                                                                                            ACCEPTED
                                                                                       13-14-00656-CV
                                                                         THIRTEENTH COURT OF APPEALS
                                                                               CORPUS CHRISTI, TEXAS
                                                                                  2/23/2015 4:39:33 PM
                                                                                     DORIAN RAMIREZ
                                                                                                CLERK

                             No. 13-14-00656-CV

                                                              FILED IN
                             IN THE THIRTEENTH     13th COURT OF APPEALS
                                                CORPUS CHRISTI/EDINBURG, TEXAS
                              COURT OF APPEALS      2/23/2015 4:39:33 PM
                          AT CORPUS CHRISTI, TEXAS
                                                     DORIAN E. RAMIREZ
                                                               Clerk

       TEXAS CAMPAIGN FOR THE ENVIRONMENT AND ROBIN SCHNEIDER,
                                  Appellants
                                       v.
                PARTNERS DEWATERING INTERNATIONAL, LLC,
                                   Appellee

          Interlocutory Appeal from the 444th Judicial District Court,
           Cameron County, Texas, Cause No. 2014-DCL-03498-H,
                    the Honorable David Sanchez, Presiding


                         APPELLANTS’ REPLY BRIEF


Wade C. Crosnoe                             Jaime A. Saenz
State Bar No. 00783903                      State Bar No. 17514859
Sara Berkeley Churchin                      Email: ja.saenz@rcclaw.com
State Bar No. 24073913                      Lecia L. Chaney
E-mail: wcrosnoe@thompsoncoe.com            State Bar No. 00785757
E-mail: schurchin@thompsoncoe.com           Email: ll.chaney@rcclaw.com
Thompson, Coe, Cousins & Irons              Colvin, Chaney, Saenz & Rodriguez
701 Brazos Street, Suite 1500               LLP
Austin, Texas 78701                         1201 E. Van Buren
Telephone: (512) 703-5078                   P.O. Box 2155
Facsimile: (512) 708-8777                   Brownsville, Texas 78522-2155
                                            Telephone: 956-542-7441
                                            Facsimile: 956-541-2170

                            Counsel for Appellants

ORAL ARGUMENT REQUESTED
                                              TABLE OF CONTENTS


Table of Contents ........................................................................................................i

Index of Authorities ................................................................................................. iii

Introduction ................................................................................................................1

Argument....................................................................................................................2

I.       Partners’s Statement of Facts Is Inundated with Baseless Accusations
         and Irrelevant Innuendo for Which It Has No Evidence ................................. 2

II.      Partners Fails to Meet Its Burden of Proof Under Either an Elevated or
         Minimal Evidentiary Standard......................................................................... 4

         A.        Partners Did Not Meet Its Burden to Establish “By Clear and
                   Specific Evidence” a Prima Facie Case for Each Essential
                   Element of the Claim in Question ......................................................... 4

         B.        Partners’s So-Called “Proof” Consists of Nothing More Than
                   Conclusory Assertions and Stacked Inferences .................................... 6

III.     Partners Improperly Disregards Texas Campaign for the
         Environment’s Evidence.................................................................................. 6

         A.        Section 27.006 Mandates Consideration of the Entire Record ............. 6

         B.        Partners Bears the Burden to Prove By Clear and Specific
                   Evidence the Falsity of the Allegedly Disparaging Statements ............ 8

IV.      Partners’s Claim for Tortious Interference Must be Dismissed ...................... 9

         A.        Texas Campaign for the Environment’s Online Posts Do Not
                   Establish Proximate Cause ..................................................................11

         B.        The Statement Made By the Rio Hondo City Attorney Is Proof
                   That Texas Campaign for the Environment Did Not
                   Proximately Cause the Contract Termination .....................................13



                                                              i
V.       Partners’s Conclusory Business Disparagement Claims Are Not
         Supported by “Clear and Specific” Evidence ................................................14

         A.       Partners Ignores Texas Campaign for the Environment’s
                  Evidence Establishing That the Allegedly False Statements Are
                  True or Substantially True...................................................................14

         B.       Partners Has Provided No Evidence to Establish That Texas
                  Campaign for the Environment or Schneider Acted With
                  Malice ..................................................................................................17

         C.       Partners Has Not Proven by Clear and Specific Evidence That
                  Texas Campaign for the Environment’s Statements Are Not
                  Protected by a Privilege.......................................................................22

VI.      Partners Has Not Proven the Necessary Element of Damages by Clear
         and Specific Evidence on Either of Its Claims ..............................................24

VII. Conclusion .....................................................................................................27

Certificate of Compliance ........................................................................................29

Certificate of Service................................................................................................29




                                                            ii
                                             INDEX OF AUTHORITIES

                                                           Cases

Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) .......................................................18

Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402
  S.W.3d 299 (Tex. App.—Dallas 2013, pet. denied) ..............................................7
Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc.,
  441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ..................5
Burbage v. Burbage, 447 S.W.3d 249 (Tex. 2014) .............................. 10, 11, 24, 25

Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) ........................................10

Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989) ........................................................20
Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210 (Tex. App.—Houston
  [1st Dist.] 2014, no pet.) ........................................................................................7
Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d 198
  (Tex. 1992) ...........................................................................................................23

Farias v. Garza, 426 S.W.3d 808 (Tex. App.—San Antonio 2014, pet.
  filed) .......................................................................................................................5
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex.
  2003).................................................................................................. 18, 19, 23, 24
H.E.B. Grocery Store v. Pais, 955 S.W.2d 384 (Tex. App.—San
  Antonio 1997, no pet.) .........................................................................................12
Holloway v. Skinner, 898 S.W.2d 793 (Tex. 1995) .................................................10

Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443
  S.W.3d 820 (Tex. 2014) ................................................................................ 25, 26

Huckabee v. Time Warner Entm't Co. L.P., 19 S.W.3d 413 (Tex.
  2000).............................................................................................................. 18, 20

Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762 (Tex. 1987) .............. 8, 9, 14, 24
In re E.I. DuPont, 136 S.W.3d 218 (Tex. 2004)..................................................6, 10

                                                              iii
In re Lipsky, 411 S.W.3d 530 (Tex. App.—Fort Worth, 2013 orig.
   proceeding) ...........................................................................................................25

James v. Calkins, 446 S.W.3d 135(Tex. App.—Houston [1st Dist.]
  2014, pet. filed) ......................................................................................................6

KBMT Op. Co., LLC v. Toledo, 434 S.W.3d 276 (Tex. App.—
  Beaumont 2014, pet. filed).....................................................................................5

KTRK Television, Inc. v. Robinson, 409 S.W.3d 682 (Tex. App.—
  Houston [1st Dist.] 2013, pet. denied) ...................................................................6

Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) .........................................................6
Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) .....................................2, 6

Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) .................................16
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416
  S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ...........................8
Rehak Creative Servs.,Inc.v. Witt, 404 S.W.3d 716 (Tex. App.-
  Houston [14th Dist.] 2013, pet. denied).............................................................4, 5
Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991) ..........................9
Schlumberger Well Surveying Corp.v. Nortex Oil & Gas Corp., 435
  S.W.2d 854 (Tex. 1968) .........................................................................................2
Shipp v. Malouf, 439 S.W.3d 432 (Tex. App.—Dallas 2014, pet. filed) ..................5

Sierra Club v. Andrews County, 418 S.W.3d 711 (Tex. App.—El Paso
  2013, pet. filed) ....................................................................................................27

Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. of Tex., 219 S.W.3d
  563, 576–77 (Tex. App.—Austin, 2007, pet. denied) .........................................21

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) ......................................12
Waste Mgmt. of Tex. v. Tex.as Disposal Sys. Landfill, Inc., 2012 WL
 1810215 (Tex. App.—Austin, May 18, 2012), pet. granted, rev’d in
 part on other grounds, 219 S.W.3d 563 (Tex. 2007) ..........................................21

Young v. Krantz, 434 S.W.3d 335 (Tex. App.—Dallas 2014, no pet.) .....................5

                                                            iv
                                                      Statutes

Tex. Civ. Prac. & Rem. Code § 27.005 .................................................... 4, 7, 10, 25

Tex. Civ. Prac. & Rem. Code § 27.005(b).................................................................7
Tex. Civ. Prac. & Rem. Code § 27.005(c) .............................................................2, 5

Tex. Civ. Prac. & Rem. Code § 27.005(d)...........................................................7, 16

Tex. Civ. Prac. & Rem. Code § 27.006 .................................................................6, 7

Tex. Civ. Prac. & Rem. Code § 27.006(a) .............................................................2, 7

Tex. Civ. Prac. & Rem. Code § 27.011 .....................................................................8

                                                        Rules

Tex. R. App. P. 38.1(g), 38.2(a)(1) ............................................................................3

                                              Other Authorities

Restatement (Second) of Torts §§ 594–97 ..............................................................23
Restatement (Second) of Torts § 598.......................................................................23

Tex. Const. art. 1, § 8 ...............................................................................................20
U.S. Const. amend. I ................................................................................................20




                                                           v
                                   INTRODUCTION

      This case is not about tortious interference with contract or business

disparagement.     This case concerns Partners Dewatering International, LLC’s

(“Partners”) efforts to silence environmentalist and local community critics who

exercised their constitutionally protected rights to criticize a decision made by

public officials to grant a wastewater plant that would impact the sensitive waters

of the nearby Colorado Arroyo Watershed.

      In its Appellee’s Brief, Partners does not address, let alone dispute, any of

the evidence Texas Campaign for the Environment details in support of its defense

that the allegedly defamatory statements made by Texas Campaign for the

Environment are true or substantially true. Similarly, in the context of its tortious

interference discussion, Partners does not address the record evidence that Texas

Campaign for the Environment details on the lack of proximate causation—

evidence that Partners itself submitted to the trial court.

      Partners instead relies almost solely on a mischaracterization of the burden

of proof—which it describes as the burden to produce merely the “minimum

quantum of evidence necessary to support an inference” on each element of its

claims—and a misstated standard of evidentiary review that would preclude

consideration of Texas Campaign for the Environment’s evidence. But the plain




                                           1
language of the governing statute does not support either of Partners’s approaches.

See Tex. Civ. Prac. & Rem. Code §§ 27.005(c), 27.006(a).

      Even under a relaxed standard of review, however, the trial court’s denial of

Texas Campaign for the Environment’s Motion to Dismiss still cannot survive

review. A party cannot meet its burden of proof by stacking inference upon

inference, as Partners does here. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728

(Tex. 2003); Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435

S.W.2d 854, 858 (Tex. 1968). Partners’s so-called “proof” of proximate causation

and malice consist of nothing more than unsubstantiated accusation and inference

not reasonably and logically drawn from the evidence in the record. Partners has

not met its burden under even the most minimal of evidentiary standards.

      Because section 27.005(c) requires that Partners produce “clear and specific

evidence” on each element of its tortious interference and business disparagement

claims to avoid dismissal under the Texas Citizens’ Participation Act (“the Act”),

and Partners has not done so, this Court should reverse the trial court’s denial of

the Motion to Dismiss.

                                   ARGUMENT

I.    Partners’s Statement of Facts Is Inundated with Baseless Accusations
      and Irrelevant Innuendo for Which It Has No Evidence

      In its Statement of Facts, Partners makes several conclusory arguments with

no record support. For instance, Partners argues that once Texas Campaign for the


                                        2
Environment turned its focus to Partners’s contract with Rio Hondo, “TCE decided

to shift its tactics and conduct an aggressive campaign of falsehoods and

disparagements about Partners’s operations in Rio Hondo” (Brief at p. 11).

Partners also contends that Texas Campaign for the Environment was on a

“disparaging crusade against PDI” and began “[u]sing information and . . . false,

misleading, and disparaging statements . . . to convince residents of Rio Hondo that

their community and health were in danger” (Id. at p. 14).

      Partners argues that Robin Schneider “recklessly made [statements she]

knew were false or were intended to create a false impression, that fed the outcry

against PDI in Rio Hondo” (Id. at p. 16). Partners contends, again with no proof,

that the contract between itself and the City of Rio Hondo “had been in place for

four years “with no issues” before Texas Campaign for the Environment became

involved (Id. at pp. 23, 34).

      Partners also details in its Statement of Facts the alleged activities of its

competitor (and former defendant to this lawsuit) Liquid Environmental Systems

(“LES”), implying, without an iota of evidence, that a “joint campaign” existed

between LES and Texas Campaign for the Environment to sabotage Partners’s

interests in the Rio Hondo wastewater plant.

      TCE objects to these statements as unsupported by the record. See Tex. R.

App. P. 38.1(g), 38.2(a)(1). In deciding the merits of this appeal, this Court should


                                         3
decline to consider Partners’s unsubstantiated embellishments of the record. Such

groundless arguments constitute no evidence, let alone “clear and specific

evidence,” necessary to support Partners’s claims of tortious interference with

contract and business defamation.

      As for Partners’s dubious attempt to imply some sort of improper or

collusive relationship between LES and Texas Campaign for the Environment,

Partners’s argument is both baseless and irrelevant. If Partners actually believed or

had any evidence to support these accusations, one wonders why it voluntarily

nonsuited its claims against LES in this lawsuit (CR 1560).

II.   Partners Fails to Meet Its Burden of Proof Under Either an Elevated or
      Minimal Evidentiary Standard

      A.     Partners Did Not Meet Its Burden to Establish “By Clear and Specific
             Evidence” a Prima Facie Case for Each Essential Element of the
             Claim in Question

      Partners concedes that section 27.005 requires that it establish by clear and

specific evidence each essential element of its claim (See Brief at pp. 20–21). It

also concedes that the ordinary meaning of “clear and specific evidence” is

“evidence that is unaided by presumptions, inferences, or intendments.” See Brief

p. 21 (citing Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex.

App.—Houston [14th Dist.] 2013, pet. denied)). Nevertheless, Partners proceeds

as though it must meet only a prima facie burden of proof that requires merely a




                                         4
“minimal showing”—something akin to a “scintilla of evidence” concept

applicable in the context of a legal sufficiency challenge.

       Texas courts have rejected this approach, almost uniformly recognizing that

the “purposeful inclusion of a ‘clear and specific evidence’ requirement [in the

Act] indicates that the nonmovant must satisfy an elevated evidentiary standard

under section 27.005(c).” Rehak Creative Servs., Inc., 404 S.W.3d at 725–26, 729

(emphasis added); see e.g., Young v. Krantz, 434 S.W.3d 335, 343–44 (Tex.

App.—Dallas 2014, no pet.); Farias v. Garza, 426 S.W.3d 808, 813 (Tex. App.—

San Antonio 2014, pet. filed); KBMT Op. Co., LLC v. Toledo, 434 S.W.3d 276,

282 (Tex. App.—Beaumont 2014, pet. filed); Shipp v. Malouf, 439 S.W.3d 432,

439 (Tex. App.—Dallas 2014, pet. filed).1

       The ordinary meaning of “clear” is “‘free from obscurity or ambiguity,’

‘easily understood,’ ‘free from doubt,’ or ‘sure.’” Farias, 426 S.W.3d at 814

(citing MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 229 (11th ed. 2003)).

“‘Specific’ means ‘constituting or falling into a specifiable category,’ ‘free from

ambiguity,’ or ‘accurate.’”            Id. (citing MERRIAM-WEBSTER’S COLLEGIATE

1
  Partners relies on Better Business Bureau of Metropolitan Houston, Inc. v. John Moore
Services, Inc., 441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied), to support its
argument that the burden of proof it must satisfy is minimal. Although the court in that case
does not specifically refer to an “elevated evidentiary standard,” it applies the same standard as
the courts that recognize the standard is heightened: “To avoid dismissal of a claim covered by
the TCPA, a plaintiff must establish ‘by clear and specific evidence a prima facie case for each
essential element of the claim in question.’” Id. at 354–55. “Clear and specific evidence has
also been described as evidence that is ‘unaided by presumptions, inferences, or intendments.’”
Id. at 355 (citation omitted).

                                                5
DICTIONARY 1198)); see James v. Calkins, 446 S.W.3d 135, 147 (Tex. App.—

Houston [1st Dist.] 2014, pet. filed); KTRK Television, Inc. v. Robinson, 409

S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Partners

falls far short of its burden of proof.

       B.    Partners’s So-Called “Proof” Consists of Nothing More Than
             Conclusory Assertions and Stacked Inferences

       Even allowing for reasonable inferences, Partners fails to meet even the

most minimal burden of proof. Conclusory allegations with no foundation in the

record are not evidence and will not suffice to establish Partners’s prima facie case.

See In re E.I. DuPont, 136 S.W.3d 218, 223–24 (Tex. 2004). Likewise, inferences

stacked on other inferences do not constitute legally sufficient evidence to support

a claim. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003); Lozano

v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001).          Here, as discussed below, the

circumstantial evidence Partners presents is “so slight that any plausible inference

is purely a guess, [which] is in legal effect no evidence.” Lozano, 52 S.W.3d at

148.

III.   Partners Improperly Disregards              Texas     Campaign      for    the
       Environment’s Evidence

       A.    Section 27.006 Mandates Consideration of the Entire Record

       Without citing any supporting authority, Partners argues that the evidence

Texas Campaign for the Environment described in its opening brief is irrelevant



                                          6
(Brief at p. 21). Then, citing section 27.005(d), Partners tells this Court that “[t]he

only evidence of the moving party that can be considered is evidence of a ‘valid

defense’ which must be established ‘by a preponderance of the evidence” (Brief at

p. 21).

      Partners’s argument has no basis in the language of section 27.005(d). In

particular, section 27.005(d) says nothing about what evidence the court may or

may not consider in determining whether to dismiss claims under 27.005(b).

Furthermore, the plain language of section 27.006 undermines Partners’s

argument. Section 27.006(a) mandates that the trial court “shall consider the

pleadings and supporting and opposing affidavits stating the facts on which the

liability or defense is based” (emphasis added). See Better Bus. Bureau of Metro.

Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 309 (Tex. App.—Dallas 2013, pet.

denied); see also Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 210 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (“We consider the parties’ pleadings and

affidavits when reviewing a ruling on a TCPA motion to dismiss.”). Partners cites

no case law, and Texas Campaign for the Environment knows of none, that

construes sections 27.005 and 27.006 to mean that the trial court or the reviewing

court cannot consider all of the parties’ proof—i.e., the entire record.

      In any event, Partners’s argument that Texas Campaign for the

Environment’s evidence is irrelevant is largely beside the point. In its briefing on


                                          7
Partners’s tortious interference claim, Texas Campaign for the Environment

focused chiefly on evidence that Partners submitted to the trial court.        This

evidence includes, for instance, materials from the public meeting on Partners’s

Proposed Solid Waste Registration Application, letters from various members of

the community to City Council members, and the affidavits of Partners’s damages

expert (CR 243–468). Not only does Partners’s own evidence fail to establish

clear and specific evidence of its tortious interference and business disparagement

claims, it affirmatively contradicts Partners’s own theories of liability.

      B.     Partners Bears the Burden to Prove By Clear and Specific Evidence
             the Falsity of the Allegedly Disparaging Statements

      Partners’s contention that the evidence does not relate to Texas Campaign

for the Environment’s defenses is plainly incorrect. In both the trial court and in

its appellate briefing, Texas Campaign for the Environment argued truth and

“substantial truth” as defenses to Partners’s business disparagement claims. It is

well settled that evidence of truth or substantial truth is a defense to a claim for

business disparagement. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766

(Tex. 1987); see also Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living,

Ltd., 416 S.W.3d 71, 83 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)

(concluding that a movant for dismissal under Chapter 27 is entitled to dismissal

based on a showing of truth); Tex. Civ. Prac. & Rem. Code § 27.011 (“This

chapter does not abrogate or lessen any other defense available under other


                                           8
constitutional, statutory, case, or common law or rule provisions.”).                      Texas

Campaign for the Environment fully briefed the defense of truth in both the trial

court and in its opening brief.2

       Although truth is a valid defense to a business disparagement claim and is

properly before this Court, it need not reach whether Texas Campaign for the

Environment proved that the allegedly defamatory statements were true. Falsity is

an element of a business disparagement claim on which Partners bore the burden

of proof. See Hurlbut v. Gulf Atl. Life Ins. Co., 74S.W.2d 762, 765 (Tex. 1988)

(“The plaintiff in a business disparagement claim . . . must plead and prove the

falsity of the statement as part of his cause of action.”). As explained in Texas

Campaign for the Environment’s Opening Brief and as outlined below, Partners

did not meet this burden.

IV.    Partners’s Claim for Tortious Interference Must be Dismissed

       To prevail on its tortious interference with contract claim, Partners must

establish that (1) it had a valid contract; (2) defendant willfully and intentionally

interfered with the contract; (3) the interference proximately caused the plaintiff’s


2
  To the extent Partners is suggesting that truthfulness was not pleaded as an affirmative defense
in Texas Campaign for the Environment’s answer, that argument has been waived. Partners
failed to object in the trial court to the lack of such a pleading or to the evidence attached to
Texas Campaign for the Environment’s Motion to Dismiss, including evidence supporting Texas
Campaign for the Environment’s defense of truth. See, e.g., Roark v. Stallworth Oil & Gas, Inc.,
813 S.W.2d 492, 494 (Tex. 1991) (holding that a party moving for summary judgment based on
an affirmative defense must plead the defense in its answer, but that the opposing party must
object to the lack of a supporting pleading to preserve error).

                                                9
injury; and (4) the plaintiff incurred actual damage or loss. See Butnaru v. Ford

Motor Co., 84 S.W.3d 198, 207 (Tex. 2002); Holloway v. Skinner, 898 S.W.2d

793, 795–96 (Tex. 1995).

      Conclusory statements are not evidence and certainly cannot establish a

prima facie case under section 27.005. See In re E.I. DuPont, 136 S.W.3d at 223–

24. In just 2014, the Texas Supreme Court reiterated that in defamation cases, a

plaintiff must produce more than “meager circumstantial evidence which could

give rise to any number of inferences, none more probable than another.” Burbage

v. Burbage, 447 S.W.3d 249, 262 (Tex. 2014) (quotation omitted). In that case, for

example, the court noted that customers’ cancellations of their service contracts

with the plaintiff, alleged to have been proximately caused by defendant’s

defamatory statements, “could have occurred for any number of reasons” and was

therefore not sufficient to prove causation or damages. Id. Partners faces the same

problem with its proof here.

      In particular, Partners presented no evidence, and certainly no “clear and

specific evidence,” establishing that Texas Campaign for the Environment

proximately caused the City of Rio Hondo to cancel its contract with Partners.

Indeed, the best that Partners can do is reference online postings purportedly made

by Texas Campaign for the Environment and a statement the City Attorney made

regarding cancelation of the contract (CR 1477–81). But this purported proof,


                                        10
outlined below, at best “creates a mere surmise or suspicion of a vital fact.”

Burbage, 447 S.W.3d at 259. “[I]t is, in legal effect, no evidence.” Id.

      A.     Texas Campaign for the Environment’s Online Posts Do Not
             Establish Proximate Cause

      First, Partners’s argument that Texas Campaign for the Environment made

admissions online that its action caused Rio Hondo to cancel the contract is neither

supported in the record nor sufficient to establish proximate cause. Far from

“admitting” that their actions caused the City of Rio Hondo to breach its contract

with Partners, neither post actually says that and both give credit to the public

generally for the “victory” achieved in protecting the Arroyo Colorado watershed.

For instance, Partners relies on an alleged posting on the Texas Campaign for the

Environment website, which reads:

             A problem liquid waste company announced last year
             that they were going to be operating in the Rio Grande
             Valley community of Rio Hondo, and TCE organizers
             swung into action . . . After intense public pressure the
             Rio Hondo City commission cancelled their contract with
             the company, ending the project and its threat to the
             sensitive Arroyo Colorado.




                                         11
(CR 220, 238–40). In addition, Partners relies on an alleged post written on Texas

Campaign for the Environment’s Facebook page, which states:3

               Victory in Rio Hondo! After six months of organizing
               and activism, the Rio Hondo city commission decided
               unanimously to back out of their contract with a problem
               liquid waste processor. Thank you to all the local
               activists and concerned citizens who stood up and made
               this victory possible.

(CR 220).

       Partners’s attempts to characterize Texas Campaign for the Environment’s

purported online statements as if they are judicial admissions is unavailing. To

qualify as an admission, the statement must be in a live pleading and must be a

deliberate, clear and an unequivocal statement of fact. A party cannot admit a

question of law, such as whether the proof establishes proximate cause. See H.E.B.

Grocery Store v. Pais, 955 S.W.2d 384, 389 (Tex. App.—San Antonio 1997, no

pet.). That is a question for a judge to answer. See id.



3
 Texas Campaign for the Environment objected to Partners’s exhibit containing the post on the
ground that it had not been properly authenticated. Its objection was overruled (RR 34–36).
Because the Facebook post allegedly belonging to Texas Campaign for the Environment was
never properly authenticated with sufficient circumstantial evidence, it should not be considered
by this Court as evidence of proximate cause. See Tienda v. State, 358 S.W.3d 633, 644–46
(Tex. Crim. App. 2012) (holding that a party must present sufficient circumstantial evidence to
support a finding that a social media page is “what they [are] purported to be.”). In Tienda, for
example, the Texas Court of Criminal Appeals concluded that a proponent properly
authenticated a printout of a social media page by producing affidavits subpoenaed from
Myspace and an “official MySpace Subscriber Report” evidencing that the appellant was
actually responsible for the posts. Id. Here, Partners provided no similar circumstantial
evidence. Even if this Court considers the Facebook post, however, it constitutes no evidence of
proximate cause.

                                               12
      Thus, even if Texas Campaign for the Environment took full credit for the

“victory” in the online posts (which it obviously did not), the question would still

remain whether Partners has proved by clear and specific evidence that Texas

Campaign for the Environment was the proximate cause of the City’s decision to

terminate its agreement with Partners. It has not.

      B.     The Statement Made By the Rio Hondo City Attorney Is Proof That
             Texas Campaign for the Environment Did Not Proximately Cause the
             Contract Termination

      Partners also attempts to prove proximate cause by relying on a statement

made by the Rio Hondo City Attorney concerning the termination of the contract

(Resp. at p. 17). The statement comes from the Valley Morning Star, which quotes

Rio Hondo City Attorney Eddie Lucio III as saying that “changes within the city’s

administration and the City Commission, as well as public pressure, led

commissioners to reconsider the contract” (CR 1478–79).

      Notably, this statement does not refer to Texas Campaign for the

Environment at all. On its face, this statement is proof that personnel changes and

political decisions made in response to pressure from the public at large—as

opposed to any action by Texas Campaign for the Environment—was the

proximate cause of the contract termination.

      In sum, Partners relies on stacked inferences, unsupported, conclusory

allegations, and mere suspicion to “prove” that the actions of Texas Campaign for



                                         13
the Environment—as opposed to personnel changes and the City, and concerned

local citizens and activist groups—caused the City of Rio Hondo to cancel the

contract with Partners. Because none of the purported “evidence” cited by Partners

supports by clear and specific evidence Partners’s theory of causation, its tortious

interference with contract claim must be dismissed.

V.    Partners’s Conclusory Business Disparagement Claims Are Not
      Supported by “Clear and Specific” Evidence

      A.     Partners Ignores Texas Campaign for the Environment’s Evidence
             Establishing That the Allegedly False Statements Are True or
             Substantially True

      Partners bears the burden to prove that the allegedly disparaging statements

made by Texas Campaign for the Environment and Robin Schneider are false. See

Hurlbut, 749 S.W.2d at 765. Partners’s Brief fails to mention, let alone address or

dispute, any of the evidence Texas Campaign for the Environment details in its

briefing to show that the allegedly defamatory statements made by Texas

Campaign for the Environment and Robin Schneider were either statements of

opinion, were true, or (at the very least) were substantially true (Appellants’ Brief

at pp. 29–40).     Partners instead relies exclusively on the same conclusory

allegations of falsity it made in the trial court even though Texas Campaign for the

Environment’s evidence squarely contradicts them.

      Because Partners chose not to address any of Texas Campaign for the

Environment’s arguments and evidence concerning the truth or substantial truth of


                                         14
the allegedly false statements Partners identifies, Texas Campaign for the

Environment will not belabor them at length here. The following chart provides

quick reference to the undisputed evidence that proves the statements made by

Texas Campaign for the Environment and Schneider are not false:4

Alleged Disparaging Statement                 Undisputed Record Evidence Proving
                                              Statement is Opinion or, at Minimum,
                                              Substantially True
“PDI had an ‘unsatisfactory’                  • The TCEQ gave PDI an
compliance record with the TCEQ                  “unsatisfactory” classification on Sept.
for the La Coste facility.’” (Brief at           1, 2011–Sept 1, 2013—during which
p. 34)                                           time Partners’s was responsible for
                                                 operation of the LaCoste plant (CR
“PDI does not comply with the laws               1558–59).
of Texas” (Brief at p. 35).                   • The TCEQ issued a letter to the City of
                                                 LaCoste listing numerous outstanding
                                                 violations, and assessing fines for
                                                 numerous instances of noncompliance
                                                 (CR 117).
                                              • Partners accepts responsibility and pays
                                                 fines for the violations, including those
                                                 that resulted in the death of 160,000
                                                 fish in Polecat Creek (CR 793, 796).
“PDI would accept ‘toxic industrial           • The actual statement Partners relies on
waste’ at the Rio Hondo facility”                is one of opinion: “We think it’s not a
(Brief at p. 35).                                good idea to have toxic waste that
                                                 contains arsenic and other metals and
                                                 petrochemical waste to go to small

4
  In its Response in the trial court, Partners set forth as a basis for its defamation claim Texas
Campaign for the Environment’s statement that “PDI was processing one-million gallons per
month in the City’s wastewater system, but would only pay $1,500 per month, which is less than
half the sewer rate the residents of Rio Hondo were paying” (CR 201). Texas Campaign for the
Environment pointed out in its Appellants’ Brief that its statement was based on a similar
statement made by Partners’ finance director, Carter Mayfield, as quoted in the local newspaper
(Appellants’ Brief at pp. 35–36). Partners appears to have abandoned this statement as a basis
for its disparagement claim, as it does not appear in their Appellee’s Brief.

                                               15
Alleged Disparaging Statement            Undisputed Record Evidence Proving
                                         Statement is Opinion or, at Minimum,
                                         Substantially True
                                            wastewater treatment plants that are not
                                            constructed to deal with these wastes”
                                            (CR 1395).
                                         • Partners does not dispute that it was
                                            responsible for a fish kill resulting from
                                            the poisoning effects of the waste
                                            discharged from the LaCoste plant into
                                            the Polecat Creek (CR 117–18, 743–
                                            56).
The City of LaCoste residents had to     • A boil water notice was in fact issued
boil their water to avoid getting sick      to the people of LaCoste because of a
after a discharge from the City’s           discharge from Partners’s water
wastewater plant (Brief at p. 35).          treatment plant that risked incursion of
                                            dangerous microbes into the Polecat
                                            Creek (CR 1489).


      The substantial truth defense, like the Act itself, arises from the First

Amendment’s freedom of speech and freedom of press protection. See Masson v.

New Yorker Magazine, Inc., 501 U.S. 496, 516–17 (1991). Even if Partners had

proven the element of falsity by clear and specific evidence—which it has not—

Texas Campaign for the Environment is nevertheless entitled to dismissal because

it has proved with undisputed evidence that the statements were true or

substantially true. See Tex. Civ. Prac. & Rem. Code § 27.005(d).




                                          16
       B.      Partners Has Provided No Evidence to Establish That Texas
               Campaign for the Environment or Schneider Acted With Malice

       In its Response to the Motion to Dismiss, Partners argued that Texas

Campaign for the Environment is liable for business disparagement because, in

part, it acted with malice; that is, it knew of the falsity of statements made or acted

with reckless disregard concerning the statements. As Texas Campaign for the

Environment pointed out in its opening brief and as Partners does not dispute here,

Partners did not argue to the trial court as a basis to establish malice that Schneider

or Texas Campaign for the Environment intended to interfere with Partners’s

economic interest (CR 197) (“Here, each statement made by Schneider was either

knowingly false or was made with reckless disregard for whether the statement

was true.”); (CR 203) (“Here, each statement made by TCE was either knowingly

false or was made with reckless disregard for whether the statement was true.”).

Because Partners raises that argument for the first time in the court of appeals, this

Court should not consider it.5




5
  Even if Partners had not waived the question of whether Texas Campaign for the Environment
intended to interfere in Partners’s economic interests, Partners still could not show malice on that
theory. The evidence relied on by Partners shows only that Texas Campaign for the
Environment intended to rally public participation on a matter of public concern and to protect
the vulnerable waters of the Colorado Arroyo Watershed, not that it intended to interfere with
Partners’s profits under the contract. Compare, e.g., Tex. Disposal Sys. Landfill, Inc. v. Waste
Mgmt. of Tex., 219 S.W.3d 563, 576–77 (Tex. App.—Austin, 2007, pet. denied) (Texas Disposal
I) (discussing libel action wherein corporation published knowingly false statements about its
direct competitor to gain economic benefit).

                                                17
      Texas Campaign for the Environment has argued all along that the allegedly

disparaging statements are true or, at a minimum, substantially true.           Texas

Campaign for the Environment has provided undisputed evidence to support this

defense. Given that Partners has failed to prove that the statements themselves

were false, it is no surprise that Partners fails to present any evidence that Texas

Campaign for the Environment or Schneider knew that the statements made were

false. Conclusory statements do not constitute “clear and specific” evidence.

      “Malice” is a term of art. See Forbes Inc. v. Granada Biosciences, Inc., 124

S.W.3d 167, 171 (Tex. 2003).        Constitutional malice consists of “calculated

falsehood.” Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). Evidence of “ill

will, spite, or evil motive” is no evidence of malice. Huckabee v. Time Warner

Entm’t Co. L.P., 19 S.W.3d 413, 420 (Tex. 2000). Neither is negligence. Bentley,

94 S.W.3d at 591. To survive dismissal of its business disparagement claims,

Partners is required to show that Texas Campaign for the Environment made

disparaging statements with actual malice. Here, actual malice requires “that the

defendant in fact entertained serious doubts as to the truth of his publication “or

had a “high degree of awareness of the probable falsity of the published

information.” Id. (internal alterations omitted). This is a subjective standard. Id.

The inquiry focuses on the “defendant’s state of mind” and requires proof that the




                                        18
defendant “entertained serious doubts as to the truth of his publication.” See

Forbes, 124 S.W.3d 171–74.

       Partners continues to argue that Texas Campaign for the Environment and/or

Schneider had access to, and should have consulted, various resources before

making statements about the contract between Partners and the City of LaCoste.

E.g., Brief at p. 37 (“Schneider, by her own testimony, has led her environmental

organization for years, and it is very simple to get an entity’s compliance history

from the TCEQ.”); id. (“No one at TCE ever called the City of LaCoste to see why

it published a boil water notice, and the notice had nothing to do with the City’s

wastewater facility.”). Given that Schneider continues to insist that her statements

are true, and given the undisputed record evidence that shows they are true (or at

least substantially true), this is no evidence that Schneider actually consulted these

sources and either knew her statements were false or entertained serious doubts as

to their truth.

       Despite undisputed record evidence to the contrary, Partners continues to

represent to this Court that Schneider stated Partners would handle toxic material

at the wastewater plant in Rio Hondo. In reality, Schneider made the following

statement of opinion with regard to toxic waste: “We think it’s not a good idea to

have toxic liquid waste that contains arsenic and other metals and petrochemical

waste to go to small wastewater treatment plants that are not constructed to deal


                                         19
with these wastes” (CR 1395). “Assertions of opinion are protected by the first

amendment of the United States Constitution and article I section 8 of the Texas

Constitution.” Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989). Schneider’s

statement is therefore not actionable.

      Even if Schneider’s statement could be construed as one of fact, however,

Partners still cannot show that she made it with calculated falsehood. Huckabee v.

Time Warner Entm’t Co., L.P., 19 S.W.3d 413, 424 (Tex. 2000) (noting that a

defendant may negate the existence of actual malice by establishing the

defendant’s belief in the challenged statements’ truth and a plausible basis for this

belief). That Partners’s application allegedly stated that no toxic waste would be

handled at the Rio Hondo facility is entirely immaterial to the question whether

Schneider subjectively believed—based on Partners’s past performance at the

LaCoste plant—that Partners would nevertheless handle materials that could be as

toxic to the Rio Hondo waterways as they had been to the LaCoste waterways.

After all, the terms of the agreement between Partners and the City of LaCoste

were similar to the agreement between Partners and the City of Rio Hondo, yet the

waste from Partners’s LaCoste plant was actually toxic to the 160,000 fish it killed

when released into a nearby body of water (a violation for which the TCEQ issued

fines and which Partners does not dispute) (CR 117–18, 743–56).




                                         20
      Finally, Partners’s reliance on Waste Management of Texas v. Texas

Disposal Systems Landfill, Inc. (Texas Disposal II), No. 03-10-00826-CV, 2012

WL 1810215 (Tex. App.—Austin, May 18, 2012), pet. granted, rev’d in part on

other grounds, 219 S.W.3d 563 (Tex. 2007), does not solve its evidentiary

problems. In that case (which does not concern the Act), the Austin Court of

Appeals reviewed affirmative jury findings on falsity and actual malice under a

legal sufficiency challenge. In reviewing the evidence, the court considered the

contents of an “Action Memo” that the defendant published questioning the

environmental integrity of a competitor’s landfill. See also Tex. Disposal Sys.

Landfill, Inc. v. Waste Mgmt. of Tex., 219 S.W.3d 563, 576–77 (Tex. App.—

Austin, 2007, pet. denied) (Texas Disposal I) (setting forth the background facts of

the same libel suit).

      The Waste Management court noted in detail that the memo’s author

testified that he knew at the time he wrote the defamatory memo that the contents

were misleading and that he intended to give its readers a false impression about

his competitor. Id. at 579. Hence, the court affirmed the jury’s finding that the

author of the Action Memo acted with falsity and malice.

      Here, by contrast, Partners has no such similar evidence of calculated

falsehood to support its disparagement claims. It simply ignores the unchallenged

evidence in the record proving that Texas Campaign for the Environment’s


                                        21
statements are truthful—i.e., the undisputed history of violations Partners

committed in its operation of the LaCoste plant.

      Waste Management is nothing like this case, and serves to expose larger

problems with Partners’s theory of business disparagement. That case concerned

libelous statements that Waste Management made about Texas Disposal Systems,

its direct competitor, to gain advantage on a bid with the City of Austin for waste

removal and landfill services. Id. at 569–70. The libelous statements were made

in a deliberate attempt to reap economic benefit through knowing deception and

deliberate subterfuge. The evidence supported each element of the claim. Id.

      Here, in contrast, there is no such evidence of deception or calculated

falsehood intended to confer onto Texas Campaign for the Environment an

economic advantage. Unlike Waste Management, this case is about a corporation’s

attempt to silence the speech of an environment organization that acted within its

constitutionally protected rights to rally citizen participation and foster debate

concerning a matter of great public concern.

      C.     Partners Has Not Proven by Clear and Specific Evidence That Texas
             Campaign for the Environment’s Statements Are Not Protected by a
             Privilege

      A qualified privilege exists under Texas law “when a communication is

made in good faith and the author, the recipient or a third person . . . has an interest

that is sufficiently affected by the communication.” Diamond Shamrock Ref. &



                                          22
Mktg. Co. v. Mendez, 844 S.W.2d 198, 209–10 (Tex. 1992); Restatement (Second)

of Torts §§ 594–97. Moreover, a communication may be conditionally privileged

“if it affects an important public interest.”6 See Diamond Shamrock, 844 S.W.2d at

210; Restatement (Second) of Torts § 598. It was Partners’s burden to establish by

clear and specific evidence that a privilege does not bar this defamation claim. See

Forbes, 124 S.W.3d at 170. Partners failed to prove in the trial court that no

privilege applies.

       In its Brief, Partners does not substantively address these privileges. The

only basis Partners asserts as to why the privilege does not apply is that Schneider

and Texas Campaign for the Environment allegedly acted with malice, which

“defeats all common-law qualified privileges” (Resp. at p. 32). But as discussed

above and at length in Texas Campaign for the Environment’s Appellate Brief,

Partners has presented no evidence, and certainly no clear and specific evidence,

that the Defendants made disparaging statements with knowledge of their falsity or

with serious doubts as to the statements’ falsehood. See Forbes, 124 S.W.3d 171–




6
  “An occasion makes a publication conditionally privileged if the circumstances induce a correct
or reasonable belief that (a) there is information that affects a sufficiently important public
interest, and (b) the public interest requires the communication of the defamatory matter to a
public officer or a private citizen who is authorized or privileged to take action if the defamatory
matter is true.” Restatement (Second) of Torts § 598.

                                                23
74. Thus, Partners has not shown that the common law qualified privilege does not

apply to the statements at issue.7

VI.    Partners Has Not Proven the Necessary Element of Damages by Clear
       and Specific Evidence on Either of Its Claims

       As set forth in Texas Campaign for the Environment’s Appellants’ Brief and

in Section IV of this Brief, Partners has not shown any proof, and certainly not

clear and specific proof, that Texas Campaign for the Environment or Schneider

caused the City of Rio Hondo to cancel its contract with Partners. Thus, it has not

proved that Texas Campaign for the Environment caused any of its damages. See

Burbage, 447 S.W.3d at 262 (holding that no evidence supported an award of

actual damages where “the jury cannot reasonably infer that defamation caused the

[contract] cancellations when the cancellations could have occurred for any

number of reasons”). Indeed, Partners’s own proof demonstrates that public

pressure and changes in personnel were reasons the City decided to terminate the

contract (CR 1478–79). For this reason alone, both its tortious interference with

contract and business disparagement claims fail.

       Partners’s claims also fail because its proof of damages is wholly

insufficient. Partners contends that under a prima facie standard, the statements


7
  Typically, conditional privileges are not at issue in business disparagement cases because if a
plaintiff carries his burden to show malice as an element of recovery, he likewise defeats the
conditional privilege. Hurlbut, 749 S.W.2d at 768. Hence, if the Court rules that Partners failed
to present evidence of actual malice, it is unnecessary to reach the question of whether the
statements are privileged.

                                               24
made in Mr. Mayfield’s affidavit are alone sufficient to prove actual loss, without

need for even one independent piece of admissible evidence to support the material

assumptions and estimates he sets forth (Resp. at p. 24).                      Again, Partners

misapplies the standard of proof under section 27.005.

       Partners must show “clear and specific evidence”—an elevated evidentiary

standard—of “actual loss” in order to avoid dismissal.8 At the very least, Partners

must provide some documentary evidence to support its claim of damages. In a

recent Texas Supreme Court case (that Partners does not address), the court

reiterated that expert testimony on damages must be based on record evidence

supporting an expert’s material factual assumptions.                Houston Unlimited, Inc.

Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 832–33 (Tex. 2014). And

in another recent opinion, Burbage v. Burbage, 447 S.W.2d 3d 249, 262 (Tex.

2014), the Court admonished that compensatory damages must be proven with

legally sufficient evidence.

       Mr. Mayfield’s affidavit on future damages consists of nothing more than

stacked inferences, as his damage calculation consists of an estimation of what


8
  Partners relies in In re Lipsky, 411 S.W.3d 530, 546–47 (Tex. App.—Fort Worth 2013, orig.
proceeding), to support its argument that Mr. Mayfield’s affidavit is alone sufficient proof of
damages. In re Lipsky, however, was decided before the Texas Supreme Court issued its
decisions in Houston Unlimited, 443 S.W.3d at 832–33, and Burbage, 447 S.W.2d 3d at 262.
Moreover, the Texas Supreme Court may soon elaborate upon the “clear and specific evidence”
standard discussed in In re Lipsky. Regardless of the outcome, it is almost certain that the Fort
Worth Court of Appeals’ decision is not the last word on the matter, and should not be relied
upon by this Court.

                                               25
Partners may have earned between the years 2013–2018 if they expanded into the

Rio Hondo region and if they obtained over half the market share of grease and grit

(CR 781). The Texas Supreme Court has instructed courts to “rigorously examine

the validity of the facts and assumptions on which expert testimony is based.”

Houston Unlimited, 443 S.W.3d at 832–33. Under proper scrutiny, it is clear this

testimony based on several assumptions and leaps in logic is no evidence of future

loss. Id.

      Mr. Mayfield’s affidavit on past damages is also insufficient to constitute

any evidence, let alone “clear and specific evidence,” of damages necessary to

avoid dismissal of Partners’ tortious interference and business disparagement

claims.     Mr. Mayfield assumes that the loss Partners allegedly incurred is

attributable to Texas Campaign for the Environment, and not, as the City Attorney

stated, changes in administration and personnel and activities of the local

community.

      In short, Mr. Mayfield’s self-serving, conclusory affidavit, expressly based

on assumptions and scant estimations, is not competent evidence of either past or

future damages. See Houston Unlimited, 443 S.W.3d at 832–33 (holding that

opinion testimony on damages founded on assumptions not supported in the record




                                        26
constitute no evidence).9 This provides yet another basis upon which to dismiss

Partners’s tortious interference and business disparagement claims.

VII. Conclusion

       Partners has not met its burden to produce clear and specific evidence, or

any evidence, on each essential element of its claims to overcome dismissal. And

in this Court, Partners wholly ignores most of the evidence and majority of

arguments that Texas Campaign for the Environment properly raised in its

Appellants’ Brief. In sum, because Partners has not shown evidence to support its

theories of proximate causation and damages or falsity and malice, both its tortious

interference and business disparagement claims must fail as a matter of law.

       Accordingly, Texas Campaign for the Environment requests that this Court

reverse the trial court’s denial of its Motion to Dismiss under the Act, render

judgment dismissing all of Partners’s claims with prejudice, and remand this action

to the trial court for an award of costs and attorney’s fees incurred Texas

Campaign for the Environment in defending this lawsuit.




9
  Curiously, Partners relies on Sierra Club v. Andrews County, 418 S.W.3d 711, 719–20 (Tex.
App.—El Paso 2013, pet. filed), to support its argument that Mr. Mayfield’s affidavit is
sufficient to prove damages. Yet that case specifically holds that a damages expert’s conclusory
affidavit without supporting evidence of objective facts relied upon does not constitute “clear
and specific evidence.” Id. at 720. Sierra Club only further supports Texas Campaign for the
Environment’s argument that Mr. Mayfield’s affidavit is not competent evidence to establish by
clear and specific evidence that Partners sustained “actual loss.”

                                               27
Respectfully submitted,

THOMPSON, COE, COUSINS & IRONS,
L.L.P.

By: /s/ Sara Berkeley Churchin
    Sara Berkeley Churchin
    State Bar No. 24073913
    E-mail: schurchin@thompsoncoe.com
    Wade C. Crosnoe
    State Bar No. 00783903
    E-mail: wcrosnoe@thompsoncoe.com
    Stephanie S. Rojo
    State Bar No. 24041815
    E-mail: srojo@thompsoncoe.com
    Jessica L. Kirker
    State Bar No. 24075240
    E-mail: jkirker@thompsoncoe.com
701 Brazos, Suite 1500
Austin, TX 78701
Telephone: (512) 703-5035
Facsimile: (512) 708-8777
AND
      Jaime A. Saenz
      State Bar No. 17514859
      Email: ja.saenz@rcclaw.com
      Lecia L. Chaney
      State Bar No. 00785757
      Email: ll.chaney@rcclaw.com
COLVIN, CHANEY, SAENZ & RODRIGUEZ, LLP
1201 E. Van Buren
P.O. Box 2155
Brownsville, Texas 78522-2155
Telephone: 956-542-7441
Facsimile: 956-541-2170

Counsel for Appellants Texas Campaign for the
Environment and Robin Schneider

    28
                         CERTIFICATE OF COMPLIANCE

      This brief complies with the word limit of Tex. R. App. P. 9.4(i)(2)(B) be-
cause it contains 6,708 words, excluding the parts of the brief exempted by Tex. R.
App. P. 9.4(i)(1).



                                             /s/ Sara Berkeley Churchin
                                             Sara Berkeley Churchin



                            CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this Appellants’ Reply Brief was
served on February 23, 2015, via electronic service or email to the following
counsel:

Keith W. Lapeze
Email: keith@lapezejohns.com
The Lapeze Firm, P.C.
601 Sawyer Street, Suite 650
Houston, Texas 77007
Attorney for Appellee

Frank Costilla
Law Office of Frank Costilla
5 E. Elizabeth Street
Brownsville, Texas 78520
Attorney for Appellee



                                             /s/ Sara Berkeley Churchin
                                             Sara Berkeley Churchin




                                        29
