Tex Abuse

According to the Texas Civil Procedures and Remedies Code:

“A party responding to a motion to dismiss shall file a response, if any, not later than seven days before the date of the hearing.”

The hearing on Tommy’s TCPA Motion to Dismiss was scheduled for August 25, 2022, which meant that I had to submit a response (if any) by August 18. It was already July 12, so I had a little more than five weeks to create and submit my response to Tommy’s motion.

Time to get to work.

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The document I ended up submitting on August 16 bore the catchy title Plaintiff’s Response to Defendants’ Amended Motion to Dismiss Pursuant to the Texas Citizens Participation Act.

I think you’d enjoy reading it in its entirety, even though it’s more than 40 pages long. For one thing, it’s double-spaced, so it’s “really” only 20 pages long. And for another thing, it doesn’t include much of the dense legal jargon you might expect to find in this kind of document, mainly because I hadn’t yet had time to learn how to create confusing legalese.

But if your eyes glaze over if you even think about reading a 40-page legal document (even one that’s “really” only 20 pages long), here’s a summary of the key issues.

The Right to Petition

Chapter 27 of the Texas Civil Procedures and Remedies Code is entitled “Actions Involving the Exercise of Certain Constitutional Rights.” It’s more commonly known as the “Texas Citizens Participation Act,” which is typically abbreviated to “TCPA.”

The text of the TCPA defines its purpose as “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.” In other words, the law wants to protect the right of people like Sonia to petition, while at the same time protecting the right of people like me to sue her for defamation.

But what is the “right to petition”? To most people, “petitioning” means trying to get a lot of signatures on a document that you’re going to submit to the government to get them to change (or implement) some kind of policy. In fact, I remember going door-to-door with my dad when he was trying to get our neighbors to sign a petition to get the City of Yonkers to…  do something. (That was probably 60 years ago, and I have no memory of the issue for which he was exercising his right to petition.) Obviously, Sonia did not exercise that kind of “right to petition.”

Ever helpful, the TCPA defines the exercise of the right to petition as meaning, among other things, “a communication in or pertaining to a judicial proceeding.” Sonia’s accusation that I had exposed myself appeared in her trespass counterclaim, which was obviously a communication in a judicial proceeding. So it looked like she had indeed exercised her right to petition.

The TCPA adds that “if a legal action is in response to a party’s exercise of the right to petition, that party may file a motion to dismiss the legal action.” My libel lawsuit was in response to Sonia’s exercise of her “right to petition,” so the TCPA gave Sonia the right to file a motion to dismiss, which she did via her attorney, Tommy Chase Garrett.

Next, the TCPA says, we need to have a hearing, which must be held within 60 days of the filing of the motion to dismiss. Tommy’s motion had been filed on July 12, and the hearing was scheduled for August 25, so the 60-day requirement had been met.

After the hearing, the judge must rule within 30 days, so the deadline for that ruling was Saturday, September 24, 2022. (Remember that date; it will be on the exam.) If the judge doesn’t rule within 30 days, the TCPA says that “the motion is considered to have been denied by operation of law.” In other words, if she didn’t rule within 30 days of the hearing, Judge Bouressa would be presumed to have ruled in my favor.

So, how should Judge Bouressa rule?

The TCPA offers some pretty specific guidance: “A court shall dismiss a legal action against the moving party [that’s Sonia] if the moving party demonstrates that the legal action is in response to the party’s exercise of the right to petition.”

Well, my libel lawsuit was clearly in response to Sonia’s exercise of her “right to petition.” So it looks like the judge will have to dismiss my lawsuit, right?

But fortunately for me, the TCPA clarifies the law in its very next section, where it adds that “the court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” My only claim was that I had been libeled – so all I had to do to prevail at the hearing was to prove “by clear and specific evidence a prima facie case” that Sonia had libeled me.

Which I would do as soon as I figured out what a “prima facie case” was.

A Prima Facie Case

“Prima facie” is a Latin phrase that literally means “at first sight.” The Oxford Lexico dictionary formally defines it as “based on the first impression” and “accepted as correct until proved otherwise.” I like to informally define it as “on its face.” In other words, if you say that something is true “prima facie,” you’re saying that all you have to do is look at it (or read it) to immediately know that it’s true.

So according to the TCPA, if I could establish that it was obvious “on its face” that I had been defamed, I could prevent the judge from dismissing my case.

As it happens, falsely accusing someone of committing a sexual offense is literally a textbook example of “prima facie” defamation. For example, the authoritative Restatement of Torts points out that a statement that charges sexual misconduct is one of the classic categories of defamation per se (by itself), meaning that the law automatically treats it as being defamatory, without requiring any further evidence whatsoever.

So anyone who’s been to law school would have known that, when Sonia accused me of exposing myself, it was obvious “on its face” that she had defamed me. Even though she claimed that I was trying to violate her right to petition, I had trumped that claim by providing prima facie evidence that she had defamed me, which meant that the judge would not dismiss my lawsuit and we could proceed to trial. Right?

Well, it was not quite that simple.

Immediately following Subsection C, where the TCPA says that the court can’t dismiss my case if I can provide prima facie evidence of defamation, Subsection D says: Not so fast, Hank! More accurately, Subsection D says: “Notwithstanding the provisions of Subsection C, the court shall dismiss a legal action against the moving party if the moving party establishes an affirmative defense.”

So, you ask, what is an “affirmative defense”?

I had to look it up myself, but it turned out that by relying on an “affirmative defense,” Tommy could maintain that even if Sonia really had libeled me, there was still a reason why my libel lawsuit should be dismissed.

Actually, Tommy claimed, there were two reasons, based on a couple of affirmative defenses: The Judicial Proceedings Privilege and the Doctrine of Attorney Immunity.

The Judicial Proceedings Privilege

In Texas, the Judicial Proceedings Privilege protects litigants from being sued for defamation for statements they make during the course of judicial proceedings. In theory, even though I believed that Sonia and Tommy had libeled me, the Judicial Proceedings Privilege prohibited me from suing them, so my lawsuit should be dismissed. However…

Texas courts have ruled that, for the Judicial Proceedings Privilege to apply, “the challenged defamatory statement must bear some relation to the subject matter of the underlying proceeding.” That court added that “the matter to which the privilege does not extend must be so palpably wanting in relation to the subject-matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety.” (I didn’t add the emphasis in that last sentence – the court emphasized it to make sure that everybody realized how important it was.)

In my response, I maintained that no reasonable person could believe that an accusation of a sexual offense could possibly have any relation to an accusation of trespassing. I insisted that the court could not allow Sonia and Tommy to hurl such a grievous accusation at me while they hid behind the shield of the Judicial Proceedings Privilege.

The Doctrine of Attorney Immunity

Because Texas lawyers are apparently more worthy of protection from lawsuits than the rest of us, they’ve implemented something they call the Doctrine of Attorney Immunity, which basically says that lawyers are free to defame anyone as long as they do so within the scope of representing their clients.

Why has the Texas legislature anointed attorneys with this elevated level of immunity?

They haven’t. Like the Judicial Proceedings Privilege, the Doctrine of Attorney Immunity does not appear in any law that has ever been passed by the Texas legislature. Instead, it is strictly an invention of Texas judges. And by an amazing coincidence, all of the District, Appellate, and Supreme Court judges in Texas happen to be lawyers, and they all benefit from the Immunity that they invented.

Unsurprisingly, Texas judges have held that the protection proffered by the Doctrine of Attorney Immunity is “absolute.” But they’ve hedged their bets by adding that “the act to which the privilege applies must bear some relationship to a judicial proceeding in which the attorney is employed.”

Tommy had insisted that his defamation satisfied the “some relationship” requirement because “it alleges that Mr. Mishkoff appears to enjoy being caught by Ms. Bryant’s security cameras during his unauthorized presence on her real property.” In my response, I pointed out that Tommy hadn’t actually accused me of “being caught by Ms. Bryant’s security cameras.” He had accused me of exposing myself to those cameras.

Accusing me of being caught by Sonia’s cameras while I was on her property would have borne some relation to her claim that I was a trespasser. Accusing me of exposing myself bore no relation whatsoever to that claim. And as I pointed out in my response, Tommy “had not explained how accusing me of a sexual offense could possibly be characterized as furthering his representation of his client in a property easement dispute.”

Prayer

I’ve noticed that motions typically end with a short section called a “prayer.” But in lieu of a short closing homily, I offered this quote from Justice Evelyn V. Keyes of the Court of Appeals for the First District of Texas:

“The TCPA has come to be construed so expansively as to operate as a de facto summary dismissal procedure not only for retaliatory suits but for meritorious lawsuits (emphasis added) that cannot colorably be construed as chilling First Amendment rights. And, even if the TCPA motion does not ultimately succeed, it can be used, as currently construed, to delay and to put plaintiffs in meritorious suits to the burden of defending themselves against frivolous TCPA motions by being forced to meet the threshold burden of proving a prima facie case. That cannot be the intent of the TCPA, and it is not.”

See You in Court

Once I submitted my response to Tommy’s motion to dismiss, there was nothing left for me to do but to review my notes to prepare for the hearing in nine days.

This would be the first time I’d ever represented myself in court – and while I wouldn’t say I was scared, I have to admit that I was nervous. What if I showed up in court without any clothes on? Oh, wait, that was just a nightmare, that was not likely to actually happen in real life. Right?

Given Tommy’s history, I fully expected him to file a reply to my response the day before the hearing, so I would not have time to respond.

And true to form, Tommy did not let me down.

Document Links
Tommy’s TCPA motion to dismiss
My response to Tommy’s TCPA motion to dismiss