Texas Supreme Court- 2018 Year in Review (Part 2 of 5): State ex. rel. Best

In State ex rel. Best v. Harper, 16-0647, 2018 WL 3207125 (Tex. June 29, 2018), reh'g denied (Dec. 21, 2018), opinion corrected and superseded (Dec. 21, 2018) the Texas Supreme Court applied the Texas Anti-Slapp statute to a lawsuit to remove a county official under Chapter 87 of the Texas Local Government Code.  The trial court denied the motion and the Waco COA reversed.  The Court affirmed the reversal with a modification. First, the Court determined that a petition to remove an elected official falls within the protection of the Texas Anti-Slapp.  Second, because the removal statue requires the county attorney to participate, the Court examined whether the enforcement exemption applies.  See §27.010(a) (“This chapter does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state . . .county attorney.”).  The Court then defined “enforcement action” to mean “governmental attempt to enforce a substantive legal prohibition against unlawful conduct.” 

 The TSC ultimately determined that the exemption only applied to the allegations in the removal action related to the county attorney alleging violations of the Open Meetings Act, but not to removal allegations of the official’s incompetency.  Third, the TSC held that sovereign immunity did not protect the government from attorneys’ fees or sanctions. On remand to the trial court the plaintiff will be entitled to a portion  of his fees associated with the dismissed allegations of incompetency action.

 This is a unique fact pattern but demonstrates the long reach of the Texas Anti-Slapp statute.

Texas Supreme Court Flag and Gavel.jpg