Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
CITY OF PORT ARANSAS, TEXAS, CHARLES R. BUJAN, MAYOR, AND DAVID PARSONS, CITY MANAGER, Appellants,
JULIE SMITH SHODROK, Appellee.
appeal from the County Court at Law No. 1 of Nueces County,
Chief Justice Contreras and Justices Hinojosa and Tijerina
the City of Port Aransas (the City), Mayor Charles R. Bujan,
and City Manager David Parsons, appeal the trial court's
final judgment in favor of appellee Julie Smith Shodrok. By
three issues, appellants contend the trial court erred by
dismissing the City's claims under the Texas Citizens
Participation Act (TCPA) because it proved its prima facie
case by clear and specific evidence; Shodrok was not entitled
to attorney's fees; and monetary awards are barred by
governmental immunity. We reverse and render.
is a resident of Port Aransas, Texas. On July 6, 2017, she
and her husband met with the mayor in his office to discuss
issues pertaining to the City. The mayor and Shodrok
consented to recording their discussion, so Shodrok used the
recording function on her cell phone to record the meeting.
At the start of the meeting, she connected her cell phone to
a charger, plugged it into an electrical outlet, began
recording, and placed her phone on the floor.
conclusion of the meeting three hours later, the Shodroks
left the mayor's office without Shodrok's phone. The
city manager then entered the mayor's office, and the two
held a private conversation while Shodrok's phone
continued to record. Approximately four minutes later, while
the mayor and city manager continued to converse, Shodrok
returned to retrieve her phone.
reviewing the contents of the recording, Shodrok discovered
her recorder had recorded the mayor and city manager's
private conversation. Subsequently, she "expressed her
frustration" about their private conversation on a
social media website and another internet site in addition to
e-mailing five city council members.
21, 2017, the City sued Shodrok for allegedly violating the
Texas Interception of Communications Act (TICA). See
Tex. Civ. Prac. & Rem. Code Ann. §§
123.001-.004. Shodrok moved to dismiss on two grounds: the
TCPA, also known as the anti-SLAPP (strategic lawsuits
against public participation) statute, and Texas Rules of
Civil Procedure 91a. See id. §
27.003; Tex.R.Civ.P. 91a. She also requested
sanctions, court costs, and attorney's fees under the
TCPA, Rule 13 of the Texas Rules of Civil Procedure, and
Chapters 9 and 10 of Texas Civil Practice and Remedies
City filed a "Notice of Non-Suit" on its TICA claim
against Shodrok on September 27, 2017 while Shodrok continued
her pursuit for affirmative relief. See Tex. R. Civ.
P. 164. On December 14, 2017, the trial court held a hearing
on Shodrok's motion to dismiss and her requested relief.
Three days later, the trial court entered a "Final
Judgment and Order on Julie Smith Shodrok's Attorneys
Fees and Sanctions - Chapter 27 (TCPA)" awarding
attorney's fees, costs, and sanctions against the
City. This appeal followed.
Texas Citizens Participation Act
purpose of the TCPA is "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." Tex. Civ. Prac. & Rem.
Code Ann. § 27.002. It is to "be construed
liberally to effectuate its purpose and intent fully,"
but it "does not abrogate or lessen any other defense,
remedy, immunity, or privilege available under other
constitutional, statutory, case, or common law or rule
provisions." Id. § 27.011.
TCPA provides a procedure for the expedited dismissal of
"retaliatory lawsuits that seek to intimidate or silence
[citizens] on matters of public concern." In re
Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig.
proceeding). The Act provides that
[a] two-step process is initiated by motion of a defendant
who believes that the lawsuit responds to the defendant's
valid exercise of First Amendment rights. Under the first
step, the burden is initially on the defendant-movant to show
"by a preponderance of the evidence" that the
plaintiff's claim "is based on, relates to, or is in
response to the [movant's] exercise of: (1) the right of
free speech; (2) the right to petition; or (3) the right of
association." Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(b). If the movant is able to demonstrate that
the plaintiff's claim implicates one of these rights, the
second step shifts the burden to the plaintiff to
"establish[ ] by clear and specific evidence a prima
facie case for each essential element of the claim in
question." Id. § 27.005(c).
Id. And even if the nonmovant makes this showing,
the trial court must dismiss the case 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 Ann. §
27.005(d). When determining whether to dismiss the legal
action, the court must consider "the pleadings and
supporting and opposing affidavits stating the facts ...