Texas Supreme Court holds county official removal statute is subject to Texas Citizens Participation Act and sovereign immunity is waived for attorney’s fees of losing party

State of Texas ex Rel. George Darrell Best v Paul Reed Harper, 16-0647, — S.W.3d – (Tex. July 29, 2018).

This is a Texas Citizens Participation Act (“TPCA”) case where the Texas Supreme Court held a 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. Sovereign immunity is also abrogated for certain types of attorney’s fees under the TCPA.  This is a 30-page opinion, so the summary is a bit long.

Paul Harper was elected to a position on the Somervell County Hospital District Board and allegedly tried to make good on his campaign promises or removing taxes and employees. In response, a county resident named George Best sought to remove Harper under the county removal statute.  Best alleged that Harper violated the district’s bylaws at a board meeting by moving to set the district’s tax rate at zero.  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.  The removal statute authorizes a citizen to file suit, but it also requires the county attorney to “represent the state” in any removal proceedings that take place. 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 by texting board members. Harper filed a motion to dismiss the case under the TCPA asserting the removal statute impedes the exercise of the right to petition and right of free speech. After conducting an evidentiary hearing, the trial court denied Harper’s motion to dismiss.  Harper appealed. 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.  In the interim, Harper lost the last election and no longer sits on the board. The Texas Supreme Court granted the state’s petition for review.

The Court first noted the Plaintiffs’ claims are not moot.  While Harper argues mootness cannot be addressed because the record does not contain information he lost the election, a court must consider issues affecting its jurisdiction sua sponte.  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 Court then analyzed and held the attorney’s fees issues and sanctions issues still remain, so the case is not moot. However, the Court cautioned that such applies only if attorney’s fees are ordered prior to the case being moot. The court of appeals ordered the trial court to award attorney’s fees (since it is mandatory under the TCPA) prior to the election, so this particular case survives. And, since the attorney’s fees are required by the TCPA to a prevailing party, the aspects of whether the TCPA applies remain live.

The State asserted a removal suit is not a “legal action” under the TCPA, because it is a specific statute seeking political relief which is controlling over the general TCPA. The term “legal action” is defined within the TCPA. Using rules of statutory construction, the Court held a “remedy” is another word for “relief” and the TCPA authorizes relief as a legal action. As a result, the TCPA applies. Further, the Court held 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. The Court found no ambiguity or irreconcilable language after analysis.

Next the Court noted that the TCPA “does not apply to an enforcement action that is brought in the name of this state . . . by . . . a county attorney.”  However, the TCPA’s purpose includes a very distinct intent to encourage participation in government to the maximum extent permitted by law. Enforcement action is not defined in the TCPA. Again, using rules of statutory construction, the Court held the term “enforcement action” refers to a governmental attempt to enforce a substantive legal prohibition against unlawful conduct. Under this definition, a removal petition is not an “enforcement action” by itself or in all cases. Instead it is a procedural device, and as such a party cannot initiate a removal action to enforce the removal statute itself. When a removal action has its basis in unlawful conduct, the “enforcement action” exemption renders the TCPA inapplicable. However, when it is not unlawful conduct, it is not an enforcement action. Incompetency and drunkenness are both a basis for removal under the removal statute, but neither is against the law. “Best’s incompetency claims are a transparent retaliation against Harper’s quixotic political beliefs.  … 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.” Even if a jury agreed that Harper was unfit for office, he would face no criminal or civil penalty other than removal itself.  Therefore, Best’s claims are not enforcement actions and the TCPA still applies.

However, the removal statute also allows removal for “official misconduct,” which may include allegations or evidence that a public official has acted unlawfully. Best did not allege official misconduct against Harper, but the state did in the form of a Texas Open Meetings Act violation. This is sufficient to form the basis of an enforcement action. The Court held 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.

The state then argued the attorney’s award and remand were improper against it given its immunity. The Court held the state waived its immunity from liability as it did not raise it.  The state only raised immunity from suit. The Court then went through a myriad of arguments back and forth regarding immunity from suit. Ultimately, the Court held “[b]ecause 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. … 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.”

The dissent argued the majority ignores the governing statute’s language and undermines the Court’s well-established sovereign-immunity precedent. The dissent asserts the removal statute’s application of incompetence and drunkenness apply only to remove an officer from his official duties. A county officer’s “official duties” are substantive duties imposed by statutory law and therefore the entire case is an enforcement action exempt under the TCPA. The dissent took great issue with the Court’s abrogation of immunity from suit for attorney’s fees.

If you would like to read this opinion click here. Justice Brown delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, and Justice Devine joined.
Justice Boyd delivered a dissenting opinion, in which Justice Johnson and Justice Lehrmann joined.