Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 44th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-05352
Justices Bridges, Myers, and Brown
Tel*Link Corporation ("GTL") moved to dismiss a
suit brought by Securus Technologies, Inc.
("Securus") based on the provisions of the Texas
Citizen's Protection Act ("TCPA"). Securus
responded asserting the commercial speech exception applied
to its suit or, in the alternative, it had clear and
convincing evidence to support the claims asserted. Following
a hearing, the trial court denied GTL's motion. In this
interlocutory appeal, GTL asserts the trial court abused its
discretion in denying the motion because: (1) Securus's
suit was based on communications protected by the TCPA; (2)
the commercial speech exception did not apply to those
communications; and (3) Securus did not present clear and
convincing evidence to support its claims. For the following
reasons, we reverse the trial court's order and remand
for further proceedings consistent with this opinion.
and GTL provide telephone and video communications system
services at correctional facilities for the use of inmates
and law enforcement agencies. The services are generally
provided pursuant to multi-year contracts that are awarded
based on open public bidding. Securus and GTL own patents to
protect intellectual property related to such services and
are currently involved in litigation against each other in
federal court related to their respective patents. Amongst
GTL's claims in that litigation are its contention that
Securus infringes on two GTL patents, the "'243
patent, " which involves technology related to video
visitation with inmates and the "'816 patent, "
which involves technology related to inmate phone calls.
Securus denied that it infringes on either patent and also
challenged the validity of both patents. In connection those
challenges, Securus filed petitions for inter partes review
(IPR) in the U.S. Patent and Trademark Office (PTO)
requesting the PTO to reexamine the GTL patents and cancel
various of the patents' claims.
agreed to review Securus's challenge to GTL's
'243 patent, but after doing so, rejected its challenge.
After the PTO's ruling, GTL sent, via email, an
"Important Industry News Alert" to members of law
enforcement, correctional facility officers, and their
representatives announcing the PTO's ruling. GTL said the
ruling cleared the way for it to pursue its patent
infringement claims against Securus and seek injunctive
relief and damages. GTL further said, if granted, an
injunction "could have ramifications for customers using
the infringing technology."
subsequently secured another favorable ruling from the PTO.
Specifically, the PTO refused to reexamine GTL's '816
patent because Securus had failed to demonstrate a reasonable
likelihood it would prevail on its challenge. GTL then sent
another email, again titled "Important Industry News
Alert." That email similarly stated the PTO's ruling
cleared the way for GTL to pursue its patent infringement
claims and seek an injunction. GTL noted that "if
granted" an injunction would prohibit Securus from using
GTL's "patented technologies . . . at all facilities
where infringement is occurring." GTL added that
"they were only months away from finally being able to
show a jury how Securus infringes on the GTL patents."
sued GTL for defamation and business disparagement claiming
the emails falsely represented that GTL's victory in the
patent litigation was "assured" and that those
receiving the emails were using infringing technologies.
Securus also asserted a claim for tortious interference with
existing contracts asserting GTL sent the emails to its
customers in order to induce them to breach their contracts
filed a motion to dismiss under the TCPA asserting
Securus's claims were all based on communications
protected by that Act. Secures responded the "commercial
speech exception" applied to GTL's communications.
In the alternative, it asserted it had clear and specific
evidence supporting each element of its claims. Following a
hearing, the trial court denied GTL's motion without
specifying its reasons. GTL appeals.
Citizens Participation Act
Texas Legislature enacted 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 and, at the
same time, protect the rights of a person to file meritorious
lawsuits for demonstrable injury." See Tex.
Civ. Prac. & Rem. Code Ann. § 27.002; see also
In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig.
proceeding); Watson v. Hardman, 497 S.W.3d 601, 605
(Tex. App.-Dallas 2016, no pet.). The legislature has
instructed courts to construe the TCPA liberally to effect
its purpose and intent fully. Tex. Civ. Prac. & Rem. Code
Ann. § 27.011.
the TCPA, "a court shall dismiss a legal action against
the moving party 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. at § 27.005(b).
The TCPA defines the "exercise of the right to
petition" to include communications in or pertaining to
a judicial proceeding, other official proceedings to
administer the law or before a department of the federal
government. See id. at § 27.001. If the movant
establishes a suit is based on protected communications, the
trial court shall dismiss the action unless the non-movant
establishes by "clear and specific evidence a prima
facie case for each essential element of the claim in
question." Id. at § 27.005(c); see
also Lipsky, 460 S.W.3d at 584.
TCPA also provides certain actions are exempt from its
provisions, one of which courts refer to as the