                                                                            ACCEPTED
                                                                       01-15-00011-CV
                                                             FIRST COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                 2/17/2015 11:31:40 AM
                                                                   CHRISTOPHER PRINE
                                                                                CLERK

                       NO. 01-15-00011-CV
                               ***
                   IN THE COURT OF APPEALS           FILED IN
                                              1st COURT OF APPEALS
               FIRST COURT OF APPEALS DISTRICT HOUSTON, TEXAS
                       HOUSTON, TEXAS         2/17/2015 11:31:40 AM
                               ***            CHRISTOPHER A. PRINE
                         BOB DEUELL,                   Clerk
                            Appellant,

                                v.

              TEXAS RIGHT TO LIFE COMMITTEE, INC.,
                             Appellee
__________________________________________________________________

             On Appeal from the 152nd Judicial District Court
                        Of Harris County, Texas
                   Trial Court Cause No. 2014-32179
               Honorable Robert Schaffer, Presiding Judge
__________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________

         DENTON NAVARRO ROCHA BERNAL HYDE & ZECH, P.C.
         2500 W. William Cannon Drive, Suite 609
         Austin, Texas 78745-5292
         (512) 279-6431
         (512) 279-6438 (Facsimile)
         George E. Hyde
         State Bar No. 45006157
         Scott M. Tschirhart
         State Bar No. 24013655
         ATTORNEYS FOR APPELLANT




                                i
                IDENTITY OF PARTIES AND COUNSEL

Appellant:             BOB DEUELL

Appellant’s Counsel:   George E. Hyde
                       State Bar No. 45006157
                       Scott M. Tschirhart
                       State Bar No. 24013655
                       Denton Navarro Rocha Bernal Hyde & Zech, P.C.
                       2500 W. William Cannon Drive, Suite 609
                       Austin, Texas 78745-5292
                       (512) 279-6431
                       (512) 279-6438 (Facsimile)
                       George E. Hyde
                       Scott M. Tschirhart
                       george.hyde@rampage-aus.com
                       scott.tschirhart@rampage-aus.com

Appellee:              TEXAS RIGHT TO LIFE COMMITTEE, INC.

Appellee Counsel:      N. Terry Adams, Jr.
                       State Bar No. 00874010
                       Joseph M. Nixon
                       State Bar No. 15244800
                       Beirne, Maynard & Parsons, L.L.P.
                       1300 Post Oak Blvd., Suite 2500
                       Houston, Texas 77056
                       (713) 623-0887
                       (713) 960-1527 (Facsimile
                       tadams@bmpllp.com
                       jnixon@bmpllp.com

                       James E. “Trey” Trainor, III
                       State Bar No. 24042052
                       Beirne, Maynard & Parsons, L.L.P.
                       401 W. 15th Street, Suit 845
                       Austin, Texas 78701
                       (512) 623-6700
                       (512) 623-6701 (Facsimile)
                       ttrainor@bmpllp.com
                                    ii
                                          TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

TABLE OF AUTHORITIES .....................................................................................v

JURISDICTIONAL STATEMENT ..........................................................................1

STATEMENT OF THE CASE ..................................................................................1

ISSUES PRESENTED...............................................................................................3

  1. Whether Appellee’s Motion to Dismiss should have been granted because the
  communications complained of related to Appellee’s exercise of his right to free
  speech. .....................................................................................................................3

  2. Whether Appellee’s Motion to Dismiss should have been granted because
  Appellee established by a preponderance of the evidence a valid defense of
  judicial privilege. ....................................................................................................3

  3. Whether Appellee’s Motion to Dismiss should have been granted because
  Appellee established by a preponderance of the evidence a valid defense of
  illegal contract.........................................................................................................3

STATEMENT OF FACTS ........................................................................................3

STANDARD OF APPELLATE REVIEW................................................................5

SUMMARY OF THE ARGUMENT ........................................................................5

ARGUMENTS AND AUTHORITIES .....................................................................6

  Exercise of Free Speech ..........................................................................................6

  Shift of Burden........................................................................................................8

                                                              iii
  Judicial Immunity .................................................................................................13

  Illegal Contract......................................................................................................18

PRAYER ..................................................................................................................20

CERTIFICATE OF COMPLIANCE .......................................................................21

CERTIFICATE OF SERVICE ................................................................................22




                                                            iv
                                      TABLE OF AUTHORITIES
Cases
ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426 (Tex. 1997) ........................8, 9

Araiza v. Chapa, 319 S.W.2d 742 (Tex. App.—San Antonio
 1958, writ ref’d n.r.e) ..................................................................................... 10, 18

Better Business Bureau of Metropolitan Houston, Inc. v. John Moore Serv., Inc.,
 441 S.W.3d 345 (Tex. App.—Houston [1st Dist] 2013, pet. denied) .....................5

Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) .........................................................14

Crain v. Smith, 22 S.W.3d 58 (Tex. App.—Corpus Christi 2000, no pet.) .............15

Crain v. Unauthorized Practice of Law Comm., 11S.W.3d 328 (Tex. App.—
 Houston [1st Dist.] 1999, pet. denied) ............................................................ 14, 16

Dallas Ind. Sch. Dist. v. Finlan, 27 S.W.3d 220 (Tex. App.—Dallas 2000,
 pet. denied)..................................................................................................... 16, 17

Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24 (Tex. App.—Houston [1st
 Dist] 2004, writ denied) ........................................................................................16

Flynn Bros. V. First Med. Assocs., 715 S.W.2d 782 (Tex. App.—Dallas
  1986, writ refd. n.r.e.) .......................................................................................9, 18

GNG Gas Systems v. Dean, 921 S.W.2d 421 (Tex. App.—Amarillo 1996
 writ denied) .................................................................................................... 10, 18

Griffin v. Rowden, 702 S.W.2d 692 (Tex. App.—Dallas 1985,
 writ ref’d n.r.e) ......................................................................................................16

Krishnan v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295
 (Tex. App.—Corpus Christi 2002, pet. denied) ...................................................15


                                                            v
Laub v. Pesikoff, 979 S.W.2d 686 (Tex. App.—Houston [1st Dist.] 1998
 pet. denied)............................................................................................................14

Lewis v. Davis, 199 S.W.2d 146 (Tex. 1947) ................................................... 10, 18

Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909 (Tex. 1942) ............................14

Russell v. Clark, 620 S.W.2d 865 (Tex. App-Dallas 1981,
 writ ref’d n.r.e.) ........................................................................................ 14, 15, 16

Watson v. Kaminski, 51 S.W.3d 825 (Tex.App--Houston [1st Dist]
 2001, no pet) .........................................................................................................15

Statutes
Chapter 27 of the Texas Civil Practice & Remedies Code............................. 1, 2, 20

Tex. Civ. Prac. & Rem. Code § 27.001(1).................................................................6

Tex Civ. Prac. & Rem. Code § 27.001(3)..............................................................5. 6

Tex. Civ. Prac. & Rem. Code § 27.005 .....................................................................5

Tex Civ. Prac. & Rem. Code § 27.005(1)..................................................................5

Tex Civ. Prac. & Rem. Code § 27.005(b)(1) .............................................................8

Tex. Civ. Prac. & Rem Code § 27.005(c) ........................................... 8, 9, 11, 12, 13

Tex. Civ. Prac. & Rem. Code § 27.005(d)........................................ 6, 13, 17, 18, 20

Tex. Civ. Prac. & Rem. Code § 27.008(a) .................................................................1

Tex Civ. Prac. & Rem. Code § 27.009 ................................................... 8, 13, 18, 20

Tex Civ. Prac. & Rem. Code § 27.009(1)................................................................20


                                                            vi
Tex Civ. Prac. & Rem. Code § 27.009(2)................................................................20

Tex. Elec. Code § 255.001 ............................................................................ 4, 10, 19

Texas Advance Directives Act of 1999 .................................................................4, 7

Texas Citizens Participation Act...................................................................... passim

Texas Election Code ........................................................................................ passim


Other Authorities
Senate Bill 303 .................................................................................................. 4, 5, 7

United States Constitution and Section 8, Article 1 of the Bill of Rights .................4




                                                           vii
MAY IT PLEASE THE COURT:

      NOW COMES APPELLANT, Bob Deuell (hereinafter “Appellant” and/or

“Deuell” and files this Appellant’s Brief in accordance with the Texas Rules of

Appellate Procedure (“TRAP”).

                        JURISDICTIONAL STATEMENT

      This is an interlocutory appeal from the failure of the trial court to timely rule

on a motion to dismiss pursuant to Chapter 27 of the Texas Civil Practice &

Remedies Code, the Texas Citizens Participation Act.              Specifically, Section

27.008(a) allows a moving party to appeal if a court does not timely rule on a motion

to dismiss.

                          STATEMENT OF THE CASE

      Appellee, Texas Right to Life Committee, Inc. filed a tortious interference

lawsuit against Appellant, Bob Deuell who was a sitting state Senator. The lawsuit

arises out of a series of political attack ads that were run by Appellee and the letters

written by Appellant’s lawyer to the radio stations that were running the ads. These

letters complained of false and defamatory content and that the ads were illegal

because they did not contain the disclosures required by the Texas Election Code.

This is an appeal from a failure of the trial court to timely rule on a motion to dismiss

the lawsuit pursuant to the Texas Citizens Partition Act (“the TCPA”).



                                           1
      Procedurally, Appellee’s lawsuit was filed on June 5, 2014 [C.R. at 4-10]

however, Appellant was not served immediately. Appellant filed a timely Original

Answer on August 11, 2014. [C.R. at 15-17]. Defendant’s Motion to Dismiss was

filed on September 5, 2014. [C.R. at 18-72]. Appellant timely set the Motion to

Dismiss for hearing on September 26, 2014. [C.R. at 78-79]. Two days prior to the

hearing on Appellant’s Motion to Dismiss, Appellee filed a First Amended Petition

alleging a federal cause of action pursuant to 42 U.S.C. 1983. [C.R. at 86-95].

Appellant filed a Notice of Removal the next day. [C.R. at 105-110]. On October

15, 2014, Appellant filed Motions to Dismiss under Rule 12 and Chapter 27 of the

Texas Civil Practice & Remedies Code in federal court [C.R. at 225-281]. Before

the Court could rule on Appellant’s Motions to Dismiss, Appellee voluntarily

dismissed its federal cause of action and asked the federal court to remand the case

to the state trial court. [C.R. at 282-293].

      On December 23, 2014, the federal court remanded the case back to the trial

court. [C.R. at 111-113, 373-375]. At that time, all of the time limits for ruling on

Appellant’s Motion to Dismiss had expired and Appellant filed a Notice of Appeal

to this Honorable Court. [C.R. at 378-383].

      The trial court below was deprived of the opportunity to rule within the time

periods specified in the TCPA, but if the trial court had the opportunity to rule, it

should have dismissed the tortious interference claim for three reasons. First, the


                                               2
trial court should have dismissed Appellee’s lawsuit because the communications

complained of were based on, related to and in response to Appellant’s exercise of

the right of free speech. Second, the trial court should have dismissed Appellee’s

lawsuit because Appellant established the affirmative defense, by a preponderance

of evidence, that the communications complained of were privileged under the

judicial privilege. And finally the trial court should have dismissed Appellee’s

lawsuit because Appellant established the affirmative defense, by a preponderance

of evidence, that the communications complained of were privileged because the

contract that was allegedly interfered with was for an illegal purpose.

                              ISSUES PRESENTED

   1. Whether Appellee’s Motion to Dismiss should have been granted because the
      communications complained of related to Appellee’s exercise of his right to
      free speech.

   2. Whether Appellee’s Motion to Dismiss should have been granted because
      Appellee established by a preponderance of the evidence a valid defense of
      judicial privilege.

   3. Whether Appellee’s Motion to Dismiss should have been granted because
      Appellee established by a preponderance of the evidence a valid defense of
      illegal contract.

                            STATEMENT OF FACTS

      Appellee’s lawsuit alleges only one cause of action, that being that Appellant

tortuously interfered with Plaintiff’s contracts to run certain radio ads with Cumulus

Media and Salem Communications. [C.R. at 4-7, 282-289].

                                          3
      The ads in question were aired during the leadup to the Texas Republican

Primary runoff election held on May 27, 2014. [C.R. at 5-6, 30-32, 284-285] The

ads were political ads that Appellant believes misrepresented the purpose and effect

of certain legislation sponsored by Appellant as a State Senator for the State of

Texas. That bill was Senate Bill 303 which was designed to add more protection to

human life than the existing Texas Advance Directives Act of 1999. The ads

contained what Appellant believes to be false information about Senate Bill 303 and

false and defamatory information regarding Appellant. [C.R. at 33-70]

 Appellee’s ads also violated the Texas Election Code in that they did not contain

    the disclosures required by Texas Election Code 255.001. [C.R. at 33-70]

      In an exercise of Appellee’s free speech rights under the First Amendment of

the United States Constitution and Section 8, Article 1 of the Bill of Rights contained

in the Texas Constitution, Appellant’s lawyers, acting on his behalf, wrote letters to

the broadcasters explaining in detail why the ads in question contained false and

defamatory information and did not contain the proper disclosures required by Texas

Election Code 255.001. [C.R. at 33-70, 71-72] These letters also threatened legal

action if the ads were not edited to omit the defamatory content and to include the

disclosures required by the Texas Election Code. [C.R. at 33-70, 71-72].




                                          4
                    STANDARD OF APPELLATE REVIEW

      In order to obtain a dismissal under the TCPA, a defendant must show ‘by a

preponderance of evidence that the legal action is based on, relates to, or is in

response to the party’s exercise of the right of free speech; the right to petition; or

the right of association.” Tex. Civ. Prac. & Rem. Code § 27.005. This determination

is reviewed de novo as an application of law to the facts. See Better Business Bureau

of Metropolitan Houston, Inc. v. John Moore Serv., Inc., 441 S.W.3d 345, 353 (Tex.

App.—Houston [1st Dist] 2013, pet. denied).

                       SUMMARY OF THE ARGUMENT

      The TCPA defines “the exercise of the right of free speech” as “a

communication made in connection with a matter of public concern.” Tex Civ. Prac.

& Rem. Code § 27.001(3). A sitting State Senator commenting on legislation he

sponsored in the Texas Senate is pure political speech and exactly the kind of free

speech that the TCPA was designed to protect. Such comments were about a matter

of public concern (the election contest and the intent and effect of Senate Bill 303)

as defined in Texas Civil Practice & Remedies Code § 27.001(3). The trial court

should have dismissed Appellee’s lawsuit because Appellant proved by a

preponderance of the evidence that Appellee’s lawsuit was based on Appellant’s

exercise of his right of free speech. See Texas Civil Practice & Remedies Code §

27.005(1). If Appellant met his burden, then the burden shifts to Appellee to


                                          5
establish, by clear and specific evidence, a prima facie case for each element of the

claim in question.

      Regardless of whether Appellee was able to establish a prima facie case for

each element of its tortious interference claim, the TCPA requires that the Court

dismiss a Appellee’s legal action against Appellant because Appellant established

by a preponderance of the evidence each essential element of the valid defense of

judicial immunity. Tex. Civ. Prac. & Rem. Code § 27.005(d)

      Regardless of whether Appellee was able to establish a prima facie case for

each element of its tortious interference claim, the TCPA requires that the Court

dismiss an Appellee’s legal action against Appellant because Appellant established

by a preponderance of the evidence each essential element of the valid defense of

illegal contract. Tex. Civ. Prac. & Rem. Code § 27.005(d)

                     ARGUMENTS AND AUTHORITIES

Exercise of Free Speech

      “Exercise of the right of free speech” means a communication made in
      connection with a matter of public concern.

Tex. Civ. Prac. & Rem. Code § 27.001(3)

      “Communication” includes 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)



                                         6
       Appellant hired an attorney to send letters to Cumulus Media and Salem

Communications in order to complain about certain political attack ads that

misrepresented the purpose and effect of certain legislation sponsored by Appellant

as a State Senator for the State of Texas. [C.R. at 30-32]. That bill was Senate Bill

303 which was designed to add more protection to human life than the existing Texas

Advance Directives Act of 1999. The ads in question were aired during the leadup

to the Texas Republican Primary runoff election held on May 27, 2014. The ads

contained false information about Senate Bill 303 and false and defamatory

information regarding Appellant.

      Appellant’s attorney wrote a series of letters to Cumulus Media and Salem

Communications demanding that they cease and desist in running the false and

defamatory ads. [C.R. at 33-70 and 71-72]. A sitting State Senator commenting on

a matter of public concern, in this case commenting on political ads that contained

false and defamatory information related to the Senator and legislation that he

sponsored in the Texas Senate, is pure political speech. This is exactly the kind of

speech that the TCPA is designed to protect. Appellee’s lawsuit is designed

specifically to discourage candidates and office holders from opposing Appellee in

any way or even to question the legality of their ads. As the Affidavit of Scott M.

Tschirhart shows, the scripts were changed to delete certain defamatory and false




                                         7
information and modified to include the language required by the Texas Election

Code. [C.R. at 71-72].

      Appellant has established, based on a preponderance of the evidence, that the

communications complained of involve the exercise of the right of free speech as

required by Texas Civil Practice & Remedies Code §27.005(b)(1). Therefore the

Court should dismiss Appellee’s lawsuit. In connection with the dismissal, the Court

should award attorneys’ fees and costs to Appellant as set forth in Texas Civil

Practice & Remedies Code § 27.009 or remand the case back to the trial court to

make a determination of the proper measure of attorneys’ fees and costs to be

awarded to Appellant.

Shift of Burden

      Since Appellant has established that the communications complained of

involve the exercise of the right of free speech, the burden shifts to Appellee to

establish, by clear and specific evidence, all of the elements of a cause of action for

tortious interference with contact. Tex. Civ. Prac. & Rem Code §27.005(c).

      In order to establish a cause of action for tortious interference, a plaintiff must

prove (1) that a contract subject to interference exists; (2) that the defendant

committed a willful and intentional act of interference with the contract; (3) that the

plaintiff sustained actual damages or loss. See ACS Investors, Inc. v. McLaughlin,

943 S.W.2d 426, 430 (Tex. 1997). In order to avoid dismissal pursuant to the TCPA,


                                           8
a plaintiff must establish each of these elements by clear and specific evidence. Tex.

Civ. Prac. & Rem Code § 27.005(c). The only evidence submitted by Appellee in

the present case is the Affidavit of James J. Graham. [C.R. at 101-104].

      Appellee fails to establish the first element, that a contract subject to

interference exists, because the Affidavit of James J. Graham is conclusory and does

not reference the terms of any specific contract(s). There simply is no clear and

specific evidence that the contract(s) exist. Because Appellee failed to attach copies

of the alleged contracts, there is no way to determine that the contracts are not subject

to interference. See ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 431(Tex.

1997)(finding that the express terms of the contract in question showed that it was

not subject to tortious interference allegations, and therefore the defendant could not

have interfered as a matter of law.). Absent the express language of the alleged

contracts, there is no clear and specific evidence that the alleged contracts are not

subject to interference.

      Additionally, Appellee fails to establish the first element, that a contract

subject to interference exists, because the Affidavit of James J. Graham does not

address the illegality of the alleged contracts.

      A defendant cannot be held liable for tortious interference with a contract that

is unenforceable because it is illegal. See Flynn Bros. V. First Med. Assocs., 715

S.W.2d 782, 785 (Tex. App.—Dallas 1986, writ refd. n.r.e.). A contract is illegal if


                                           9
the contract or its performance will result in a willful violation of a constitution,

statute or ordinance. GNG Gas Systems v. Dean, 921 S.W.2d 421, 427 (Tex. App.—

Amarillo 1996 writ denied); Araiza v. Chapa, 319 S.W.2d 742, 743 (Tex. App.—

San Antonio 1958, writ ref’d n.r.e). “A contract to do a thing which cannot be

performed without a violation of the law is void.” Lewis v. Davis, 199 S.W.2d 146,

148-49 (Tex. 1947).

      In this case, the contracts called for the radio stations to run political

advertisements that violated Texas Election Code 255.001. Texas Election Code

255.001 prohibits a person—including a corporate entity—from broadcasting

political advertising containing express advocacy that does not indicate in the

advertising the following: (1) that it is political advertising; and (2) the full name of

the person who paid for the political advertising. These advertisements ended with

“Proudly paid for by Texas Right to Life.” [C.R. at 30-32].          The scripts of the

advertisements do not contain an acknowledgement that they are, in fact, “political

advertising.” [C.R. at 30-32]. Nor do they contain the full name of the person who

paid for the advertising. [C.R. at 30-32]. Therefore, the alleged contracts and the

performance thereof, would have resulted in a willful violation of a statute, the Texas

Election Code.




                                           10
      Because the Affidavit of James J. Graham does not address the illegality of

the alleged contracts, it does not provide the clear and specific evidence required to

avoid dismissal. Tex. Civ. Prac. & Rem Code § 27.005(c).

      The Affidavit of James J. Graham likewise fails to provide clear and specific

evidence with regard to the second and third elements as well.

      With regard to the required element that the defendant committed a willful

and intentional act of interference with the contract, the Affidavit only refers to a

hearsay statement:

             On or about May 14, 2014, Texas Right to Life Committee, Inc.,
      received notice from Cumulus Media and Salem Communications that
      agents of Mr. Deuell had contacted them and that they were suspending
      the airing of our commercials based upon the legal threats made by Mr.
      Deuell.

[C.R. at 102]. This allegation is not only hearsay, but it is not clear and specific

about what individual from either Cumulus Media or Salem Communications sent

the notice. It is not clear and specific about what the form of the notice was. It is

not clear and specific about what individual employee or agent of Texas Right to

Life Committee, Inc. received the notice. It is not specific as to the contents of the

notice. It is not even specific as to the nature of the alleged tortious act. The Affidavit

of James J. Graham does not provide the clear and specific evidence necessary to

prove that Appellant committed a willful and intentional act of interference with any




                                            11
specific contract and it does not provide the clear and specific evidence required to

avoid dismissal. Tex. Civ. Prac. & Rem Code § 27.005(c).

      Likewise, the Affidavit of James J. Graham fails to provide clear and specific

evidence with regard to the required element that the plaintiff sustained actual

damages or loss. The Affidavit merely contains a conclusory statement that:

      Recognizing that Mr. Deuell’s interference had disrupted the timing
      and effectiveness of the radio advertisements originally contemplated
      by Texas Right to Life Committee, Inc., the organization recognized
      that it needed to take remedial measures to make up for the lost
      advertising time so it contracted with CBS Radio Texas for additional
      airtime in the Dallas/Ft Worth media market for the new radio
      advertisement. Texas Right to Life Committee, Inc., paid
      approximately $15,037 for the placement and airing of the new radio
      advertisements with CBS Radio Texas.

[C.R. at 103]. This statement does not provide clear and specific evidence as to how

many times the existing ads did not run. The statement does not provide clear and

specific evidence of the content of the replacement ads. The statement does not

provide clear and specific evidence of the number of times the ads on CBS Radio

Texas were run. The statement does not provide clear and specific evidence that the

ads were targeted in any way to the same audience or time spots that the Cumulus

Media or Salem Communications ads would have reached, in fact, because the ads

were run on different stations, it would be logical to conclude that these ads were

targeted at a different audience.




                                         12
      Therefore, the Affidavit of James J. Graham does not provide the clear and

specific evidence necessary to prove that Appellee sustained any actual damages

required to avoid dismissal. Tex. Civ. Prac. & Rem Code § 27.005(c).

      Because Appellee cannot carry the burden of showing, by clear and specific

evidence, every element of its tortious interference claim, the Court must dismiss

Appellee’s lawsuit. In connection with the dismissal, the Court should award

attorneys’ fees and costs to Appellant as set forth in Texas Civil Practice & Remedies

Code § 27.009 or remand the case back to the trial court to make a determination of

the proper measure of attorneys’ fees and costs to be awarded to Appellant.

Judicial Privilege

      Even if the Appellee could establish, by clear and specific evidence, every

element of its tortious interference claim (and it cannot do so), the Court must

dismiss Appellee’s lawsuit if Appellant establishes, by a preponderance of the

evidence, each essential element of a valid defense to Appellee’s tortious

interference claim. Tex. Civ. Prac. & Rem. Code §27.005(d).

      The Texas Supreme Court described the judicial privilege in this manner:

“Any communication, oral or written, uttered or published in the due course of a

judicial proceeding is absolutely privileged and cannot constitute the basis of a civil

action in damages for slander or libel. The falsity of the statement or the malice of

the utterer is immaterial, and the rule of nonliability prevails even though the


                                          13
statement was not relevant, pertinent and material to the issues involved in the case.”

Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942). The Court

later expanded the scope of the privilege beyond slander and libel. See Bird v.

W.C.W., 868 S.W.2d 767, 771-72 (Tex. 1994) (extending the absolute privilege to

pre-trial proceedings and statements defeating the plaintiff’s negligence claim where

plaintiff’s damages were basically defamation damages.).       “Although most cases

addressing the judicial communications privilege involve claims of libel or slander,

Texas courts have consistently applied the privilege to claims arising out of

communications made in the course of judicial proceedings, regardless of the label

placed on the claim.” Laub v. Pesikoff, 979 S.W.2d 686, 690 (Tex. App.—Houston

[1st Dist.] 1998 pet. denied). The judicial immunity recognized in Bird is not limited

only to claims styled as defamation claims, but instead extends to “claims arising

out of communications made in the course of judicial proceedings, regardless of the

label placed on the claim.”      Crain v. Unauthorized Practice of Law Comm.,

11S.W.3d 328, 335 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

      It is well established under Texas law that letters written by attorneys in

anticipation of litigation are absolutely privileged. See Russell v. Clark, 620 S.W.2d

865, 869 (Tex. App-Dallas 1981, writ ref’d n.r.e.) “An attorney at law is absolutely

privileged to publish defamatory matter concerning another in communications

preliminary to a proposed judicial proceeding, or in the institution of, or during


                                          14
the course and as a part of, a judicial proceeding in which he participates as counsel,

if it has some relation to the proceeding.” Id.(emphasis added); see also Watson v.

Kaminski, 51 S.W.3d 825, 827-28 (Tex. App.—Houston [1st Dist] 2001, no

pet)(holding that an attorney’s letter alleging that a prisoner was trying to extort

money from appellants and that he was likely to be sued if he attempted to do so

came within the judicial privilege even though no litigation was pending.); Krishnan

v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295, 301-03 (Tex. App.—

Corpus Christi 2002, pet. denied)(finding that an attorney’s letters sent to a doctor

to give notice of a negligence claim [under 4590i] and to request records, even

though suit was never actually filed, were made in contemplation of judicial

proceeding and were therefore privileged); Crain v. Smith, 22 S.W.3d 58, 62-63

(Tex. App.—Corpus Christi 2000, no pet.).        Even if the potential litigants later

decide not to file suit, “[t]here is no requirement that a person actually get sued for

the privilege to apply; only that the statements are related to a contemplated judicial

proceeding.” Krishnan, 83 S.W.3d at 302-03.

      Whether a lawyer’s out-of-court statement is related to a proposed or
      existing judicial proceeding is a question of law to be determined by
      the court. When deciding the issue, “the court must consider the entire
      communication in its context, and must extend the privilege to any
      statement that bears some relation to an existing or proposed judicial
      proceeding.” All doubt should be resolved in favor of the relevancy of
      the statement.




                                          15
Dallas Ind. Sch. Dist. v. Finlan, 27 S.W.3d 220, 239 (Tex. App.—Dallas 2000, pet.

denied)(quoting Russell.); see also Daystar Residential, Inc. v. Collmer, 176 S.W.3d

24, 28 (Tex. App.—Houston [1st Dist] 2004, writ denied)(finding that statements

made by a lawyer to a newspaper in contemplation of and preliminary to filing suit

were absolutely privileged).

      The absolute judicial privilege applies to tortious interference with contract

claims. See Griffin v. Rowden, 702 S.W.2d 692, 695 (Tex. App.—Dallas 1985, writ

ref’d n.r.e)(holding that the filing of a lis pendens was absolutely privileged in an

action for tortious interference with contract.); Crain v. Unauthorized Practice of

Law Committee, 11 S.W.3d 328, 335 (Tex. App.—Houston [1st Dist.], 1999 pet

denied)(concluding that prior testimony by a witness was subject to the affirmative

defense of absolute immunity to a claim of tortious interference).

      In the present case, the communications complained of were demand letters

sent to radio stations. [C.R. at 33-70]. Each of these letters was sent by Scott

Tschirhart, an attorney representing Senator Deuell. [C.R. at 33-70 and 71-72].

Each of these letters specifically warn of anticipated litigation. The letters contain

statements like:

      If your company does not immediately cease the broadcast of the
      illegal advertisements purchased by the Houston-based Texas
      Right to Life Committee, Inc., Senator Deuell will exercise his right
      to injunctive relief in court to prevent the continuing harm.



                                         16
[C.R. at 46, 49]. These letters request if the recipient will accept service of process

or whether suit must be served on their registered agents. [C.R. at 46, -49]. These

letters contain notices of litigation hold and preservation demands, including:

      LITIGATION HOLD & PRESERVATION DEMAND

      You are hereby on notice and should have reason to believe that
      litigation may result from the claims described above. . . pursuant to
      state and federal law, you are now under a legal duty to preserve all
      evidence, whether printed or electronic that might become relevant in
      this matter. . .

[C.R. at 35, 41]. Finally, these letters include admonitions for the recipients to

contact their legal counsel immediately. [C.R. at 36, 42].

      Since the communications complained of are clearly demand letters sent from

an attorney in anticipation of litigation, “’the court must consider the entire

communication in its context, and must extend the privilege to any statement that

bears some relation to an existing or proposed judicial proceeding.’ All doubt should

be resolved in favor of the relevancy of the statement.” Dallas Ind. Sch. Dist. v.

Finlan, 27 S.W.3d 220, 239 (Tex. App.—Dallas 2000, pet. denied).

      Appellee has offered no controverting evidence, and Appellant has

established, by a preponderance of the evidence, each essential element of a valid

defense of judicial privilege to Appellee’s tortious interference claim. Tex. Civ.

Prac. & Rem. Code §27.005(d).




                                          17
      The Court must dismiss Appellee’s lawsuit. In connection with the dismissal,

the Court should award attorneys’ fees and costs to Appellant as set forth in Texas

Civil Practice & Remedies Code § 27.009 or remand the case back to the trial court

to make a determination of the proper measure of attorneys’ fees and costs to be

awarded to Appellant.

Illegal Contract

      Even if the Appellee could establish, by clear and specific evidence, every

element of its tortious interference claim (and it cannot do so), the Court must

dismiss Appellee’s lawsuit if Appellant establishes, by a preponderance of the

evidence, each essential element of a valid defense to Appellee’s tortious

interference claim. Tex. Civ. Prac. & Rem. Code §27.005(d).

      A defendant cannot be held liable for tortious interference with a contract that

is unenforceable because it is illegal. See Flynn Bros. V. First Med. Assocs., 715

S.W.2d 782, 785 (Tex. App.—Dallas 1986, writ refd. n.r.e.). A contract is illegal if

the contract or its performance will result in a willful violation of a constitution,

statute or ordinance. GNG Gas Systems v. Dean, 921 S.W.2d 421, 427 (Tex. App.—

Amarillo 1996 writ denied); Araiza v. Chapa, 319 S.W.2d 742, 743 (Tex. App.—

San Antonio 1958, writ ref’d n.r.e). “A contract to do a thing which cannot be

performed without a violation of the law is void.” Lewis v. Davis, 199 S.W.2d 146,

148-49 (Tex. 1947).


                                         18
      In this case, the contracts called for the radio stations to run political

advertisements that violated Texas Election Code 255.001. Texas Election Code

255.001 prohibits a person—including a corporate entity—from broadcasting

political advertising containing express advocacy that does not indicate in the

advertising the following: (1) that it is political advertising; and (2) the full name of

the person who paid for the political advertising. These advertisements ended with

“Proudly paid for by Texas Right to Life.” [C.R. at 30-32]. The scripts of the

advertisements do not contain an acknowledgement that they are, in fact, “political

advertising.” [C.R. at 30-32]. Therefore, the alleged contracts and the performance

thereof, would have resulted in a willful violation of a statute, the Texas Election

Code. After the letters dated May 19, 2014 (which specifically complained about

the violation of the Texas Election Code) were sent, the scripts of the advertisements

were changed to include language that complied with the Texas Election Code and

no further letters were sent to the radio stations. [C.R. at 71-72].

      Appellee has produced no controverting evidence.

      Because the contracts and the performance thereof, would have resulted in a

willful violation of a statute, namely the Texas Election Code, the Court must find

that Appellant has established, by a preponderance of the evidence, that the contracts

were illegal and Appellant has established the affirmative defense of illegality.

Therefore, the Court must dismiss Appellee’s lawsuit pursuant to Texas Civil


                                           19
Practice & Remedies Code §27.005(d). In connection with the dismissal, the Court

should award attorneys’ fees and costs to Appellant as set forth in Texas Civil

Practice & Remedies Code § 27.009 or remand the case back to the trial court to

make a determination of the proper measure of attorneys’ fees and costs to be

awarded to Appellant.

                                     PRAYER

      WHEREFORE PREMISES CONSIDERED, Appellant Bob Deuell prays the

Court dismiss Appellee’s lawsuit pursuant to Appellant’s Motion to Dismiss

pursuant to Chapter 27 of the Texas Civil Practice & Remedies Code, and award

Appellant his appellate costs and remand the case to the trial court for a

determination of court costs, reasonable attorney’s fees, and other expenses incurred

in defending this legal action pursuant to Section 27.009(1) of the Texas Civil

Practice & Remedies Code as well as sanctions against Appellee that the trial court

may determine would be sufficient to deter Appellee from bringing similar actions

in the future pursuant to Section 27.009(2) of the Texas Civil Practice & Remedies

Code and for such further relief to which Appellant is justly entitled.

      SIGNED on this the 17th day of February, 2015.




                                          20
            Respectfully submitted

            DENTON NAVARRO ROCHA BERNAL HYDE & ZECH, P.C.
            2500 W. William Cannon Drive, Suite 609
            Austin, Texas 78745-5292
            (512) 279-6431
            (512) 279-6438 (Facsimile)
            george.hyde@rampage-aus.com
            scott.tschirhart@rampage-aus.com



      By:   /s/SCOTT M. TSCHIRHART
            George E. Hyde
            State Bar No. 45006157
            Scott M. Tschirhart
            State Bar No. 24013655

            ATTORNEYS FOR APPELLANT
            BOB DEUELL


                      CERTIFICATE OF COMPLIANCE

       In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that the
Appellant’s Brief contains 4,707 words, which does not include the caption, identity
of parties and counsel, statement regarding oral arguments, table of contents, table
of authorities, signature, proof of service, certificate of compliance and appendix.


                         /s/SCOTT M. TSCHIRHART
                         George E. Hyde
                         Scott M. Tschirhart




                                        21
                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing instrument has
been served upon the below named individuals as indicated, and according to the
Texas Rules of Civil Procedure and/or via electronic notification on this the 17th day
of February, 2015:

N. Terry Adams, Jr.                           via electronic notification
Beirne, Maynard & Parsons, L.L.P.             tadams@bmpllp.com
1300 Post Oak Blvd., Suite 2500
Houston, Texas 77056

Joseph M. Nixon                               via electronic notification
Beirne, Maynard & Parsons, L.L.P.             jnixon@bmpllp.com
1300 Post Oak Blvd., Suite 2500
Houston, Texas 77056

James E. “Trey” Trainor, III                  via electronic notification
Beirne, Maynard & Parsons, L.L.P.             ttrainor@bmpllp.com
401 W. 15th Street, Suit 845
Austin, Texas 78701

                          /s/SCOTT M. TSCHIRHART
                          George E. Hyde
                          Scott M. Tschirhart




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