When claims are brought as a result of a person’s exercise of his or her First Amendment rights, the Texas Citizens Participation Act (TCPA) provides protection by ensuring that the claims have legal merit at the outset of the case.  The TCPA has been broadly construed and it has been applied in some surprising contexts.

State of Texas v. Harper

The Texas Supreme Court addressed two provisions of the TCPA in State of Texas v. Harper, No. 16-0647, 61 Tex. Sup. Ct. J. 1699 (June 29, 2018).  In that case, a private individual filed a petition to remove Harper, an elected official, from office based upon his conduct in office.  The State of Texas joined in the effort and added an additional basis for removal, violation of the Texas Open Meetings Act.  Harper responded to the removal petition by invoking the TCPA, thereby requiring the complainants to present a prima facie case of their claims against him. 
The Texas Supreme Court first considered whether a petition for removal from office is a “legal action” subject to the TCPA, and concluded that because it seeks “relief” it is a legal action subject to the TCPA.

Enforcement or Legal Action

The Court also addressed whether a petition for removal from office is an “enforcement action” under the TCPA.  The TCPA exempts from its application “enforcement actions” that are brought in the name of the state by a county attorney.  The TCPA does not define what constitutes an “enforcement action.”  The court first held that the exception should be narrowly construed in order to promote the TCPA’s purposes, which are to protect the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law.  The Court next reasoned that an “enforcement action” necessarily must be something different from a “legal action” and held that an enforcement action “refers to a governmental attempt to enforce a substantive legal prohibition against unlawful conduct.”

Turning to the facts of the case, the Court held that a removal petition is not itself an enforcement action, but merely a procedural device and that the substantive bases for removal must be examined to determine if any qualify as an enforcement action.  In addressing the first two grounds alleged for Harper’s removal, the Court characterized them as essentially assertions that Harper was incompetent, and not as any attempt to rectify any legal violation.  The Court’s description of the allegations against Harper underscores why the TCPA was passed:

“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.’”

The Court concluded that the final ground for removal—violation of the Texas Open Meetings Act—does constitute an enforcement action brought by the state because it is an attempt to secure compliance with a legal prohibition against unlawful conduct.  Thus, the Court held that Harper was entitled to the protections of the TCPA as to two of the grounds for his removal, but that the third ground was excluded from the protections of the TCPA.


By Published On: September 17, 2018Categories: AppellateTags: ,


Avatar of Mike Northrup
Mike Northrup is a Shareholder and Section Head of the Cowles and Thompson Appellate Practice Group. He practices in both the trial and appellate courts in cases involving personal injury, insurance issues, employment law, commercial disputes, and zoning disputes. He also provides litigation support to attorneys in other sections of the firm. Mike served as a briefing attorney for former Chief Justice Thomas R. Phillips, Texas Supreme Court, 1988-89. He has taught as an adjunct professor at Hastings College of Law and SMU Dedman School of Law. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization.