The opinion
Opinion issued October 7, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00515-CV
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CHENIERE ENERGY, INC., CHARIF SOUKI, INDIVIDUALLY, AND
GREG RAYFORD, INDIVIDUALLY, Appellants
V.
AZIN LOTFI, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2013-12735
CONCURRING OPINION
I join the lead opinion, but write separately to emphasize that, given its
specific language and expressly stated purpose to protect only the constitutional
rights to free speech, petition, and association, the Texas Citizen Participation Act
(“TCPA”) does not apply to the claim of appellant, Azin Lofti, against appellees,
Charif Souki and Greg Rayford, for tortious interference with her employment
contract. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001–.011 (Vernon Supp.
2014).
Under Chapter 27 of the Texas Civil Practice and Remedies Code, which is
entitled “Actions Involving the Exercise of Certain Constitutional Rights,” a party
may file a motion to dismiss a legal action that is “based on, relates to, or is in
response to [the] party’s exercise of the right of free speech, right to petition, or
right of association.” Id. § 27.003(a) (emphasis added). After a hearing on the
motion, a trial court must dismiss the action if the moving party “shows by a
preponderance of the evidence” that the legal action is “based on, relates to, or is in
response to the party’s exercise” of:
(1) the right of free speech;
(2) the right to petition; or
(3) the right of association.
Id. § 27.005(b) (emphasis added).
In the TCPA itself, the legislature expressly stated its purpose:
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
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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). Thus, the TCPA serves to encourage and protect
only the “constitutional rights” to “free speech,” “petition,” and “association.” See
U.S. CONST. amend I; see also TEX. CONST. art. I, §§ 8, 27.
Moreover, as explained by the Texarkana Court of Appeals, “[b]y
including the phrase ‘otherwise participate in government’” in section 27.002, the
legislature “intended to protect” only constitutionally protected freedoms “that
rise[] to such a level that [they] can be considered participation in government.”
Whisenhunt v. Lippincott, 416 S.W.3d 689, 697 (Tex. App.—Texarkana 2013, pet.
filed). Indeed, in his statement of intent, the sponsor of the TCPA explained:
Citizen participation is the heart of our democracy. Whether
petitioning the government, writing a traditional news article, or
commenting on the quality of a business, involvement of citizens in
the exchange of idea[s] benefits our society.
Yet frivolous lawsuits aimed at silencing those involved in these
activities are becoming more common, and are a threat to the growth
of our democracy. The Internet age has created a more permanent and
searchable record of public participation as citizen participation in
democracy grows through self-publishing, citizen journalism, and
other forms of speech. Unfortunately, abuses of the legal system,
aimed at silencing these citizens, have also grown. These lawsuits are
called Strategic Lawsuits Against Public Participation or “SLA[P]P”
suits.
Twenty-seven states and the District of Columbia have passed similar
acts, most commonly known as either “Anti–SLAPP” laws or “Citizen
Participation Acts” that allow defendants in such cases to dismiss
cases earlier than would otherwise be possible, thus limiting the costs
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and fees. The Texas Citizen Participation Act would allow
defendants—who are sued as a result of exercising their right to free
speech or their right to petition the government—to file a motion to
dismiss the suit, at which point the plaintiff would be required to show
by clear and specific evidence that he had a genuine case for each
essential element of the claim. In addition, if the motion to dismiss is
granted, the plaintiff who has wrongly brought the lawsuit may be
required to pay attorney’s fees of the defendant.
C.S.H.B. 2973 amends current law relating to encouraging public
participation by citizens by protecting a person’s right to petition,
right of free speech, and right of association from meritless lawsuits
arising from actions taken in furtherance of those rights.
Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 2973, 82nd Leg., RS
(2011) (emphasis added). Thus, the broader purpose of the Texas Citizen
Participation Act is to stop such Strategic Lawsuits Against Public Participation.
Here, the complained-of acts of Souki and Rayford in regard to their alleged
tortious interference with Lofti’s employment contract do not at all concern their
constitutional rights to petition, speak freely, associate freely, “and otherwise
participate in government,” i.e., engage in citizen or public participation. Lofti’s
lawsuit against Souki and Rayford has nothing to do with their constitutional right
to engage in citizen or public participation. And Lofti’s allegation that Souki and
Rayford tortiously interfered with her employment contract cannot in any
reasonable sense be read as an attempt to strategically silence them, prevent them
from engaging in citizen or public participation, prevent them from associating for
such purposes, or in any other way infringe upon their constitutional rights.
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Regardless, Souki and Rayford claim that Lofti’s lawsuit constitutes an
attempt to thwart their constitutional right to associate as defined in the TCPA. In
the TCPA, the legislature does broadly and vaguely define the “exercise of the
right of association” as “a communication between individuals who join together to
collectively express, promote, pursue, or defend common interests.” See TEX. CIV.
PRAC. & REM. CODE ANN. § 27.001(2). Standing alone, this awkward definition
does appear to include communications that are not constitutionally protected and
do not concern citizen or public participation. However, we cannot read section
27.001(2) in isolation. The TCPA necessarily contemplates that any
communication, as discussed in section 27.001(2), must involve constitutionally
protected rights and citizen or public participation.
As noted in the lead opinion, when construing a statute, our objective is to
determine and give effect to legislative intent. See Nat’l Liab. & Fire Ins. Co. v.
Allen, 15 S.W.3d 525, 527 (Tex. 2000). Although the “plain meaning of the text is
the best expression of the legislative intent,” this is not true when “a different
meaning is apparent from the context or the plain meaning leads to absurd or
nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). And
we “must not interpret the statute in a manner that renders any part of the statute
meaningless or superfluous.” Columbia Med. Ctr. of Los Colinas, Inc. v. Hogue,
271 S.W.3d 238, 256 (Tex. 2008).
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Here, reading the TCPA in its entirety, the broad definition of “exercise of
the right of association” is necessarily restricted by the expressly stated purpose of
the TCPA “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.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.002 (emphasis added). Although citizens most certainly do have a First
Amendment right to associate to bring about social and political change for our
“common interests,” there is no constitutional right to engage in criminal behavior,
commit civil wrongs, or otherwise inflict injury upon others. Importantly, the
legislature expressly included within the stated purpose of the TCPA its intent to,
“at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.” Id.
Construing the definition of “exercise of the right of association” in section
27.001(2) in isolation, without any regard for the legislature’s expressly stated
purpose of the TCPA in section 27.002 to protect “constitutional rights,” would
certainly lead to absurd results. As explained by the Texarkana Court of Appeals:
The statement of intent confirms the concept gathered from reading the
statute as a whole that the Legislature was attempting by this law to
protect a citizen’s public participation.[] Otherwise, pre-discovery
dismissals, attorney’s fees, and sanctions would loom over any
plaintiff filing an action for private defamatory speech, which would
have the effect of chilling meritorious private defamation suits, a result
neither intended nor required under the TCPA.
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Whisenhunt, 416 S.W.3d at 698 (emphasis added). Here, the results flowing from
reading section 27.001(2) in isolation would also be absurd. Such a reading would
serve to actually thwart any meritorious lawsuit for demonstrable injury in which a
plaintiff alleges that two or more persons engaged in a civil wrong involving a
communication. The defendants could, at the very least, add unnecessary delay
and expense to a plaintiff’s lawsuit, no matter how meritorious, by simply asserting
that, in committing their complained-of acts, they were exercising their right of
association by engaging in a communication “to collectively express, promote,
pursue, or defend” their own private, “common interests.” This is too clever by
half.
To the extent that the definition of “exercise of the right of association” in
section 27.001(2) can possibly be read as including communications not
constitutionally protected and not concerning citizen or public participation, and,
thus, be used by litigants to add expense and unnecessary delay to meritorious
litigation, especially via interlocutory appeal, the legislature could drop the
definition from the TCPA altogether. At the very least, although repetitive, the
legislature could revise the definition to include qualifying language, repeating in
the definition its stated purpose of the TCPA to protect and encourage the use of
“constitutional rights.” Although not necessary, such a change would serve to
further “protect the rights of a person to file meritorious lawsuits for demonstrable
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injury” from those who would otherwise abuse the Texas Citizen Participation Act
and use it to unreasonably delay and add expense to claims for injuries resulting
from their private, civil wrongs.
Terry Jennings
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Jennings, J., concurring, joined by Sharp, J.
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