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Commission for Lawyer Discipline v. Rosales

Court of Appeals of Texas, Third District, Austin

April 3, 2019

Commission for Lawyer Discipline, Appellant
v.
Omar Weaver Rosales, 201701087, 201700840, 201700279, 201700153, 201607308, 201607292, 201701948, 201702052, Appellee

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. D-1-GN-17-005008, HONORABLE R. H. WALLACE, JR., JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith

          OPINION

          JEFF ROSE, CHIEF JUSTICE.

         The Commission for Lawyer Discipline appeals from the district court's order dismissing the Commission's disciplinary action against Omar Weaver Rosales under the Texas Citizens Participation Act (TCPA). Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Based on our conclusion that the TCPA applies to the Commission's disciplinary proceeding against Rosales, but that the Commission met its burden of establishing by clear and specific evidence a prima facie case for each element of its claim against Rosales, we reverse and remand for further proceedings.

         Background

         In December 2016, Rosales began sending demand letters to various medical providers across the state asserting that the recipients' websites violated the Americans with Disabilities Act (ADA), 42 U.S.C. Section 12101 et seq., and rules promulgated under the ADA. The following is representative of the letters Rosales sent:

CENTER FOR VETERANS ACCESS PO BOX 6429 AUSTIN, TX 78762-6429 (512) 520-1919 (512) 309-5360 Fax WWW.CENVETACCESS.ORG
JANUARY 23, 2017
VIA U.S. MAIL CERTIFIED RRR . . .
CLINIC DIRECTOR PATIENT EMERGENCY ROOM, PLLC 101331 I-10 EAST BAYTOWN, TX 77521
RE: LAWSUIT ALLEGING VIOLATIONS OF TITLE 42 USC §12101, §12181, KNOWN AS THE AMERICANS WITH DISABILITIES ACT (ADA)
Dear Clinic Director:
I hope this letter finds you in good regards. Enclosed is a copy of the Federal lawsuit to be filed in the Southern District of Texas, Houston Division, against your clinic. This lawsuit alleges violations of the Americans with Disabilities Act, Title 42 U.S.C. §12101 and §12181 (known as the "ADA") that occur on your company's website.
As you are aware, the Americans with Disabilities Act applies to websites. Disabled individuals have the right to access and obtain information about medical clinics, doctor's offices, and urgent care centers. Disabled individuals, such as myself, use these websites to obtain and book suitable medical treatment. Under Federal law, your website must comply with the new requirements of the ADA and WCAG 2.0 AA (Web Content Accessibility Guidelines).
I have completed a survey of your website for ADA compliance. Your website failed. I have attached the ADA review of your website that lists the areas where your site is not in compliance with Federal law and Title III of the ADA.
In addition, to receive Federal funds through Medicaid, Medicare, and the Children's Health Insurance Partnership (CHIP), you have agreed to comply with all Federal Rules and Regulations. Since your website does not comply with Federal law, you must immediately self-report to the Department of Health and Human Services (DHHS) and forfeit any Federal funds received until you have completed recertification.
Our Initial Demand to settle this unfiled lawsuit is $2000. Should you refuse to enter settlement negotiations, I will have no choice but to file the attached lawsuit against your company. I will also contact DHHS and discuss the possibility of a separate civil suit under Qui Tam doctrine to obtain reimbursement of Federal Tax dollars that you improperly obtained from the government. Please contact me, so that we may resolve these issues.
Sincerely,
O. Rosales Attorney-at-law ceo.cenvetaccess.org

         (Grammar, underlining, and capitalization in original.)

         Seven medical providers who received these letters filed grievances against Rosales with the Office of the Chief Disciplinary Counsel of the State Bar of Texas. Ultimately, the Chief Disciplinary Counsel brought a disciplinary proceeding against Rosales on behalf of the Commission for Lawyer Discipline, a committee of the State Bar of Texas, in Travis County District Court as provided for by the Texas Rules of Disciplinary Procedure. See Tex. Rules Disciplinary P. R. 2.10-.15 (grievance process and resolution options); R. 3.01-.08 (district-court proceedings), reprinted in Tex. Gov't Code, tit. 2, subtit. G, app. A-1. In its suit, the Commission alleged that

         Rosales's ADA/website letters constituted professional misconduct because the letters violated the Texas Disciplinary Rules of Professional Conduct. Tex. Disciplinary Rules Prof'l Conduct R. 1.01-9.01, reprinted in Tex. Gov't Code, tit. 2, subtit. G., app. A (Tex. State Bar R. art. X, § 9). Specifically, the Commission alleged that the letters violated the rules prohibiting "engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation," id. R. 8.04(a)(3); "practic[ing] under a trade name," id. R. 7.01(a); "stat[ing] or imply[ing] an ability to influence improperly a government agency or official," id. R. 8.04(a)(5); threatening medical providers with possible disciplinary actions in order to gain an advantage, see id. R. 4.04(b)(1); and asserting frivolous claims, see id. R. 3.01. According to the Commission, Rosales's letters contained inaccurate and deceptive statements regarding the ADA and its applicability to websites and regarding the origin and legal effect of the Web Content Accessibility Guidelines ("WCAG guidelines") referenced in the letters.

         Rosales responded to the Commission's disciplinary action by filing, among other pleadings, a motion to dismiss under the TCPA. Rosales asserted that the Commission's suit against him was based on his exercise of the right to free speech in the website demand letters, which Rosales contends were "communication[s] made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code § 27.001(3) (defining "exercise of free speech"); see id. § 27.003(a) (allowing party to move for dismissal of claims that are "based on, relate[ ] to, or [are] in response to a party's exercise of the right of free speech, right to petition, or right of association"). In support of his motion, Rosales attached various documents, including the letter reproduced above and an affidavit explaining, stated generally, that he had a reasonable belief that the ADA and WCAG guidelines applied to websites when he sent his letters.

         In response, the Commission argued that Rosales's motion to dismiss should be denied because the TCPA does not apply to lawyer-discipline cases, see id. § 27.010(a) (exempting certain enforcement actions), and that even if the TCPA did apply, the Commission had established a prima facie case against Rosales, see id. § 27.005(b)-(c) (requiring dismissal unless nonmovant establishes by clear and specific evidence a prima facie case for each essential element of the claim in question). In the alternative, the Commission asked for the opportunity to conduct further discovery. See id. § 27.006(b) (allowing trial court to allow specified and limited discovery related to motion to dismiss). After a hearing, the district court granted Rosales's TCPA motion and dismissed the Commission's suit. This appeal ensued.

         TCPA

         The Texas Legislature passed 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." Id. § 27.002. The statute provides a procedural mechanism that permits a party to file a motion to dismiss a "legal action" if the 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." Id. § 27.003(a). Once such a movant establishes by a preponderance of the evidence that the suit "is based on, relates to, or is in response to the party's exercise of" one of the enumerated rights, the trial court must dismiss the legal action unless the nonmovant "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005; see S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018) (discussing steps and burden-shifting in TCPA analysis). Even if the nonmovant carries its burden under section 27.005(c), however, the trial court must dismiss the legal action if the movant establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim. Tex. Civ. Prac. & Rem. Code § 27.005(d). In determining whether such motions to dismiss should be granted, courts are to consider the pleadings and supporting and opposing affidavits on which the claim or defense is based. Id. § 27.006(a). The TCPA also provides specific exemptions to its applicability, including, at issue here, an exemption for enforcement actions brought by certain government entities. See id. § 27.010(a).

         Appellate review of issues regarding interpretation of the TCPA is de novo. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).

         Discussion

         The Commission raises four issues on appeal. First, it contends that (1) the district court erred in granting Rosales's motion to dismiss because the TCPA does not apply to the Commission's disciplinary proceedings against lawyers. In the alternative, the Commission argues that, if the TCPA does apply, the district court erred in granting the motion to dismiss because (2) the Commission met its burden of establishing by clear and specific evidence a prima facie case for each essential element of its claims, or (3) the Commission was entitled to additional discovery before the district court decided the motion. Finally, the ...


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