TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00105-CV
Combined Law Enforcement Associations of Texas and John Burpo, Appellants
v.
Mike Sheffield, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. D-1-GN-12-003281, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
MEMORANDUM OPINION
Combined Law Enforcement Associations of Texas and John Burpo brought this
interlocutory appeal of the denial of their motions to dismiss Mike Sheffield’s defamation claims.
Appellants contend that they triggered the dismissal procedures of the Texas Citizens Participation
Act by showing that Sheffield filed his lawsuit in response to their exercise of their right of
association. See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Appellants contend that Sheffield
failed to respond with clear and specific evidence showing a prima facie case for each essential
element of his claims as required to avoid dismissal under the TCPA. They further contend that the
trial court erred by failing to award them their costs, reasonable attorney’s fees, and other expenses
incurred in defending this suit.
We will reverse the trial court’s order denying the motion to dismiss with respect to
claims based on comments made among CLEAT members and will dismiss those claims pursuant
to the TCPA. We will affirm the order denying the motion to dismiss Sheffield’s claim based on comments made to the district attorney and other unnamed persons. We will remand the case for
further proceedings consistent with this opinion, including consideration by the trial court of an
award of costs and fees relating to the motion to dismiss.
FACTUAL BACKGROUND
CLEAT is a labor union that represents law enforcement officers. Burpo was its
executive director, and Sheffield worked for CLEAT as a field service representative, having retired
from the Austin Police Department. He was assigned to help various local police associations
including the Austin Police Association (APA). After disagreements relating to the scope and
manner of Sheffield’s interactions with APA members, Burpo fired him on July 18, 2011.
The comments giving rise to the defamation claims in this case relate to Sheffield’s
conduct with respect to his CLEAT-issued laptop computer in the aftermath of his firing. When
he was fired, Sheffield had his CLEAT computer at home. Sheffield asserts by affidavit that the
standard practice at CLEAT was to erase a departing employee’s computer, reprogram it, and then
give it to another employee. Sheffield states that a computer store technician saved his personal files
to a thumb drive. Sheffield says he then took the computer home and deleted data from the laptop’s
hard drive intending to prevent disclosure of personal information. He turned in his laptop to
CLEAT and says he was assured by the employee receiving it that his actions were acceptable.
Appellants assert that CLEAT’s practice was always to control the computer-
scrubbing process, downloading files beforehand to avoid the complete loss of data. CLEAT’s
expert analyzed Sheffield’s computer and found some data—including some partial documents and
emails—that appellants contend support their reasons for firing Sheffield. Appellants contend that
2 the data was potentially relevant in legal proceedings relating to the firing that followed—complaints
and suits by both sides that have been rejected, dismissed, or withdrawn.
The parties have engaged in a series of legal wranglings. Sheffield filed unfair labor
practices grievances and complaints against CLEAT with his union and the National Labor Relations
Board. The union declined to pursue the grievance in arbitration, and the NLRB dismissed one
complaint before Sheffield withdrew the other two. Meanwhile, Sheffield returned to work at the
Austin Police Department, which prompted APD’s Special Investigations Unit to investigate
CLEAT’s allegations that Sheffield had committed a crime by scrubbing his CLEAT computer’s
memory. APD found no criminal element in the conduct by Sheffield. According to APD’s memo,
however, its investigation was limited by CLEAT’s decision not to supply APD with evidence
because CLEAT wanted either Williamson County or federal authorities to investigate. APD also
referred the issue to the FBI’s cybercrimes unit which found “no federal [criminal] element” in
Sheffield’s behavior. Sheffield averred that the Lockhart Police Department (where he also worked
post-CLEAT) also investigated and “likewise cleared [him].” The Williamson County grand jury
in August 2012 declined to indict Sheffield. CLEAT states that in August 2012 it filed a conversion
action against Sheffield in Williamson County that was transferred to Travis County and then
nonsuited.
PROCEDURAL BACKGROUND
Sheffield’s defamation suit is based on comments allegedly made by Burpo and others
associated with CLEAT. The core of Sheffield’s complaint in his live petition is as follows:
3 [O]n one or more occasions, the Defendants defamed Mr. Sheffield by uttering and/or broadcasting and/or repeating statements and false allegations that Mr. Sheffield committed criminal acts in connection with his employment with CLEAT. Those allegations included that Sheffield inappropriately accessed CLEAT’s computer system and deleted files with the intention of harming CLEAT. Upon information and belief, such false accusations were broadcast to 70 plus police officers and former co-workers of Mr. Sheffield, at least. The statements were made by an officer or agent of CLEAT acting within his or her scope of authority in publishing the defamatory statement.
Appellants moved to dismiss this claim under the TCPA, a statute enacted by the Texas Legislature
in 2011 to “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.”1 Tex. Civ.
Prac. & Rem. Code § 27.002. One way the statute seeks to protect those rights is by providing
an early dismissal mechanism for certain categories of lawsuits. If a defendant shows by a
preponderance of the evidence that the plaintiff’s suit is based on, relates to, or is in response to the
defendant’s exercise of the rights listed in section 27.002, the TCPA requires dismissal of the suit
unless the party bringing the legal action “establishes by clear and specific evidence a prima facie
case for each essential element of the claim in question.” See id. §§ 27.003, .005(c). The TCPA
must be “construed liberally to effectuate its purpose and intent fully.” Id. § 27.011(b). In their
motions to dismiss under the TCPA, appellants asserted that Sheffield’s suit was in response to
a single email Burpo sent to the CLEAT board and staff. They argued that TCPA applies because
1 There is nothing in the plain language of the statute that limits its scope, as Sheffield argues, to a media defendant or solely to public participation in government.
4 Sheffield’s suit impinges on their right of association and that Sheffield could not establish a
prima facie case for defamation.
In his response to appellants’ motions to dismiss, Sheffield listed five
communications that he alleges were made in 2012 and were defamatory:
(1) An email sent on January 4 from Burpo to the CLEAT board and staff.2 Burpo sent the email after the NLRB set a hearing on Sheffield’s complaint that he was fired for violating an overly broad limitation on work-related communications. In the email, Burpo discussed the nature and consequences of the NLRB’s action. Sheffield focuses on this statement, “The Executive Board has directed me to file criminal charges against Sheffield for deleting files that were the property of CLEAT which [CLEAT attorney] Rod Tanner advises is a criminal act under Texas law.”
(2) An alleged comment by Burpo to Corpus Christi Police Officers Association President Mike Staff in the summer. Staff said in an affidavit that Burpo offered him a job with CLEAT and discussed an ongoing reshuffling within CLEAT. According to Staff, Burpo told him that “he and CLEAT were still dealing with Mike Sheffield because of what Mr. Burpo told me was Mr. Sheffield’s ‘criminal conduct’ and that he thought that would end soon.”
(3) Alleged statements various CLEAT officials made to Laredo Police Association President Luis Dovalina. In his affidavit, Dovalina states that CLEAT Region 2 Director Mark Guerra “would not or could not provide an answer to why Mr. Sheffield was terminated but did state to me ‘it could go criminal, for what he did.’” Although Dovalina said he asked for specifics on Sheffield’s termination, he said he never received them and was not told that “a grand jury and other investigations had never led to any charges against Mr. Sheffield.” Dovalina said that, when he later asked Burpo about Guerra’s comments, Dovalina said that Burpo “informed me that it was ‘going to court,’ and that he would brief me on it at a later date” but never did. He averred that three or four CLEAT officials “stated to me that criminal charges could be filed against Sheffield by CLEAT for what Mr. Sheffield had done.”
(4) Statements allegedly made by CLEAT corporate counsel John Curtis that APD chief Art Acevedo created a special employment position for Sheffield after CLEAT fired him. Sheffield asserts that this allegation (a) was false because the positions
2 This is the email that appellants asserted was the sole basis of Sheffield’s complaint.
5 were created previously and independent of his employment situation and (b) was “tantamount to an assertion of conduct violating Section 39.02 of the Texas Penal Code” governing abuse of official capacity.
(5) Statements Curtis allegedly made to Williamson County District Attorney John Bradley attempting to persuade him to allow Curtis to present information to the grand jury in pursuit of an indictment of Sheffield on grounds that he had violated Penal Code chapter 33.
The district court denied the motions to dismiss without stating a basis3 and was not asked to make
findings of fact or conclusions of law in support of its decision.
DISCUSSION
Appellants contend that the trial court erred in denying their motions to dismiss
because the TCPA applies and Sheffield failed to establish a prima facie case of defamation. They
also contend that the trial court erred by failing to award them attorney’s fees.
I. Jurisdiction over this appeal
By their first issue, appellants respond to appellee’s motion to dismiss this
interlocutory appeal. Sheffield contends that this Court lacks jurisdiction because the TCPA does
not expressly authorize an interlocutory appeal when the trial court expressly denies the motion.
Sheffield contends that interlocutory appeal is authorized only when the trial court fails to rule and
the motion to dismiss is overruled by operation of law under the statute. See Tex. Civ. Prac. & Rem.
Code § 27.008. This Court has determined, however, that regardless of the meaning of the original
3 Appellants also sought dismissal for want of jurisdiction and through special exceptions, but those motions are not presented in this appeal because interlocutory appeal is authorized only from the denial of the motion to dismiss under the TCPA. See Tex. Civ. Prac. & Rem. Code §§ 27.008, 51.014.
6 statute, the civil practice and remedies code as amended in 2013 confers jurisdiction over appeals
such as this one. See Kinney v. BCG Att’y Search, Inc., No. 03–12–00579–CV, 2013 WL 4516106
at *4 (Tex. App.—Austin Aug. 21, 2013, no pet. h.); see also Tex. Civ. Prac. & Rem. Code
§ 51.014(a)(12); Act of May 24, 2013, 83d Leg., H.B. 2935, ch. 1042, § 4. Based on the reasoning
in that opinion, we sustain appellants’ first issue, deny Sheffield’s motion to dismiss, and proceed
to consider the remaining issues raised on appeal.
II. Applicability of the TCPA
Appellants contend in their second issue that the trial court erred if it denied
the motions to dismiss on grounds that the TCPA does not apply in this case. The party seeking
dismissal of a legal action under the TCPA must show by a preponderance of the evidence that the
legal action is “based on, relates to, or is in response to the party’s exercise of the right of free
speech, the right to petition or the right of association.” Tex. Civ. Prac. & Rem. Code § 27.005.
“‘Legal action’ means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim
or any other judicial pleading or filing that requests legal or equitable relief.” Id. § 27.001(6).
Appellants argue that the TCPA does apply to the disputed statements.
As an initial matter, we note that appellants cited only the right of association in
their motions to dismiss, so the trial court’s rejection of that theory is the only one of the three rights
protected under the TCPA that is preserved here for appellate review. See Tex. R. App. P. 33.1;
Tex. Civ. Prac. & Rem. Code § 27.005. Because interlocutory appeals are allowed only in limited
situations, we strictly construe the statute permitting such appeals. See Tex. Civ. Prac. & Rem. Code
§ 51.014; see also Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001). Although
7 appellants argue on appeal that their statements relating to prosecution are within the TCPA as
exercises of the rights of free speech or petition, they listed those claims as their thirteenth
affirmative defense but did not raise those arguments at the trial court in their motions to dismiss.
Because they did not raise the free speech or petition rights as grounds for dismissal under the
TCPA, the trial court did not reject them in denying the motions to dismiss, and arguments relating
to those contentions are not properly within the limited scope of this interlocutory appeal. See
Tex. R. App. P. 33.1(a)(1). Further, although the TCPA is intended to protect the exercisers
of certain constitutionally protected rights from unfounded lawsuits, there is no showing that
the TCPA’s dismissal process is a fundamental right. We find no statutory or judicial exception
permitting these arguments to be raised for the first time in this interlocutory appeal of the denial of
appellants’ motions to dismiss. We overrule those portions of issue two concerning arguments about
the exercise of the rights of free speech and petition. For the same reason, we will not consider the
merits of the remaining appellate issues with respect to the free-speech and petition theories but
rather will evaluate appellants’ claims under the rights asserted in their motion to dismiss, i.e. the
right of association.
Appellants plainly asserted in their motion to dismiss that Sheffield’s claim related
to their exercise of the right of association. The TCPA defines the exercise of the right of association
as “a communication between individuals who join together to collectively express, promote, pursue,
or defend common interests.” Tex. Civ. Prac. & Rem. Code § 27.001(2). Affidavits from Burpo,
Staff, and Dovalina show that three of the communications (those set forth above in numbered
paragraphs 1-3) that Sheffield alleges to be defamatory fall within the TCPA’s definition of
the exercise of the right of association. Burpo’s email to the CLEAT board and staff regarding
8 Sheffield’s NLRB claim as well as Burpo’s and CLEAT staff’s comments to two presidents of
CLEAT’s constituent local police associations (Corpus Christi’s Staff and Laredo’s Dovalina) were
made between or among members of CLEAT. In the statute’s terms, these were communications
between individuals who joined together in CLEAT to collectively express, promote, or defend the
common interests of police officers. See id. § 27.001(2). Sheffield’s suit against CLEAT and Burpo
for defamation through those statements plainly is based on, relates to, or is in response to these
communications made in the exercise of the right of association, triggering Sheffield’s burden to
prove a prima facie case on these complaints.
Appellants did not show by a preponderance of the evidence that two other
communications (those set forth above in numbered paragraphs 4-5) that Sheffield alleged were
made by CLEAT’s corporate attorney were within the TCPA’s definition of the exercise of the right
of association: (1) Curtis’s allegations that APD chief Art Acevedo created a special employment
position for Sheffield after CLEAT fired him, and (2) Curtis’s conversation with the Williamson
County district attorney when asking that he file charges. There is no allegation or evidence
that Curtis made either set of these remarks to a member of CLEAT. Indeed, there is no allegation
or evidence regarding to whom Curtis allegedly said that Acevedo created a job for Sheffield. There
is also no allegation or evidence that then-district attorney Bradley was a CLEAT member.
Appellants have not shown by a preponderance of the evidence that Curtis made these
communications to an individual with whom he had joined together to collectively express, promote,
pursue, or defend common interests.
We conclude that the trial court did not err by denying the motions to dismiss under
the TCPA with respect to the communications described in paragraphs 4 and 5 above—i.e., Curtis’s
9 communications with the district attorney or unknown persons. We overrule issue two on those
claims. Because appellants did not show by a preponderance of evidence that these statements
were communications made in the exercise of appellants’ right of association as defined by the
TCPA, the burden did not shift to Sheffield to present a prima facie case on these claims to
avoid dismissal, and we need not consider the propriety of the denial of the motion to dismiss
these claims any further. See Tex. Civ. Prac. & Rem. Code §§ 27.001(2), .005(b). With respect to
the communications described in paragraphs 1, 2, and 3 above, evidence showed that these
communications were made between or among CLEAT members and, thus, that the trial court erred
if it dismissed based on a finding that appellants did not show that Sheffield’s claims related to
their exercise of the right of association. We sustain issue two with regard to the communications
described in paragraphs 1, 2, and 3 above.
III. Prima facie case
By their third issue, appellants assert that the trial court erred if it denied their
motions to dismiss by concluding that Sheffield made a prima facie case on each element of his
claims regarding the communications described in paragraphs 1, 2, and 3 above as required to
avoid dismissal of those claims under the TCPA. To make a prima facie case of defamation, the
plaintiff must prove that the defendant (1) published a statement (2) that was defamatory concerning
the plaintiff (3) while acting with either actual malice or negligence regarding the truth of the
statement, depending on the nature of the parties and the dispute. See WFAA-TV, Inc. v. McLemore,
978 S.W.2d 568, 571 (Tex. 1998). Persons who are not public figures or involved in public issues
10 typically need show only that the defendant knew or should have known that the defamatory
statement was false. See Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex. 1976).
Appellants contend that Sheffield had to meet the higher intent standard because this
dispute arose in the context of a labor dispute. In defamation claims arising out of labor disputes,
the plaintiff must show that the defendant acted with actual malice in order to prevail in state court.
The Supreme Court has held that the National Labor Relations Act preempts most state laws related
to labor disputes and vests exclusive jurisdiction for related formal legal disputes in the NLRB. See
San Diego Bldg. Trades Council, Local 2020 v. Garmon, 359 U.S. 236, 243-44 (1959) (cited in
Linn v. United Plant Card Workers of Am., Local 114, 383 U.S. 53, 59 (1966)). The Garmon court
excepted from that preemption those claims that are peripheral to the concerns articulated in the
NLRA and that are based on interests deeply-rooted in local concerns. Id. The Linn court wrote that
defamation was an issue of such deeply-rooted local interest that state courts could retain jurisdiction
over defamation cases if the plaintiff showed the defendant had actual malice in making the
defamatory statement. 383 U.S. at 64-65. The court opined that this approach balances the tensions
among preserving expressive leeway for participants in heated labor disputes, limiting use of state-
court defamation suits as a weapon in labor disputes, and allowing participants in those disputes to
defend their reputations from untruthful attacks. Id.
While the seminal Supreme Court cases involved larger-scale labor disputes and
activities like picketing (Garmon, 359 U.S. at 237) and union organizing (Linn, 383 U.S. at 55),
this case, too, presents a labor dispute under the law. The NLRA defines “labor dispute” as “any
controversy concerning the terms, tenure, or conditions of employment . . . regardless of whether the
disputants stand in the proximate relation of employer or employee.” 29 U.S.C. § 152(9). Sheffield
11 was a CLEAT employee who had his tenure ended, then disputed the terms of his employment
and their role in his termination. Sheffield plainly elevated this controversy above a standard job-
termination case when he invoked the NLRA regarding this dispute twice by filing unfair labor
practices claims with the NLRB months after his employment was terminated. His complaints—first
that CLEAT discharged him for union activities and for violating an overly broad workplace rule,
and then that CLEAT retaliated against him for filing the first unfair labor practices claim—show
that the circumstances of this case constitute a labor dispute as defined by the NLRA. See id.
For such cases, the Supreme Court adopted the standard of actual malice used in
defamation cases brought by public officials against media defendants. Linn, 383 U.S. at 65 (citing
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). “Actual malice” in the defamation context
does not necessarily include ill will, spite, or evil motive. Sullivan, 376 U.S. at 279-80; Huckabee
v. Time Warner Entm’t Co., 19 S.W.3d 413, 420 (Tex. 2000). To establish actual malice, a plaintiff
must prove that the defendant made the statement “with knowledge that it was false or with reckless
disregard of whether it was true or not.” Sullivan, 376 U.S. at 279-80; Huckabee, 19 S.W.3d at 420.
To establish reckless disregard, a plaintiff must prove that the publisher “entertained serious doubts
as to the truth of his publication.” See St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Huckabee,
19 S.W.3d at 420. Plaintiffs who must show actual malice have the burden to prove that the
defamatory statement was not true. See Huckabee, 19 S.W.3d at 420.
A timeline of the parties’ legal proceedings is helpful to provide the context needed to
assess whether each alleged defamatory statement was made with knowledge of its falsity or reckless
disregard of its truth—i.e., whether Sheffield proved a prima facie case of defamation. Sheffield
filed his unfair labor practices claim with the NLRB on October 20, 2011. On December 30, 2011,
12 the NLRB set one of his labor dispute claims for hearing in early 2012. In February 2012, APD’s
Special Investigation Unit found no criminal element present in Sheffield’s behavior and the FBI’s
cybercrimes unit found no violations of federal law. Sheffield filed another NLRB complaint on
March 12, 2012, but withdrew it on April 30, 2012. He withdrew his remaining NLRB complaint
on July 19, 2012. The Williamson County Grand Jury declined to indict Sheffield in August 2012.
We will consider each allegedly defamatory statement in the context of the speaker’s knowledge at
the time of the statement.
(1) The January 4, 2012 email sent from Burpo to the CLEAT board and staff stating, “The Executive Board has directed me to file criminal charges against Sheffield for deleting files that were the property of CLEAT which [CLEAT attorney] Rod Tanner advises is a criminal act under Texas law.”
Sheffield produced no evidence that, when Burpo sent this email, appellants either
knew that any aspect of this statement was false or recklessly disregarded whether it was true.
Although Sheffield clearly disagrees that his actions were criminal or warranted criminal charges,
he has not alleged or established a prima facie case that Burpo was reckless with the truth of
his statement about the board’s direction to him or CLEAT’s attorney’s advice to him. There is
no showing that the investigations Sheffield cites as exonerating him were complete when Burpo
sent the email, or that the allegations had been presented to and rejected by the district attorney or
grand jury. The only indication in the record is that the investigations and presentation to the
grand jury occurred after January 4, 2012. Sheffield has not shown that Burpo made an untrue
statement or had the requisite disregard for the truth of these statements when he sent the January 4,
2012 email.
13 (2) Burpo’s statement in the summer of 2012 to Corpus Christi Police Officers Association President Mike Staff that Burpo “and CLEAT were still dealing with Mike Sheffield because of what Mr. Burpo told me was Mr. Sheffield’s ‘criminal conduct’ and that he thought that would end soon.”
The potentially defamatory aspect of this statement is the use of the term “criminal
conduct.” APD’s February investigation that found no criminal element in Sheffield’s conduct does
not prove that CLEAT knew this statement was false or recklessly disregarded whether it was true.
Given the lack of evidence on the scope and purpose of APD’s investigation and CLEAT’s alleged
lack of cooperation with the investigation, Sheffield has not set out a prima facie case that APD’s
conclusion informed appellants that their statements were false or gave them serious doubts
about their truth. Appellants, supported by CLEAT’s attorney’s opinion, insisted at least through
the August 2012 presentation to the Williamson County grand jury that Sheffield committed a crime,
and Sheffield has not presented a prima facie case that Burpo was reckless with regard to the
truth of his statement. Even if the grand jury’s no-bill made any subsequent allegation of criminal
conduct reckless, Sheffield did not present clear and specific evidence that the statement to
Staff occurred after the grand jury’s decision. We find no clear and specific evidence that, when
attributing “criminal conduct” to Sheffield in a statement to Staff, appellants either knew that
Sheffield’s conduct was not criminal or entertained serious doubts about the truth of their statements.
See St. Amant, 390 U.S. at 731.
(3) Statements to Laredo Police Association President Luis Dovalina by CLEAT Region 2 Director Mark Guerra that “it could go criminal, for what [Sheffield] did.” Dovalina said Burpo “informed me that it was ‘going to court.’” Other CLEAT officials “stated to me that criminal charges could be filed against Sheffield by CLEAT for what Mr. Sheffield had done.”
14 As with the statements to Staff, Sheffield did not pinpoint the timing of these
alleged communications. It is also not clear exactly what it means for charges to “go criminal.” This
lack of specificity undermines Sheffield’s attempt to make a prima facie case of defamation.
Reaction to Sheffield’s actions “could” have “go[ne] criminal”—and arguably did, briefly, in the
Williamson County District Attorney’s presentation of the allegations to the grand jury. Similarly,
“criminal charges could [have been] filed,” and appellants attempted to make that happen by
pursuing their presentation to the grand jury. The allegations did in fact go “to court”—arguably in
the grand jury presentation and definitely in the civil action. Sheffield failed to show by clear and
specific evidence a prima facie case that appellants’ statements to Dovalina were not true, much
less that appellants either knew that Sheffield’s conduct was not criminal or entertained serious
doubts about the truth of their statements. See id. As such, Sheffield has failed to carry his burden
to present a prima facie case that CLEAT defamed him with the statements made by CLEAT staff.
We sustain appellants’ third issue with respect to the communications described in
paragraphs 1, 2, and 3 above. The trial court erred if it concluded that Sheffield made a prima facie
case of defamation with respect to the communications described in those three paragraphs.
IV. Constitutional challenges
Sheffield contends that the TCPA is unconstitutional because its proof requirements
unreasonably restrict his right of access to the courts for redress of his defamation claim and because
the definition of the right to freely associate is vague and overbroad on its face or as applied.
15 Open courts
The Texas Constitution provides that “[a]ll courts shall be open, and every person
for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course
of law.” Tex. Const. art. I, § 13. To prove that the statute violates the open-courts provision,
Sheffield must show that (1) a cognizable common-law cause of action is being restricted and (2) the
restriction is unreasonable or arbitrary when balanced with the statute’s purpose and basis. Hebert
v. Hopkins, 395 S.W.3d 884, 901 (Tex. App.—Austin 2013, no pet.) (citing Sax v. Votteler,
648 S.W.2d 661, 666 (Tex. 1983)). Defamation is undisputedly a common-law cause of action.
Cf. Houston Livestock Show & Rodeo, Inc. v. Hamrick, 125 S.W.3d 555, 583 (Tex. App.—Austin
2003, no pet.).
Sheffield argues that the open courts provision of the Texas Constitution guarantees,
among other things, that (1) the Legislature cannot impede access to the courts through unreasonable
financial barriers, and (2) meaningful remedies must be afforded so that the Legislature may
not abrogate the right to assert a well-established common law cause of action unless the reason for
its action outweighs the litigants’ constitutional right of redress. See Trinity River Auth. v. URS
Consultants, Inc., 889 S.W.2d 259, 262 (Tex. 1994); see also Tex. Const. art. I, §§ 8, 13. “A statute
or ordinance that unreasonably abridges a justiciable right to obtain redress for injuries caused
by the wrongful acts of another amounts to a denial of due process under article I, section 13, and
is, therefore, void.” Sax, 648 S.W.2d at 665. A claim of unconstitutionality under the open courts
provision will only succeed if the claimant (1) has a cognizable common-law cause of action being
restricted by a statute, and (2) the restriction is unreasonable or arbitrary when balanced against
the purpose and basis of the statute. Id. at 666. In applying this test, we consider both the statute’s
16 general purpose and the extent to which the claimant’s right to bring a common-law cause of action
is affected. See id.
Sheffield contends that the TCPA unreasonably restricts his ability to pursue his
claim for defamation in the following ways: (1) provisions that purport to impose a higher standard
of proof than would ordinarily be required for the plaintiff/respondent to prevail at trial;
(2) unreasonable prohibitions, limitations or restrictions on discovery prior to the hearing on the
motions to dismiss (particularly when coupled with the expedited notice/hearing requirements under
the act); and (3) mandatory (non-discretionary) fee awards and sanctions upon dismissal. We will
consider these in turn.
We find no provision in the TCPA that purports to impose a higher standard of
proof than would be required at trial. If the defendant shows by a preponderance of the evidence that
the legal action impinges on a specified right, the TCPA requires only that the claimant produce
evidence that establishes a prima facie case. See Tex. Civ. Prac. & Rem. Code § 27.005(c). “A
prima facie case represents the minimum quantity of evidence necessary to support a rational
inference that the allegation of fact is true.” Rodriguez v. Printone Color Corp., 982 S.W.2d 69,
72 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (quoting Rosales v. H.E. Butt Grocery Co.,
905 S.W.2d 745, 748 (Tex. App.—San Antonio 1995, writ denied)). That standard does not increase
the burden of proof. The characterization of the evidence needed to support the prima facie case as
“clear and specific” does not alter the burden or cause it to exceed a preponderance of the evidence.
This TCPA motion-to-dismiss process imposes a burden to produce evidence almost certainly sooner
than a typical trial, but so do the summary-judgment processes. See Tex. R. Civ. P. 166a. Sheffield
17 has not shown that the TCPA requires a higher standard of proof, much less one that violates the
open-courts provision of the Texas constitution.
Sheffield also attacks the restrictions on discovery during the pendency of the motions
to dismiss. Motions to dismiss under the TCPA must be filed, heard, and ruled upon within 120 days
of the service of the lawsuit, with some leeway upon a showing of good cause by the party (for
the motion) or the court (for holding a hearing). The motions to dismiss under the TCPA must be
filed no later than the sixtieth day after the action was served, unless the court extends the time to
file a motion on a showing of good cause. Tex. Civ. Prac. & Rem. Code § 27.003(b). The hearing
must be held not later than thirty days after the motion was served unless the court’s docket requires
a later hearing. Id. § 27.004. The court must rule no later than thirty days after the hearing. Id.
§ 27.005(a). The filing of a motion to dismiss under the TCPA automatically stays all discovery.
Id. § 27.003(c). The stay may be lifted—on motion by a party or the court and a showing of good
cause—to permit specific and limited discovery relevant to the dismissal motion. Id. § 27.006(b).
Sheffield has not shown that these restrictions are unreasonable. The TCPA’s express
purpose is to balance protections for persons exercising their constitutional rights of expression and
association with those of persons filing meritorious lawsuits for demonstrable injury. Id. § 27.002.
The provisions staying discovery are tempered by provisions permitting discovery upon a showing
of good cause. These provisions can curtail potentially costly discovery in a possibly meritless
case, thus serving the TCPA’s goal of keeping litigation from being used to chill the exercise of
constitutional rights, but can permit discovery upon a showing of good cause. They do not on their
face violate the open-courts provision. Our review of the case on appeal does not reveal how the stay
18 of discovery as applied here prevented Sheffield from establishing a prima facie case through clear
and specific evidence and violated the constitution.
Finally, Sheffield has not shown that fees awards are mandatory under the TCPA,
much less that they violate the open-courts provision. The fees provisions are as follows:
If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:
(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and
(2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.
Id. § 27.009(a). While the introductory language of subsection (a) uses the seemingly mandatory
term “shall award,” the subsequent language tempers the conditions for making an award with
discretionary terms like “justice” and “equity” and “sufficient to deter.” Id. A trial court may decide
that justice and equity do not require that costs, fees, or expenses be awarded and may determine that
no sanctions are needed to deter the plaintiff from bringing similar actions. These provisions do not
mandate an award and do not violate the open-courts guarantees on their face. As no fees were
awarded, the provisions as applied here did not violate the open-courts provisions.
Vagueness and overbreadth
Sheffield attacks the TCPA’s definition that the exercise of the right of association
encompasses “a communication between individuals who join together to express, promote, pursue
or defend common interests.” Tex. Civ. Prac. & Rem. Code § 27.001(2). He complains that this
19 definition exceeds the actual constitutional right, is overbroad facially and/or as applied, and is
unconstitutionally vague because it could encompass all communications or activities of any group.
He cites no authority in support of his argument as required. See Tex. R. App. P. 38.1(I), 38.2(a).
We note first that the TCPA’s relationship to First Amendment protections
is somewhat unusual. In relevant part, the First Amendment prohibits the government from
making laws abridging freedom of speech or the right of the people to peaceably assemble. See
U.S. Const. amend. I. The TCPA attempts to shield people exercising certain rights protected by the
First Amendment not from governmental restriction, but from meritless civil claims. See Tex. Civ.
Prac. & Rem. Code §§ 27.002, .005. Rather than imposing a governmental limit on speech or
association, the TCPA places preliminary proof requirements on parties to litigation concerning the
results of the exercise of those rights.
Because of the nature of the relationship between the TCPA and the
First Amendment, Sheffield’s complaint that the definition of the right of association is too
broad assumes an unusual posture. A statute is considered impermissibly overbroad only if, in
addition to constitutionally proscribed activities, it restricts speech or conduct protected by the
First Amendment. Walker v. State, 222 S.W.3d 707, 713 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d). In other words, an overbroad statute improperly limits protected freedoms. Cf. id. In this
case, however, Sheffield complains that the statutory “definition exceeds the scope of the
Constitutional right of association”—that is, that the statute provides more protection for freedom
of association than the constitution does. We do not find support for the proposition that a statute
that provides extra protection for a right violates the constitutional provision guaranteeing that right.
See Marquez v. State, 725 S.W.2d 217, 243 (Tex. Crim. App. 1987) (“[I]t is by now axiomatic that
20 the federal constitution provides only a minimum standard of protection to be afforded citizens of
the several states and the states are free to provide greater protection by constitution or statute.”)
Also, the challenged definition of the exercise of the right of association is not
unconstitutionally vague. Sheffield complains that the TCPA’s definition of the exercise of the right
of free association “could literally encompass all communications or activities of any corporation,
partnership, joint venture, limited liability company, organization agency, association or group.” A
statute is void for vagueness if it (1) fails to give a person of ordinary intelligence fair notice of the
conduct prohibited or (2) is so indefinite that it encourages arbitrary and discriminatory enforcement.
Kolender v. Lawson, 461 U.S. 352, 357 (1983); see also Clark v. State, 665 S.W.2d 476, 482
(Tex. Crim. App. 1984). To be void for vagueness, a statute must be so vague and indefinite
as really to be no standard at all. Jones v. City of Lubbock, 727 F.2d 364, 373 (5th Cir. 1984). We
note initially that the TCPA does not prohibit any activity. Sheffield argues that the plain language
of the statute may invite an interpretation that it applies to an extremely broad right to association,
but that does not render the TCPA’s definition improperly vague. The legislature’s choice to
require a preliminary substantiation of legal actions relating to a broad range of organizational
communications does not create difficulty in determining whether or how it applies. We need not
determine the outer constitutional limits of the TCPA, only whether the TCPA’s terms are
permissible as applied to the statements at issue in this case, each of which generally relate to
CLEAT’s internal affairs which are a common interest among CLEAT’s members. The TCPA’s
definition of the exercise of free association is not unconstitutionally overbroad or void for
vagueness as Sheffield contends.
21 V. Attorney’s fees
Appellants urge by their fourth issues that the trial court erred by failing to award
them attorney’s fees. As this is an interlocutory appeal and we have reversed some aspects of the
trial court’s denial of appellants’ motions to dismiss, affirmed other aspects, and determined that the
attorney’s fees provisions are not mandatory, we conclude that the trial court should consider
whether attorney’s fees are warranted when it resumes its consideration of this case. Our resolution
of the first three issues has rendered our consideration of appellants’ fourth issues moot.
CONCLUSION
We affirm the trial court’s denial of the motions to dismiss Sheffield’s claims that
CLEAT defamed him through John Curtis’s statements in numbered paragraphs 4 and 5 set out in
section I of the Discussion above. We find that appellants did not make the required showing under
the TCPA that those claims are within the scope of the exercise of appellants’ right of association,
which was the only constitutional basis for Sheffield’s objection preserved for appeal.
We reverse the trial court’s denial of the motions to dismiss Sheffield’s claim that
Burpo and other CLEAT employees defamed him in the statements described in numbered
paragraphs 1, 2, and 3 set out in section I of the Discussion above—namely, the January 4 email to
CLEAT board and staff and alleged statements to Mike Staff and Luis Dovalina. We conclude that
Sheffield did not make the required prima facie showing under the TCPA on each element of his
defamation claims relating to the statements in paragraphs 1, 2 and 3, and we dismiss those claims.
We reject Sheffield’s arguments that the TCPA is unconstitutional and return the
issue of costs and attorney’s fees to the trial court. The case may proceed in the trial court consistent
22 with our resolution of these issues on interlocutory appeal. The stay of discovery imposed by this
Court’s order dated February 26, 2013, will expire on the same date as this Court’s plenary power
over this appeal expires.
Jeff Rose, Justice
Before Justices Puryear, Rose, and Goodwin
Affirmed in part; Reversed and Dismissed in part; Remanded in part
Filed: January 31, 2014