Dismissed and Opinion filed November 14 , 2019.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 00752

- CV

JOSE BANDIN, MONICA BABAYA N , AND 18 SHALLOWFORD P L ., LLC , Appellant s V.
FREE AND SOVEREIGN STATE OF VERACRUZ DE IGNACIO DE LA LLAVE , Appellee

N O. 14

- 18

- 00 847

- CV

JOSE BANDIN, MO NICA BABAYAN, BANBA OFFICES, LLC, 83 WEST JA GGED RIDGE, LLC, 87 WES T JAGGED RIDGE, LLC, 175 W NEW HARMONY, LLC, 18 GRIFFIN H ILL, LLC, 138 BRYCE BRANCH, LLC, 43 SPINNING WHEEL, LLC , AND TERRAVENTURA DEVELOPMENTS LLC , Appellant s V.
FREE AND SOVERIEGN STATE OF VERACRUZ DE IGNACIO DE LA L LAVE , Appellee2 On Appeal from the 295 th District Court

Harris County, Texas Trial Court Cause No . 2018

- 06 480

OPINION

I n these interlocutory appeal s , we are asked to decide whether the Texas Ci tizens Participation Act (TCPA) , which safeguards “ the constitu tional rights of persons to petition , speak freely, associate freely and other wise part icipate in government , ” applies when two or more p eople allegedly conspire to convert or unlawfully approp riate property

. 1 We conclud e that the act, though bro ad, does not extend that far

. Appella nts Jose Bandin, Monica Babayan, and nine limited liability companie s challenge the trial court’s denial of their TC PA mot ion s to dismiss

. Appellants ask us to hold that the TCPA applies to communications allegedly made among them in furtheranc e of a conspirac y to conduct unlawful or tortious
act s of conversion or th eft of property belonging to the Mexi can State of Veracruz

. 2 W e conclu de appellant s have not show n Vera cruz ’ s claims in this case are within the scope of th e TCPA

. We dismiss th e appeal s for lack of appellate jurisdiction

. B ackground

T he following allegations are set forth in Veracruz ’ s petition. Javier Duarte was the governor of Verac ruz

. Ver a cruz contends that Duarte, Bandin, and Babayan conspired to steal millions , p ossibly billions , of dollars from the s ta te.

1 T ex. Civ. Prac . & Rem. Code §§ 27.001

– .011.

2 The pl aintiff is the F ree and Sovereig n State of Veracruz de Ignacio d e la L lave. The plaintiff refers to itself as Veracru z, and so will we

.3

Appellants and Duarte purportedly eng aged in fraudulent transactions to transfer public funds into Texas LLCs created as she l l companies to launder the money

. Appellants purportedly invested the stolen funds in real es tate in and around Houston , Texas

. Veracruz sued Duarte, Bandin, Babayan, and the T e xas LLCs in four separate lawsuits, bringing claims for convers ion, theft , and civil conspiracy “to

s teal and embezzle, and to commit fraud” and seeking a constructive tru st and damage s

. Appellants filed TCPA mot ions to dismiss in each lawsuit

. One motion was filed and heard in the 334th District Court and denied by o peration o f law. A notice of appeal wa s filed in that case challenging the 334th District Court ’ s denial of the motion

. Another motion to dismiss was filed in the 295th District Court. The 295th District C ourt consolidated all four cases and denied the three re mainin g motions to dismiss “as th e l aw of the case ” based on the ruling in the 334th District Court

. 3 Appellants filed another notice of appeal challenging the 295 th District Court ’ s denial of the remaining motions to dism iss and filed a motion to

con solidate the two appeals. 4 We did not consolidate the appeals , but they were both submitted to and cons idered by the same panel

. Discussion
The TCPA i s known as the Texas An ti

- SLAPP statu te ; “SLAPP” is an acronym for “Strategi c Lawsu its Against Public Par ticipation.” Toth v. Sears Home Improve ment Prods., Inc. , 557 S.W.3d 142, 149 (Tex. Ap p.

— Houston [14th Dist.] 2018, no pet.) ; s ee als o Kawcak v. Antero Res. Corp. , 582 S.W.3d 566, 571 (Tex. App.

— Fort Worth 2019, pet. denied)

. D espite this moniker , the legi slature did not

3 T h e 295th District Court noted that its ruling was made “without

. . . any subs tantive review of the pending m otions to dismiss

. ” All four cases are now pending in the 295th District Cour t under trial court cause number 2018

- 06480

.

4 Duar te is not a party to the appeal s

.4

impart the traditional remedies associa ted with SLAPP suits or use that term in the TCPA

. Kawcak , 582 S.W.3d at 572

. Several courts , including this one, have thoroughly discuss ed the legislature ’ s incentive to pass the stat ute, which addres ses the ha rm intended by bas eless litig ation that s uppresses the exercise of First Amendment rights “ to petition, sp eak freely, associate freely, and otherwise participate in government to the maximu m extent permitted by law

. ” See id. at 571

- 72 ; Serafine v . Blunt , 466 S.W.3d 352, 366 (Tex. App.

— Austin 2015, no pet.) (op. on reh ’ g) (Pemberton, J., c on curring) ; Jardin v. Mark lund , 431 S.W.3d 765, 769 (Tex. App.

—

Houston [14th Dist.] 2014, no pet.) ; se e also Tex. Civ. Prac. & Rem. Code § 27.002

. We do not reha sh those dis cussions here , although a s ynopsis of the statute ’ s purpose is integral to our an aly sis

. The expres s p urpose of the statute is twofold: (1) “to encourage and safeguard the [ enum erated ] constitut ional rights , ” and ( 2) to

“ protect the rights of a pers on to file meritorious lawsuits fo r demonstr able injury.” Tex. Civ. Prac. & Rem. Code § 27. 002 ; Toth , 557 S.W.3d at 14 9

. The s tatu te establishes a mechanism for expedited summary dismissal of suits tha t seek to intimidate or silence citizens from exer cising their consti tu tional rights to f ree speech , of association, and to petition

. In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015) ; Toth , 557 S.W.3d at 149

. A defendant invoking th e act’s protectio ns must sh ow by a preponderance of the evidence that the pla intiff’s legal action is “based on, rel ates to, o r is in response to” the defendant’s exercise o f one or more of these rights. Lipsky , 460 S.W.3d at 586 ; Toth , 557 S.W.3d at 149

. Appellants ch allenge the trial court ’ s deni al of their motions to dismiss on several grounds

. In response, Veracru z argu e s among other things that th e TCPA does not apply to its allegations. Appellants contend that the T CPA applie s because exercise of the rights to free speech and of association are broadly de fined u nder5

the statu te as involving communications, and con spiracies necessarily involve communications

. We address only the TCPA ’ s ap plicability because that issue is dispos itive of these appeals. 5

W e determ ine the applicability o f the TCPA by a de novo review

. See ExxonMo bil Pipel ine Co. v. Coleman , 512 S.W.3d 895, 899 (Tex. 2017)

. W e construe the ac t liberally to effectuate its purpose and intent ful ly. Tex. Civ. Prac. & Rem . Code § 27.011(b) ; Adams v. Star side Custom Builders, LLC , 547 S.W.3d 890, 894 (Te x. 2018) (“The T CPA casts a wide net.”)

. Interp reting t he statute has presented challenges to th e courts of appeals because of the breadth of its pl ain language

. See Kawcak , 582 S.W.3d at 574

. In that r egard, although the TCPA ’ s express purpose is to protect constitutiona l rights, the statute ’ s def initions of thos e rights do not necessarily “ mimic the bounda ries of constitutional rights ”
enumerate d in the First Amendment. Id

. at 575 (citing Adams , 547 S.W.3d at 892 ). Thus, we must limit our interpretation of the rights to free speech and of association to the d efiniti ons in the statute , and we do no t look outside the sta tute to determine its applicability

. See id

. B oth the right s to free spee ch and of associatio n , as defined in the act , involve communications. The stat ute d efines “ communication ” as “ the making o r submitting of a statement or document in any form o r medium, including oral, visual, w ritten, audiovisu al, or electronic

. ” Tex. Civ. Prac. & Rem. Code § 27.001 (1). “ E xerci se of the right of free speech ” i s limited u nder the act to

5 Appellants also argue that Veracru z d id no t establ ish a prima facie case for each element of its claims by clear an d specific evidence and any negative inference s t o be drawn from Ban din’s and Baba yan’s ass ertion of Fifth Amendment rights does not ri se to the l evel of clear and specific evidence. See Te x. Civ. P rac. & Rem. Code § 27.005( c ) ( “ The court may not dismiss a legal action under this section if the party bringing the legal act ion establishes by clea r and specific e vidence a prima facie case for each essential element of the c laim in question. ” ). Because we conclude the TCPA does not apply , w e do not reach these issues.6

“ communication [ s ] m ade in connection with a matter of public concern

. ” 6 Id

. § 27.001(3) ; Toth , 557 S.W.3d at 15 0

. Until recen tly, “ [e] xercise of the right of association” was not similarly limited. T h e act defined that right as “a communica tion between indivi duals who join toget her to collectively express, promote, pursu e, or def end common interests.” Tex. Civ. Pr ac. & Rem. Cod e § 27.001( 2) (amended 2019)

. 7 Ver acruz argues the communications at issue do not involve matter s of public concern in Texas because they involve acts comm itted primarily in Mexico

. W e focus on whet her the claims Ve racruz asserted

— consp iracy to convert and commit theft of p ublic monies

— implicate t he t ype of communication envisioned in the s tatute as an exercise of the right s to free speech

or of association

. 8 Appellants assert that Veracruz has alleged claims th at are based on, relate to, o r in response to appellants ’ exercis e of their righ t to free speech a s follows: [The State] claims Bandin and Babayan conspire d with Duarte, which could happen only by mea ns of communica tion. They purportedly contacted local business people in Veracruz and arran ged for these locals to send sham invoices to the state governm ent. Necessarily, they would have communi cated with banks about sending the mo ney “north” to the Unite d States. To se t up their “shell” corporations, Bandin and Babayan communicated with the Te xas Secretary of Stateme nt [sic], and to acquire their properti es, they filed deeds with

6 “Matter of public concern” is defined in one of three way s: “(A ) a public offici al, public figur e, or other person who has drawn substantial public attenti on due to the person ’ s official acts, fame, notoriety, or celebrity ; (B) a matter of polit ical, social, or other interest to the community; or (C) a subject o f conc ern to the public .” Tex. Civ. Pra c. & Rem. Code § 27.001(7).

7 Under the amended ver sion of th e statute, “[e]xercise of the right of association” is now define d as “join[ing] togethe r to collectively express, promote, pursue, or defend common interes ts relating to a govern mental proceedin g or a matter of public conce rn.” Tex. Civ. Prac. & Rem. Co de § 27.001(2). Accordingly, the a ct now requires the subject commu nication to relate to a governmental proceeding or matter of public concern to implicate th e right of association

.

8 Thus, w e need not analyze w het her the communications at issue here involve matte rs of public concern

.7

[the] county cl erk. Appellants simila r ly argue that Veracruz ’ s claims are ba sed on, relate to, o r in response to the exe rcise of their right of association because Veracruz alleges that appellants communi cated with each other to “pursue . . . common interests” in

co n spiring to steal f

rom Vera cruz

. A ppellants ta ke the position that the TCPA
ap plies to any case in which a plaintiff a llege s the defendant s conspired to condu ct illegal acts

. 9

At least one of our sister court s has addressed this issu e an d conclude d that the right of assoc iation unde r the statute is not that broad

. See Ka wcak , 582 S.W.3d
at 569 ( involving alleged cons piracy between company officer and vendor to overcharge company an d holding right of association under TC PA “ requires more
t han two tor tfeas ors conspiring to act t ortious ly for their own selfish benefit ” )

. A n o ther court held similarly as to the right to free speech in conc luding that the TCPA does not encompass conspir ac ies to misappropriate property

. S ee Dyer v. Medoc Health Servs., LLC , 573 S.W.3d 418, 42 7

– 2 9 (Tex. App

. — Dallas 2019,
pe t. denied) ( “ [A] ppellant s were sued because they allegedly committed tortious conduct by misappropri ating appellees ’ proprietary software and confidential information w it h the intent to sell or use that property. ” )

. O ur court has not addre ss ed whether the TCPA covers a conspira cy to commit theft or conversion ;

9 A civil conspiracy is “ a combination by two or more perso ns to accomplish an unlawful purpose or t o accomplish a law ful p urpose by unlawfu l me ans. ” Schlumberger Well Surveying C orp. v. Nortex O il & Gas Corp. , 435 S.W.2d 854, 856 (Te x. 1968)

. One element of an actionable civil conspiracy is specific intent to agr ee to accomplish something unlawful or to accomplis h someth ing l awful by unlawful mea ns. First United Pentecostal Church of Beaumont
v. Parker , 514 S.W.3d 214, 222 (Tex. 2017) . This inherently requires a meeting of the minds on the object or course of acti on , which involv es , o f course, communication

. S ee id

.8

ne ither has the S upreme C ourt of Texas

. 10 We conclude that the TCPA does not

ex tend so far

. In rea ching our conc l usion, w e are bound by the supreme court ’ s ruling that

we “ may not judici ally am end a statute by adding words th at are not containe d in the language of the statute. Instead, [we] must apply the statute as written.” Coleman , 512 S .W.3d at 900 (quoting Lippincott v. Whisenhu nt , 462 S.W.3d 507 , 50 8 (Tex. 2015) ( pe r cur i am))

. In th is connection, we give effect to the le gislature ’ s intent by turning first to the statute ’ s plain language

. S ee id. at 899

. We presume the legislature included eac h word for a purp ose an d purposel y omitted any words not included. See i d

. But w e cannot exam ine t he words of a
statute in isolation : the words must b e informed by the context in which they are used. TGS

– NOPEC Geophysical Co. v. Co mbs , 340 S.W.3d 432, 441 (Tex. 20 11) ; Jardin , 431 S.W.3d a t 770

. We presume that when t he l egisla ture enacts a statute , “a just and reasonable result is inte nded ” and “public interest is favored over any private interest.” Tex. Gov ’ t Code § 311.021 ; Jardin , 431 S.W.3d at 770

. As to the m eaning of the words in a s tatute, w e construe them “ according to the rules of grammar and common

us age, ” unless a different m eaning is supplied by l egislative definition , is apparent from context, o r such a construction lead s to “absurd results.” Tex. Gov ’ t Code

10 A panel of this cour t re cently held that the TCPA applied to a plaintiff s ’ claim s for conspirac y to commit lib e l and intenti onal infliction of emotional distress. Cunningham v. Waymire , No. 14

- 17

- 008 83

- CV, 2019 WL 5382597, at * 5, 8 (Tex. App.

— Houston [14 th Di st.] Oct. 22, 2019, n o pet. h.) . In that ca se, the defendants purportedl y made false allegations of child abuse to the Depar tment of Family and Protective Services

. Id . at *4. We held that the pla intiffs ’ claims implicated the TCPA because they involv ed “ a statement about a pa rent ’ s mental health
a nd a child ’ s possible abuse , ” which “ related to health, safety, or c o mmunity well

- b eing ” under the d efinition of th e exercise of the right of free spe ech in the stat ute. Id . at *7

– 8. Such a conclu sion is warranted because the pu rpose of the stat ute is , in pa rt, to protect the rights of persons to spe ak freely and to hold oth e rwise might chi ll truthful speech regarding concerns of child abuse. See id

.9

§ 311.011 ; City of Rockwall v. Hughes , 246 S.W.3d 621, 625

– 26 (Tex. 2008); Jard in , 431 S.W.3d at 770

. While we must co nstrue the TCPA liberally, at the same time, we cannot ignore the l egislature ’ s purpose for enacting it , particularly when it is expressly included in the statute

. Jardin , 431 S.W.3d at 77 1

. Compare Tex. Civ. Prac. & Rem. Code § 27. 011(b) with id

. § 27.002

. Texas courts have noted that navigating the TC PA is treacherous because the
stat ute is “ less an ‘ anti

- SLAPP ’ law than an across
- the

- board game changer i n Texas c ivil litigation. ” Serafine , 466 S.W.3d at 365 ; see also Kawc ak , 582 S.W.3d at 571

- 72

. But ev en though the stat ute has broa d imp lications, it is not wit hout li mits. See Dyer , 573 S .W.3d at 428

. “ [T] here is no constituti onal right to engage in criminal behavior, commit civil wr ongs, or otherwise infli ct injury upon others

. ” Cheniere Energy, Inc. v. Lotfi , 449 S.W.3d 210, 219 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) (Jennings, J. , concurring). Even as we apply the pla in meaning of the definitions in the statute, we must ask whether applying th e TCPA to the type o f conspir acy alleged here would f urther the TCPA ’ s express purpose

. Construing the defini tions of the right s to free
sp eech and of association as encompassing all communica tions to furt her a civil conspirac y to commit t or tious acts , as urged by ap pellants, would be to construe these ri ght s in isolation from the legis lature ’ s twin purpos e s to protect constitutional rights and the r ight to file merito rious lawsuit s

. 11 See Tex. Civ. Prac. & Rem. Code § 27.002

. In other words, “ [t] o rea d out of the TCPA the requirement
t hat movants must prov e t hat the activities in which they

. . . engaged [were] at least arguably lawful constitutionally pr otected activities contradic ts the statute’s
pur pose and its plain language. ” Universal Plant Servs

. , Inc. v. Dresse r
- Rand

11 O r in the case of the right to free spee ch , cons tru ing all communications regarding a matter of public conce rn to further a conspiracy as included under the stat ute would excee d even the b road rights envisioned by the statute when considered in conjunction wi th its purpo se

.10

Group, Inc. , 571 S.W.3d 346, 371 (T e x. App.

— Houston [1st Dist.] 2018, no pet.) (Keye s, J., concurring)

. T he logi cal conclusion to such a construction would be th at one person could commit theft or conversion without implicat ing the act , but the TCPA would be implicat ed when a gro up of peopl e wo rk together to commit the same t orts

. R eading the act as broadly as e nvisioned by appel lants , a ccordingly, would thwar t a meritorious l awsuit any time a plaintiff alleges two or m ore persons engaged in conspiracy to commit theft or conversion. See C hen iere , 449 S.W.3d at 219

. Applying th e statute based on a distinction “ hinging on whether a single t ortfeasor or multiple tortfeasors acte d ” thus would be an anom a ly leading to absurd results

. See Kawcak , 582 S.W.3d at 584 (citing M V S Int ’ l Corp. v. Int ’ l A dvert. Sol s. , LLC , 545 S.W.3d 180, 194 (Tex. App.

— El Paso 2017, no pet.) ( “ Participants to a criminal conspiracy could require a plaintiff

. . . to make a clear and specific showing of a prima facie case in as few as sixty days [o r ] obtain a dismi ssal with preju dice. Conversely, a sing le defendant

. . . might have to engage in years of discovery b efore seeking vindication. ” ))

. Construing the entire TCPA and considering in context the purpose of the
statute along with its defin itions , we conclude t hat the t ypes of communication envision ed by the statute do not e ncomp ass a conspirac y to convert or unlaw fully appropriate property, as Veracruz alleges

. To apply different rule s based on whether one tortfeasor or multiple tortfeasors commi t ted a civil injury woul d be arbitrary , and we decline to do so here. As our sister court noted, “ [L] ong
estab lished processes

. . . in the rules of civil proc edure that allow for the orderly sorting of the meritorious from the unmeritorious

. . . are aban doned based on distincti ons untethered and antith etical to the purposes of the TCPA

— such as wheth er only one d e fendant or two acted to commit a civil injury. ” Kawcak , 58211

S.W.3d at 585

. We cannot extricate the definitions in the act from its express
purpos e. To do so would be to ig nore longst and ing supreme court prec edent
pr o hibiting us from isolating cer tain wor ds from the whole of a statute to reach a certain outcome. See Lamar Homes, Inc. v. Mid

- Continent Cas. Co. , 242 S.W.3d 1, 19 (Tex. 2007) ( “ In deter mining [a statute ’ s] mea ning, we must al so consi der the
statut e as a whole and construe it in a manne r which harmonizes all of its various provisions. ” ). On this record, appellants have not shown that Veracruz ’ s claims are based on, in response to, or rela ted to appellants ’ exerc ise of the right to free speech or of association

. Conclusion

W e conclude t he TCPA does not apply to claims of conspir acy to convert or unlawfully appropriate property belonging to others. T hus, appellants have not shown that the a ctio ns alleged by Veracr uz ar e based on, in response to, or related
to appellants ’ exercise of the right to free speech or of association

. We dis miss the appeal for lack of ap pellate jurisd iction

. See QTAT BPO Sol s ., Inc. v. Lee & Mur phy Law Firm, G.P

. , 52 4 S.W.3d 770, 780 (Tex. Ap p.

— Houston [14th Dist.] 2017, pet. denied)

.

/s/ F rances Bourliot Justice

Panel consists of Justi ces Jewell , Bourliot , and Zimmerer

.