Appeal from the 234th District Court Harris County, Texas
Trial Court Case No. 2018-81317.
consists of Justices Kelly, Hightower, and Countiss.
Tammy Barette sued her former employer, appellant Houston
Forensic Science Center, Inc. ("HFSC"), for
defamation relating to a press release that accused her of
misconduct as a crime scene investigator. In response to
HFSC's motion to dismiss under the Texas Citizens
Participation Act ("TCPA"), Barette nonsuited her
claims against HFSC. See Tex. Civ. Prac. & Rem.
Code §§ 27.001-.011. The trial court denied the
TCPA motion to dismiss, and HFSC filed this interlocutory
appeal. See id. § 51.014(a)(12). On appeal,
HFSC argues that its TCPA motion survived Barette's
nonsuit because it requested attorney's fees, costs,
expenses, and sanctions. HFSC also argues that the trial
court erred by denying its motion to dismiss on the merits.
we conclude that the trial court's order denying the
motion to dismiss is void, we vacate the order and dismiss
a local government corporation that was created by the City
of Houston to operate an independent center for analysis of
forensic evidence. Barette, who has a Ph.D. in Biological
Anthropology, worked for HFSC as a crime scene investigator.
HFSC asserts that it terminated her employment because she
failed to follow policies regarding the equipment used to
HFSC terminated Barette's employment, it issued a press
release stating that a crime scene investigator had been
terminated due to the use of testing equipment that led to
false negative results. Later, employees of HFSC identified
Barette to news organizations, which identified her by name
in their reporting.
sued HFSC for defamation per se based on the press release.
She denied the allegations in the press release and later
news stories, asserting that they included multiple false
statements. HFSC filed a combined plea to the jurisdiction
and motion to dismiss Barette's claim for defamation per
se under the TCPA. HFSC argued that Barette could not prove a
prima facie case of defamation per se with clear and specific
evidence. HFSC specifically challenged Barette's ability
to show falsity, fault, and damages. HFSC also argued that it
was entitled to dismissal under the TCPA because it was
immune from intentional torts under the Texas Tort Claims Act
("TTCA"). HFSC requested "affirmative
relief" of "court costs, reasonable attorney's
fees, other expenses incurred in defending the claim as
justice and equity may require," and sanctions.
days after HFSC filed its combined motion, Barette amended
her petition, dropping claims of defamation per se against
HFSC and adding claims of defamation per se against four
employees of HFSC. HFSC filed a supplemental brief on its
pending TCPA motion to dismiss, arguing that its request for
attorney's fees, costs, and expenses under the TCPA
survived Barette's nonsuit.
trial court denied both the plea to the jurisdiction and the
TCPA motion to dismiss, and HFSC appealed.
appeal, HFSC raises two issues, challenging only the trial
court's ruling on the TCPA dismissal motion.
procedural posture of this case is unusual. In the trial
court, HFSC challenged the same claim-defamation per se-by
asserting both that the court lacked subject-matter
jurisdiction due to governmental immunity and by asking the
court to dismiss the claim and award attorney's fees,
costs, expenses, and sanctions. When a court lacks subject
matter jurisdiction because a party is "immune from a
pending claim, any court decision regarding that claim is
advisory to the extent it addresses issues other than
immunity, and the Texas Constitution does not ...