 

let . . . [a]ppellee[s] know that the debt[s] of their bond[s] w[ere] now connected to 

their homestead[s].” See id.

In contrast, appellants assert that appellees “made no claim and came forward 

with no evidence that the intended audience of [the] deed[s] of trust . . . [are] the 

same audience to whom ABC markets its bonding services.” The lead opinion

agrees with appellants, holding that appellants’ “filings were made to put the general 

public on notice that certain properties were subject to liens” and “[t]hus, the 

intended audience of [appellants’] filings was the public at large or potential buyers 

of the encumbered properties, not [appellants’] potential or actual customers—

persons who have obtained or need to obtain bail bond loans.”

However, here, it is undisputed that the deeds of trust related to the properties 

owned by ABC customers and that the liens that appellants filed in the Harris County 

property records actually attach to the properties of such customers, including
20

appellees. A lien against a property owned by an ABC customer is, in part, 

appellants’ attempt to secure a debt and ensure repayment of the bail bond that it has

posted. See Lien, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “lien” as “[a] 

legal right or interest that a creditor has in another’s property, lasting usu[ally] until 

a debt or duty that it secures is satisfied”). So, the intended audience of that lien 

must include, at the very least, the person against whom the lien is filed, i.e., each 

appellee in the instant case. See N. Cypress Med., --- S.W.3d ---, 2019 WL 2292630, 

at *4 (concluding intended audience of hospital lien necessarily included actual or 

potential buyer or customer, such as patient); Tyler v. Pridgeon, 570 S.W.3d 392, 

398–99 (Tex. App.—Tyler 2019, no pet.) (hospital “was primarily engaged in the 

business of selling goods or services, that is, healthcare” and “the lien arose out of a 

commercial transaction involving [the hospital’s providing] of healthcare to 

[patient], who was the intended audience of the lien”); see also Berry v. ETX 

Successor Tyler, No. 12-18-00095-CV, 2019 WL 968528, at *4 (Tex. App.—Tyler 

Feb. 28, 2019, no pet.) (mem. op.) (intended audience of hospital lien included 

patient who had received medical treatment at hospital).

Further, appellants admit that their primary goal is not to foreclose on 

appellees’ homestead properties; rather, each lien is part of appellants’ efforts to 

ensure repayment of the bail bond amount because once the obligation related to the 

bail bond “ha[s] been completely satisfied and/or terminated, ABC . . . file[s] a 
21

release of lien.” To be sure, appellees, as customers, are members of the lien’s 

intended audience. See N. Cypress Med., --- S.W.3d ---, 2019 WL 2292630, at *4;

Pridgeon, 570 S.W.3d at 398–99; Berry, 2019 WL 968528, at *4; see also

Castleman, 546 S.W.3d at 688.

Although the lead opinion concludes that appellees cannot be members of a 

lien’s intended audience because appellees were not aware of the liens the moment 

that they were filed and attached to their properties, this is not a requirement for 

appellees to be members of the intended audience. In considering which persons

constitute the “intended audience” in the instant case, this Court must look from the 

perspective of appellants, i.e., who appellants intended to be the audience of their 

statement or conduct.12 See Castleman, 546 S.W.3d at 688; see also City of Ladue 

v. Gilleo, 512 U.S. 43, 57 (1994) (considering intended audience of residential sign 

from perspective of person “who put[] up a sign at her residence,” not from 

perspective of who had actually seen sign). And it is hard to say that each appellee

was not intended by appellants to be part of the lien’s audience. Notably, the timing 

of when appellees became aware that liens had been attached to their properties is 

of no moment when this Court is examining who was the intended audience of the 

 

12 After examining who appellants intended to be the audience of their statement or 

conduct, this Court should then examine whether the members of the intended 

audience are the “actual or potential customers of [appellants].” See Castleman v. 

Internet Money Ltd., 546 S.W.3d 684, 688–89 (Tex. 2018).
22

lien.13 We simply care whether appellees were meant to be members of the intended 

audience.

Finally, as a general matter, I note that the lead opinion construes the TCPA’s

commercial speech exemption very narrowly,

14 while at the same time advocating 

for a broader reading of other parts of the statute. In doing so, the lead opinion

misses the big picture. See Castleman, 546 S.W.3d at 688 (imperative for courts not 

to construe statutes in way that reaches absurd or nonsensical result that Legislature 

could not have intended); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 

2001) (rejecting statutory construction that causes provision to be out of harmony or 

inconsistent with other provisions); see also 20801, Inc. v. Parker, 249 S.W.3d 392, 

396 (Tex. 2008) (statute shall be construed to accomplish its purpose; when 

interpreting section must consider role in broader statutory scheme); Cheniere 

Energy, Inc., 449 S.W.3d at 216 (explicit purpose of TCPA is to balance protection 

of First Amendment rights against rights of all individuals to file lawsuits to redress 

their injuries). As previously discussed, appellants are engaged in the business of 

providing bail bonds or bail bonding services. They expect each of their customers, 

who seek a bail bond, to fulfill his obligation to ABC should a bond be forfeited and 

 

13 It is obvious that appellees did actually learn of the liens attached to their properties 

because without appellees discovering the liens, this lawsuit would have never been 

filed.

14 But see TEX. CIV. PRAC. & REM. CODE ANN. § 27.011(b) (TCPA to be construed 

liberally to fully effectuate its purpose and intent).
23

ABC be responsible for paying the face amount of the bond. As part of this process, 

appellants obtain a deed of trust for a customer’s property in order to secure that 

customer’s obligation. Once ABC executes a bail bond, appellants file the deed of 

trust provided by the customer in order for a lien to attach to the property owned by 

appellants’ actual customer, i.e., each appellee. Liens against appellees’ properties

are liens against appellees to secure payment of a debt. This type of “speech” does 

no more than secure a commercial transaction in the types of goods or services that

appellants provide and which are now the subject of appellees’ claims. See 

Castleman, 546 S.W.3d at 690 (commercial speech exemption applies to 

“commercial speech which does no more than propose a commercial transaction”

(internal quotations omitted)). Attaching freedom-of-speech protections to 

appellants’ debt collection practice is an overreach and conflicts with this Court’s 

recent holding in North Cypress Medical. --- S.W.3d ---, 2019 WL 2292630, at *3–

5 (holding commercial speech exemption applied to case involving hospital lien); 

see also Pridgeon, 570 S.W.3d at 398–99.

Based on the foregoing, I conclude that appellees met their burden of 

establishing that the commercial speech exemption applies to their claims, and 

therefore, the TCPA does not apply to the instant case. See TEX. CIV. PRAC. & REM.

CODE ANN. § 27.010(b). Accordingly, I would hold that the trial court did not err in 

denying appellants’ motion to dismiss, and I would affirm the trial court’s order 
24

denying appellants’ motion. Because the lead opinion does otherwise, I respectfully 

dissent. To the extent that the lead opinion affirms the trial court’s order denying 

appellants’ motion to dismiss as to appellees’ claims to quiet title and for a 

declaratory judgment, albeit for different reasons, I concur in the outcome only.

Julie Countiss

Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Radack, C.J., dissenting in part from the judgment.

Countiss, J., dissenting in part and concurring in judgment only in part.