                                   NO. 07-06-0385-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                  FEBRUARY 22, 2008

                          ______________________________


            PAUL MARTIN CLARK AND BLACK CITIZENS FOR JUSTICE,
                    LAW AND ORDER, INC., APPELLANTS

                                            V.

                  GLADYS ELAINE BLANTON JENKINS, APPELLEE

                        _________________________________

           FROM THE 3RD DISTRICT COURT OF HENDERSON COUNTY;

                  NO. 03-066; HONORABLE JIM PARSONS, JUDGE

                         _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                         OPINION


       Appellants, Paul Martin Clark and Black Citizens For Justice, Law and Order, Inc.

(BCJLO), appeal from a judgment rendered in favor of Appellee, Gladys Elaine Blanton

Jenkins, in a libel action. By a sole issue, Clark and BCJLO assert the trial court erred in

denying their motions for directed verdict and judgment notwithstanding the verdict
because: (1) the defamatory statements about Jenkins were made in a written request for

governmental action, making actual malice an essential element of her claim, and the

evidence was insufficient to establish actual malice, (2) their statements were absolutely

privileged because they were made in a petition for redress pursuant to the Texas

Constitution, and (3) there was an absence of any finding and/or evidence in support of a

presumed finding their petition was a “sham” or was made in bad faith. We affirm.


                                      Background


      Jenkins,1 a member of the Athens City Council, filed an action for libel based upon

statements made in a memorandum (hereinafter the “Clark Memorandum”) authored by

Clark, BCJLO’s President. The Clark Memorandum was addressed and published to Daisy

Evella Joe, BCJLO’s Chief Executive Officer, the Honorable Pete Sessions, United States

Representative, and the United States Department of Justice (DOJ), Civil Rights Division.

The Clark Memorandum was subsequently published to the Mayor of Athens, its City

Council, the City Administrator, and Police Chief. The existence of the Clark Memorandum

and its contents were generally known in Athens.




      1
        Jenkins was born and raised in Athens. She is a mother of three children,
employed as the lead teller at the Texas Trust Credit Union, and an ordained minister who
practices her ministry at the Church of Living God in Athens. She was elected to the
Athens City Council by the city at large, and her area of representation included North
Athens.

                                            2
       BCJLO was originally incorporated in 1969 in response to incidents involving black

citizens and police officers in the Dallas metropolitan area. BCJLO’s initial purpose was

to bring citizen complaints against the Dallas police to the attention of the proper

authorities. Over the years, BCJLO’s purpose has evolved to include assisting persons in

pursuing claims before the Equal Employment Opportunity Commission.


       Joe became BCJLO’s volunteer director in 1982 and subsequently, CEO.2 Clark

became BCJLO’s President of Membership in 2002-03. He had received training and

certification as a federal records management officer at the National Archives located in

Washington, D.C. At the National Archives, Clark was taught to simply record an event

through note-taking without filtering what was said. Joe testified at trial that Clark had a

knack for notating meetings in a very detailed manner—writing down every “and,” “the,”

and “that.”


       In the mid-nineties, tension existed between North Athens’ black citizens and the

Athens Police Department. DOJ’s Civil Rights Division assisted the parties in developing

an agreement designed to open lines of communication between the Athens Police

Department and the North Athens community. In 1999, a Memorandum Agreement was

entered into between Athens Police Chief, the NAACP, and an organization known as the

Concerned Citizens of North Athens (CCNA). A Citizens Advisory Committee was created

to meet on a regular basis with the Athens Police Chief to discuss problems and issues.


       2
           Joe appeared at trial on BCJLO’s behalf.

                                              3
If necessary, these issues and problems would be brought to the attention of the City

Council. The Texas Rangers also offered their assistance by investigating citizens’

complaints of harassment and intimidation.      From 1999 until 2006, there were six

complaints filed with the Citizens Advisory Committee.


      In mid-2001, Joe began receiving calls from black residents in Athens including

Barbara Bowman and Fred Burke. Bowman and Burke were CCNA members and,

subsequently, became BCJLO members. Bowman and Burke complained of intimidation

and harassment by the Athens Police Department and wanted BCJLO’s assistance

because they believed they did not have a voice in Athens. Joe received so many calls

from Athens’ citizens she was hesitant to get involved. Subsequently, they started calling

in on Joe’s radio show, Worker’s Beat, on KNON, with complaints related to the Athens

Police Department. Bowman and others called Joe’s radio show complaining that a

pregnant woman was taken to jail, underwent a miscarriage, and was refused medical

attention. Joe found the story hard to believe.      She suggested they compile their

information and submit their complaints to the authorities.


      In the Fall of 2002, Pam Burton, Athens City Administrator, received letters from Joe

Baggett, President of the NAACP’s local chapter, and Mickey Williams of the CCNA asking

to appear before the City Council to discuss the Memorandum Agreement. The agreement

had expired and a new Athens Police Chief, Jim Vance, was replacing the current Chief

who was a signatory to the Memorandum Agreement. Burton placed discussion of the


                                            4
agreement on the City Council’s agenda. She also sent Baggett a letter, with a copy to

Williams, indicating the City Council would be discussing the agreement at a regularly

scheduled workshop to be held before the City Council meeting scheduled for November

20, 2002. Burton’s letter invited them to attend and encouraged them to invite other

interested parties.


       CCNA members faxed Joe a letter related to the workshop and asked Joe to

approach Congressman Sessions. Joe indicated she would send someone to the meeting

to take notes on their concerns and then turn the information over to Sessions. Because

Joe was unable to attend the meeting personally, she asked Clark to attend. Clark was to

meet Reverend Stovall, Pastor of the Camp Wisdom United Methodist Church of Dallas,

in Athens, and accompany him to the meeting.


       Bowman, Stovall, Clark, and others attended the City Council workshop to discuss

the agreement. Mayor King, the City Council members, and Burton were also present.

Jenkins attended the meeting in her capacity as a City Council member.


       After the Council meeting, Bowman, Stovall, Clark, and other attendees convened

at the house of a CCNA member to discuss their concerns. Clark took notes during this

after-meeting. The meeting lasted approximately twenty minutes. Bowman told Clark that

Jenkins was controlled by Mayor King and that she was ineffective and failed to




                                           5
communicate the concerns of the citizens of North Athens to the City Council.3 Joe

instructed Clark to take down their complaints and draft a memorandum that would prompt

an investigation by Congressman Sessions and DOJ’s Civil Rights Division.


       Clark drove home that night, and the next morning he delivered his memorandum

to Joe. Joe testified she prepared a cover page,4 and the Clark Memorandum was

delivered to a staff member at Sessions’s office. The Clark Memorandum was also mailed

to DOJ’s Civil Rights Division. Although it was Joe’s practice to scan such a memorandum

before it was sent, she only glanced at the Clark Memorandum and did not notice the

criminal allegations related to Jenkins.


       In paragraph four of the Clark Memorandum, the following statement was made

regarding Jenkins:


       The only black female Athens City Council member is Gladys Elaine Blanton
       Jenkins. She is a convicted felon having served time in Texas and California


       3
       Bowman believed Jenkins was unresponsive to her concerns related to harassment
by the Athens Police Department and, more specifically, the death of a North Athens
resident. Jenkins indicated that, when she asked Bowman for facts to back up her
accusations, Bowman did not provide any information. Jenkins believed that, in some
areas of the black community, she was considered an outsider because she would not take
unsubstantiated allegations to the City Council. Jenkins testified that Bowman, CCNA, and
BCJLO wanted her removed from the City Council.
       4
       Joe testified she slid a loose cover page into the envelopes containing the
Memorandum that stated “Summary and accounting of meeting in Athens, Texas on 11-20-
02 of the city meeting and after meeting with North Athens Black Citizens of Concern
approximately 10 people present.” Aside from her testimony, there is no evidence of
record of the cover page or its receipt by Sessions or the Department of Justice.

                                            6
        for Prostitution and Drugs. She is controlled by Mayor Jerry King. No one
        in the State of Texas can hold elective office who has felony convictions.
        She must be removed from office immediately.


See Appendix for full text of the Clark Memorandum.


        Joe was unconcerned whether the statements in the Clark Memorandum were true

or false. Neither Clark, Joe, nor BCJLO performed any investigation to determine the

validity of any factual statements contained in the memorandum including the criminal

allegations against Jenkins.5    Joe agreed the memorandum’s statements regarding

Jenkins were “very defamatory,” “horrible,” and she “wouldn’t want them published about

anyone.” She also believed the contents of the memorandum were confidential and she

was relying on Sessions and the DOJ to determine whether the statements made were

true.


        Clark did not appear at trial, but testified by deposition. He indicated he had no

belief or disbelief as to the truth of the memorandum’s contents. He did not know Jenkins

and had no belief as to the statements he made about her. He did not know the people

who attended the Council meeting and after-meeting, and had no baseline for the veracity

of their statements. He stated he recorded the information the attendees supplied to him.

He indicated, however, he did not believe the statement in his memorandum that “[t]he



        5
        Joe testified she could have verified whether the criminal charges alleged against
Jenkins were legitimate by performing a public records search which she had performed
in the past.

                                             7
Athens Police intimidate, harass and murder black residents on a daily basis.” If it was the

case, he stated he would have heard about it on television or in a newspaper.


       After receiving the Clark Memorandum, Congressman Sessions attempted to learn

if there was any truth to the allegation tying Charles Hawn, Sessions’s only staff member

in the Athens office, to the Ku Klux Klan.6 Hawn received a call from a Dallas staff member

asking if he had seen the Clark Memorandum.             Sessions’s Dallas office faxed the

memorandum to Hawn for comment. Hawn indicated he had no association or knowledge

of the BCJLO, Joe, or Clark. He had also never received any complaints from North

Athens citizens about a pattern, or instance, of murder or intimidation of black residents

by Athens police. He stated he absolutely had no ties to the Ku Klux Klan.


       Sessions’s office subsequently mailed the original Clark Memorandum to Mayor

King and faxed him a copy for his comments. King provided a copy of the memorandum

to Burton and Chief Vance. Burton arranged a meeting between King, Jenkins, and Vance

to determine whether there was any substance to the charges against Jenkins in the Clark

Memorandum. Jenkins was fingerprinted and criminal histories were run by the Athens



       6
        Sessions testified by videotape that his office investigates constituents’ complaints.
The complaints are typically investigated by his local staff members and are generally
carried out by interacting with people and asking questions. He also indicated this type of
investigation is separate from his ability to participate in formal investigations initiated by
Congress. He further testified Congressional Committees have the power to issue
subpoenas and compel testimony but, as a Congressman investigating a constituent’s
complaint, Sessions had no subpoena power and could only effectuate change through
informal methods.

                                              8
Police Department and the Texas Rangers. Neither found any criminal history. City

Council members also received a copy of the Clark Memorandum, held an Executive

Session to discuss its contents and determine what action, if any, the Council should take.

The Council decided against taking action.


       On February 23, 2003, Jenkins filed this suit against Clark and BCJLO for damages

due to defamation and libel. Jenkins’s claims were tried to a jury and after a two day trial,

the jury returned a verdict against Clark and BCJLO. Jenkins was awarded $300,000 for

past and future damages due to mental anguish, injury to character and/or reputation and

injury to her standing in the community. She was also awarded exemplary damages of

$100,000 against Clark and $100,000 against BCJLO.


       At trial, the jury was given the following instruction on the “actual malice” element

of Jenkins’s cause of action, and they made the following findings:


       Question No. 2

       Do you find by clear and convincing evidence that Paul Martin Clark and/or
       Black Citizens for Justice, Law and Order, Inc. acted with actual malice in
       committing the libel, if any, against Gladys Elaine Blanton Jenkins?

       a. Paul Martin Clark               Yes
       b. BCJLO                           Yes

       Instruction: Actual malice means the false statement was made with actual
       knowledge that it was false or with reckless disregard of whether it was false.
       Reckless disregard means the author actually entertained serious doubts as
       to the truth of the statement.



                                             9
       “Clear and convincing evidence” which produces in the mind of the trier of
       fact a firm belief or conviction as to the truth of the allegations sought to be
       established.


                                         Discussion


       Clark and BCJLO7 contend Jenkins failed to present clear and convincing evidence

of actual malice to controvert the testimony of Clark and Joe that the truth or falsity of the

statements in the Clark Memorandum was never considered. Because Clark never

considered whether the statements were true or false, he maintains he could not have

entertained any doubts as to their truth or falsity. He also asserts his statements were

absolutely privileged as a legitimate attempt to petition the government for a redress of

grievances under the Texas Constitution article 1, § 27. As such, he would have this Court

find his statements are not subject to Texas defamation laws.


       Notwithstanding the order in which Clark briefed his issues, logic dictates that we

first consider whether his statements are absolutely privileged before proceeding to

consider the sufficiency of evidence of actual malice.




       7
          In its answer to Question No. 3, the jury found BCJLO either authorized, or ratified,
Clark to commit libel against Jenkins. The jury also found Clark and BCJLO jointly and
severally liable for the actual damages of $300,000, and individually liable for their share
of exemplary damages, $100,000 each. Neither Clark nor BCJLO raise any issue related
to their joint liability nor the jury award of exemplary damages. They also filed a joint notice
of appeal. Accordingly, in our Discussion, we will refer to “Clark and BCJLO” collectively
as “Clark.”

                                              10
       I.       Right To Petition

       A.       Absolute Privilege


       Clark asserts the statements in his memorandum are subject to an absolute

privilege because the Texas Petition Clause provides greater protection for

communications made in petitions for redress than exist for those who generally exercise

their right to free speech. He contends the Free Speech and Petition Clauses establish

separate and distinct constitutional rights, the violation of which requires differing standards

for determining liability in defamation actions. Rather than permit plaintiffs to recover for

defamation against a petitioner for redress if they establish “actual malice” under the New

York Times standard8 in accord with the United States Supreme Court’s holding in

McDonald v. Smith,9 Clark would have this Court adopt the Noerr-Pennington doctrine

created by the United States Supreme Court for use in antitrust cases,10 and require such

plaintiffs to establish the petition itself is a “sham” before liability attaches. In sum, Clark

urges this Court to elevate communications under the Petition Clause to “special” First

Amendment status and accept his claim of absolute privilege.




       8
           New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
       9
           472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985).
       10
        Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523,
5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct.
1585, 14 L.Ed.2d 626 (1965).

                                              11
       The Petition Clause of the Texas Constitution reserves the right to petition the

government for a redress of grievances as follows:


       RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The
       citizens shall have the right, in a peaceable manner, to assemble together
       for their common good; and apply to those vested with the powers of
       government for redress of grievances or other purposes, by petition, address
       or remonstrance.


Texas Const. art. 1, § 27.11


       Contrary to Clark’s assertion, the right to petition is inseparable from the right of free

speech. Puckett v. State, 801 S.W.2d 188, 192 (Tex.App.–Houston [14th Dist.] 1990),

cert. denied, 502 U.S. 990, 112 S.Ct. 606, 116 L.Ed.2d 629 (1991). “Although the rights

are distinct guarantees, they were cut from the same constitutional cloth, inspired by the

same principles and ideals. Thus, as a general rule, the rights are subject to the same

constitutional analysis.” Id. (citations omitted).


       That the Texas Constitution expressly guarantees a right to bring suits for

reputational torts and provides access to courts for injuries to reputation, supports the


       11
       Unlike the Texas Constitution, the federal counterpart combines the right to
freedom of speech with the right to assemble and petition for redress as follows:

       Congress shall make no law respecting an establishment of religion, or
       prohibiting the free exercise thereof, or abridging the freedom of speech, or
       of the press, or the right of people peaceably to assemble, and to petition the
       Government for a redress of grievances.

U.S. Const. amend. 1.

                                              12
notion that First Amendment speech safeguards should apply to those who petition for

redress.12 Nowhere in the Petition Clause is there language that militates against applying

these free speech safeguards to petitioners, or that supports any “special” First

Amendment status for petitioners.13 Rather, defamation defendants seeking greater

protection than that offered by the Texas and United States Constitutions must look to

Texas common law. The Texas Supreme Court has observed:


      [a]lthough we have recognized that the Texas Constitution’s free speech
      guarantee is in some cases broader than the federal guarantee, we have
      also recognized that ‘broader protection, if any, cannot come at the expense


      12
         In fact, the Framers of the Texas Constitution first considered an absolute
guarantee of free speech and subsequently adopted a provision making communicators
responsible for an abuse of the right to free speech. The Texas Supreme Court in O’Quinn
v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex. 1988), observed:

      [t]he original draft of section 4 of the Declaration of Rights of the 1836
      Constitution for the Republic of Texas provided: ‘No law shall ever be passed
      to curtail the liberty of speech or the press.’ 1 Gammel, Laws of Texas 868
      (1898). But, by the time of its adoption the Fourth Declaration of Rights of
      the Texas Constitution of 1836 stated: ‘Every citizen shall be at liberty to
      speak, write, or publish his opinions on any subject, being responsible for the
      abuse of that privilege.

Emphasis added.
       13
         When interpreting the Texas Constitution, we “rely heavily on its literal text and
must give effect to its plain language.” Stringer v. Cendant Mortgage Corp., 23 S.W.3d
353, 355 (Tex. 2000); Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 89 (Tex. 1997).
Clark contends the three words–“or other purposes”–somehow expands the Petition
Clause to protect statements by petitioners with an “absolute privilege.” However, we
interpret these three words as modifying the phrase “for redress of grievances” to include
petitions for “purposes other” than the “redress of grievances.” The phrase “or other
purposes” does not speak or relate to the granting of any special privileges or protections
for those who exercise their rights under the Petition Clause.

                                            13
        of a defamation claimant’s right to redress.’ Unlike the United States
        Constitution, the Texas Constitution expressly guarantees the right to bring
        reputational torts. The Texas Constitution’s free speech provision guarantees
        everyone the right to ‘speak, write or publish his opinions on any subject,
        being responsible for abuse of that privilege.’ Likewise, the Texas
        Constitution’s open courts provision guarantees that ‘[a]ll courts shall be
        open, and every person for an injury done him, in his lands, goods, person
        or reputation, shall have remedy by due course of law.’ While we have
        occasionally extended protections to defamation defendants greater than
        those offered by the United States Constitution, we have based these
        protections on the common law, not the Texas Constitution.


Bentley v. Bunton, 94 S.W.3d 561, 578 (Tex. 2003) quoting Turner v. KTRK Television,

Inc., 38 S.W.3d 103, 116-17 (Tex. 2000) (emphasis in original).


        Thus, unless Texas common law creates an exception, persons who exercise their

right to petition do so in the absence of absolute immunity and may be held liable for their

communications if the plaintiff is able to make a showing sufficient to satisfy the New York

Times standard for “actual malice.” We also find the United States Supreme Court’s

holding in McDonald v. Smith, persuasive and agree that, although “[t]he right to petition

is guaranteed, the right to commit libel with impunity is not.” 472 U.S. at 485, 105 S.Ct. at

2790.


        In McDonald, the plaintiff was a candidate for appointment as a United States

Attorney. The defendant sent defamatory letters to various federal governmental officials,

including President Reagan, concerning the plaintiff’s ethical qualifications to serve as

United States Attorney.      Based upon those communications, the plaintiff sued for

defamation. The defendant argued the Petition Clause of the First Amendment, which

                                             14
guarantees “the right of the people . . . to petition the Government for a redress of

grievances,” should provide him with absolute immunity. Id. The Court disagreed, noting

that “[u]nder state common law, damages may be recovered only if [the defendant] is

shown to have acted with malice . . . .” Id. The Court held that requiring plaintiffs to show

actual malice was sufficient protection for petitioners, and “the Petition Clause does not

require the State to expand this privilege into an absolute one.” Id.


       The McDonald ruling is compatible with Texas common law which recognizes two

classes of privileges -- absolute and qualified -- either of which may apply to a petition for

redress.    Two cases are illustrative.         In Koehler v. Dubose, 200 S.W. 238

(Tex.Civ.App.–San Antonio 1918, writ ref’d), the court considered allegations of libel

contained in letters addressed to the state comptroller related to the issuance of a new

liquor license to the plaintiff. The letters accused the plaintiff of selling alcohol to minors

through others and petitioned the state comptroller, who had authority to grant, revoke, or

refuse licenses to sell intoxicating liquor, to refuse to issue a new license. The court

recognized that, under the common law, there were two classes of privilege that might

apply to petitioners’ communications -- absolute and qualified. Id. at 242. After finding the

letters were not part of a judicial proceeding and subject to an absolute privilege, the court

found the communications were subject to a qualified privilege and stated, “the publishers

of the statements will be guilty of libel if it be shown that the accusations were made in bad

faith and with malice towards appellant.” Id. at 243.



                                              15
       In Connellee v. Blanton, 163 S.W. 404 (Tex.Civ.App.–Fort Worth 1913, writ ref’d),

the court extended the absolute privilege recognized under the common law for statements

made in judicial proceedings to petitions to the Governor requesting pardons.               In

Connellee, plaintiff’s petition, a letter applying to the Governor for a pardon, complained

that a district judge had changed the venue of the defendant’s case for the purpose of

making the costs excessive. Id. at 405. The Connellee court also recognized two classes

of privilege, qualified and absolute, that might apply but determined the petition was subject

to an absolute privilege because it was an extension of the judicial proceedings whereby

the person sought to be pardoned was convicted. Id. at 407. The Connellee court held:


       [t]he same principle of public policy which supports the absolute privilege
       extended to judicial proceedings applies with equal force in favor of petitions
       to the Governor of the state for the exercise of the pardoning power, a power
       superior to that of the court which rendered the judgment of conviction. If the
       judicial proceedings which culminated in the conviction were absolutely
       privileged, why should not the same immunity be extended to the petition to
       a higher power to annul that judgment, in part?


Id.


       Thus, the courts’ rulings in Koehler and Connellee on the issue of whether a petition

is subject to an absolute or qualified privilege under the common law turned on whether

the petition was submitted in connection with a judicial proceeding. The Koelher court

recognized the principle that, at a minimum, all petitions are subject to a qualified privilege

under the common law, and Connellee recognized an absolute privilege where the petition



                                              16
is submitted as an extension of a judicial proceeding.14 Neither court recognized an

absolute privilege for all communications under the Petition Clause.15


       Accordingly, when a person exercises their constitutional right to petition for redress,

their communications may be subject to an absolute privilege or qualified privilege

depending on the context, or occasion, in which their communication is made. See

Koehler, 200 S.W. at 242-43. An absolute privilege is analogous to an immunity because

absolutely privileged communications are not actionable and may not form the basis for

civil liability, Reagan v. Guardian Life Ins., Co., 140 Tex. 105, 166 S.W.2d 909, 911 (1942);



       14
          Hott v. Yarbrough, 245 S.W. 676 (Tex.Comm’n App. 1922, judgm’t adopted), also
cited by Clark, is similar to Connellee. In Hott, the court held that the contents of a letter
to a grand jury foreman were absolutely privileged because communications to the grand
jury in the regular performance of its duties were subject to the common law rule applicable
to judicial proceedings. Id. at 678. That the Hott court cites to a Vermont Supreme Court
case, Harris v. Hunnington, 2 Tyl. 129, 1802 WL 777, (Vt. 1802), for a general discussion
of the scope of absolute privileges is not persuasive authority that the Hott court intended
to extend an absolute privilege to all petitioners. In Harris, the Vermont Supreme Court
extended an absolute privilege to a petition addressed to the Vermont Legislature asking
the legislative convention not to reappoint a particular Justice of the Peace. In Harris, the
Vermont House of Representatives was empowered by its Constitution to impeach state
criminals and acted as the “grand inquest of the State to charge such criminals.” As such,
the Vermont Legislature acted in a capacity similar to that of a grand jury determinating
whether to issue indictments.
       15
         Wood v. State, 577 S.W.2d 477 (Tex.Crim.App. 1978), also cited by Clark, is
anomalous. In Wood, the defendant challenged the constitutionality of the Penal Code
provision making it a crime to file a false police report under the Petition Clause. The
officer who was the subject of her complaint did not bring an action for defamation.
Moreover, the court decided the case on the sufficiency of the evidence under the Penal
Code provision making it a crime to file a false police report, ignored any constitutional
issues, and tied its ruling to the case. Id. at 480 n.2.


                                              17
Randolph v. Walker, 29 S.W.3d 271, 278 (Tex.App.–Houston [14th Dist.] 2000, pet.

denied), even though the communication is false and published with express malice.

Associated Telephone Directory Publishers, Inc. v. Better Business, 710 S.W.2d 190, 192

(Tex.App.–Corpus Christi 1986, writ ref’d. n.r.e.).          This privilege attaches to

communications made in proceedings of legislative, executive, and judicial bodies, Zarate

v. Cortinas, 553 S.W.2d 652, 654 (Tex.Civ.App.–Corpus Christi 1977, no writ), and to only

a limited and select number of situations which involve the administration of the functions

of the branches of government such as the opinions of judges and the speeches of

members of congress or legislatures. Hurlbut v. Gulf Atlantic Life Insurance Co., 749

S.W.2d 762, 768 (Tex. 1987); Knapp & Co. v. Campbell, 36 S.W. 765, 767

(Tex.Civ.App.–El Paso 1896, no writ).


       Absolute privilege attaches to all communications published in the course of judicial

proceedings, IBP, Inc. v. Klumpe, 101 S.W.3d 461, 470 (Tex.App.–Amarillo 2001, pet.

denied), and similarly applies to quasi-judicial proceedings before executive officers,

boards, or commissions. Reagan, 166 S.W.2d at 912; 5-State Helicopters, Inc. v. Cox,

146 S.W.3d 254, 256-57 (Tex.App.–Fort Worth 2004, pet. denied).              To apply, the

executive officer, board, or commission must exercise quasi-judicial powers. Putter v.

Anderson, 601 S.W.2d 73, 76 (Tex.Civ.App.–Dallas 1980, writ ref’d. n.r.e.). That is, the

governmental entity must have the authority to investigate and decide the matters at issue,

5-State Helicopters, Inc.,146 S.W.3d at 259; Crain v. Smith, 22 S.W.3d 58, 60-61

(Tex.App.–Corpus Christi 2000, no pet.); Lane v. Port Terminal R.R. Ass’n, 821 S.W.2d

                                            18
623, 625 (Tex.App.–Houston [14th Dist.] 1991, pet. denied), and the communication must

bear some relationship to a pending or proposed judicial proceeding in order for the

absolute privilege to apply. Bennett v. Computer Assocs. Int’l., Inc., 932 S.W.2d 197, 201

(Tex.App.–Amarillo 1996, writ denied).16


       Clearly, all communications to public officials are not absolutely privileged. Hurlbut,

749 S.W.2d at 768. Initial communications “to a public officer . . . who is authorized or

privileged to take action” are subject to only a qualified privilege, not absolute immunity.

Id. The filing of a criminal complaint is not absolutely privileged because, at that point, no

judicial proceedings have been proposed and no investigating body has discovered

sufficient information to present to a grand jury or file a misdemeanor complaint. San

Antonio Credit Union v. O’Connor, 115 S.W.3d 82, 99 (Tex.App.–San Antonio 2003, pet.

denied). See Caller Times Pub. Co. v. Chandler, 122 S.W.2d 249, 251 (Tex.Civ.App.–San

Antonio 1938), aff’d, 130 S.W.2d 853 (Tex. 1939) (confessions under oath to a district

attorney implicating plaintiff in the commission of a crime not absolutely privileged);

Houston Chronicle Pub. Co. v. Tiernan, 171 S.W. 542, 546 (Tex.Civ.App.–Galveston 1914,

no writ) (affidavits alleging attorneys committed crimes were not absolutely privileged).

Thus, the initial communication of alleged wrongful or illegal acts to an official authorized



       16
        Examples where the privilege has been held to apply include statements made in
correspondence sent, and conferences convened, in anticipation of litigation; in pretrial
hearings, depositions, affidavits, pleadings or papers filed in the case; pleadings delivered
to the media and settlement letters sufficiently connected with a pending or potential suit.
Bennett, 932 S.W.2d at 201.

                                             19
to protect the public from such acts is subject to a qualified privilege. See Hurlbut, 749

S.W.2d at 767-68 (criminal allegations made to assistant attorney general not absolutely

privileged); Zarate, 553 S.W.2d at 655.


      This common law “qualified privilege” has been described as follows:


      [q]ualified privileges against defamation exist at common law when a
      communication is made in good faith and the author, the recipient or a third
      person, or one of their family members, has an interest that is sufficiently
      affected by the communication. See Holloway v. Texas Medical Ass’n, 757
      S.W.2d 810, 813 (Tex.App.–Houston [1st Dist.] 1988, writ denied). A
      communication may also be conditionally privileged if it affects an important
      public interest. See generally Bruce W. Sanford, Libel and Privacy, at 701-
      94.1 (collecting libel privilege statutes from all fifty states).


Cain v. Hearst Corporation, 878 S.W.2d 577, 582 (Tex. 1994).


      Unlike an absolute privilege, this “conditional privilege is defeated when the privilege

is abused,” Hurlbut, 749 S.W.2d at 768, and the “qualifying criterion . . . is that the

statements must be made in good faith and without malice.” Zarate, 553 S.W.2d at 655

(collected cases cited). To hold otherwise would “unnecessarily deny those innocent

victims of maliciously or recklessly filed complaints an opportunity to seek remuneration

for their injury.” Id. In making a determination whether statements are subject to a

qualified privilege, courts must examine the “occasion” of the communication, i.e., the

totality of the circumstances including the communication itself, its communicator, its

recipient and the relief sought. Cranfill v. Hayden, 55 S.W. 805, 809 (Tex.Civ.App.–Dallas



                                             20
1900, no writ).17 And, the question of privilege is ordinarily one of law for the court. Denton

Publishing Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970).


       Clark addressed his Memorandum to Congressman Sessions and DOJ’s Civil

Rights Division. By his Memorandum, Clark generally sought to instigate an investigation

of alleged civil rights violations in Athens and, more specifically, Jenkins’s immediate

removal from the Athens City Council. As such, the Clark Memorandum was a preliminary

report, not communicated to Congressman Sessions as part of a legislative proceeding.

Moreover, Congressman Sessions lacked the subpoena power necessary to conduct a

formal investigation as well as the authority to grant the ultimate relief sought by Clark. At

best, the Congressman could make calls, gather information, and refer Clark’s allegations

to public officials and/or agencies empowered to investigate, litigate, or adjudicate Clark’s

complaints. Congressman Sessions’s ability to gather information and refer matters to the

appropriate authorities does not constitute a “legislative proceeding.” See Belo v. Wren,

63 Tex. 686, 1884 WL 8996, *26-27 (Dec. 19, 1884). Thus, Clark’s statements to

Congressman Sessions were not part of a legislative proceeding and were not subject to

an absolute privilege. Neither were Clark’s statements to DOJ’s Civil Rights Division

communicated in an executive, judicial, or quasi-judicial proceeding.



       17
        This is an objective test. Whether Clark and/or Joe “believed” that Sessions and/or
DOJ were under a duty to keep their communications confidential or their communications
were absolutely privileged, is irrelevant. We also note the Memorandum contains no
language, legends, or banners indicating the information contained therein was, or should
be treated as, confidential.

                                              21
       A privilege “is an affirmative defense to be proved and is in the nature of confession

and avoidance.” IBP, Inc., 101 S.W.3d at 471. As such, Clark had the burden of

establishing this affirmative defense to defamation. Id. Clark produced no evidence

indicating DOJ was actively contemplating, investigating, or litigating any civil rights

violations related to Athens. In addition, Clark’s allegations were preliminary in nature, i.e.,

designed to launch an investigation that might lead to legal action.            Thus, Clark’s

statements to DOJ were not part of an executive, judicial, or quasi-judicial proceeding, and

were not subject to an absolute privilege.


       Under Texas common law, damages for defamation and libel may be recovered only

if a defendant is shown to have acted in bad faith with malice. Zarate, 553 S.W.2d at 655;

Koehler, 200 S.W. at 243. This standard is consistent with that expressed by the United

States Supreme Court in New York Times, supra, and is applicable to a plaintiff’s claims

against those who have exercised their First Amendment right under the Petition Clause.

McDonald, 472 U.S. at 485, 105 S.Ct. at 2791. See generally Dixon v. Southwestern Bell

Tel. Co., 607 S.W.2d 240, 242 (Tex. 1980); Little v. Bryce, 733 S.W.2d 937, 945

(Tex.App.–Houston [1st Dist.] 1987, no writ]. While we recognize the Petition Clause is

undoubtedly an important part of self-government, one person’s right to petition, in the

absence of a common law privilege that is absolute, ends where his neighbor’s reputational

rights begin. Like the McDonald court, we are not prepared to conclude that the Petition

Clause “include[s] an unqualified right to express damaging falsehoods in exercise of that

right.” 472 U.S. at 484, 105 S.Ct. at 2790.

                                              22
       We also decline to apply the “sham exception” doctrine established by the United

States Supreme Court for antitrust litigation, i.e., the Noerr-Pennington doctrine. See City

of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 379-80, 111 S.Ct. 1344,

1353-54, 113 L.Ed.2d 382 (1991). The Noerr-Pennington doctrine basically holds that

petitioning the government to take anticompetitive action does not violate antitrust laws.

Id. The Omni court described the doctrine as follows:


       [a] classic example is the filing of frivolous objections to the license
       application of a competitor, with no expectation of achieving denial of the
       license but simply in order to impose expense and delay.


Id.


       The Noerr-Pennington doctrine has no application here. Jenkins filed suit for

defamatory statements made in a memorandum intended to instigate an investigation by

the federal government and thereby result in her removal from office. Jenkins did not sue

Clark for improperly attempting to influence governmental decision-making or obtain an

unlawful economic result, i.e., anticompetitive action. We recognize, as did the Omni

Court, that the Noerr-Pennington doctrine is “tailored . . . for the business world,” id., and

find the United States Supreme Court’s holding in McDonald to be apropos.18 Having


       18
         Likewise, United States v. Hylton, 558 F.Supp. 872 (D.C. Tex. 1982), aff’d, 710
F.2d 1106 (5th Cir. 1983), is of no assistance to Clark’s appeal. In Hylton, the defendant
sought an acquittal on federal charges of attempting to intimidate and impede an IRS
investigation. After defendant filed a criminal complaint against two IRS agents, the IRS
filed an action claiming defendant filed her complaint intending to obstruct an IRS
investigation rather than assert her own rights. Id. at 874. No one alleged a claim for

                                             23
concluded the statements in the Clark Memorandum are subject to a qualified privilege

permitting liability in a defamation action if his statements were made with actual malice,

we may now consider his contention that Jenkins failed to prove actual malice by clear and

convincing evidence


       II.    Actual Malice


       A public figure may not recover damages for a defamatory falsehood without clear

and convincing proof the false statement was made with “actual malice,” i.e., with

knowledge the statement was false or with reckless disregard of whether it was false or

not. Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 755 (Tex. 1984); New York Times

Co., 376 U.S. at 279-280, 84 S.Ct. at 726. Although a bright line definition of “clear and

convincing evidence” for purposes of determining actual malice does not exist, the phrase

has been used to mean evidence which produces in the mind of the trier of fact a firm

belief or conviction as to the truth of the allegations to be established, or evidence sufficient

to support a firm conviction that the fact to be proved is true. Bentley, 94 S.W.3d at 596-

97; Huckabee v. Time Warner Entertainment Co., 19 S.W.3d 413, 422 (Tex. 2000).


       Knowledge that the statement is false is a “relatively clear standard; reckless

disregard is much less so.” Bentley, 94 S.W.3d at 591. Reckless disregard is a subjective



defamation. Rather, the IRS alleged the defendant attempted to utilize legal processes to
attain an improper result. Here, Jenkins does not assert Clark improperly petitioned
Congressman Sessions and DOJ, but that Clark defamed Jenkins in the process.

                                               24
standard focusing on the declarant’s belief in, or attitude toward, the truth of the

communication at issue. New Times v. Isaacks, 146 S.W.3d 144, 165 (Tex. 2004). The

standard requires more than a departure from conduct that is reasonably prudent. Mere

negligence is not enough.      Bentley, 94 S.W.3d at 591. There must be evidence the

defendant made the false publication with a high degree of awareness of probable falsity,

or entertained serious doubts as to the truth of his publication.              Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 2686, 105

L..Ed.2d 562 (1989). For instance, a failure to investigate by itself does not evidence a

reckless disregard for the truth, but evidence that a failure to investigate was contrary to

the speaker’s usual practice and motivated by a desire to avoid the truth may demonstrate

the reckless disregard necessary for a finding of actual malice. Bentley, 94 S.W.3d at 591.


        While recognizing that the test for reckless disregard “may be said to put a premium

on ignorance, encourage the irresponsible publisher not to inquire, and permit the issue

to be determined by the defendant’s testimony that he published the statement in good

faith and unaware of its probable falsity,” St. Amant v. Thompson, 390 U.S. 727, 732, 88

S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968), the United States Supreme Court has cautioned

that:


        [t]he defendant in a defamation action brought by a public official cannot,
        however, automatically insure a favorable verdict by testifying that he
        published with a belief that the statements were true. The finder of fact must
        determine whether the publication was indeed made in good faith.
        Professions of good faith will be unlikely to prove persuasive, for example,
        where a story is fabricated by the defendant, is the product of his

                                             25
       imagination, or is based wholly on an unverified anonymous telephone call.
       Nor will they be likely to prevail when the publisher’s allegations are so
       inherently improbable that only a reckless man would have put them in
       circulation. Likewise, recklessness may be found where there are obvious
       reasons to doubt the veracity of the informant or the accuracy of his reports.


Id.


       In addition, although courts must be careful not to place too much reliance on

factors such as motive, a plaintiff is entitled to prove the defendant’s state of mind through

circumstantial evidence. Bentley, 94 S.W.3d at 591; Harte-Hanks, 491 U.S. at 668, 109

S.Ct. at 2685. A lack of care or an injurious motive in making a statement is not alone

proof of actual malice, but care and motive are factors to be considered. Bentley, 94

S.W.3d at 596. Moreover, although an understandable misinterpretation of ambiguous

facts does not show actual malice, inherently improbable assertions and statements made

on information that is obviously dubious may show actual malice. Hearst Corp. v. Skeen,

159 S.W.3d 633, 638 (Tex. 2005). Actual malice may be inferred from the “relation of the

parties, the circumstances attending the publication, the terms of the publication itself, and

from the defendant’s words or acts before, at, or after the time of the communication.”

Dolcefino v. Turner, 987 S.W.2d 100, 111-12 (Tex.App.–Houston [14th Dist.] 1998), aff’d,

38 S.W.3d 103 (Tex. 2000).


       In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct.

1949, 80 L.Ed.2d 502 (1984), the United States Supreme Court held that judges have a

constitutional duty to “exercise independent judgment and determine whether the record

                                             26
establishes actual malice with convincing clarity” in defamation suits brought by public

officials. 466 U.S. at 514, 104 S.Ct. at 1967. In determining whether the constitutional

standard has been satisfied, the reviewing court must consider the factual record in full,

Harte-Hanks, 491 U.S. at 688, 109 S.Ct. at 2696, and determine whether the evidence in

the record is sufficient to support a finding of actual malice as a matter of law. Bentley, 94

S.W.3d at 597-98.


       In making credibility determinations the reviewing court must make an independent

examination of the statements at issue and the circumstances under which they were

made to see whether they are of a character which the principles of the First Amendment

protect. New York Times Co., 376 U.S. at 285, 84 S.Ct. at 728-29. Where the credibility

of witnesses is a factor in determining whether the constitutional standard has been

satisfied, “the First Amendment does not forbid any deference to a fact finder’s

determinations; it limits that deference.” Bentley, 94 S.W.3d at 598.19 The findings the jury


       19
            In Bentley, the Texas Supreme Court observed:

                [i]f the First Amendment precluded consideration of credibility,
                the defendant would almost always be a sure winner as long
                as he could bring himself to testify in his own favor. His
                assertions as to his own state of mind, if they could not be
                disbelieved on appeal, would surely prevent proof of actual
                malice by clear and convincing evidence absent a ‘smoking
                gun’–something like a defendant’s confession on the verge of
                making a statement that he did not believe it to be true. The
                First Amendment does not afford even a media defendant
                such protection.

94 S.W.3d at 597.

                                              27
must have made to reach its verdict are considered alongside the undisputed evidence to

determine whether the plaintiff has met its burden of proof on the element of actual malice.

Harte-Hanks, 491 U.S. at 690-91, 109 S.Ct. at 2678.


       Thus, we follow the approach set forth in Bentley and Harte-Hanks. First, we begin

with a determination of the evidence the jury must have found incredible. Bentley, 94

S.W.3d at 599. If the fact finder chose to disregard the defendant’s testimony, so must we,

so long as the jury’s credibility determinations are reasonable. Id. However, “it is not

enough for the jury to disbelieve defendant’s testimony,” Casso v. Brand, 776 S.W.2d 551,

558 (Tex. 1989), the credible evidence must rise to the level of clear and convincing.

Bentley, 94 S.W.3d at 599. Thus, once we have resolved credibility determinations in favor

of the jury’s verdict, we must independently evaluate the statements at issue and the

circumstances under which they were made to see whether they are of a character which

the principles of the First Amendment protect. Turner, 38 S.W.3d at 120. We then identify

the undisputed facts and make a determination whether the “undisputed evidence along

with any other evidence that the jury could have believed provides clear and convincing

proof of actual malice.” Bentley, 94 S.W.3d at 599.


       A. Evidence The Jury Found Not Credible


       The jury’s finding that Clark acted with actual malice does not differentiate whether

Clark had actual knowledge the statements regarding Jenkins were false or acted with

reckless disregard of whether the statements were false, but we know, based upon the

                                            28
definition of actual malice given to the jury, that it was one or the other. That said, the

jury’s finding supports an inference that the jury believed, by clear and convincing

evidence, that Clark either knew the statements were false, or he actually entertained

serious doubts as to the truth of the statements.


       Neither Clark nor Joe offered any evidence that they believed the statements were

true or made in good faith at the time they were published.20 Rather, Clark and Joe

testified the statements were published without a point of reference that would assist them

in determining the veracity of their sources or the truthfulness of the statements about

Jenkins, and performed no investigation to determine the accuracy of the information.


       In essence, Clark testified he was just a scrivener. He stated he simply wrote down,

or recorded, what was said by the attendees at the Council meeting and gathering

afterwards. He had no belief or disbelief as to the truth of the statements contained in his

Memorandum. He had no basis for believing or disbelieving the speakers at the meeting.

If the jury determined Clark knew the statements were false, Clark’s testimony must be

ignored. Bentley, 94 S.W.3d at 599. To the extent the jury determined that Clark actually


       20
          Clark contends that Congressman Sessions’s testimony supports a finding that
Clark acted in good faith. Although Sessions testified that he believed Clark acted in good
faith, he also testified he read only the portion of the Clark Memorandum in which he and
his office were named; he believed he had met Clark briefly once; and he could not testify
whether Clark acted in good faith in connection with his involvement in Athens in
November 2002. Congressman Sessions’s testimony regarding Clark’s good faith is
equivocal at best and largely irrelevant because the actual malice test is a subjective one
that focuses on the defendant’s state of mind. See New Times, 146 S.W.3d at 162;
Bentley, 94 S.W.3d at 591.

                                            29
entertained serious doubts as to the truth of the statements, his testimony must also be

ignored. Id.


       Clark also identified Barbara Bowman as a person at the after-meeting who told him

Jenkins was a convicted felon and served time in Texas and California for prostitution and

drugs. To the contrary, Barbara Bowman testified at trial in the plaintiff’s case-in-chief that

Fred Burke told Clark that Jenkins had engaged in drugs and prostitution in California, but

said nothing about Texas, Jenkins serving time in prison, or being convicted. Bowman

unequivocally testified no one at the meeting accused Jenkins of being a convicted felon.

Clark did not appear at trial. Rather, Clark’s deposition testimony was read. Neither did

Clark’s counsel call Burke to testify. Given the jury’s finding regarding actual malice, we

ignore Clark’s testimony and find the jury determined Bowman’s testimony to be credible.


       B.       The Clark Memorandum


       The Clark Memorandum falsely stated that Jenkins was “a convicted felon having

served prison time in Texas and California for Prostitution and Drugs.” The Memorandum

was addressed to a United States Congressman and DOJ’s Civil Rights Division. Based

upon this statement, Clark unequivocally demanded Jenkins “be removed from office

immediately.”


       The law does not allow someone the unrestricted right to publish statements about

public officials that are untrue, and in upholding this principle the courts of this State have


                                              30
held that, “[a]s a general rule a publication concerning a public officer, in order to be

libelous per se, must be of such a character as, if true, would subject him to removal from

office.” Fitzjarrald v. Panhandle Publishing Co., 149 Tex. 87, 228 S.W.2d 499, 503 (1950);

Rawlins v. McKee, 327 S.W.2d 633, 637 (Tex.Civ.App.–Texarkana 1959, writ ref’d. n.r.e.)

(collected cases cited therein); see 50 Tex.Jur. 3d Libel and Slander §34 (2000); Marshal

v. Mahaffey, 974 S.W.2d 942, 949 (Tex.App.–Beaumont 1998, pet. denied); Houston

Chronicle Pub. Co. v. Flowers, 413 S.W.2d 435, 438 (Tex.Civ.App.–Beaumont 1967, no

writ). Libel per se means the written or printed words are so obviously hurtful to the person

aggrieved that they require no proof of their injurious character to make them actionable.

Morrill v. Cisek, 226 S.W.3d 545, 549-50 (Tex.App.–Houston [1st Dist.] 2006, no pet.).


       Having considered the statement in issue and the circumstances under which it was

made, we find that the Clark Memorandum is not of a character that should receive

protection under the principles of the First Amendment. “The Constitution seeks to secure

liberty and not licentiousness.” Koehler, 200 S.W. at 244.


       C.     Clear and Convincing Proof of Actual Malice


       A plaintiff is entitled to prove the defendant’s state of mind through circumstantial

evidence. Bentley, 94 S.W.3d at 591; Harte-Hanks, 491 U.S. at 668, 109 S.Ct. at 2685.

In general, the Texas and United States Supreme Courts recognize three types of

circumstantial evidence that would likely support a finding of actual malice: (1) where a

story is fabricated by the defendant, is the product of his imagination, or is based wholly

                                             31
on an unverified, anonymous account; (2) when the allegations made are so inherently

improbable that only a reckless man would have put them in circulation; and (3) there are

obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

Bentley, 94 S.W.3d at 596; St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326. The Clark

Memorandum must also be construed as a whole, in light of the surrounding circumstances

based upon how a person of ordinary intelligence would perceive the entire statement.

See Turner, 38 S.W.3d at 114; Wood v. Dawkins, 85 S.W.3d 312, 317 (Tex.App.–Amarillo

2002, pet. denied).


       Our analysis begins with the origination of the Clark Memorandum. Clark testified

he took notes at the after-meeting and simply recorded what the attendees stated. He

testified that everything in his Memorandum originated with statements people made at the

after-meeting. Clark also testified he was trained as a federal records management officer

to objectively record events, and Joe testified Clark was sent to Athens because of his

detailed note-taking abilities. Furthermore, Clark testified he had no belief or disbelief

regarding his statement about Jenkins.


       We have already determined that the jury’s answer to the charge indicates that they

disbelieved Clark’s testimony that he had no belief or disbelief as to the truth or falseness

of his statement about Jenkins and that they could have believed Bowman’s testimony that

Clark did not learn all of the information contained in his statement about Jenkins at the

after-meeting. Therefore, relying on Bowman’s testimony and Clark’s testimony that his


                                             32
information came only from statements at the after-meeting, the jury could have inferred

he “made up” or “imagined” the facts underlying his statement related to Jenkins. We find

this inference reasonable and supported by the evidence.


       Clark and Joe testified Clark was dispatched to Athens to take notes of what

transpired and draft a memorandum to prompt an investigation by Congressman Sessions

and DOJ. The Clark Memorandum is clearly an “action” memorandum, i.e., an advocacy

document designed not only to prompt an investigation, but to remove Jenkins from office

immediately. Nowhere in the Memorandum are the facts or information described as

merely the recordation of statements made during meetings of Athens’s city government

or its concerned citizens. Rather, Clark describes himself as an eyewitness in attendance

at the City Council workshop and, with the exception of one paragraph,21 his factual

recitations and opinions are wholly unqualified. The Clark Memorandum’s authoritative

tone, unqualified language, use of the first person, formal format, and author’s signature

line, give the appearance Clark is writing with some command of the facts underlying his

discrimination claims. Regardless whether Clark was simply a note-taker at the Athens




       21
         In paragraph three of the Clark Memorandum, Clark qualifies his accusation that
the staff of Congressman Sessions’s Athens office have ties to the Ku Klux Klan with the
statement–“there is a perception on the part of these citizens that . . . .” This qualification
indicates Clark at least considered the need to qualify certain language in the
Memorandum and either believed additional qualification was unnecessary or chose not
to qualify other statements.

                                              33
meetings, when he returned to Dallas and drafted the memorandum, he plainly became

an advocate for an investigation in Athens and Jenkins’s removal from office.22


       Moreover, there was substantial testimony at trial that a significant number of

additional allegations in the Clark Memorandum were untrue and Clark’s “eyewitness

account” of the City Council workshop was a gross misrepresentation of the events that

transpired.23 The uncontroverted testimony indicated it was not true that: black people

were being murdered on a daily basis in Athens; a black man was killed by the Athens

police some three weeks prior to the Clark Memorandum; a black woman was tortured by

the Athens Police Department and denied medical care; Vance was at the helm of the

Garland Police Department when a racial incident occurred; Athens recruited its new police

chief because of his racist credentials; peaceful picketing was not allowed in Athens; and

picketers were harassed.


       Regarding Clark’s “eyewitness account” of what transpired at the City Council

workshop, the uncontroverted testimony indicated it was not true that the Mayor told only


       22
          Regardless whether the jury found Joe’s testimony related to the coverpage
credible, the test for “actual malice” focuses on Clark’s “belief in, or attitude toward, the
truth of the communication at issue.” Accordingly, we focus on Clark’s subjective belief at
the time he made the statements, not Joe’s subsequent actions.
       23
         At trial, Jenkins produced a number of witnesses that corroborated her evidence:
Charles Hawn (regional district office manager for Congressman Sessions), Pam Burton
(Athens City Administrator), Elaine Jenkins (City Council person and plaintiff), and Jerry
King (former Mayor of Athens). Clark did not appear at trial and did not call any members
of the CCNA or other witnesses who attended the City Counsel workshop or after-meeting
to rebut the testimony of Jenkins’s witnesses.

                                             34
black people to leave the meeting; the Mayor vented extreme hatred by telling the black

attendees he did not appreciate the attendance of outsiders; black citizens were refused

copies of the minutes of the meeting; the workshop never took place and was a mere

future agenda item; only three people were allowed to speak at the workshop; workshop

only lasted nine minutes; and black citizens were told to meet with the new police chief

individually, not as a group.


       Thus, the uncontroverted evidence indicates Clark purposefully drafted an

incendiary instrument designed to prompt an investigation in Athens and remove Jenkins

from office. Given the gross discrepancies regarding Clark’s account of what transpired

at the City Council workshop and apparently false allegations and statements contained

in his Memorandum, a jury could readily infer that Clark misrepresented facts and stated

false allegations and opinions in order to attain his predetermined goals. This includes

embellishing Burke’s allegations related to Jenkins to include convictions as well as

imprisonment in multiple states. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496,

517, 111 S.Ct. 2419, 2433, 115 L.Ed.2d 447 (1991) (deliberate alteration of a statement

resulting in a material change in the meaning conveyed by the statement is proof of

reckless disregard); Cantrell v. Forest City Publishing Co., 419 U.S. 245, 253, 95 S.Ct. 465,

470-71, 42 L.Ed.2d 419 (1974) (where reporter fabricated and imagined false facts for

purposes of bolstering theme of feature article, jury was “plainly justified” in finding that

reporter portrayed the Cantrells in a false light through knowing or reckless untruth);

Carson v. Allied News Company, 529 F.2d 206, 213 (7th Cir. 1976) (defendants, in

                                             35
fabricating and imagining facts, necessarily entertained serious doubts as to the truth of

the statements and had a high degree of awareness of their probable falsity).


       In reaching our conclusion, we find two cases instructive. In Cantrell, a reporter was

writing a feature article discussing the impact upon a family whose father died in a well-

documented bridge collapse. 419 U.S. at 247, 95 S.Ct. 467. The reporter visited the

Cantrell’s residence where he interviewed Cantrell’s children. Although Mrs. Cantrell was

not at home, his article contained a description of her demeanor as well as a statement

attributed to her. The article also contained significant misrepresentations pertaining to the

dilapidated state of the Cantrell home and their poverty condition. Based upon these facts,

the Cantrell Court affirmed a jury finding and appellate determination that the reporter and

his publisher had “published knowing or reckless falsehoods about the Cantrells.” 419 U.S.

at 252-53, 95 S.Ct. at 470.


       In Guam Federation of Teachers, Local 1581, of the American Federation of

Teachers v. Ysrael, 492 F.2d 438 (9th Cir. 1974), cert. denied, 419 U.S. 872, 95 S.Ct. 132,

42 L.Ed.2d 111 (1974), the defendant caused various defamatory statements concerning

a Union and its officers opposed to his appointment to a school board to be published in

a newspaper. The court determined that the defendant’s testimony at trial as an adverse

witness was sufficient alone to get the plaintiffs to the jury under the New York Times

standard and described his testimony as follows:




                                             36
          [h]e repeatedly admitted that he did not know whether what he said was true.
          He repeatedly admitted that he did nothing, or almost nothing, to verify his
          charges. As to most of his statements, he repeatedly admitted that he knew
          of no facts to support them; he either relied upon unspecified rumor or
          nothing at all. He simply asserted that he believed what he said was true.


Id. at 439.


          Given the facts presented at trial, the jury could have reasonably inferred that Clark

either falsely reported the information he received about Jenkins at the after-meeting, or

imagined additional facts he was not told to further his purpose of seeking an investigation

of her past activities or immediate removal from office. This inference is reasonable under

circumstances where the Clark Memorandum itself is riddled with numerous other

falsehoods, misrepresentations, and innuendoes designed to achieve his predetermined

result.


          Like the defendant in the Guam Federation case, Clark also repeatedly admits he

did not know whether the statements related to Jenkins were true; he did nothing to verify

the alleged criminal convictions and knew of no facts to support the statements. According

to Clark, he relied on the word of complete strangers who were interested parties with

whom he had no reference for determining the veracity of what they were telling him about

a person he had never met. Although the defendant in Guam Federation at least testified

he believed his statements to be true, Clark testified he had no belief, good faith or

otherwise, in the truth of his statements about Jenkins. The behavior exhibited by Clark



                                                37
is more than reckless disregard of the truth or falsity of the information he published – it is

simply no regard.


       Putting aside for a moment the evidence indicating Clark “made up” or “imagined”

the information, the jury’s verdict is also buttressed by the “inherently improbable” nature

of the statements in the Clark Memorandum, i.e., an elected, sitting official had earlier been

convicted and imprisoned in two states for crimes related to drugs and prostitution. This

is even more so where one of the crimes allegedly committed was in the very state where

the person is serving office, and the validity of the claims could be easily determined by a

public records search. See Burger v. McGilley Memorial Chapels, Inc., 856 F.2d 1046,

1052 (8th Cir. 1988) (jury could find employer did not rely in good faith on employee’s

statement easily refutable either by confronting the former employee or making a simple

check of the employer’s records).


       All this, in addition to Clark’s departure from his training and past performance as

a detailed, objective note-taker and the fact that Clark did not perform a simple public

records check despite his apparent disbelief regarding the extreme allegations being made

about the routine murder of black citizens in Athens coupled with the complete absence

of any information regarding the veracity of his sources, provide more than adequate

support for a finding of actual malice by clear and convincing evidence. See Goldwater v.

Ginsburg, 414 F.2d 324, 337 (2nd Cir. 1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24

L.Ed.2d 695 (1970), reh’g denied, 397 U.S. 978, 90 S.Ct. 1085, 25 L.Ed.2d 274 (1970)


                                              38
(“[r]epetition of another’s words does not release one of responsibility if the reporter knows

that the words are false or inherently improbable, or there are obvious reasons to doubt

the veracity of the person quoted or the accuracy of his reports”).


       Clark asserts this case is most similar to St. Amant v. Thompson. In St. Amant, a

candidate for public office, the defendant, St. Amant, made a televised speech in which he

quoted a statement from a single source, Albin, who indicated that the plaintiff, Thompson,

had engaged in criminal activity. The Supreme Court determined there was nothing in the

record to indicate any awareness by the defendant of the probable falsity of the source’s

statement and that a failure to investigate alone does not itself establish bad faith. 390

U.S. at 732-33, 88 S.Ct. at 1326. At first blush, these facts appear somewhat similar to our

own.24 There is, however, a defining difference between St. Amant and this case. Here,

none of the statements made to Clark at the after-meeting had any indicia of truthfulness

because, according to his testimony, Clark had absolutely no reference to judge the




       24
            In St. Amant, the facts were as follows:

       St. Amant had no personal knowledge of Thompson’s activities; he relied
       solely on Albin’s affidavit although the record was silent as to Albin’s
       reputation for veracity; he failed to verify the information with those in the
       union office who might have known the facts; he gave no consideration to
       whether or not the statements defamed Thompson and went ahead heedless
       of the consequences; and he mistakenly believed he had no responsibility
       for the broadcast because he was merely quoting Albin’s words.

390 U.S. at 730, 88 S.Ct. at 1325.

                                               39
veracity of any statement he received. On the other hand, in St. Amant, the defendant had

substantial evidence upon which he could judge the veracity of his source:


          St. Amant made his broadcast in June 1962. He had known Albin since
          October 1961, when he first met with members of the dissident Teamsters
          faction. St. Amant testified that he had verified other aspects of Albin’s
          information and that he had affidavits from others. Moreover Albin swore to
          the answers, first in writing and later in the presence of newsmen. According
          to Albin, he was prepared to substantiate his charges. St. Amant knew that
          Albin was engaged in an internal struggle in the union; Albin seemed to St.
          Amant to be placing himself in personal danger by publicly airing the details
          of the dispute.


390 U.S. at 733, 88 S.Ct. at 1326-27.


          At best, Clark repeated in writing a false, scandalous rumor consisting of trumped

up felony charges, convictions, and imprisonment in furtherance of removing Jenkins from

office.    At worst, Clark made up or imagined the felony charges, convictions, and

imprisonment of Jenkins to further a predetermined result. In either instance, Jenkins has

established Clark acted with “actual malice” by clear and convincing evidence.


                                          Conclusion


          Clark’s sole issue and the subparts thereto are overruled. Accordingly, we affirm

the judgment of the trial court.


                                                          Patrick A. Pirtle
                                                              Justice

Quinn, C.J., concurring in result only.

                                               40
                                 APPENDIX

DATE: Thursday, November 20, 2002
MEMORANDUM FOR: Ms. Daisy Evella Joe, CEO, B.C.J.L.O. Incorporated
                   The Honorable Pete Sessions, United States Representative
                    United States Department Of Justice – Civil Rights Division
REASON: Murder and Intimidation of Black Citizens in Athens, Texas
           (Henderson County)
FROM:      Paul Martin Clark, President, B.C.J.L.O. Incorporated

The City of Athens, Texas (Pam Burton–Athens City Manager) extended an
invitation to the Blacks in North Athens to discuss a pattern of murders and
intimidation of Athens Black Residents by the Police Force of Athens. The
Workshop as they labeled it was to be held at the Athens City Hall at 11:30
a.m. on 501 North Pinkerton Street (Annex Building). The Reverend Charles
Stovall, Pastor of the Camp Wisdom United Methodist Church of Dallas, 12
Black Residents of Athens and myself were in attendance. The workshop
never took place and was a mere future agenda item in their regular Athens
City Hall Meeting Session. Only 3 people were allowed to speak. So, as you
can see it lasted for only 9 minutes. One additional black resident attempted
to speak and was abruptly cut off by Athens Mayor Jerry King who asked all
of the black residents to leave the building because they had other city
business to discuss. Mayor King also vented extreme hatred by telling the
entire group of black Athens citizens that he did not appreciate them inviting,
“OUTSIDERS” like Reverend Stovall and myself. He told us, the black group
to speak with new Police Chief Jim Vance individually and not as a group.
Here are some observations that need attention and immediate action by
Congress and the Justice Department.
1. The memorandum of Agreement and Understanding between The Athens
Police Department and the Black Citizens of Athens is null and void. It was
signed by the former Police Chief of Athens Dave Harris who retired and still
runs the Athens Police Department in an ex-officio capacity as a paid
consultant. All memorandums of agreement and understanding are not
recognized by law because they are not a law, rule or regulation.
2. The new police chief of Athens came from Garland, Texas Police
Department which has a long standing legacy of hatred and abuse of black
citizens. Athens Police Chief Jim Vance was at the helm of the Garland
Police Department when a black pharmacist from the Eckerd’s Drug Store
in Garland was beaten beyond recognition by a Garland Police Officer in
1999. Athens in effect recruited a police chief with racist credentials to
continue the legacy of unchecked murder of black citizens in Athens.


                                      41
3. No one from Congressman Pete Sessions Athens office or East Dallas
Office showed up at the so-called workshop. The citizens called
Congressman Pete Sessions toll free number in Dallas and never received
a call back. There is a perception on the part of these citizens that the staff
of Congressman Sessions Athens office has ties to the local Ku Klux Klan
chapter in Athens and are large wealthy contributors to Congressman Pete
Sessions election campaigns.
4. The only black female Athens City Council member is Gladys Elaine
Blanton Jenkins. She is a convicted felon having served prison time in
Texas and California for Prostitution and Drugs. She is controlled by Athens
Mayor Jerry King. No one in the State of Texas can hold elective office who
has felony convictions. She must be removed from office immediately.
5. A black man was killed by the Athens Police some three weeks ago.
Nothing was investigated.
6. Shaneque Tilley, a black female from Athens (DOB 7-22-1982) was
arrested by the Athens Police as the (sic) crawled into the window of Tilley’s
North Athens home. The Athens Police beat her as she was 9 months
pregnant and killed her unborn child who was aborted. Tilley is now chained
naked to a prison bed in the Athens City Jail (Henderson County Seat),
bleeding, has no access to medical care or sanitary napkins. We asked
Mayor Jerry King to give us access to Tilley–he denied it. Tilley is also not
allowed any bond from a black bail bondsman named Barbara and Clyde
Bowman Sr. who can be reached at (903) 675-5474. No hospital or doctor
for a woman that had a miscarriage of a child at the brutal hands of the
Athens City Police.
7. The Athens Police intimidate, harass and murder black residents on a
daily basis. They come out of their police cars and approach black teens
with their weapons drawn. They follow black residents around the city, pulled
over Ms. Barbara Bowman who had prom dresses. dumped the prom
dresses into the grass and then stomped over them to make them unusable.
They ticket black citizens even if they don’t turn on a car turn indicator 100
feet from the stop sign to increase revenue and land all black into the jail
system. They intimidate black older citizens of Athens calling them nigger
girl and nigger boy. Ms. Bowman has a list of all the black citizens in Athens
that have been murdered by the Athens police and the Klan who are one in
the same.
8. Peaceful picketing is not allowed in Athens and it is a law. If blacks
picket, they will be met head on by Athens Police. The Police have taunted
Ms. Bowman in Court during Trial in Judge Elaine Coffman’s Court.
9. Lee Alcorn, of the Coalition of Civil Rights took $6,700 from the black
citizens of North Athens to represent them. He turned around and sold their


                                      42
confidential information to Mayor Jerry King and the outgoing Athens Police
Chief. Now these citizens are targeted by the Police.
10. Councilwoman Elaine Jenkins threatened Mrs. Barbara Bowman
because Mrs. Bowman called radio station KNON in Dallas and spoke about
how the Athens Police were killing blacks and torturing them on a routine
basis.
11. The Athens police does racial profiling. The only people punished in
Athens Teen Court are blacks. The other white kids that get in trouble just
merely pay a fine and never appear in court.
12. Mayor Jerry King refused to give the black citizens of Athens the
minutes to the meeting. We demanded and he stated that 10 copies was
basically too much. We would have to come back because the feeder on the
Xerox machine was not working properly and would have to be manually fed.
A woman whose son was murdered by the Athens Police is not allowed to
visit her birthplace which is Athens, Texas. She can not visit her elderly
mother. The last time she visited Athens, she was at the Dollar General
Store, confronted by the Police and told to leave. Her elderly mother was
visited by the Athens Police and threatened.

In closing, it was best summed up by Reverend Charles Stovall. “The
Athens Police Force is responsible for the suffering and intimidation of Black
citizens. The memorandum and it’s (sic) revisions mean nothing to the City
of Athens and the Police Force. Mrs. Bowman was not even listed on the
Bonding List and the Police Chief issued her a letter of Apology. We do not
know if Ms. Tilley is alive or dead.

Signed,

/s/

Paul Martin Clark
President
BCJLO Inc. (214) 328-3722




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