Opinion issued October 7, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-00515-CV
                           ———————————
  CHENIERE ENERGY, INC., CHARIF SOUKI, INDIVIDUALLY, AND
         GREG RAYFORD, INDIVIDUALLY, Appellants
                                       V.
                            AZIN LOTFI, Appellee


                   On Appeal from the 151st District Court
                            Harris County, Texas
                      Trial Court Case No. 2013-12735


                          CONCURRING OPINION

      I join the lead opinion, but write separately to emphasize that, given its

specific language and expressly stated purpose to protect only the constitutional
rights to free speech, petition, and association, the Texas Citizen Participation Act

(“TCPA”) does not apply to the claim of appellant, Azin Lofti, against appellees,

Charif Souki and Greg Rayford, for tortious interference with her employment

contract. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001–.011 (Vernon Supp.

2014).

      Under Chapter 27 of the Texas Civil Practice and Remedies Code, which is

entitled “Actions Involving the Exercise of Certain Constitutional Rights,” a party

may file a motion to dismiss a legal action that is “based on, relates to, or is in

response to [the] party’s exercise of the right of free speech, right to petition, or

right of association.” Id. § 27.003(a) (emphasis added). After a hearing on the

motion, a trial court must dismiss the action if the moving party “shows by a

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

response to the party’s exercise” of:

      (1) the right of free speech;

      (2) the right to petition; or

      (3) the right of association.

Id. § 27.005(b) (emphasis added).

      In the TCPA itself, the legislature expressly stated its purpose:

      The purpose of this chapter is to encourage and safeguard the
      constitutional rights of persons to petition, speak freely, associate
      freely, and otherwise participate in government to the maximum



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      extent permitted by law and, at the same time, protect the rights of a
      person to file meritorious lawsuits for demonstrable injury.

Id. § 27.002 (emphasis added). Thus, the TCPA serves to encourage and protect

only the “constitutional rights” to “free speech,” “petition,” and “association.” See

U.S. CONST. amend I; see also TEX. CONST. art. I, §§ 8, 27.

       Moreover, as explained by the Texarkana Court of Appeals, “[b]y

including the phrase ‘otherwise participate in government’” in section 27.002, the

legislature “intended to protect” only constitutionally protected freedoms “that

rise[] to such a level that [they] can be considered participation in government.”

Whisenhunt v. Lippincott, 416 S.W.3d 689, 697 (Tex. App.—Texarkana 2013, pet.

filed). Indeed, in his statement of intent, the sponsor of the TCPA explained:

      Citizen participation is the heart of our democracy. Whether
      petitioning the government, writing a traditional news article, or
      commenting on the quality of a business, involvement of citizens in
      the exchange of idea[s] benefits our society.

      Yet frivolous lawsuits aimed at silencing those involved in these
      activities are becoming more common, and are a threat to the growth
      of our democracy. The Internet age has created a more permanent and
      searchable record of public participation as citizen participation in
      democracy grows through self-publishing, citizen journalism, and
      other forms of speech. Unfortunately, abuses of the legal system,
      aimed at silencing these citizens, have also grown. These lawsuits are
      called Strategic Lawsuits Against Public Participation or “SLA[P]P”
      suits.

      Twenty-seven states and the District of Columbia have passed similar
      acts, most commonly known as either “Anti–SLAPP” laws or “Citizen
      Participation Acts” that allow defendants in such cases to dismiss
      cases earlier than would otherwise be possible, thus limiting the costs


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      and fees. The Texas Citizen Participation Act would allow
      defendants—who are sued as a result of exercising their right to free
      speech or their right to petition the government—to file a motion to
      dismiss the suit, at which point the plaintiff would be required to show
      by clear and specific evidence that he had a genuine case for each
      essential element of the claim. In addition, if the motion to dismiss is
      granted, the plaintiff who has wrongly brought the lawsuit may be
      required to pay attorney’s fees of the defendant.

      C.S.H.B. 2973 amends current law relating to encouraging public
      participation by citizens by protecting a person’s right to petition,
      right of free speech, and right of association from meritless lawsuits
      arising from actions taken in furtherance of those rights.


Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 2973, 82nd Leg., RS

(2011) (emphasis added).       Thus, the broader purpose of the Texas Citizen

Participation Act is to stop such Strategic Lawsuits Against Public Participation.

      Here, the complained-of acts of Souki and Rayford in regard to their alleged

tortious interference with Lofti’s employment contract do not at all concern their

constitutional rights to petition, speak freely, associate freely, “and otherwise

participate in government,” i.e., engage in citizen or public participation. Lofti’s

lawsuit against Souki and Rayford has nothing to do with their constitutional right

to engage in citizen or public participation. And Lofti’s allegation that Souki and

Rayford tortiously interfered with her employment contract cannot in any

reasonable sense be read as an attempt to strategically silence them, prevent them

from engaging in citizen or public participation, prevent them from associating for

such purposes, or in any other way infringe upon their constitutional rights.

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      Regardless, Souki and Rayford claim that Lofti’s lawsuit constitutes an

attempt to thwart their constitutional right to associate as defined in the TCPA. In

the TCPA, the legislature does broadly and vaguely define the “exercise of the

right of association” as “a communication between individuals who join together to

collectively express, promote, pursue, or defend common interests.” See TEX. CIV.

PRAC. & REM. CODE ANN. § 27.001(2). Standing alone, this awkward definition

does appear to include communications that are not constitutionally protected and

do not concern citizen or public participation. However, we cannot read section

27.001(2) in isolation.        The TCPA necessarily contemplates that any

communication, as discussed in section 27.001(2), must involve constitutionally

protected rights and citizen or public participation.

      As noted in the lead opinion, when construing a statute, our objective is to

determine and give effect to legislative intent. See Nat’l Liab. & Fire Ins. Co. v.

Allen, 15 S.W.3d 525, 527 (Tex. 2000). Although the “plain meaning of the text is

the best expression of the legislative intent,” this is not true when “a different

meaning is apparent from the context or the plain meaning leads to absurd or

nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). And

we “must not interpret the statute in a manner that renders any part of the statute

meaningless or superfluous.” Columbia Med. Ctr. of Los Colinas, Inc. v. Hogue,

271 S.W.3d 238, 256 (Tex. 2008).



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      Here, reading the TCPA in its entirety, the broad definition of “exercise of

the right of association” is necessarily restricted by the expressly stated purpose of

the TCPA “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.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.002 (emphasis added). Although citizens most certainly do have a First

Amendment right to associate to bring about social and political change for our

“common interests,” there is no constitutional right to engage in criminal behavior,

commit civil wrongs, or otherwise inflict injury upon others. Importantly, the

legislature expressly included within the stated purpose of the TCPA its intent to,

“at the same time, protect the rights of a person to file meritorious lawsuits for

demonstrable injury.” Id.

      Construing the definition of “exercise of the right of association” in section

27.001(2) in isolation, without any regard for the legislature’s expressly stated

purpose of the TCPA in section 27.002 to protect “constitutional rights,” would

certainly lead to absurd results. As explained by the Texarkana Court of Appeals:

      The statement of intent confirms the concept gathered from reading the
      statute as a whole that the Legislature was attempting by this law to
      protect a citizen’s public participation.[] Otherwise, pre-discovery
      dismissals, attorney’s fees, and sanctions would loom over any
      plaintiff filing an action for private defamatory speech, which would
      have the effect of chilling meritorious private defamation suits, a result
      neither intended nor required under the TCPA.



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Whisenhunt, 416 S.W.3d at 698 (emphasis added). Here, the results flowing from

reading section 27.001(2) in isolation would also be absurd. Such a reading would

serve to actually thwart any meritorious lawsuit for demonstrable injury in which a

plaintiff alleges that two or more persons engaged in a civil wrong involving a

communication. The defendants could, at the very least, add unnecessary delay

and expense to a plaintiff’s lawsuit, no matter how meritorious, by simply asserting

that, in committing their complained-of acts, they were exercising their right of

association by engaging in a communication “to collectively express, promote,

pursue, or defend” their own private, “common interests.” This is too clever by

half.

        To the extent that the definition of “exercise of the right of association” in

section 27.001(2) can possibly be read as including communications not

constitutionally protected and not concerning citizen or public participation, and,

thus, be used by litigants to add expense and unnecessary delay to meritorious

litigation, especially via interlocutory appeal, the legislature could drop the

definition from the TCPA altogether. At the very least, although repetitive, the

legislature could revise the definition to include qualifying language, repeating in

the definition its stated purpose of the TCPA to protect and encourage the use of

“constitutional rights.” Although not necessary, such a change would serve to

further “protect the rights of a person to file meritorious lawsuits for demonstrable



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injury” from those who would otherwise abuse the Texas Citizen Participation Act

and use it to unreasonably delay and add expense to claims for injuries resulting

from their private, civil wrongs.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Jennings, J., concurring, joined by Sharp, J.




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