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Baumgart v. Archer

Court of Appeals of Texas, First District

June 27, 2019

ERIC LYNN BAUMGART, Appellant
v.
PHILLIP DOUGLAS ARCHER, KPRC-TV CHANNEL 2, GRAHAM MEDIA GROUP, HOUSTON, INC., GRAHAM MEDIA GROUP, GRAHAM HOLDINGS COMPANY, Appellees

          On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2017-83349

          Panel consists of Justices Keyes, Higley, and Landau.

          OPINION

          SARAH BETH LANDAU, JUSTICE

         When Harris County Assistant Chief Deputy Constable Clint Greenwood was gunned down in a courthouse parking lot, the murder made headlines. According to appellant Eric Baumgart, a television broadcast and related web article published by appellees Phillip Douglas Archer; KPRC-TV Channel 2; Graham Media Group, Houston, Inc.; Graham Media Group; and Graham Holdings Company (collectively, "Graham Media") falsely suggested to the public that he was "the assassin."[1]

         Baumgart sued Graham Media for defamation. Graham Media moved for and obtained dismissal of Baumgart's claims and an award of attorney's fees under the Texas Citizens Participation Act (TCPA or the "Act"). See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Baumgart appeals on numerous grounds, contending that (1) the TCPA does not protect Graham Media's defamatory speech; (2) he made a prima facie showing of defamation; (3) the trial court's refusal to allow discovery before dismissing his claims violated Texas's due-process guarantee of open courts; (4) a jury trial on the reasonableness of Graham Media's attorney's fees was constitutionally required; and (5) the TCPA operates, on its face and as-applied, as an unconstitutional restraint on a plaintiff's speech. We affirm.

         Background

         Baumgart was a reserve officer with the Liberty County Constable's Office and an investigator with the Harris County Public Defender's Office when he was charged with crimes-acting as a private security guard without the appropriate license and tampering with a governmental record.[2] Baumgart pleaded not guilty, a jury convicted him on all charges, and all but one charge was affirmed on appellate review. See Baumgart v. State, 512 S.W.3d 335, 349 (Tex. Crim. App. 2017) (licensing violations); Baumgart v. State, No. 01-14-00320-CR, 2015 WL 5634246, at *3-4 (Tex. App.-Houston [1st Dist.] July 27, 2016, pet. ref'd) (tampering with governmental record). Baumgart began serving a 90-day sentence in January 2017. Baumgart was still incarcerated at the time Assistant Chief Deputy Greenwood was shot and killed outside a courthouse in Baytown, Texas.

         Baumgart alleges that he served time in jail because of Greenwood's vendetta against him. According to Baumgart, the vendetta began when Baumgart helped draft a federal civil rights complaint against Harris County. And the complaint provoked Greenwood, who then served as an assistant district attorney in the police integrity unit, not only to prosecute retaliatory criminal charges against Baumgart, but also, to pressure the public defender to end his employment.

         While he was incarcerated, Baumgart submitted a request under the Texas Public Information Act, see Tex. Gov't Code §§ 552.001 et seq., for Greenwood's "employee time records" for the month of December 2016. Greenwood perceived this as a threat and asked that his records not be released. In an email regarding Baumgart's public-records request, Greenwood told a Harris County attorney that Baumgart "poses a real threat to my, and my family's[, ] safety." Greenwood's records were not released.

         Phillip Douglas Archer, a Graham Media journalist working for the Houston NBC affiliate known as KPRC, learned of Baumgart's public-records request during his investigation of Greenwood's murder. Archer interviewed Baumgart the day after Greenwood died, and asked about Baumgart's fraught relationship with Greenwood, whether the men perceived one another as a safety threat, and Greenwood's death.

         The same day, KPRC ran a television news story and related article, both of which KPRC published on its website, about Greenwood's murder and the documented hostility between Baumgart and Greenwood. Archer was the reporter. The web article-entitled "Slain deputy constable feared former officer he had investigated, source says"-read in its entirety:

Five days before he was slain, Clint Greenwood told officials in the county attorney's office that he believed a man he'd helped send to jail was a threat to him and his family.
The man he was talking about is currently a prisoner in the Harris County Jail, Eric Baumgart, a former investigator for the Harris County Public Defender's Office and a reserve officer with the Liberty County police agency.
Greenwood helped convict him of tampering with a government document and with providing private security services without a license in 2014.
Baumgart, 47, was sentenced to 90 days in jail and five years of probation. He began serving his sentence in January.
In an interview Tuesday afternoon at the jail, Baumgart said county detectives searched his belongings on Monday, following Greenwood's death, but he says they still haven't spoken to him.
Last January, a source close to the murder investigation said Baumgart submitted a freedom of information request from jail asking for Greenwood's pay records.
Greenwood was contacted by the county attorney's office, and asked that the records not be released.
Greenwood sent another email on March 30 saying he believed Baumgart was a threat to him and his family, according to the source.[3]
On Tuesday, Baumgart attributed that statement to what he calls a vendetta Greenwood waged against him after Baumgart helped a friend file a civil rights lawsuit against the county in 2012.
He says Greenwood ruined his career and put him in jail. He said he considered Greenwood a threat to him.
During the election last fall, Baumgart ran an ad accusing Greenwood's boss at the time, District Attorney Devon Anderson, of corruption - naming ...

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