REVERSE and REMAND; and Opinion Filed September 5, 2019.




                                                                In The
                                          Court of Appeals
                                   Fifth District of Texas at Dallas
                                                      No. 05-17-00973-CV

                                           RIGGS & RAY, P.C., Appellant
                                                      V.
                                          STATE FAIR OF TEXAS, Appellee

                                On Appeal from the 116th Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. DC-16-16070

                                         MEMORANDUM OPINION
                          Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                        Opinion by Justice Pedersen, III
          Riggs & Ray, P.C. (R & R), the plaintiff in the suit below, appeals an order granting a

motion to dismiss filed by appellee State Fair of Texas (SFT), the defendant, pursuant to the Texas

Citizens Participation Act (TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011.1 The

critical issue in this appeal is whether R & R’s suit “is based on, relates to, or is in response to”

SFT’s exercise of its “right of free speech” or “right to petition.” Id. §§ 27.003(a), 27.005(b)(1)–

(2). We hold that it is not, and we therefore reverse and remand.




     1
       The TCPA was recently amended, effective September 1, 2019. Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–9, § 12, sec. 27.001,
27.003, 27.005–.007, 27.0075, 27.009–.010 (to be codified at CIV. PRAC. & REM. §§ 27.001, 27.003, 27.005–.007, 27.0075, 27.009–.010). The
foregoing amendments do not apply to this case, which was filed before the amendments’ effective date. Id. at § 11.
                                                          BACKGROUND

          In March 2015, R & R, on behalf of an anonymous client, sent a letter to SFT requesting

sixty-one categories of records under the Texas Public Information Act (TPIA). See TEX. GOV’T

CODE ANN. §§ 552.021, .221.2 SFT filed a declaratory judgment action against R & R. SFT’s

petition sought a declaration that it is not a governmental body subject to the TPIA, and, therefore,

it had no obligation to comply with, or to respond to, R & R’s requests. R & R filed (i) a plea to

the jurisdiction, and (ii) an answer, motion to transfer venue, and motion to dismiss under the

TCPA. The district court dismissed SFT’s suit for want of jurisdiction and under the TCPA. The

court also awarded R & R attorney’s fees and sanctions under the statute. SFT appealed. This Court

reversed and remanded on the basis that (i) SFT’s petition was sufficient to invoke the district

court’s subject-matter jurisdiction, and (ii) the court erred in granting R & R’s motion to dismiss.

See State Fair of Tex. v. Riggs & Ray, P.C., No. 05-15-00973-CV, 2016 WL 4131824, at *1–5

(Tex. App.—Dallas Aug. 2, 2016, no pet.) (mem. op.).

          In October 2016, SFT filed a notice of nonsuit. The notice stated that, based on subsequent

developments, including the Texas Supreme Court’s decision in Greater Houston Partnership v.

Paxton, 468 S.W.3d 51 (Tex. 2015), SFT no longer saw the need to prosecute its action. Thereafter,

the district court signed an order of nonsuit dismissing SFT’s suit without prejudice.

          Two months later, R & R sued SFT. R & R’s petition sought a judgment (i) declaring its

rights, status, and legal relations with regard to SFT and (ii) concerning the applicability of the

TPIA to SFT. See GOV’T § 552.3215(b) (“An action for a declaratory judgment or injunctive relief

may be brought . . . against a governmental body that violates this chapter.”); CIV. PRAC. & REM.

§§ 37.001–.011 (Declaratory Judgments Act). Namely, R & R requested a declaration that (i) “SFT



      2
        Certain provisions of the TPIA pertinent to this case were recently amended, effective January 1, 2020. Act of May 23, 2019, 86th Leg.,
R.S., ch. 1216, §§ 1, 8, § 12, sec. 552.003, 552321 (to be codified at GOV’T §§ 552.003, 552.321). The foregoing amendments do not apply to
requests for public information that, as in this case, are received by a governmental body before the amendments’ effective date. Id. at § 10.

                                                                    –2–
is a governmental body for purposes of the [TPIA],” (ii) “the information sought by R & R is

public information not exempt from disclosure,” and (iii) “SFT has a duty to promptly release the

requested information to R & R.” R & R also requested a writ of mandamus based on SFT’s

“refusal to produce the requested public information as required by the [TPIA].” See GOV’T

§ 552.321(a). R & R sought an order compelling SFT to produce the requested information.

          After answering R & R’s petition, SFT filed two motions to dismiss, the first made under

Rule 91a of the Texas Rules of Civil Procedure, see TEX. R. CIV. P. 91a, and the second urged

pursuant to the TCPA, see CIV. PRAC. & REM. § 27.003. Around this same time, R & R filed a

motion for discovery. On May 10, 2017, the court granted R & R’s motion “with respect to limited

requests for production” and ordered that SFT produce certain of the documents that R & R had

requested.

          On July 21, 2017, the district court held a hearing on SFT’s motion to dismiss under the

TCPA. One week later, on July 28, the court signed an order granting the motion.3 R & R appealed

the July 28 order, which at the time was an interlocutory order, in an abundance of caution.4

Meanwhile, the case continued in the district court while the appeal was pending. On September

22, 2017, the court held an evidentiary hearing regarding SFT’s attorney’s fees and costs. See id.

§ 27.009(a)(1) (requiring, in event of TCPA dismissal, award to moving party of its costs and

reasonable attorney’s fees). Nearly one month later, on October 18, the court signed an order

awarding SFT $161,239.25 in attorney’s fees, $16,967.34 in “[o]ther expenses,” and $90,000 in

conditional attorney’s fees in the event of an appeal to this Court and/or to the Texas Supreme

Court. The court also ordered that R & R pay SFT $30,000 as a sanction, which, when paid, was



     3
       The July 28 order also overruled SFT’s objection to R & R’s second amended petition, which R & R had filed two days before the dismissal
hearing. The allegations in R & R’s original and amended petitions pertinent to our analysis of whether the TCPA applies in this case are not
materially different.
    4
      Although the Civil Practice and Remedies Code provides for an appeal of an interlocutory order that denies a motion to dismiss under the
TCPA, see CIV. PRAC. & REM. § 54.012(a)(12), the July 28 order granted SFT’s motion to dismiss.

                                                                    –3–
to be deposited into, and used exclusively by, the State Fair of Texas Youth Scholarship Program.

See id. § 27.009(a)(2) (requiring “sanctions against the party who brought the legal action as the

court determines sufficient to deter [such party] from bringing similar actions”). The October 18

order notes that it “is a final judgment that disposes of all remaining claims and parties.”

           On November 6 and 7, 2017, R & R and SFT filed cross-appeals of the foregoing orders.5

Specifically, R & R appeals the July 28 dismissal order, a September 28, 2017 order denying

R & R’s requests for findings of fact and conclusions of law, and the October 18 fee order. SFT

appeals the fee order.

           On November 17, 2017, the district court held a hearing on a motion to reconsider, which

R & R had filed nearly two months prior, with respect to the July 28 dismissal order. Following

the hearing, the court signed an order dismissing the motion to reconsider on the ground that the

court lacked authority under the TCPA to entertain the motion.6 The court’s order alternatively

denied the motion to reconsider on the merits.

                                                                  ANALYSIS

           The purpose of the TCPA “is to encourage and safeguard the constitutional rights of

persons to petition, speak freely, associate freely, and otherwise participate in government to the

maximum extent permitted by law and, at the same time, protect the rights of a person to file

meritorious lawsuits for demonstrable injury.” CIV. PRAC. & REM. § 27.002. The statute establishes

a motion to dismiss procedure to accomplish this purpose. See ExxonMobil Pipeline Co. v.

Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam) (“To effectuate the statute’s purpose, the




     5
     R & R filed a motion to consolidate its prior appeal of the interlocutory July 28 order with its subsequent appeal of the October 18 judgment.
On November 14, 2017, this Court granted the motion and consolidated the two appeals.
     6
       See In re Hartley, No. 05-19-00571-CV, 2019 WL 2266672, at *1, *3 (Tex. App.—Dallas May 24, 2019, orig. proceeding) (mem. op.)
(holding that trial court lacked authority to grant motion for new trial or for reconsideration after expiration of TCPA’s statutory deadline for ruling
on motion to dismiss).



                                                                         –4–
Legislature has provided a two-step procedure to expedite the dismissal of claims brought to

intimidate or to silence a defendant’s exercise of these First Amendment rights.”).

           Specifically, “[i]f a legal action[7] is based on, relates to, or is in response to a party’s

exercise of the right of free speech, right to petition, or right of association,” the TCPA provides

that such party “may file a motion to dismiss the legal action.” CIV. PRAC. & REM. § 27.003(a).

The movant bears the initial burden of showing “by a preponderance of the evidence that the legal

action is based on, relates to, or is in response to” the movant’s “exercise of . . . the right of free

speech,” “the right to petition,” or “the right of association.” Id. § 27.005(b); Dyer v. Medoc Health

Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet. denied). We review the trial

court’s ruling de novo. Dyer, 573 S.W.3d at 424.

           R & R’s first issue argues that the district court erred by dismissing R & R’s claims and

awarding SFT fees, expenses, and sanctions pursuant to the TCPA. Related to this contention,

R & R’s second issue urges that the TCPA does not apply to its claims. SFT counters that R & R’s

suit “is based on, relates to,” or “is in response to” SFT’s exercise of its “right to petition” and

“right of free speech,” and, therefore, the statute applies. See CIV. PRAC. & REM. §§ 27.003(a),

27.005(b)(1)–(2).

“Exercise of the Right to Petition”

           The TCPA defines “exercise of the right to petition” as “a communication in or pertaining

to,” among other listed items, “a judicial proceeding.” Id. § 27.001(4)(A)(i). “Communication,” in

turn, is defined as “includ[ing] the making or submitting of a statement or document in any form

or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). In applying

these provisions, therefore, we must determine whether SFT “ma[de] or submitt[ed] . . . a statement



      7
        The parties do not dispute that R & R’s lawsuit is a “legal action” under the TCPA. See CIV. PRAC. & REM. § 27.001(6) (defining “legal
action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or
equitable relief”).

                                                                         –5–
or document,” id. § 27.001(1), “pertaining to . . . a judicial proceeding,” id. § 27.001(4)(A)(i), and,

if so, whether R & R’s lawsuit “is based on, relates to, or is in response to” such statement or

document, id. §§ 27.003(a), .005(b)(2).

          “Judicial proceeding”

          It is undisputed that SFT’s declaratory judgment petition was a “communication” as

defined by the TCPA.8 We agree based on the plain language of section 27.001(1). See Coleman,

512 S.W.3d at 899 (“Our objective in construing a statute is to give effect to the Legislature’s

intent, which requires us to first look to the statute’s plain language.” (citation and internal

quotation marks omitted)). However, the parties dispute whether SFT’s declaratory judgment

action, which it nonsuited before R & R filed this lawsuit, was a “judicial proceeding” at the time

R & R filed suit. See Levatino v. Apple Tree Café Touring, Inc., 486 S.W.3d 724, 726, 728 (Tex.

App.—Dallas 2016, pet. denied) (concluding that “ordinary meaning of ‘a judicial proceeding’ is

an actual, pending judicial proceeding”). We need not decide this question. Even if SFT’s

declaratory judgment action remained a “judicial proceeding” after it was nonsuited, we agree with

R & R that its “legal action” is not “based on,” does not “relate[ ] to,” and is not “in response to”

SFT’s exercise of its “right to petition,” see CIV. PRAC. & REM. §§ 27.003(a), .005(b)(2).

          “Based on, relates to, or is in response to”

          “In order to trigger the TCPA’s protection, the ‘legal action’ must be factually predicated

on the alleged conduct that falls within the scope of [the] TCPA’s definition of exercise of the

‘right of free speech,’ petition, or association.” Dyer, 573 S.W.3d at 428 (emphasis added) (citation

and internal quotation marks omitted). If this nexus is missing, then the statute does not apply. See

Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2015, pet. dism’d) (concluding that


     8
       See Oral Argument at 12:18–12:25 (recognition by R & R’s counsel that filing of declaratory judgment action “arguably” was a
“communication” within the meaning of the TCPA); see also id. at 1:03:20–1:03:50 (concession by R & R’s counsel that SFT’s letters and
statements in documents were “arguably” and “probably would be communications” under the TCPA, though, in counsel’s view, such
communications were “embedded within activity”).

                                                                –6–
any activities by the movant “that are not a factual predicate for [the non-movant’s] claims are

simply not pertinent to the inquiry”). We consider the pleadings and any supporting and opposing

affidavits in the light most favorable to the non-movant, Dyer, 573 S.W.3d at 424, favoring the

conclusion that the non-movant’s claims are not predicated on protected expression, Damonte v.

Hallmark Fin. Servs., Inc., No. 05-18-00874-CV, 2019 WL 3059884, at *5 (Tex. App.—Dallas

July 12, 2019, no pet. h.) (mem. op.); cf. CIV. PRAC. & REM. § 27.011(a) (stating that TCPA “does

not abrogate or lessen any other . . . remedy . . . available under the constitutional, statutory, case,

or common law or rule provisions”). “We cannot ‘blindly accept’ attempts by the movant to

characterize the claims as implicating protected expression.” Damonte, 2019 WL 3059884, at *5

(citing Sloat, 513 S.W.3d at 504). Any activities by the movant that are not a factual predicate for

the non-movant’s claims are not pertinent to our inquiry regarding whether the TCPA applies. Id.

       R & R contends that its claims are not factually predicated on SFT’s declaratory judgment

action. Upon reviewing the pleadings and evidence in light of the foregoing standard, we agree

with R & R. Nothing in R & R’s petition suggests that its claims are predicated on anything other

than SFT’s noncompliance with R & R’s records requests. See id. at *5 (concluding that nothing

in non-movant’s suit suggested its claims were predicated on anything other than movant’s alleged

involvement in scheme to misappropriate and use non-movant’s confidential information); Misko

v. Johns, 575 S.W.3d 872, 878 n.5 (Tex. App.—Dallas 2019, pet. filed) (“In this case,

[intervenor’s] motion for sanctions was based on alleged discovery abuse by [defendant] during

the litigation. Discovery abuse is not a right protected by the TCPA.”); Dyer, 573 S.W.2d at 430

(holding that plaintiffs’ claims were based on defendants’ alleged misappropriation of plaintiffs’

proprietary software and confidential information with intent to sell or use such property).

Although SFT communicated this noncompliance through its declaratory judgment suit, the

noncompliance itself, not the communication, is the basis of R & R’s claims. See Kawcak v. Antero

                                                  –7–
Res. Corp., No. 02-18-00301-CV, 2019 WL 761480, at *17 (Tex. App.—Fort Worth Feb. 21,

2019, pet. denied) (“[S]imply alleging conduct that has a communication embedded within it does

not create the relationship between the claim and the communication necessary to invoke the

TCPA.”).

           Our sister court’s decision in Dolcefino v. Cypress Creek EMS is instructive in this regard.

540 S.W.3d 194 (Tex. App.—Houston [1st Dist.] 2017, no pet.). That case arose from a journalist’s

document requests, issued under sections 22.353 and 22.354 of the Business Organizations Code,9

to a non-profit corporation. Id. at 196. The corporation filed a declaratory judgment action and

sought a determination as to whether section 22.353 required it to provide the requested

documents. Id. at 196–97. The journalist moved to dismiss based on the TCPA, claiming that (i) his

document requests were an exercise of his right of free speech, and (ii) the corporation’s

declaratory judgment action was “harassment” in retaliation for the requests and was based on,

related to, or filed in response to the journalist’s exercise of his free-speech right. Id. at 197. The

motion to dismiss was denied by operation of law, id. at 197 (citing CIV. PRAC. & REM.

§§ 27.005(a), .008(a)), and our sister court affirmed on appeal, id. at 197, 202. The court noted

that the corporation’s pleadings “sought a declaration from the trial court concerning its own

conduct, i.e., what its duties and obligations were upon its receipt” of the subject document

requests. Id. at 200 (emphasis in original). Moreover, the corporation did not seek to prohibit any

conduct or speech by the journalist, it did not allege the subject requests contained any tortious

communications, and it did not seek any damages related to such requests. Id. Under these

circumstances, the trial court reasonably could have determined that the corporation’s suit was

“‘based on, relates to, or is in response to’ the triggering of its own duties or obligations to comply


     9
       See TEX. BUS. ORGS. CODE ANN. § 22.353(a)–(b) (requiring corporation to keep records of its financial activity and to make such records
available to the public for inspection and copying); id. § 22.354(a)–(b) (“A corporation commits [a Class B misdemeanor] if the corporation fails
to maintain a financial record, prepare an annual report, or make the record or report available to the public in the manner required by Section
22.353.”).

                                                                     –8–
with Business Organizations Code section 22.353—a subject matter that does not fall within the

TCPA’s purview.” Id.

        The plaintiff in Dolcefino was the recipient of the subject requests, whereas in this case the

plaintiff (R & R) is the requestor. Nevertheless, in both suits the plaintiff sought (or, in the case of

R & R, seeks) a determination of whether the applicable statute obligated (or, in the case of SFT,

obligates) the recipient of the requests to produce the sought-after documents. Moreover, R & R’s

mandamus claim is based on the TPIA’s mechanism for enforcing compliance with the statute. See

GOV’T § 552.321(a); cf. Retzlaff v. Klein, No. 04-16-00675-CV, 2017 WL 3270368, at *5 (Tex.

App.—San Antonio Aug. 2, 2017, pet. denied) (mem. op.) (holding that defendants’ motion for

contempt against vexatious litigant under chapter 11 of Civil Practice and Remedies Code was not

a retaliatory lawsuit under TCPA; “[b]y filing the motion for contempt, [defendants] were simply

invoking the enforcement mechanism set forth in chapter 11”). R & R’s “legal action” is not “based

on, relate[d] to, or . . . in response to” SFT’s exercise of its “right to petition.”

“Exercise of the Right of Free Speech”

        Under the TCPA, “exercise of the right of free speech” is defined as “a communication

made in connection with a matter of public concern.” CIV. PRAC. & REM. § 27.001(3). Accordingly,

we must determine whether SFT “ma[de] or submit[ted] . . . a statement or document,” id.

§§ 27.001(1), “in connection with a matter of public concern,” id. § 27.001(3), and, if so, whether

R & R’s lawsuit “is based on, relates to, or is in response to” such statement or document, id.

§§ 27.003(a), .005(b)(1).

        “Communication”

        The parties dispute whether SFT’s silence in response to R & R’s records requests was a

“communication” under the TCPA. We recently concluded that “the TCPA, as written, does not

include the withholding of a statement or document as a ‘communication.’” Krasnicki v. Tactical

                                                   –9–
Entm’t, LLC, No. 05-18-00463-CV, 2019 WL 2136155, at *4 (Tex. App.—Dallas May 16, 2019,

pet. denied). To construe the definition otherwise “would lead to an absurd result as nothing would

be outside the scope of the TCPA.” Id. SFT attempts to distinguish Krasnicki on the basis that,

unlike this case, Krasnicki did not involve a refusal to speak in the face of a statutorily based

request for documents. We need not assess this purported distinction because, as noted previously,

it is undisputed that SFT’s declaratory judgment petition was a “communication” as defined by

the TCPA. See CIV. PRAC. & REM. § 27.001(1). Thus, whether SFT’s silence was also a

“communication” is of no consequence to our resolution of this appeal. See TEX. R. APP. P. 47.1

(providing that opinion must address every issue “raised and necessary to final disposition of the

appeal” (emphasis added)).

       “Matter of public concern”

       R & R does not dispute that SFT’s declaratory judgment petition was “in connection with

a matter of public concern.” CIV. PRAC. & REM. § 27.001(3); see also id. § 21.001(7)(A)–(E)

(defining “matter of public concern” as “includ[ing] an issue related to” “health or safety,”

“environmental, economic or community well-being,” “the government,” “a public official or

public figure,” or “a good, product, or service in the marketplace”); Adams v. Starside Custom

Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018) (describing the foregoing “statutory list” as “non-

exclusive”); Coleman, 512 S.W.3d at 900 (“The TCPA does not require that the statements

specifically mention health, safety, environmental, or economic concerns, nor does it require more

than a tangential relationship to the same.” (internal quotation marks omitted)). Accordingly, we

need not decide this question, see TEX. R. APP. P. 47.1, and we will assume that SFT’s declaratory

judgment petition so qualifies.




                                              –10–
       “Based on, relates to, or is in response to”

       As discussed previously, R & R’s “legal action” is not “based on, relate[d] to, or . . . in

response to” SFT’s exercise of its rights under the TCPA, including its “exercise of the right of

free speech.” CIV. PRAC. & REM. §§ 27.003(a), .005(b)(1).

                                                ***

       We hold that the TCPA does not apply to R & R’s suit. We sustain R & R’s first and second

issues. Given this holding, we need not consider R & R’s remaining issues, nor need we consider

SFT’s cross-appeal. See TEX. R. APP. P. 47.1.

Response to the Dissent

       The dissent begins by paying perfunctory deference to the test conducted in step one of the

analysis required by the TCPA. The test requires this Court to read the petition in the manner most

sympathetic to the TCPA’s non-applicability. “[W]e consider, in the light most favorable to the

non-movant, the pleadings and any supporting and opposing affidavits stating the facts on which

the claim or defense is based.” Dyer, 573 S.W.3d at 424 (citation and internal quotation marks

omitted). The dissent then immediately jettisons any pretense of observing that test. It instead

focuses on the purported nexus between R & R’s suit and SFT’s direct or indirect communications,

while ignoring the plain language in the petition that R & R seeks relief from “SFT’s refusal to

produce the requested public information as required by the Texas Public Information Act.”

       The dissent also mischaracterizes R & R’s allegation that it “now brings this suit . . .

[b]ecause the court of appeals has already determined that the applicability of the TPIA to SFT

constitutes a justiciable controversy and invokes subject matter jurisdiction under the [Declaratory

Judgments Act].” This allegation simply demonstrates the availability of a lawsuit to remedy

SFT’s purported noncompliance with the TPIA. Contrary to the dissent’s characterization, the

allegation does not establish that the TCPA applies.

                                                –11–
       In sum, we must review R & R’s petition and any supporting and opposing affidavits in

the light most favorable to non-coverage. Adams v. Starside Custom Builders, LLC, 545 S.W.3d

572, 578 (Tex. App.—Dallas 2016), rev’d on other grounds, 547 S.W.3d 890 (Tex. 2018). The

dissent’s failure (or refusal) to do so leads it to erroneously conclude that the TCPA applies. This

Court’s precedent precludes us from following the dissent’s approach.

                                         CONCLUSION

       We reverse the district court’s judgment and remand this case for trial.




                                                   /Bill Pedersen, III/
                                                   BILL PEDERSEN, III
                                                   JUSTICE


170973F.P05




                                               –12–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 RIGGS & RAY, P.C., Appellant                        On Appeal from the 116th Judicial District
                                                     Court, Dallas County, Texas
 No. 05-17-00973-CV         V.                       Trial Court Cause No. DC-16-16070.
                                                     Opinion delivered by Justice Pedersen, III.
 STATE FAIR OF TEXAS, Appellee                       Justices Whitehill and Partida-Kipness
                                                     participating.

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for trial.

       It is ORDERED that appellant RIGGS & RAY, P.C. recover its costs of this appeal from
appellee STATE FAIR OF TEXAS.


Judgment entered this 5th day of September, 2019.




                                              –13–
