State v. Paul Reed Harper

Opinion

IN THE SUPREME COURT OF TEXAS ══════════ No. 16-0647 ══════════

THE STATE OF TEXAS EX REL. GEORGE DARRELL BEST, PETITIONER,

v.

PAUL REED HARPER, RESPONDENT

══════════════════════════════════════════ ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS ══════════════════════════════════════════

Argued November 8, 2017

JUSTICE BROWN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE GUZMAN, and JUSTICE DEVINE joined.

JUSTICE BOYD filed a dissenting opinion, in which JUSTICE JOHNSON and JUSTICE LEHRMANN joined.

JUSTICE BLACKLOCK did not participate in the decision.

The Texas Citizens Participation Act (the TCPA) allows a defendant to obtain expedited

dismissal of certain legal actions for which the party bringing the action does not establish prima

facie support. We conclude that this suit to remove a county official from elected office under

chapter 87 of the Texas Local Government Code (the removal statute) is a legal action under the

TCPA. However, the TCPA does not apply when a government attorney brings an enforcement

action in the state’s name. We further conclude that only one of the several allegations against the county official constitutes an enforcement action. Finally, as to the allegations that are not

enforcement actions, we conclude that the state’s sovereign immunity does not protect it from the

county official’s claim for appellate costs. We affirm the court of appeals’ judgment, with a

modification.

I Background

When Paul Harper ran for a position on the Somervell County Hospital District Board, he

campaigned on pledges to eliminate the tax that supports the district and to replace the district’s

administrative employees. He won the election, joined the board, and allegedly tried to make good

on his promises. In response, a county resident named George Best sought to remove Harper from

the board by filing this suit under the removal statute. See TEX. LOC. GOV’T CODE §§ 87.001–.043.

Specifically, Best alleged that Harper violated the district’s bylaws at a board meeting by moving

to set the district’s tax rate at zero—even though Harper knew that eliminating the tax revenue

would bankrupt or otherwise harm the district. Best also alleged that Harper posted a blog that

falsely accused the district’s administrative employees of violating the law. Best argued these

actions were enough to remove Harper for incompetency under the removal statute. See id.

§ 87.013(a)(1).

The removal statute authorizes any Texas resident who has lived in a county for at least six

months to file a petition to remove certain county officers from office (a removal petition). See id.

§§ 87.012, .015(b); see also Tex. Const. art. V, § 24 (authorizing “the Judges of the District

Courts” to remove “county officers” for “incompetency, official misconduct, habitual

2 drunkenness, and other causes defined by law”).1 But it also requires the county attorney to

“represent the state” in any removal proceedings that take place. TEX. LOC. GOV’T CODE

§ 87.018(d); see also Garcia v. Laughlin, 285 S.W.2d 191, 194 (Tex. 1955) (orig. proceeding)

(“Individual citizens have no private interest distinguishable from the public as a whole and have

no right to maintain an ouster suit without being joined by a proper state official.”). Consistent

with that requirement, the Somervell county attorney opted to appear in this case as plaintiff on

the state’s behalf. The state adopted Best’s allegations, and it added an allegation that Harper

engaged in misconduct by violating the Texas Open Meetings Act when he exchanged certain text

messages with other board members. See TEX. GOV’T CODE §§ 551.001–.146.

Harper filed a motion to dismiss the case under the TCPA. See TEX. CIV. PRAC. & REM.

CODE §§ 27.001–.011. Harper argued that Best filed, and the state joined, the removal petition

based on or in response to Harper’s exercise of the right to petition and right of free speech. See

id. § 27.003(a) (authorizing a motion to dismiss an action that “is based on, relates to, or is in

response to a party’s exercise of the right of free speech, right to petition, or right of association”).

Harper contended that the state could not establish a prima facie case for removal because he did

not formally move to set the district’s tax rate at zero, did not author or publish the blog, and did

not violate the Open Meetings Act by exchanging text messages with other board members. See

id. § 27.005(c) (providing that a court may not dismiss a legal action “if the party bringing the

legal action establishes by clear and specific evidence a prima facie case for each essential element

of the claim”). Harper argued that the trial court should dismiss the removal petition and award

1 The parties agree that a hospital district board member is “a county officer[] . . . whose office is created under the constitution or other law of this state.” See TEX. LOC. GOV’T CODE § 87.012(15). Without deciding the issue, we accept the parties’ construction for purposes of this case.

3 him attorney’s fees, costs, and sanctions. See id. § 27.009(a) (instructing that a court dismissing

an action shall award attorney’s fees, court costs, and sanctions to a party who obtains dismissal).

After conducting an evidentiary hearing, the trial court denied Harper’s motion to dismiss.

Harper filed an interlocutory appeal from that order. See id. § 27.008(b) (authorizing an

interlocutory appeal from an order denying a dismissal motion). The court of appeals reversed,

holding that the TCPA applies to the state’s removal action and that the state failed to establish a

prima facie case for removal. See 493 S.W.3d 105, 111, 116 (Tex. App.—Waco 2016). The court

remanded the case to the trial court “for rendition of an order granting Harper’s motion to dismiss

and for a determination of Harper’s request for court costs, reasonable attorney’s fees, and

sanctions.” Id. at 118. The state moved for rehearing in the court of appeals, arguing for the first

time that sovereign immunity protects it from any claim for attorney’s fees, court costs, or

sanctions under the TCPA. The court of appeals denied the motion. But while the motion was

pending, Harper lost his bid for reelection, and as a result he no longer serves on the hospital

district’s board. We granted the state’s petition for review.

II Mootness

Because the state’s petition seeks to remove Harper from a position he no longer holds, we

must first decide whether this case is moot. A case becomes moot when there ceases to be a

justiciable controversy between the parties or when the parties cease to have “a legally cognizable

interest in the outcome.” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (quoting Murphy v.

Hunt, 455 U.S. 478, 481 (1982)). Mootness occurs when events make it impossible for the court

to grant the relief requested or otherwise “affect the parties’ rights or interests.” See Heckman v.

Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). A case can become moot at any time, including

4 on appeal. See id. at 166–67. When a case becomes moot, the court loses jurisdiction and cannot

hear the case, because any decision would constitute an advisory opinion that is “outside the

jurisdiction conferred by Texas Constitution article II, section 1.” Matthews v. Kountze Indep. Sch.

Dist., 484 S.W.3d 416, 418 (Tex. 2016). But a case “is not rendered moot simply because some of

the issues become moot during the appellate process.” In re Kellogg Brown & Root, Inc., 166

S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). If only some claims or issues become moot, the

case remains “live,” at least as to other claims or issues that are not moot. See id.

Both the state and Harper argue that this case remains live. Harper argues we cannot

address mootness at all because the trial court’s record contains no evidence that he lost his

reelection bid and no longer serves on the board. But we must consider issues affecting our

jurisdiction sua sponte. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam).

And we have the power, “on affidavit or otherwise,” to “ascertain the matters of fact that are

necessary to the proper exercise of [our] jurisdiction,” even if evidence establishing those facts is

not in the trial court’s record. TEX. GOV’T CODE § 22.001(d). Here, the state filed a “status report”

with the court of appeals that included an election canvass confirming that Harper lost his

reelection bid. Harper does not dispute that he lost the election or that he no longer holds the

position.

The state concedes that Harper’s failed reelection bid renders its removal petition moot.

But the state contends that the issue whether the court of appeals properly ordered the trial court

to award Harper his costs, attorney’s fees, and sanctions under the TCPA is not moot. We agree

that Harper’s request for an award of attorney’s fees and sanctions under the TCPA presents an

5 issue that is separate from the request for removal, and we also agree that this separate issue

survives the mootness that would otherwise prevent us from addressing the underlying claim.

We have recognized that in some cases—but not all—a claim for attorney’s fees “breathes

life” into a suit that has become moot in all other respects. Camarena v. Tex. Emp’t Comm’n, 754

S.W.2d 149, 151 (Tex. 1988) (concluding that when the claimants prevailed in the trial court before

their underlying claims became moot, their claim for attorney’s fees as prevailing parties remained

live even though the underlying claims were moot); see also Allstate Ins. Co. v. Hallman, 159

S.W.3d 640, 643 (Tex. 2005) (holding that an attorney’s-fees claim based on a statute that allows

fee awards to non-prevailing parties remains live even after the underlying claim becomes moot);

Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993)

(distinguishing Camarena v. Texas Employment Commission and holding that an attorney’s-fees

claim under a prevailing-party statute had become moot along with the underlying claim because

the claimant had not prevailed before mootness occurred).

Whether an attorney’s-fees claim breathes life into an otherwise moot appeal depends first

on whether the claimant seeks the fees under a statute that authorizes fees only for a prevailing

party or, alternatively, under a statute that permits fees based on equitable principles regardless of

who prevails. If the statute allows a non-prevailing party to recover fees under equitable principles,

the claim for fees always breathes life into a case that has otherwise become moot, because the

trial court must always consider the relative merits of the parties’ positions (among other factors)

when exercising its discretion to award fees to either party. Allstate, 159 S.W.3d at 643.

But when the party seeks attorney’s fees under a prevailing-party statute, the determination

whether the attorney’s-fees claim is moot depends on whether the party prevailed before the

6 underlying substantive claim became moot. As we recognized in Camarena, if the party prevailed

before the substantive claim became moot, the party’s claim for attorney’s fees under a prevailing-

party statute remains a live controversy and a court must consider the claim’s merits to determine

whether the party properly prevailed. See 754 S.W.2d at 151. But as we recognized in Speer v.

Presbyterian Children’s Home & Service Agency, if the party did not prevail before the substantive

claim became moot, the party’s claim for attorney’s fees is also moot because the party can never

prevail and thus can never be entitled to attorney’s fees. See 847 S.W.2d at 229–30.

In this case, Harper seeks fees under the TCPA, which requires the trial court to award

court costs, attorney’s fees, expenses, and sanctions to a party who prevails on its motion to

dismiss. See TEX. CIV. PRAC. & REM. CODE § 27.009(a). The trial court denied Harper’s motion to

dismiss, but he prevailed in the court of appeals, which remanded the case and ordered the trial

court to grant Harper’s motion. See 493 S.W.3d at 118. Because Harper established his right to

dismissal before his failed reelection bid rendered the state’s removal petition moot, we conclude

that his claim for attorney’s fees, costs, and sanctions breathes life into this appeal. See Camarena,

754 S.W.2d at 151. Thus, to determine whether Harper properly prevailed and is entitled to assert

his claim for attorney’s fees, costs, and sanctions, we must address the merits of the state’s removal

petition and of Harper’s dismissal motion, even though both would otherwise be moot. See id.

III Applicability of the TCPA

The state argues that the court of appeals erred by ordering the trial court to grant Harper’s

motion to dismiss under the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.003(a). The reason,

the state says, is that the TCPA does not apply to a removal petition. Specifically, the state argues

the TCPA is inapplicable because an action under the removal statute is not a “legal action” under

7 the TCPA. See id. §§ 27.001(6), .003(a). The state also argues that a removal action is an

“enforcement action” to which the TCPA expressly does not apply. See id. § 27.010(a). We hold

that a removal petition is a “legal action” under the TCPA. See id. § 27.003(a). We also conclude

that, while one allegation against Harper constitutes a TCPA “enforcement action,” the remaining

allegations do not. See id. § 27.010(a).

A. TCPA “legal action”

The TCPA permits a party to file a motion to dismiss a “legal action” if the action “is based

on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or

right of association.” Id. § 27.003(a). The state argues that a removal petition is not a “legal action”

and that, as a result, dismissal under the TCPA is not available. See id. Instead, the state says, the

removal statute contains specific provisions for dismissal and costs that prevail over the general

provisions in the TCPA. See TEX. LOC. GOV’T CODE § 87.016(c). And, according to the state,

applying the TCPA’s dismissal and cost provisions to a removal action is inconsistent with the

TCPA’s language and purpose. See TEX. CIV. PRAC. & REM. CODE § 27.002.

The TCPA defines a “[l]egal action” as “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). This undeniably “broad” definition appears to encompass any “procedural

vehicle for the vindication of a legal claim.” Paulsen v. Yarrell, 537 S.W.3d 224, 233 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied) (noting, however, that a TCPA dismissal motion is not itself

a TCPA “legal action”); see also In re Elliott, 504 S.W.3d 455, 465 (Tex. App.—Austin 2016,

orig. proceeding) (holding that the TCPA’s “broad definition” encompasses a petition under Texas

Rule of Civil Procedure 202); Better Bus. Bureau of Metro. Dall., Inc. v. Ward, 401 S.W.3d 440,

8 443 (Tex. App.—Dallas 2013, pet. denied) (holding that the definition “is broad and evidences a

legislative intent to treat any claim by any party on an individual and separate basis”).

Despite the TCPA’s broad definition, the state argues that a removal petition is not a legal

action because it seeks “constitutional” or “political” relief in the form of an order removing an

elected official from office rather than “legal or equitable relief” such as damages, an injunction,

or declaratory relief. We disagree. A court order requiring the defendant’s removal or ouster from

office is undoubtedly a “remedy.” See State ex rel. Dishman v. Gary, 359 S.W.2d 456, 458–59

(Tex. 1962) (orig. proceeding). And “remedy” is another word for “relief.” See Relief, BLACK’S

LAW DICTIONARY (10th ed. 2014) [BLACK’S] (defining “relief” as the “redress or benefit[] . . . that

a party asks of a court” and noting that “relief” is “[a]lso termed remedy”). Here, the remedy the

state seeks is only available because Texas law—specifically, article 5, section 24 of the Texas

constitution and chapter 87 of the Texas Local Government Code—provides it. See Tex. Const.

art. V, § 24; TEX. LOC. GOV’T CODE § 87.013. Because a removal petition seeks legal relief in the

form of a statutory remedy, the pleading is a “legal action” under the TCPA. See TEX. CIV. PRAC.

& REM. CODE § 27.003(a).

Even so, the state argues, applying the TCPA’s expedited-dismissal provisions to the

removal statute “creates a conflict between the two statutory schemes” because the removal statute

provides its own protections against meritless petitions. For example, the statute permits a trial

court to refuse to issue an order for citation against the county officer. TEX. LOC. GOV’T CODE

§ 87.016(c). If the trial court refuses to issue an order for citation, “the petition shall be dismissed

at the cost of the person filing the petition,” and the plaintiff may not appeal. See id. If the trial

court does issue an order for citation, it must require the plaintiff to post security for the county

9 officer’s costs. See id. And if the trial court temporarily suspends the officer but later determines

that the suspension was improper, the officer may recover damages and costs. See id. § 87.017(b).

According to the state, these “specific” provisions govern the dismissal of a removal action, but

the TCPA’s “general” dismissal provisions do not. See, e.g., TEX. GOV’T CODE § 311.026(b)

(providing that when a general provision irreconcilably conflicts with a special or local provision,

“the special or local provision prevails . . . unless the general provision is the later enactment and

the manifest intent is that the general provision prevail”). So in the state’s view, we cannot apply

the TCPA to a removal petition without intruding “into a field governed by a specific law adopted

pursuant to a constitutional mandate.”

Harper responds that the removal statute’s remedies are not exclusive and that the chapter

itself contemplates that a defendant can rely on external defenses such as the TCPA. For example,

the chapter states that “the proceedings connected with the trial” of a removal petition “shall be

conducted as much as possible in accordance with the rules and practice of the court in other civil

cases.” TEX. LOC. GOV’T CODE § 87.018(b). Similarly, either party “may appeal the final judgment

to the court of appeals in the manner provided for other civil cases.” Id. § 87.019(a). Harper also

points to our statement that “[e]xcept where otherwise provided by statute, the rules of practice

governing other civil cases control” in a removal proceeding. Dishman, 359 S.W.2d at 458.

We agree with Harper. The TCPA’s dismissal provisions complement, rather than

contradict, the removal statute. The rule that a specific provision controls over a general provision

applies only when the statutes at issue are ambiguous or irreconcilable. See TEX. GOV’T CODE

§ 311.026(a) (“If a general provision conflicts with a special or local provision, the provisions shall

be construed, if possible, so that effect is given to both.”); see also Tex. Lottery Comm’n v. First

10 State Bank of DeQueen, 325 S.W.3d 628, 639 (Tex. 2010) (“[W]e construe statutes by first looking

to the statutory language for the Legislature’s intent, and only if we cannot discern legislative

intent in the language of the statute itself do we resort to canons of construction or other aids such

as which statute is more specific.”). Here, the state neither identifies nor have we found any

provision in either statute that cannot be applied alongside those in the other statute. The removal

statute provides for dismissal when the trial court determines that citation should not issue. TEX.

LOC. GOV’T CODE § 87.016(c). The TCPA’s dismissal provisions provide the defendant the

opportunity to argue for dismissal on other grounds—namely, his rights to free speech, to petition,

and to associate. TEX. CIV. PRAC. & REM. CODE § 27.003(a). These provisions do not conflict.

Finally, the state argues we have stated that a removal petition initiates a unique, “quasi

criminal” proceeding “such that ordinarily it admits of no cross action.” See Dishman, 359 S.W.2d

at 460. In State ex rel. Dishman v. Gary, the state unilaterally nonsuited its removal petition after

the defendant filed a “cross action” asserting, as an affirmative defense, the argument that actions

before his election to office could not be the basis for removal. Id. The primary issue in Dishman

was whether the defendant’s “cross action” preserved the trial court’s jurisdiction, thus enabling it

to enter an order reinstating the state’s removal petition. Id. at 458. We held that it did not,

concluding that an ouster suit “admits of no cross action” and that “no statutory provision for a

cross action” existed. Id. at 460. We thus found it “difficult to imagine a set of circumstances under

which a cross action would properly lie” under the removal statute. Id. at 459. The one scenario

where we suggested a “cross action” might “perhaps” be permitted would be where the district

attorney had “repeatedly filed and dismissed ouster suits against a defendant for the purpose of

harassment,” in which case the trial court would have a common-law basis to dismiss. Id.

11 Otherwise, we concluded, “it would seem that the only issue presented [in a removal action] would

be whether or not the defendant w[as] guilty of the charges brought against him,” and the

defendant’s “cross action” did “not operate to deprive the district attorney of his control of the

statutory ouster suit nor serve as a basis for the reinstatement of a suit in which he had taken a

voluntary nonsuit.” Id. at 460.

In response to the state’s reliance on Dishman, Harper argues that even if the removal

statute prohibits a counterclaim or “cross action” to a removal petition, a TCPA dismissal motion

is not a “cross action.” We need not address this argument, however, because even if a TCPA

dismissal motion is a counterclaim or cross action, the TCPA could authorize that counterclaim

even if the removal statute does not. We decided Dishman in 1962, see id. at 456, long before the

legislature enacted the TCPA in 2011, see Citizens Participation Act, 82d Leg., R.S., ch. 341, §§ 1–

4, 2011 Tex. Gen. Laws 961 (codified at TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011). We

noted in Dishman that a court’s common-law power to dismiss a removal petition filed for the

purpose of harassment can supplement and coexist with the removal statute. See Dishman, 359

S.W.2d at 460 (suggesting that courts have the common-law power to dismiss “ouster suits

[brought] against a defendant for the purpose of harassment”). A court’s TCPA-authorized power

to dismiss an action based on the defendant’s exercise of his free-speech and petition rights can

surely do the same. Nothing in the constitution or in the removal statute precludes the legislature

from granting such power; the question here is whether it did so in the TCPA.

We conclude that it did. The TCPA expressly applies to any “legal action,” and—as we

have explained—a removal petition is a legal action. See TEX. CIV. PRAC. & REM. CODE

§ 27.001(6). Accordingly, the TCPA applies to a removal petition.

12 B. TCPA “enforcement action”

We now turn to whether a removal petition constitutes an “enforcement action” under the

TCPA. See id. § 27.010(a) (stating that the TCPA “does not apply to an enforcement action that is

brought in the name of this state . . . by . . . a county attorney”). If it does, Harper cannot invoke

the TCPA’s protections. See id. The state joined Best’s petition, but that does not necessarily make

this suit an enforcement action. Unlike “legal action,” the TCPA’s definitional subsection does not

include an entry for the term “enforcement action.” See generally id. § 27.001. Nor have we

previously considered its meaning.

“Statutory construction is a legal question we review de novo.” See City of Rockwall v.

Hughes, 246 S.W.3d 621, 625 (Tex. 2008). “In construing statutes, we ascertain and give effect to

the Legislature’s intent as expressed by the language of the statute.” Id. Statutes do not always

include express statements of purpose or directions for construction, but the TCPA includes both.

See TEX. CIV. PRAC. & REM. CODE §§ 27.002, .011. The TCPA’s purpose “is to encourage and

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.” Id.

§ 27.002 (emphasis added). We must construe the TCPA “liberally to effectuate its purpose and

intent fully.” Id. § 27.011(b). The TCPA includes several exemptions.

One such exemption is that the TCPA “does not apply to an enforcement action that is

brought in the name of this state . . . by . . . a county attorney.” Id. § 27.010(a). Because the

legislature did not define “enforcement action,” we must determine the term’s “common, ordinary

meaning.” City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 261 (Tex. 2018). “To

13 determine a statutory term’s common, ordinary meaning, we typically look first to [its] dictionary

definitions . . . .” Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n,

511 S.W.3d 28, 35 (Tex. 2017). The common meaning applies “unless a more precise definition

is apparent from the statutory context.” Oncor, 539 S.W.3d at 261; see also Greene v. Farmers

Ins. Exch., 446 S.W.3d 761, 765 (Tex. 2014) (“We rely on the plain meaning of the text as

expressing legislative intent unless a different meaning is supplied by legislative definition or is

apparent from the context, or the plain meaning leads to absurd results.”).

An enforcement is “[t]he act or process of compelling compliance with a law, mandate,

command, decree, or agreement.” Enforcement, BLACK’S; see also THE AMERICAN HERITAGE

DICTIONARY OF THE ENGLISH LANGUAGE 590 (5th ed. 2011) (defining “enforce” as “[t]o compel

observance of or obedience to: enforce a law”); WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 751 (1961) (defining “enforcement” as “the compelling of the fulfillment (as of a law

or order)”). Applying the Black’s dictionary definition, the court of appeals concluded that “there

is nothing in the removal statute with which the State is seeking to compel Harper’s compliance,”

because “Harper cannot comply with his duties if he is no longer a board member.” 493 S.W.3d at

111.

The dictionary definitions do not capture the full extent of the legislature’s intent in this

instance. The reason is that our precedent directing us to the dictionaries, see, e.g., Melden & Hunt,

Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 893 (Tex. 2017), collides with our

precedent directing us to “presume the Legislature selected language in a statute with care and that

every word or phrase was used with a purpose in mind.” DeQueen, 325 S.W.3d at 635 (emphasis

14 added). Section 27.010 contains the “enforcement action” exemption, but it also contains three

others. See TEX. CIV. PRAC. & REM. CODE § 27.010. The TCPA does not apply to:

(a) “an enforcement action” brought in the name of the state; (b) “a legal action” against certain businesses; (c) “a legal action” in certain personal injury cases; and (d) “a legal action” arising out of certain insurance contracts. Id.

The second, third, and fourth exemptions apply to a “legal action,” id. § 27.010(b)–(d), a

term the TCPA defines, see id. § 27.001(6). But the first applies to something different: an

“enforcement action.” Id. § 27.010(a). We must assume the legislature used a different word

because it intended a different meaning. See DeQueen, 325 S.W.3d at 635. Otherwise, the

legislature would have said “legal action” all four times.

These observations demonstrate that whatever an “enforcement action” is, it must be

different from a “legal action.” A “legal action” is “a lawsuit, cause of action, petition, complaint,

cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable

relief.” TEX. CIV. PRAC. & REM. CODE § 27.001(6). It would be difficult to write a more capacious

definition, and even more so to conceive one for an undefined term. So the definition of an

“enforcement action” cannot exceed the broad definition the TCPA gives for “legal action.” See

id. Nor can the two terms share the same meaning. See DeQueen, 325 S.W.3d at 635. Hence, a

TCPA “enforcement action” must be a subtype of legal actions in general. That is, the term

“enforcement action” must mean something less than “any legal action brought by the state.”

Otherwise, “enforcement action” and “legal action” would mean the same thing.

We conclude that, within the TCPA, the term “enforcement action” refers to a

governmental attempt to enforce a substantive legal prohibition against unlawful conduct. This

15 interpretation is consistent with the TCPA’s text, under which enforcements are but one type of

legal action. See id. § 27.001(6). It also accords with the TCPA’s self-expressed purpose, which

“is to encourage and safeguard constitutional rights”—not to impede the criminal or civil

proceedings that law enforcement or other government agencies initiate. See id. § 27.002. Under

this definition, a removal petition is not an “enforcement action” in the abstract. Instead it is a

procedural device, and as such a party cannot initiate a removal action to enforce the removal

statute itself. There is a range of conduct—some unlawful and some not—for which a public

official may properly face removal under the removal statute. And as discussed above, the TCPA

is available by default since removal actions are legal actions. However, when a removal action

has its basis in unlawful conduct, the “enforcement action” exemption renders the TCPA

inapplicable.

Accordingly, we must next ask whether the petition against Harper seeks to enforce a

substantive legal prohibition against unlawful conduct. Under the removal statute, “[a]n officer

may be removed for: (1) incompetency; (2) official misconduct; or (3) intoxication on or off duty

caused by drinking an alcoholic beverage.” TEX. LOC. GOV’T CODE § 87.013(a).

In his original petition, Best sought Harper’s removal based on Best’s allegation that

Harper “exhibited incompetency by way of gross ignorance of his official duties and gross

carelessness in the discharge of those duties.” See id. § 87.011(2)(A)–(B) (“‘Incompetency’

means: (A) gross ignorance of official duties; (B) gross carelessness in the discharge of those

duties[] . . . .”). Incompetency is a basis for removal under the removal statute, but it is not against

the law. See id. § 87.013(a)(1). Similarly, while intoxication is also a basis for removal, and while

16 the town drunk might make a lousy official, being the town drunk is not against the law. See id.

§ 87.013(a)(3).

Best’s incompetency claims are a transparent retaliation against Harper’s quixotic political

beliefs. Harper opposed the hospital district’s creation. He put his beliefs into action by running

for office, and the voters of Somervell County elected him on a clearly stated anti-tax platform.

Best’s petition alleges Harper did exactly what he told the voters he would do upon taking office.

Harper’s detractors may disagree with his politics, but no law requires elected officials to support

the status quo upon arriving in office. Best’s removal petition was a pretext for forcing Harper to

cease acting on the beliefs that won him his office in the first place.

We are not fooled. We doubt anyone else is. Harper’s refusal to capitulate to Best’s

demands does not render him incompetent. Best thought that the hospital district was important,

and he sought Harper’s removal because he thought that Harper was setting the hospital up for

failure, lacked candor, and sometimes communicated less than cordially. Even if a jury agreed that

Harper was unfit for office, he would face no criminal or civil penalty other than removal itself.

Efforts like Best’s are attacks on core political speech. But the TCPA “protects citizens who

petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or

silence them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (footnote omitted)

(citing TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011). Since the incompetency allegations in

Best’s petition seek to achieve Best’s political goals rather than to enforce a law, they cannot form

the basis of an enforcement action for purposes of the TCPA. See TEX. CIV. PRAC. & REM. CODE

§ 27.010(a).

17 Nor are we swayed by the argument that Best’s incompetency claim included allegations

that Harper violated the hospital district’s bylaws. The bylaws require board members to discharge

their duties “in good faith, with ordinary care, and in a manner the director reasonably believes to

be in the best interest of the District.” Similarly, the bylaws prohibit members from performing

“any act with the intention of harming the District or any of its operations” or “that would make it

impossible or unnecessarily difficult to carry on the intended or ordinary business of the District.”

Best’s petition argues Harper violated the bylaws by attempting to set the district’s tax rate at zero

and by accusing the district’s administration of violating the law.

The Somervell County Hospital District Board of Directors may promulgate bylaws

pursuant to its authority to “adopt rules governing the operation of the hospital and hospital system

and the duties, functions, and responsibilities of district staff and employees.” TEX. HEALTH &

SAFETY CODE § 286.075. Although violation of an organization’s internal rules concerning

“duties, functions, and responsibilities” may expose the violator to liability, the rules are just that—

rules. Though they may sometimes overlap with Texas statutes, regulations, or common-law

obligations, the bylaws appear nowhere within these bodies of law. Instead, they arise by

agreement of the board of directors. Indeed, the bylaws include numerous references to actions

required by law or the bylaws. In sum, the bylaws are not legal prohibitions against unlawful

conduct, and they do not elevate the allegations in Best’s petition to an “enforcement action.” See

TEX. CIV. PRAC. & REM. CODE § 27.010(a).

In light of our textual conclusion that an enforcement action must be something narrower

than a legal action, our general understanding that an enforcement action cannot enforce itself, our

specific conclusion that an enforcement action under the TCPA must enforce substantive

18 prohibitions against unlawful conduct, and the legislature’s clear instruction to construe the TCPA

liberally to protect citizens’ rights to participate in government, we conclude the that allegations

in Best’s petition do not amount to an “enforcement action” under the TCPA. See id.

However, the removal statute also allows removal for “official misconduct,” which may

include allegations or evidence that a public official has acted unlawfully. TEX. LOC. GOV’T CODE

§ 87.013(2); see also id. § 87.011(3) (defining “[o]fficial misconduct” as “intentional, unlawful

behavior relating to official duties” including “intentional or corrupt failure, refusal, or neglect of

an officer to perform a duty imposed on the officer by law”). An allegation premised on unlawful

conduct rather than behavior undesirable in a public official can form the basis of an “enforcement

action” for purposes of the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.010(a).

Best did not allege official misconduct against Harper, but the state did. After it joined

Best’s petition, the state added—as an “official misconduct” ground—the allegation that Harper

violated the Open Meetings Act. See TEX. GOV’T CODE § 551.143(a) (“A member . . . of a

governmental body commits an offense if the member . . . knowingly conspires to circumvent this

chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in

violation of this chapter.”). This allegation is sufficient to form the basis of an enforcement action.

It involves reference to a specific statutory provision that contains a substantive prohibition against

certain conduct, and the state alleges Harper violated that prohibition. Whatever the merits of the

state’s allegation, it amounts to an “enforcement” of a law—the Open Meetings Act—“brought in

the name of this state.” See TEX. CIV. PRAC. & REM. CODE § 27.010(a).

A removal petition is not an “enforcement action” unless it seeks to enforce a substantive

legal prohibition against unlawful conduct. The removal grounds alleging Harper’s incompetency

19 do not meet this definition, which means that the TCPA’s “enforcement action” exemption does

not apply to them. See id. But under the same definition, the state’s additional ground alleging

official misconduct based on violations of the Open Meetings Act is an enforcement action. So the

enforcement-action exemption renders the TCPA inapplicable to the state’s additional ground. See

id.

We conclude that Harper may benefit from the TCPA’s expedited-dismissal provisions for

the grounds that Best’s initial removal petition raised, but not for the state’s additional ground

alleging a violation of the Open Meetings Act.

IV Sovereign Immunity

Because the TCPA applies, we must consider whether Harper can recover appellate fees

and costs from the state. The court of appeals’ judgment awarded “judgment against the state of

Texas for [Harper’s] appellate costs that were paid, if any, by [Harper]; and all unpaid appellate

court cost[s], if any . . . against the state of Texas.” Similarly, the court of appeals’ opinion remands

the case to the trial court for a “determination of Harper’s request for court costs, reasonable

attorney’s fees, and sanctions.” 493 S.W.3d at 118.

The state argues the award and remand were improper. Because the trial court has not yet

made a “determination of” Harper’s request for costs, fees, or sanctions, see id., we can do no more

than speculate whether Harper will actually obtain a judgment for any of these against Best, the

state, both, or neither. See id. So we need not consider the state’s argument that such an award

would be improper if entered against the state. Instead, the narrow issue before us is whether

sovereign immunity protects the state from the appellate fees and costs that the court of appeals

has already awarded to Harper. We conclude it does not.

20 “Sovereign immunity in Texas embodies two concepts: immunity from liability and

immunity from suit.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 93 (Tex. 2012). “[I]mmunity from

liability is not jurisdictional and protects [only] from judgments.” Harris Cty. Hosp. Dist. v.

Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). Hence, immunity from liability “must be

pleaded, or else it is waived.” Kinnear v. Tex. Comm’n on Human Rights ex rel. Hale, 14 S.W.3d

299, 300 (Tex. 2000) (per curiam); see also Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638

(Tex. 1999) (per curiam) (“Like other affirmative defenses to liability, [immunity from liability]

must be pleaded or else it is waived.”); Davis v. City of San Antonio, 752 S.W.2d 518, 523 (Tex.

1988) (“[T]he City waived any immunity defense by failing to affirmatively plead it.”).

By contrast, immunity from suit “implicates a court’s subject-matter jurisdiction” and may

“be raised for the first time on appeal.” Engelman Irrigation Dist. v. Shields Bros., Inc., 514

S.W.3d 746, 751, 755 (Tex. 2017); see also Jones, 8 S.W.3d at 638. Absent legislative waiver, and

when it applies to begin with, immunity from suit protects the state from suits against it. See Tex.

Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); see also City of

Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). Legislative waiver is effective only if it is

“clear and unambiguous.” Tooke v. City of Mexia, 197 S.W.3d 325, 328–29 (Tex. 2006) (citing

TEX. GOV’T CODE § 311.034). Our cases also recognize that the state’s immunity does not apply

in certain situations in which the state “join[s] into the litigation process.” Reata Constr. Corp. v.

City of Dallas, 197 S.W.3d 371, 376 (Tex. 2006); see also Kinnear, 14 S.W.3d at 300 (“Because

the [state] initiated this proceeding . . . and [the defendant] claimed attorney fees as a consequence

of that suit, the jurisdictional question in this case was answered when the [state] filed suit[] . . . .

Thus the issue is whether the [state] . . . is immune from liability . . . .” (emphasis added)).

21 The state has not argued that it is immune from liability, but only that it is immune from

suit. Thus, the state has waived its immunity-from-liability argument. See Kinnear, 14 S.W.3d at

300 (first citing Jones, 8 S.W.3d at 638; and then citing Davis, 752 S.W.2d at 519–20). The

dispositive question, then, is whether the state is immune from suit. If it is, then Harper cannot

recover his fees, at least not from the state. But if the state is not immune from suit, then he can.

The state argues that neither the TCPA nor the removal statute contains a legislative waiver

of immunity and that immunity from suit therefore protects it from an award of appellate costs.

The removal statute requires “the person filing the petition to post security for costs” and further

directs that dismissal shall be “at the cost of the person filing the petition.” TEX. LOC. GOV’T CODE

§ 87.016(c). The state joined Best’s suit, but Best filed the initial petition, so the state argues that

the removal statute does not provide a waiver of immunity. Similarly, the TCPA allows a court to

award “sanctions against the party who brought the legal action.” TEX. CIV. PRAC. & REM. CODE

§ 27.009(a)(2) (emphasis added). Because Harper initiated this action, the state also argues that

the TCPA does not waive immunity. See also id. § 27.011(a) (“[The TCPA] does not abrogate or

lessen any other defense, remedy, immunity, or privilege available under other constitutional,

statutory, case, or common law or rule provisions.”).

Nor, says the state, do any of this Court’s limitations to immunity’s scope apply. Reata

Construction Corp. v. City of Dallas details a circumstance in which “a governmental entity does

not have immunity from suit for monetary claims against it that are ‘germane to, connected with,

and properly defensive to’ affirmative claims made by the entity,” to the extent that the claims

against the entity offset the entity’s own claims. City of Dallas v. Albert, 354 S.W.3d 368, 372

(Tex. 2011) (quoting Reata, 197 S.W.3d at 378); see also Manbeck v. Austin Indep. Sch. Dist., 381

22 S.W.3d 528, 532–33 (Tex. 2012) (per curiam) (noting that Reata applies in “cases where the

governmental entity asserts an affirmative claim for monetary relief against which the opponent’s

claims can be offset”).

Harper responds that when the state appeared in this suit, it adopted Best’s live pleading

stating jurisdiction was proper in the trial court. Moreover, Harper argues, the removal statute

contemplates that the temporary replacement officer must pay any “costs” associated with the

prosecution of an unsuccessful removal action. See TEX. LOC. GOV’T CODE § 87.016(c). Harper

argues this officer is an “agent of the state” and therefore the removal statute contemplates payment

by a “governmental entity.” So in Harper’s view, the state stepped beyond the sphere of its

immunity when it appeared in the suit. Harper also points to the four-factor analysis we set out in

Wichita Falls State Hospital v. Taylor for determining whether language less explicit than

“‘sovereign immunity to suit is waived’ . . . may nevertheless waive the State’s immunity from

suit,” to argue that the removal statute, the TCPA, or both expressly waives immunity. See 106

S.W.3d at 697–98 (footnote omitted).

We agree with the state that neither statute waives the state’s immunity from suit. The

portions of the removal statute discussing costs treat the temporary replacement officer as an

individual, not as an agent of the state. See TEX. LOC. GOV’T CODE § 87.017. The officer is an

agent of the state for purposes of carrying out his job duties, but not for purposes of paying the

costs associated with an unsuccessful removal action. Consequently, the removal statute does not

contain a “clear and unambiguous” waiver of the state’s immunity from suit. See Tooke, 197

S.W.3d at 328–29. Nor does the TCPA contain a waiver that meets Tooke’s requirements. See id.

Harper argues that the TCPA “d[oes] not expressly exempt any governmental entity from its

23 sphere” and that “[i]f the Legislature intended to exempt the government from the TCPA . . . [it]

would have clearly stated so.” That argument states precisely the opposite of the presumption that

we apply when determining whether the legislature has waived sovereign immunity. See Taylor,

106 S.W.3d at 701 (“[W]e require the Legislature to express its intent beyond doubt and will

construe ambiguities in a manner that retains the State’s immunity.”). The TCPA allows for awards

of costs, but it does not contain any “clear and unambiguous” legislative basis for awarding costs

against the state. See Tooke, 197 S.W.3d at 329. So neither the removal statute nor the TCPA

expressly waives the state’s sovereign immunity.

Although neither statute waives the state’s immunity from suit, that conclusion does not

answer the question whether immunity applies in the first place. See Engelman, 514 S.W.3d at 753

(“[S]overeign immunity is a common-law creation, and it remains the judiciary’s responsibility to

define the boundaries of the doctrine.”); Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117,

122 (Tex. 2015) (noting “the doctrine’s judicial origins”); Reata, 197 S.W.3d at 375 (“[I]t remains

the judiciary’s responsibility to define the boundaries of the common-law doctrine and to

determine under what circumstances sovereign immunity exists in the first instance.”). When

sovereign immunity is inapplicable due to judicial modification rather than legislative

pronouncement, courts characterize the protection’s absence as arising from abrogation rather than

waiver. See Albert, 354 S.W.3d at 375 (“[T]he judiciary has abrogated [governmental entities’]

common law immunity from suit as to certain offsetting claims.”); Taylor, 106 S.W.3d at 696

(“[W]e have not absolutely foreclosed the possibility that the judiciary may abrogate immunity by

modifying the common law . . . .”).

24 Reata is our foundational case discussing abrogation. See generally 197 S.W.3d at 374–

77. Under the Reata rule, immunity from suit does not protect the state from counterclaims that

are “germane to, connected with, and properly defensive to” certain of the state’s own claims, but

only to the extent that the counterclaims act as a monetary “offset” to the state’s own claim.

Id. at 373. In this case, the state has not asserted any claims against which Harper can counterclaim

a monetary offset. Because the state seeks Harper’s removal rather than an appropriate monetary

recovery, the Reata rule does not apply to abrogate the state’s immunity from Harper’s

counterclaims. But that does not mean that no rule does so.

Significant as it is, Reata is not our only case discussing abrogation, and it does not purport

to map the full boundary separating counterclaims that sovereign immunity bars from those it does

not. See, e.g., Nazari v. State, ___ S.W.3d ___, ___ (“[W]e have never held that the Reata rule

always applies when the government seeks any transfer of funds. . . . [N]or have we ever held that

Reata applies only to compensatory damages.”).

As an example of another type of abrogation, Harper cites our per curiam decision in

Kinnear v. Texas Commission on Human Rights ex rel. Hale. See generally 14 S.W.3d 299. There,

“[t]he Texas Commission on Human Rights sued [Kinnear] for violating the Texas Fair Housing

Act.” Id. at 299. Kinnear prevailed, and he requested attorney’s fees from the commission under

the Fair Housing Act, which provides that a court “may award reasonable attorney fees to the

prevailing party.” TEX. PROP. CODE § 301.156. In analyzing whether the state abandoned its

immunity from suit by initiating the litigation, we held that “the jurisdictional question . . . was

answered when the [state] filed suit, regardless of whether the [state] can ultimately be liable for

fees.” Kinnear, 14 S.W.3d at 300. Put differently, when the state “initiated th[e] proceeding” that

25 spurred the attorney’s-fees claim, it was operating outside the bounds of its immunity from suit.

Id. And because, as here, the state had waived immunity from liability by failing to plead it, we

“render[ed] judgment awarding Kinnear his attorney fees and costs” under the Fair Housing Act.

See id. Harper says his counterclaim is “akin” to the one in Kinnear and that he should prevail on

that basis.

The state responds by citing another of our per curiam opinions, Manbeck v. Austin

Independent School District, for its counterargument that a “governmental entity’s decision to

avail itself of a statutory right—without bringing an affirmative claim for monetary damages—

does not result in a loss of immunity from a claim for attorney’s fees.” See generally 381 S.W.3d

528. Manbeck addressed a counterclaim for attorney’s fees after the state non-suited a judicial

appeal from an administrative proceeding that arose under the Texas Workers’ Compensation Act.

See id. at 529 (citing TEX. LAB. CODE § 408.021(c)). Finding the Reata rule inapplicable, we

“reversed the trial court’s award of attorney fees.” Id. at 533.

The parties strive to distinguish Kinnear and Manbeck—each arguing that one case or the

other answers the TCPA attorney’s-fees question at issue here. However, neither per curiam

opinion addresses the TCPA. And since Manbeck concerned an administrative appeal in the

workers’ compensation context, see id. at 529, it does not overrule Kinnear’s conclusion in the

fair-housing context, see 14 S.W.3d at 299. But, the state argues, it is not that Manbeck overrules

Kinnear—it is that Reata does, or at least it establishes a new paradigm such that Kinnear is no

longer good law. We disagree. Far from overruling Kinnear, Reata cited it—along with Anderson,

Clayton & Co. v. State ex rel. Allred, 62 S.W.2d 107, 110 (Tex. 1933), and State v. Humble Oil &

Refining Co., 169 S.W.2d 707, 708 (Tex. 1943)—as the foundation for the rule it established. See

26 Reata, 197 S.W.3d at 374–77; see also Nazari, ___ S.W.3d at ___ (listing Anderson, Humble Oil,

and Kinnear as “the three principal cases on which Reata relied”). And we have cited Kinnear

since. See Rusk, 392 S.W.3d at 97 & n.4 (listing Kinnear among cases establishing that “immunity

deprives courts of subject-matter jurisdiction”); Nazari, ___ S.W.3d at ___ (“[W]hile Kinnear

involved an abrogation of immunity, it was not the type of abrogation we announced in Anderson

and expounded on in Reata.”); see also Jeffrey S. Boyd, Where Sovereign Immunity and Water

Development Issues Collide, 39 TEX. ENVTL. L.J. 95, 116 (2009) (“The Texas Supreme Court

recently reaffirmed and clarified [Kinnear’s] holding in Reata . . . .” (emphasis added)).

In Kinnear, sovereign immunity did not protect the state from a claim for attorney’s fees

under the Fair Housing Act. See 14 S.W.3d at 299. On the other hand, in Manbeck, sovereign

immunity did protect the state from a claim for attorney’s fees under the Workers’ Compensation

Act. See 381 S.W.3d at 529. Thus, Kinnear and Manbeck stand together—and at most—for the

proposition that sovereign immunity sometimes does and sometimes does not protect the state

from counterclaims for attorney’s fees. See Kinnear, 14 S.W.3d at 299; Manbeck, 381 S.W.3d

at 528; see also Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 424 (Tex. 2011)

(reversing attorney’s fees awarded against a governmental entity when the fees were a “subset” of

a “breach-of-contract claim, a claim on which [the claimant could not] recover”). But neither case

considers the attorney’s-fees question beyond the statute it addresses.

Nor does Reata itself apply to all counterclaims for attorney’s fees. Rather, Reata

establishes that sovereign immunity never protects the state from certain qualifying counterclaims

when the state does assert certain claims for monetary recovery. But it does not establish the

inverse. That is, Reata does not establish that sovereign immunity always protects the state anytime

27 the state does not assert a claim for monetary recovery. In short, Reata does not hold that a

monetary claim is a necessary condition for abrogation in every instance.

So the question whether sovereign immunity protects the state from Harper’s counterclaim

for attorney’s fees under the TCPA is one of first impression. Based on the TCPA’s unique status

and on the general principles underlying sovereign immunity, we answer that it does not.

As part of its purpose to “safeguard the constitutional rights of persons to . . . participate in

government,” the TCPA obligates those who fail to prove a “prima facie case” to pay certain

litigation costs. See TEX. CIV. PRAC. & REM. CODE §§ 27.002, .005(c), .009. Because the state

should not be suing to prevent its own citizens from participating in government—especially when

it lacks even a prima facie case against them—and because when it does sue, it risks paying only

attorney’s fees (rather than damages or some other uncapped sum), abrogating the state’s sovereign

immunity in the TCPA context does not present any grave danger to the public fisc. See, e.g., Tex.

Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (per curiam) (“[T]he doctrine of

sovereign immunity originated to protect the public fisc from unforeseen expenditures that could

hamper governmental functions . . . .”). And because the TCPA already contains an express

exemption for enforcement actions, nor does abrogation pose a threat to the state’s ability to

sanction wrongdoers. See TEX. CIV. PRAC. & REM. CODE § 27.010(a).

Abrogation remains the judiciary’s responsibility. See Reata, 197 S.W.3d at 375. We have

considered abrogation for attorney’s fees in other contexts—sometimes applying it, sometimes

not—but we have never addressed a counterclaim for attorney’s fees under the TCPA. So while

cases like Kinnear and Manbeck are instructive, neither is dispositive. Accordingly, given the

TCPA’s unique role in protecting the democratic processes that allow our state to function, today

28 we conclude that sovereign immunity does not protect the state from a counterclaim for attorney’s

fees under the TCPA.

Because the state was not operating within sovereign immunity’s bounds when it joined

Best’s suit, the TCPA allows Harper to recover costs against the state pursuant to the TCPA’s

terms. See TEX. CIV. PRAC. & REM. CODE § 27.009(a). As is relevant here, these are the TCPA’s

requirements with regard to fees, costs, and sanctions:

(a) 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.

The state points to the limit in section 27.009(a)(2) that courts may only award sanctions

against the party who “brought” the action. Id. § 27.009(a)(2). But that limitation appears only in

section 27.009(a)(2), which addresses sanctions. See id. Section 27.009(a)(2) does not limit section

27.009(a) as a whole or section 27.009(a)(1), which has its own limit—justice and equity. See

id. § 27.009(a)(1). Since no sanctions have yet been awarded, we need not—and do not—address

whether the state “brought” this action (as opposed to “joined” it or something else). Instead, we

hold that because this is a TCPA action, the state’s sovereign immunity from suit does not protect

it from the appellate costs that the court of appeals has already awarded.

***

The court of appeals reversed the trial court’s judgment, holding that the TCPA applies to

the state’s removal proceeding and that the state failed to establish a prima facie case for Harper’s

29 removal. See 493 S.W.3d at 111, 116. It then remanded the case “to the trial court for rendition of

an order granting Harper’s motion to dismiss and for a determination of Harper’s request for court

costs, reasonable attorney’s fees, and sanctions.” Id. at 118. We affirm the court of appeals’

judgment with the modification that Harper was not entitled to dismissal of or attorney’s fees for

the state’s allegation that he violated the Open Meetings Act. Because Harper is no longer in office,

however, our holding bears only on the trial court’s determination of court costs, reasonable

attorney’s fees, and sanctions.

________________________________ Jeffrey V. Brown Justice

OPINION DELIVERED: June 29, 2018