Paul Reed Harper v. George Darrell Best , 493 S.W.3d 105 ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00105-CV
PAUL REED HARPER,
Appellant
v.
GEORGE DARRELL BEST,
Appellee
From the 249th District Court
Somervell County, Texas
Trial Court No. C10369
OPINION
George Best filed a petition to remove Paul Reed Harper as a board member of the
Somervell County Hospital District. The State of Texas assumed the role of plaintiff
pursuant to section 87.018(b) and (d) of the Texas Local Government Code. TEX. LOC.
GOV’T CODE ANN. § 87.018(b), (d) (West 2008). Harper filed a motion to dismiss pursuant
to the Texas Citizens Participation Act or TCPA (also known as the “Anti-SLAPP”
statute), see TEX. CIV. PRAC. & REM. CODE ANN. § 27.001, et seq. (West 2014), alleging that
the removal petition was based on Harper’s exercise of his right to petition and/or his
right of free speech. Id. §27.005(b). After a hearing, the trial court overruled Harper’s
motion to dismiss because the trial court did not “think the County or the State brought
this with any animosity to try to prevent anything.” Because the trial court erred in
denying Harper’s motion to dismiss, the trial court’s order is reversed and this case is
remanded to the trial court for the rendition of an order granting Harper’s motion to
dismiss and to consider Harper’s request for court costs, reasonable attorney’s fees, and
sanctions. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a) (West 2014).
BACKGROUND
Harper was unhappy with the operations of the Somervell County Hospital
District. In particular, he was unhappy with being taxed to operate the hospital. He ran
for election as a hospital district board member. He ran on the platform that he would
vote to set the hospital district tax rate at zero. The State alleged that once elected, Harper
tried to fulfill his campaign promise. At a board meeting, he allegedly responded to a
motion to set the tax rate with the comment, “I’d vote for zero.” Later, a blog posted by
Harper’s wife was critical of the hospital administrator and other board members.
Further, at some point, Harper had text communications with other board members
regarding what he believed were various problems with the hospital district and the
hospital and its administration.
Best, a citizen of Somervell County, filed a petition to remove Harper as a board
Harper v. Best Page 2
member of the hospital district pursuant to Chapter 87, Subchapter B of the Texas Local
Government Code alleging Harper was incompetent by gross ignorance of his official
duties and gross carelessness in discharging those duties. See TEX. LOC. GOV’T CODE ANN.
§§ 87.013 and 87.015 (West 2008). The basis of Best’s petition was that Harper’s efforts to
set the tax rate at zero were contrary to the continued existence of the hospital which, in
turn, was contrary to the bylaws of the hospital district.
The State subsequently appeared in the suit and amended the style of the case to
reflect that the petition for removal was brought in the name of the State and on the
relation of Best. See id. § 87.018(b), (d); see also Garcia v. Laughlin, 285 S.W.2d 191, 194 (Tex.
1955) (“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.”). The State added a claim that Harper violated the Open Meetings Act by
communicating with other board members by text.
In layman’s terms, the State takes the position that, by trying to reduce or eliminate
the hospital district tax, Harper committed treason against the hospital district which,
once elected, Harper had taken an oath to protect. Or, in other words, the State’s
argument is that by not voting to tax the citizens to allow for the continued existence of
the hospital, Harper has failed in his duties to the hospital district.
This case presents a new question in the evolution of a citizen’s interaction with
government. On one side of the issue is a courthouse that is open to all types of suits;
Harper v. Best Page 3
including suits for the removal of incompetent elected officials. On the other side is the
use of the judicial process to stop citizens who choose to speak out on subjects of political
importance. The question, as applied to this suit, is whether we have arrived at the place
where an unhappy politically active citizen who runs for office and is elected in a general
election can then be charged as incompetent when, as an elected officeholder, the elected
official tries to constrain or even eliminate the organization to which he was elected. If
the State of Texas can maintain a suit to hold an elected official incompetent under these
circumstances, we have effectively criminalized the ability to shrink government by the
political process. Historically there would be no way to summarily stop such a suit.
However, even before recent legislation to provide a summary means to stop such
suits from going forward, the Beaumont Court of Appeals explained why courts should
not get involved in this type of dispute over essentially political decisions. See Harper v.
Taylor, 490 S.W.2d 227, 229-230 (Tex. App.—Beaumont 1972, no writ). The issue in Harper
v. Taylor involved the sufficiency of the evidence to remove members of a school board
for their decision to remove a superintendent. In arriving at a determination that the
appellees’ remedy was political, not judicial, the appellate court stated:
Ours is a system of checks and balances and was devised by men who
feared too much concentration of power and dispersed it at some cost, at
times, to efficiency in government. No division of our democracy, and no
individual, be he judge or otherwise, has any monopoly on the knowledge
of the route society must take to reach a better and more just way of life.
When public officials manifestly violate their duty, courts must have the
courage to remove them or negate their actions. But where in a
discretionary decision, such as here, the most that can be said is that
Harper v. Best Page 4
perhaps poor judgment was used; for the courts to fly in and substitute their
judgment for that of elected officials would be to undermine the very
foundation of our political system. For over the long haul, we hew to the
belief that the wisdom and instincts of the electorate is preferable to any
other system of government devised by man.
Id. at 230. The pro- and anti-superintendent factions could be compared to the tax and
no-tax factions in this case.
This case addresses that concern headlong and forthright under new legislation to
protect the participation of citizens in the political discourse on topics of public concern.
We conclude the government cannot proceed with this type litigation against a citizen
engaged in that public discourse, even when that citizen is trying to dismantle the entity
to which they are elected.
TEXAS CITIZEN PARTICIPATION ACT
In three issues on appeal, Harper asserts the trial court erred in denying Harper’s
motion to dismiss because the claims against Harper were based on, related to, or were
in response to Harper’s right to petition government and his right to free speech; the State
did not present “clear and specific evidence” of a prima facie case of its claims; and if it
did, Harper’s affirmative defense of legislative immunity exempts Harper from the
claims.
Law
The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or
silence them on matters of public concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015).
Harper v. Best Page 5
The Act provides a special procedure for the expedited dismissal of such suits. See TEX.
CIV. PRAC. & REM. CODE ANN. § 27.003(a) (West 2014) (“If a legal 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, that party may file a motion to dismiss the legal action.”). A two-
step process is initiated by the motion of a defendant who believes that the lawsuit is in
response to the defendant's exercise of First Amendment rights. Lipsky, 460 S.W.3d at
586.
Under the first step, the burden is on the movant, typically a defendant, to show
"by a preponderance of the evidence" that the plaintiff's claim "is based on, relates to, or
is in response to the [defendant’s] exercise of: (1) the right of free speech; (2) the right to
petition; or (3) the right of association." TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)
(West 2014); Lipsky, 460 S.W.3d at 586-87. If the defendant is able to demonstrate that the
plaintiff's claim implicates one of these rights, the second step shifts the burden to the
plaintiff to establish by “clear and specific evidence a prima facie case for each essential
element of the claim in question." TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) (West
2014); In re Lipsky, 460 S.W.3d at 587.
Within defined time limits, the trial court must rule on the motion and must
dismiss the plaintiff's claim if the defendant's constitutional rights are implicated and the
plaintiff has not met the required showing of a prima facie case. TEX. CIV. PRAC. & REM.
CODE ANN. § 27.005 (West 2014); In re Lipsky, 460 S.W.3d at 587. In determining whether
Harper v. Best Page 6
the plaintiff's claim should be dismissed, the trial court is to consider the pleadings and
any supporting and opposing affidavits. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a)
(West 2014); In re Lipsky, 460 S.W.3d at 587.
Enforcement Action
The TCPA provides exceptions to the application of the statute. As relevant to this
case, the TCPA “does not apply to an enforcement action that is brought in the name of
this state or a political subdivision of this state by the attorney general, a district attorney,
a criminal district attorney, or a county attorney.” TEX. CIV. PRAC. & REM. CODE ANN. §
27.10(a) (West 2014).1 So before determining whether the trial court erred in denying
Harper’s motion to dismiss, we must first address the State’s contention at trial and on
appeal that it is exempt from the application of the TCPA, and thus Harper is not entitled
to a dismissal, because the State brought an enforcement action against Harper.
The question is: what is an enforcement action? That phrase is not defined by the
statute. Words and phrases that are not defined by statute and that have not acquired a
special or technical meaning are typically given their plain or common meaning. In re
Lipsky, 460 S.W.3d 579, 590 (Tex. 2015); FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Hous.
Sys., 255 S.W.3d 619, 633 (Tex. 2008).
The State contends the word “enforcement” should be given its plain meaning
1 There is nothing in the record to show that the trial court overruled Harper’s motion to dismiss because
it determined the removal action was an enforcement action under the TCPA.
Harper v. Best Page 7
according to the definition supplied in Black’s Law Dictionary. There, the word
“enforcement” means “the act or process of compelling compliance with a law, mandate,
command, decree, or agreement.” BLACK’S LAW DICTIONARY (10th ed. 2014). And what
the State is seeking to compel enforcement of is Harper’s compliance with the hospital
district’s by-laws and Harper’s duty as a board member. Using the above definition of
enforcement, the State’s argument continues, Chapter 87 of the Local Government Code,
regarding removal of officers, is the State’s legal tool to compel Harper’s compliance.
But when using the above definition of enforcement, there is nothing in the
removal statute with which the State is seeking to compel Harper’s compliance. There
are many exemplary enforcement provisions in the various codes in Texas that specify
how to obtain compliance with their provisions. See e.g. TEX. HEALTH & SAFETY CODE
ANN. § 12.0145 (West 2010); TEX. INS. CODE ANN. § 43.461 (West 2009); TEX. PROP. CODE
ANN. § 209.006 (West 2014); TEX. WATER CODE ANN. § 7.002 (West 2008). A removal
action, however, is not one of them. Removing Harper from the board of directors for
the hospital district does not result in compliance with his duties as a board member.
Rather, it seeks ouster from the position, not compliance with it. Harper cannot comply
with his duties if he is no longer a board member.
Further, this removal petition is not an enforcement action for the alleged Open
Meetings Act violation. There is an entirely different procedure to be followed for such
an enforcement action. See TEX. GOV’T CODE ANN. § 551.141 et seq. (West 2012). If the Act
Harper v. Best Page 8
was violated, which we address later herein, this suit is not the method to bring an
“enforcement action” in regard to that alleged violation.
Accordingly, under the facts of this case, because the removal of Harper as a
hospital district board member under Chapter 87 of the Local Government Code is not
an act or a process which compels compliance with a law or mandate, etc., the petition
for removal is not an “enforcement action” and is not an exception to the TCPA.
DISMISSAL UNDER THE TCPA
We now move to a discussion regarding whether the State’s case should be
dismissed. As stated previously, there is a two-step process to determine whether the
suit should be dismissed. Under the first step, Harper contends he showed by a
preponderance of the evidence that the removal petition was based on, related to, or in
response to Harper’s exercise of his right of free speech and his right to petition. See TEX.
CIV. PRAC. & REM. CODE ANN. § 27.005(b) (West 2014); In re Lipsky, 460 S.W.3d 579, 589
(Tex. 2015).
Application
The State does not dispute that the removal petition was based on, related to, or in
response to Harper’s exercise of his right to free speech and right to petition. Rather, the
State argues that the TCPA does not apply to this case because case law has developed to
reflect the statute’s “intended application” such as in suits for damages, suits that limit
the public’s “right to know,” and suits against non-public officials.
Harper v. Best Page 9
In construing a statute, we give effect to the Legislature's intent, 2 which requires
us to first look to the statute's plain language. Lippincott v. Whisenhunt, 462 S.W.3d 507,
509 (Tex. 2015); Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). If that language is
unambiguous, we interpret the statute according to its plain meaning. Id. We presume
the Legislature included each word in the statute for a purpose and that words not
included were purposefully omitted. Lippincott, 462 S.W.3d at 509; In re M.N., 262 S.W.3d
799, 802 (Tex. 2008).
The TCPA's purpose is to identify and summarily dispose of lawsuits designed
only to chill First Amendment rights, not to dismiss meritorious lawsuits. In re Lipsky,
460 S.W.3d 579, 589 (Tex. 2015). See TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (West
2014). It protects citizens from retaliatory lawsuits that seek to intimidate or silence them
on matters of public concern. Lipsky, 460 S.W.3d at 584. The language of the statute3 is
unambiguous as to its purpose and how to obtain a dismissal; thus, we interpret it
2 “Legislative intent” is the phrase commonly used. It may be more appropriate to think of it as the
“legislative purpose” of the statute. See Ray v. State, 419 S.W.3d 467, 468-469 (Tex. App.—Waco 2013, pet.
ref’d) (discussing legislative intent and legislative purpose regarding the necessity defense). The purpose
of the statute is generally more objective than the nebulous concept of the collective “intent” of a legislative
body when there could be any number of intentions of individual legislators. But we will use the
commonly referenced term.
3“The purpose of this chapter 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (West 2014).
“If a legal 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, that party may file a motion to dismiss the legal action.” TEX. CIV.
PRAC. & REM. CODE ANN. § 27.003(a) (West 2014).
Harper v. Best Page 10
according to its plain language. The State’s suit attempts to remove Harper due to what
he said regarding a matter before the hospital district board. Based on the plain language
of the statute, this case falls within the statute’s parameters. Contrary to the State’s
argument, simply because case law has not yet developed to reflect a dismissal based on
the TCPA in a case such as this, does not mean the statute does not apply. Further, the
State’s argument seeks to limit the statute’s applicability when we are directed to apply
it liberally. TEX. CIV. PRAC. & REM. CODE ANN. § 27.011 (West 2014); Lippincott v.
Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).
Based on or Relates to Free Speech or Right to Petition
We now discuss whether Harper met his burden to show by a preponderance of
the evidence that the removal suit was based on, related to, or was in response to Harper’s
exercise of his right of free speech or his right to petition.
The definition of the right of free speech has two components: (1) the exercise
must be made in a communication and (2) the communication must be made in
connection with a matter of public concern. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3)
(West 2014); Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). A communication
includes the making or submitting of a statement or document in any form or medium,
including oral, visual, written, audiovisual, or electronic. TEX. CIV. PRAC. & REM. CODE
ANN. § 27.001(1) (West 2014). It need not be made solely in a public forum. Lippincott,
462 S.W.3d at 509. A matter of public concern includes an issue related to health or safety;
Harper v. Best Page 11
environmental, economic, or community well-being; the government; a public official or
public figure; or a good, product, or service in the marketplace. TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001(7) (West 2014). Additionally, as it pertains to this case, the exercise
of the right to petition is defined as a communication in or pertaining to a proceeding
before an entity that requires by rule that public notice be given before proceedings of
that entity. Id. (4)(A)(v).
Harper argues that under these definitions, his oral statement made during the
hospital district board meeting regarding the tax rate, his alleged blog post about the
hospital district, hospital officials, and fellow board members, and his text messages
about the hospital district were exercises of his right to free speech and his right to
petition. We agree with Harper.
Each action complained of was an oral, written, or electronic communication made
either in a public or private forum. According to Harper’s affidavit attached to his motion
to dismiss, the hospital district funds in part and oversees the operations of the Glen Rose
Medical Center. The Medical Center has provided care to the residents of Glen Rose and
the surrounding area for over 65 years. Thus, Harper’s statement that he would “vote
for zero” as the new tax rate for the hospital district is related to economic or community
well-being and was made during a hospital district board meeting the by-laws of which
require notice be given to the public before meetings of the board. Further, assuming
without deciding the blog post was either written by or directed by Harper as the State
Harper v. Best Page 12
alleges, it is a communication made in exercise of Harper’s right to free speech.
Statements made about the administration of the hospital, about the hospital board
members, or about the hospital itself pertain to matters of public concern, such as
economic or community well-being, or public officers, as defined by the TCPA. Likewise,
the texts messages discussed board policies and practices, and the actions or inactions of
hospital administrators. These also pertain to matters of public concern, such as
economic or community well-being, or public officers, as defined by the TCPA.
Based on our review of the petitions, exhibits, and affidavits, Harper has shown
by a preponderance of the evidence that his statement at the board meeting, the blog, and
the text messages were communications of public concern, and thus, the removal petition
was based on, related to, or was in response to Harper’s exercise of his right of free speech
or his right to petition.
Shifted Burden
The burden to defeat a dismissal under the TCPA now shifts to the State to
establish by “clear and specific evidence a prima facie case for each essential element of
the claim in question." TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) (West 2014); In re
Lipsky, 460 S.W.3d 460 S.W.3d 579, 587 (Tex. 2015).
The phrase “clear and specific evidence” is not defined and is not a recognized
evidentiary standard. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) (West 2014); Lipsky,
460 S.W.3d at 589. Although it sounds similar to clear and convincing evidence, the
Harper v. Best Page 13
phrases are not legally synonymous. Lipsky, 460 S.W.3d at 589. However, proof by clear
and specific evidence is not simply “fair notice” of a claim. Id. at 590. Rather, under the
clear and specific evidence standard, a plaintiff must provide enough detail to show the
factual basis for the plaintiff’s claim. Id. at 591. This is not an elevated standard, does not
categorically reject circumstantial evidence, and does not impose a higher burden of
proof than that required of the plaintiff at trial. Id.
With this standard in mind, we turn to whether the State established a prima facie
case for each essential element of its claim for removal by clear and specific evidence.
As previously stated, in determining whether the plaintiff's claim should be
dismissed, the trial court is to consider the pleadings and any supporting and opposing
affidavits. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a) (West 2014); In re Lipsky, 460
S.W.3d at 587. No affidavit was attached to or presented in support of the petition or
supplemental petition for removal. No affidavits were presented in opposition to
Harper’s motion to dismiss. Instead, the State relies on testimony presented at a hearing
on the State’s motion to temporarily suspend Harper pending a jury trial on the removal
petition. The hearing to temporarily suspend Harper occurred a few months prior to the
hearing on Harper’s motion to dismiss. The State relies on the testimony from the earlier
hearing to show that it established by clear and specific evidence a prima facie case for
Harper v. Best Page 14
each essential element of its petition for removal.4
Incompetence
Chapter 87 of the Local Government Code governs the removal of county officers
from office. See TEX. LOC. GOV’T CODE ANN. ch. 87 (West 2008). There is no dispute that
Harper is a county officer covered by this statute. See id. § 87.012 (West 2008). According
to the statute, an officer may be removed for incompetency, official misconduct, or
intoxication. Id. § 87.013. Removal based on intoxication is not an issue in this case. As
it pertains to this case, “incompetency” is defined by statute as gross ignorance of official
duties or gross carelessness in the discharge of those duties. Id. § 87.011. A finding of
incompetency, however, requires more than mere error in judgment. De Anda v. State,
131 S.W.3d 198, 202 (Tex. App.—San Antonio 2004, no pet.).
As stated previously, George Best alleged in his initial petition for removal, which
the State adopted when it substituted itself in place of Best, that Harper was incompetent
by gross ignorance of his official duties and gross carelessness in discharging those
duties. Quoting the hospital district’s by-laws, the petition alleged that, as a director of
the hospital district board, Harper was required to “discharge the director’s duties in
4We have grave doubts about whether the State can use, under the guise of “judicial notice,” the testimony
from the hearing to temporarily suspend Harper pending the outcome of the removal petition. However,
with or without the testimony, the result is still the same; and neither party has complained about or
objected to the use of the testimony. Accordingly, we will resolve the issues without regard to the manner
the evidence was brought before the trial court. We note, however, that the proper way to have a trial court
consider testimony from a prior hearing is to properly authenticate a transcription of the testimony and
enter it into evidence. See Davis v. State, 293 S.W.3d 794, 798 (Tex. App.—Waco 2009, no pet.).
Harper v. Best Page 15
good faith, with ordinary care, and in a manner the director reasonably believes to be in
the best interest of the District.” (emphasis in petition). According to the petition,
Harper’s “stated intention” to set the tax rate at zero and a blog post that accused the
hospital administration of illegal activity were “clearly not in the best interest of the
District.” The petition also listed the prohibited activities of a director as stated in the
hospital district’s by-laws. The lists of prohibited activities include: do any act in
violation of the by-laws; do any act with intention of harming the hospital district; or do
any act that would make it impossible or unnecessarily difficult to carry on the intended
or ordinary business of the hospital district. Although not clearly articulated in the
petition, it appears that Best believed Harper’s statement about the tax rate and the blog
post were acts prohibited by the by-laws. The State also added an allegation in its
supplemental petition that Harper’s text messages to other board members constituted
incompetence because Harper advocated a position contrary to the hospital district’s by-
laws.
The State argues on appeal that Harper’s attempt to set the tax rate at zero was an
official act as a director for the hospital district and, as a director, Harper was prohibited
from harming the hospital district and its operations. The State also argues that Harper
was harming the hospital district and its operations by his text message to another board
member acknowledging that if they could not stop the tax, the voters should have the
opportunity to have a say in paying the tax or dissolving the hospital district. Harper
Harper v. Best Page 16
acknowledged in that text that dissolution of the hospital district “would likely close the
hospital.”
But there was no evidence that Harper did anything; no evidence that Harper took
an official action or made an official motion about which Best and the State complain that
demonstrated Harper’s incompetence. Earl Ray Reynolds, the hospital’s administrator,
testified at the hearing for temporary suspension that there was a meeting of the board
of directors to set the hospital district tax rate which had been previously set by a
temporary board. Reynolds recalled that, as a part of the discussion on the tax rate,
Harper suggested that the tax rate be set at zero. Reynolds and Best, who also testified
at the hearing, agreed there was no vote on Harper’s suggestion. Best testified that a
motion was made to set the tax rate and Harper “jumped in” and said, “I’d vote for zero.”
Best acknowledged that the chair did not recognize Harper, no one seconded Harper’s
statement, and the discussion as to the tax rate ended. Further, the board ultimately voted
to set the tax rate at an amount greater than what the temporary board had set.
This is not like the situation in Tautenhahn v. State, 334 S.W.2d 574, 585 (Tex. Civ.
App.—Waco 1960, writ ref’d n.r.e.) where the appellate court found the evidence to be
sufficient to support the removal of certain school board trustees for incompetency.
There, the trustees deliberately set (moved, seconded, discussed, voted, and approved) a
tax rate at an amount which was insufficient to operate the school for the entire term.
Here, Harper simply made a statement about what tax rate he would support. There was
Harper v. Best Page 17
no motion, no second, no discussion, and no vote.5
As to the text message, Harper testified that, although he only recalled making the
statement as to the voters deciding dissolution, he agreed that dissolution of the hospital
district would likely close the hospital. This text, however, was not an official act or a call
to action by the other board members. Harper stated he was not trying to influence the
other board members. His testimony was that he tries to convince people of his way of
thinking at the board meetings.
Accordingly, the State did not establish by clear and specific evidence that
Harper’s comment about setting a tax rate of zero or his text message acknowledging
possible or probable closure of the hospital if the voters wanted dissolution of the district
constituted gross ignorance of or gross carelessness in discharging Harper’s official
duties.
As to the blog post, the State argues that the information depicted in it could have
only come from Harper and showed Harper’s “complete disdain for the entity he is
charged with representing both competently and with good faith.” The domain for the
blog was owned by Harper, but the blog was operated and managed by Harper’s wife,
Debbie. Further, although Harper had told Debbie what had happened at the board
meeting where he made the zero tax rate comment, the opinions expressed in the blog
5 We express no opinion on whether the outcome of this proceeding or the analysis would be any different
if Harper had formally taken some action to lower or reduce the district’s tax rate.
Harper v. Best Page 18
were Debbie’s. When asked if he could keep Debbie from posting her opinions, Harper
testified, “It doesn't matter what I think. What she wants to post, she can post. That's her
business, it's not mine.” Witnesses for the State could not say that Harper ran the blog
and posted the opinion. Consequently, the State did not establish by clear and specific
evidence that Harper was grossly ignorant of or grossly careless in discharging Harper’s
official duties due to the opinions posted in the blog.
Further, we note that the hospital board oath does not require loyalty to the
existing board members or officers of the hospital. Even if it was shown that the
statements were Harper’s or could be attributed to him, he is not prohibited from seeking
a change in administration and management of the district board or hospital by stating
his perception of the problems of the current board and hospital administration.
Accordingly, because the State did not establish incompetency by clear and
specific evidence, the trial court erred in denying Harper’s motion to dismiss the petition
to remove on those grounds.
Official Misconduct
The State also alleged in its supplemental petition that Harper should be removed
from office for committing official misconduct because he violated the Open Meetings
Act. “Official misconduct” means intentional, unlawful behavior relating to official
duties by an officer entrusted with the administration of justice or the execution of the
law. TEX. LOCAL GOV’T CODE ANN § 87.011(3) (West 2008). The term includes an
Harper v. Best Page 19
intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed
on the officer by law. Id.
The State attached a series of text messages between Harper and board member,
John Parker, and a series of text messages between Harper and another board member,
Chip Harrison, to its supplemental petition. The State alleged that within those two sets
of communications, a “walking discussion” between the three board members is seen and
a dialogue with a fourth board member is referenced. Citing section 551.143 of the Texas
Government Code, the State argued that this was an attempt by Harper to circumvent
and thus violate the Open Meetings Act.
Generally, every regular, special, or called meeting of a governmental body shall
be open to the public. TEX. GOV’T CODE ANN. § 551.002 (West 2012). As it pertains to this
case, a meeting is “a deliberation between a quorum of a governmental body, or between
a quorum of a governmental body and another person, during which public business or
public policy over which the governmental body has supervision or control is discussed.”
Id. § 551.001(4)(A). A quorum is a majority of a governmental body. Id. (5).
Section 551.143 provides that a member or group of members of a governmental
body commits an offense if the member or group of members knowingly conspires to
circumvent the Open Meetings Act by meeting in numbers less than a quorum for the
purpose of secret deliberations in violation of the Act. TEX. GOV’T CODE ANN. § 551.143
(West 2012). At first glance, it appears that Harper may have committed an offense by
Harper v. Best Page 20
texting the two other board members. However, this provision has been construed to
apply to members of a governmental body who gather in numbers that do not physically
constitute a quorum at any one time but who, through successive gatherings, secretly
discuss a public matter with a quorum of that body. Tex. Att’y Gen. Op. GA-0326, *2
(2005). See Esperanza Peace and Justice Center v. City of San Antonio, 316 F. Supp. 2d 433,
476 (W.D. Tex 2001); see also Asgeirsson v. Abbott, 773 F. Supp. 2d 684, 706-707 (W.D. Tex.
2011); Willmann v. City of San Antonio, 123 S.W.3d 469, 478 (Tex. App.—San Antonio 2003,
pet. denied).
A quorum of the district’s board consists of at least four members. The texts
supplied by the State show conversations between Harper and Parker and Harper and
Harrison. Both sets of texts involve conversations about the tax rate and other matters
regarding the hospital district and the hospital. At one point in a text to Parker, Harper
stated, “I told chip [sic] [Harrison] and Eugene I had a number of motions, did not get
into what they were[.] I think we are still good at this point.” Eugene was another district
board member.
The State argues that this reference to Eugene established a “walking quorum”
and thus, the State argues, Harper violated section 551.143 of the Open Meetings Act.
Assuming without deciding that the reference established a “walking quorum,” in order
to violate section 551.43, the “walking quorum” still must conduct “deliberations.” TEX.
GOV’T CODE ANN. § 551.143 (West 2012). A deliberation is defined by the Act as a verbal
Harper v. Best Page 21
exchange concerning an issue within the jurisdiction of the governmental body or any
public business. Id. § 551.001(2). This reference to Eugene does not indicate that
deliberations were conducted. Harper mentioned in his text that he told Eugene that he
had several motions but that he did not “get into” the subject of those motions. Nothing
was presented to show that an exchange occurred between Harper and Eugene about an
issue within the jurisdiction of the board or any public business, particularly the issues
discussed with Parker and Harrison. Thus, the State did not establish by clear and
specific evidence that Harper committed official misconduct by violating section 551.143
which would be a violation of the Open Meetings Act.
Accordingly, the State did not establish by clear and specific evidence that Harper
committed official misconduct under the removal statute, TEX. LOCAL GOV’T CODE ANN.
§§ 87.013(a); 87.011(3) (West 2008), and the trial court erred in overruling Harper’s motion
to dismiss on that ground.
Harper’s first and second issues are sustained.6
CONCLUSION
Having determined that the trial court erred in failing to dismiss the State’s
petition for removal, the trial court’s order denying Harper’s motion to dismiss signed
on March 11, 2015 is reversed. This proceeding is remanded to the trial court for rendition
6 Because we sustain Harper’s second issue, we need not address his third issue regarding Harper’s
affirmative defense of legislative immunity.
Harper v. Best Page 22
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.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded
Opinion delivered and filed April 21, 2016
[CV06]
Harper v. Best Page 23