Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-17-005008, HONORABLE R. H. WALLACE, JR., JUDGE
Chief Justice Rose, Justices Kelly and Smith
ROSE, CHIEF JUSTICE.
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
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
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
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
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.
O. Rosales Attorney-at-law ceo.cenvetaccess.org
underlining, and capitalization in original.)
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
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.
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.
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.
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).
review of issues regarding interpretation of the TCPA is de
novo. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex.
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 ...