JOSE BANDIN, MONICA BABAYAN, AND 18 SHALLOWFORD PL., LLC, Appellants
FREE AND SOVEREIGN STATE OF VERACRUZ DE IGNACIO DE LA LLAVE, Appellee JOSE BANDIN, MONICA BABAYAN, BANBA OFFICES, LLC, 83 WEST JAGGED RIDGE, LLC, 87 WEST JAGGED RIDGE, LLC, 175 W NEW HARMONY, LLC, 18 GRIFFIN HILL, LLC, 138 BRYCE BRANCH, LLC, 43 SPINNING WHEEL, LLC, AND TERRAVENTURA DEVELOPMENTS LLC, Appellants
FREE AND SOVERIEGN STATE OF VERACRUZ DE IGNACIO DE LA LLAVE, Appellee
Appeal from the 295th District Court Harris County, Texas
Trial Court Cause No. 2018-06480
consists of Justices Jewell, Bourliot, and Zimmerer.
FRANCES BOURLIOT JUSTICE
these interlocutory appeals, we are asked to decide whether
the Texas Citizens Participation Act (TCPA), which safeguards
"the constitutional rights of persons to petition, speak
freely, associate freely and otherwise participate in
government," applies when two or more people allegedly
conspire to convert or unlawfully appropriate
property. We conclude that the act, though broad,
does not extend that far.
Jose Bandin, Monica Babayan, and nine limited liability
companies challenge the trial court's denial of their
TCPA motions to dismiss. Appellants ask us to hold that the
TCPA applies to communications allegedly made among them in
furtherance of a conspiracy to conduct unlawful or tortious
acts of conversion or theft of property belonging to the
Mexican State of Veracruz. We conclude appellants have not shown
Veracruz's claims in this case are within the scope of
the TCPA. We dismiss the appeals for lack of appellate
following allegations are set forth in Veracruz's
petition. Javier Duarte was the governor of Veracruz.
Veracruz contends that Duarte, Bandin, and Babayan conspired
to steal millions, possibly billions, of dollars from the
state. Appellants and Duarte purportedly engaged in
fraudulent transactions to transfer public funds into Texas
LLCs created as shell companies to launder the money.
Appellants purportedly invested the stolen funds in real
estate in and around Houston, Texas.
sued Duarte, Bandin, Babayan, and the Texas LLCs in four
separate lawsuits, bringing claims for conversion, theft, and
civil conspiracy "to steal and embezzle, and to commit
fraud" and seeking a constructive trust and damages.
Appellants filed TCPA motions to dismiss in each lawsuit. One
motion was filed and heard in the 334th District Court and
denied by operation of law. A notice of appeal was filed in
that case challenging the 334th District Court's denial
of the motion. Another motion to dismiss was filed in the
295th District Court. The 295th District Court consolidated
all four cases and denied the three remaining motions to
dismiss "as the law of the case" based on the
ruling in the 334th District Court. Appellants filed another
notice of appeal challenging the 295th District Court's
denial of the remaining motions to dismiss and filed a motion
to consolidate the two appeals. We did not consolidate the
appeals, but they were both submitted to and considered by
the same panel.
TCPA is known as the Texas Anti-SLAPP statute;
"SLAPP" is an acronym for "Strategic Lawsuits
Against Public Participation." Toth v. Sears Home
Improvement Prods., Inc., 557 S.W.3d 142, 149 (Tex.
App.-Houston [14th Dist.] 2018, no pet.); see also Kawcak
v. Antero Res. Corp., 582 S.W.3d 566, 571 (Tex.
App.-Fort Worth 2019, pet. denied). Despite this moniker, the
legislature did not impart the traditional remedies
associated with SLAPP suits or use that term in the TCPA.
Kawcak, 582 S.W3d at 572 Several courts, including
this one, have thoroughly discussed the legislature's
incentive to pass the statute, which addresses the harm
intended by baseless litigation that suppresses the exercise
of First Amendment rights "to petition, speak freely,
associate freely, and otherwise participate in government to
the maximum extent permitted by law" See Id. at
571-72; Serafine v. Blunt, 466 S.W.3d 352, 366 (Tex
App-Austin 2015, no pet) (op on reh'g) (Pemberton, J,
concurring); Jardin v. Marklund, 431 S.W.3d 765, 769
(Tex. App.-Houston [14th Dist.] 2014, no pet.); see
also Tex. Civ. Prac. & Rem. Code § 27.002.
not rehash those discussions here, although a synopsis of the
statute's purpose is integral to our analysis. The
express purpose of the statute is twofold: (1) "to
encourage and safeguard the [enumerated] constitutional
rights," and (2) to "protect the rights of a person
to file meritorious lawsuits for demonstrable injury."
Tex. Civ. Prac. & Rem. Code § 27.002; Toth,
557 S.W.3d at 149. The statute establishes a mechanism for
expedited summary dismissal of suits that seek to intimidate
or silence citizens from exercising their constitutional
rights to free speech, of association, and to petition.
In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015);
Toth, 557 S.W.3d at 149. A defendant invoking the
act's protections must show by a preponderance of the
evidence that the plaintiff's legal action is "based
on, relates to, or is in response to" the
defendant's exercise of one or more of these rights.
Lipsky, 460 S.W.3d at 586; Toth, 557 S.W.3d
challenge the trial court's denial of their motions to
dismiss on several grounds. In response, Veracruz argues
among other things that the TCPA does not apply to its
allegations. Appellants contend that the TCPA applies because
exercise of the rights to free speech and of association are
broadly defined under the statute as involving
communications, and conspiracies necessarily involve
communications. We address only the TCPA's applicability
because that issue is dispositive of these
determine the applicability of the TCPA by a de novo review.
See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d
895, 899 (Tex. 2017). We construe the act liberally to
effectuate its purpose and intent fully. Tex. Civ. Prac.
& Rem. Code § 27.011(b); Adams v. Starside
Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018)
("The TCPA casts a wide net."). Interpreting the
statute has presented challenges to the courts of appeals
because of the breadth of its plain language. See
Kawcak, 582 S.W.3d at 574. In that regard, although the
TCPA's express purpose is to protect constitutional
rights, the statute's definitions of those rights do not
necessarily "mimic the boundaries of constitutional
rights" enumerated in the First Amendment. Id.
at 575 (citing Adams, 547 S.W.3d at 892). Thus, we
must limit our interpretation of the rights to free speech
and of association to the definitions in the statute, and we
do not look outside the statute to determine its
applicability. See id.
the rights to free speech and of association, as defined in
the act, involve communications. The statute defines
"communication" as "the making or submitting
of a statement or document in any form or medium, including
oral, visual, written, audiovisual, or electronic." Tex.
Civ. Prac. & Rem. Code § 27.001(1). "Exercise
of the right of free speech" is limited under the act to
"communication[s] made in connection with a matter of
public concern."Id. § 27.001(3);
Toth, 557 S.W.3d at 150. Until recently,
"[e]xercise of the right of association" was not
similarly limited. The act defined that right as "a
communication between individuals who join together to
collectively express, promote, pursue, or defend common
interests." Tex. Civ. Prac. & Rem. Code §
27.001(2) (amended 2019). Veracruz argues the communications at
issue do not involve matters of public concern in Texas
because they involve acts committed primarily in Mexico. We
focus on whether the claims ...