                                 COURT OF APPEALS
                              EIGHTH DISTRICT OF TEXAS
                                   EL PASO, TEXAS

                                             §
 ROBERTO PENA,                                              No. 08-12-00275-CV
                                             §
                      Appellant,                                Appeal from
                                             §
 v.                                                          34th District Court
                                             §
 BOBBY PEREL,                                             of El Paso County, Texas
                                             §
                      Appellee.                           (TC # 2012-DCV01975)
                                             §

                                       OPINION

       Roberto Pena appeals an order dismissing his suit against Bobby Perel pursuant to

Section 27.003 of the Texas Citizen Participation Act. See TEX.CIV.PRAC.&REM.CODE ANN. §

27.003 (West Supp. 2012). We affirm.

                                   FACTUAL SUMMARY

       According to his pleadings, Pena was indicted with two counts of intoxication

manslaughter and two counts of failure to stop and render aid which resulted from a motor

vehicle accident that occurred in 2001. Pena retained Dolph Quijano, Jr. to represent him. On

the advice of counsel, Pena entered an open plea of guilty before a jury. The jury found Pena

guilty of each count and assessed his punishment at a fine of $10,000 and imprisonment for

twenty years for each intoxication manslaughter count and a $5,000 fine and imprisonment for
five years for each failure to stop and render aid count. After sentencing, Pena was transferred to

TDCJ-ID.

         With the assistance of his wife, Pena began buying and running advertisements in both

English and Spanish language local newspapers and distributing flyers critical of Quijano. Pena

also “ran radio broadcasts” through a local Christian radio station about Quijano. In response,

Quijano retained counsel, Bobby Perel, to represent him. Perel sent letters to both the local

newspapers and to the Texas Board of Pardons and Paroles informing the Board of the

defamatory nature of the advertisements and flyers distributed by Pena. In April 2010, Perel sent

a letter to the Texas Board of Pardons and Parole expressing his opinion that Pena had failed to

take responsibility for causing the death of the victims and had instead blamed his lawyers,

investigators, and the legal system. The letter also informed the Board that Pena was responsible

for pamphlets circulated in El Paso and “vicious ads” published in an El Paso newspaper laying

blame for his actions on his attorney. Perel requested that the Board consider his comments

when deciding whether to parole Pena.

         On January 30, 2012, Pena filed a pro se lawsuit against both Quijano and Perel. The

petition alleges several causes of action against Quijano including legal malpractice. Pena also

alleges that Quijano and Perel conspired to slander and defame him by sending the letter to the

Board of Pardons and Parole. Perel filed a motion to dismiss pursuant to Section 27.003 of the

Texas Practices and Civil Remedies Code1 asserting that the suit is based solely on Perel’s

exercise of his rights to free speech and petition. The trial court set the motion for a hearing and

Pena requested that the court issue a bench warrant so he could attend the hearing. The court

denied Pena’s request for a bench warrant and granted the motion to dismiss.


1
    TEX.CIV.PRAC.&REM.CODE ANN. § 27.003.


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         Pursuant to Section 27.007,2 the trial court issued the following written findings of fact:

      1) Defendant’s Motion to Dismiss is GRANTED. The motion falls within the
         parameters of Section 27.001 of the Civil Practice and Remedies Code.

      2) The legal action was brought to deter or prevent Defendant Perel from exercising
         his constitutional rights.

      3) The legal action was brought for an improper purpose, either to harass or to cause
         unnecessary delay or to increase the cost of litigation.

      4) The Plaintiff has not established by clear and specific evidence a prima facie case
         for each essential element of the claims in question.

      5) In the interest of justice and equity and based on findings (2) and (3), the Court
         orders Petitioner to pay court costs, reasonable attorney’s fees, and other expenses
         incurred in defending against the legal action in the amount of $     0 .

      6) The Court denies Plaintiff’s Motion for Bench Warrant. The Court has
         considered the pleadings and supporting and opposing affidavits stating the facts
         on which the liability or defense is based. Plaintiff’s appearance is not necessary
         for the reason stated above and that Plaintiff’s claims are not substantial. Further,
         the Court finds that all admissible, noncumulative testimony can be effectively
         presented without Plaintiff’s presence before this Court.

Pena timely filed notice of appeal within sixty days after the court signed the order dismissing

his suit against Perel. See TEX.CIV.PRAC.&REM.CODE ANN. § 27.008(a).

                                    APPLICABILITY OF THE TCPA

         In his first issue, Pena argues that Chapter 27 is inapplicable to this action because the

conduct which forms the basis of the suit occurred prior to the effective date of the law. The

Legislature enacted Chapter 27, which is also known the Texas Citizen Participation Act, in

2011. Acts 2011, 82nd, Leg., R.S., ch. 341, § 1, 2011 TEX.GEN.LAWS 960 [TEX.CIV.PRAC.&

REM.CODE ANN. §§ 27.001-27.011 (West Supp. 2012)]. The enabling legislation provides that:

“The change in law made by this Act applies only to a legal action filed on or after the effective

date [June 17, 2011] of this Act. A legal action filed before the effective date of this Act is


2
    TEX.CIV.PRAC.&REM.CODE ANN. § 27.007.

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governed by the law in effect immediately before the date, and that law is continued in effect for

that purpose. Acts 2011, 82nd Leg., R.S., ch. 341 § 3, 2011 TEX.GEN.LAWS 963. Section

27.001(6) defines “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.

TEX.CIV.PRAC.&REM.CODE ANN. § 27.001(6)(West Supp. 2012).                 Because Pena filed his

original petition against Perel on January 30, 2012, several months after the effective date of the

TCPA, the Act is applicable. Issue One is overruled.

                                          EXEMPTION

       In Issue Two, Pena contends that the trial court erred by dismissing the suit against Perel

because it is exempt from application of the TCPA. Section 27.010 sets forth three exemptions,

but Pena relies only on Section 27.010(b) which provides that:

       (b) This chapter does not apply to a legal action brought against a person
       primarily engaged in the business of selling or leasing goods or services, if the
       statement or conduct arises out of the sale or lease of goods, services, or an
       insurance product or a commercial transaction in which the intended audience is
       an actual or potential buyer or customer.

TEX.CIV.PRAC.&REM.CODE ANN. § 27.010(b)(West Supp. 2012).

       This section can be described as a “commercial speech” exemption. See Newspaper

Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., No. 01-12-00581-CV, 2013 WL 1867104, at

*12 (Tex.App.--Houston [1st Dist.], May 2, 2013, no pet. h.), citing Simpson Strong-Tie Co., Inc.

v. Gore, 230 P.3d 1117 (Cal. 2010)(interpreting similar “commercial speech” provision under

California anti-SLAPP law). The burden of proving the applicability of an exemption under

Section 27.010 is on the party asserting it. See Newspaper Holdings, 2013 WL 1867104, at *12-

13.




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       Pena’s suit against Perel is based on a letter Perel sent to the Texas Board of Pardons and

Parole. The letter does not arise out of the sale or lease of goods, services, or an insurance

product or a commercial transaction. Further, the Board of Pardons and Parole is not an actual or

potential buyer or customer of any goods or services sold by Perel. Pena failed to prove that the

exemption provided by Section 27.010(b) is applicable to this case. Issue Two is overruled.

                                         SEVERANCE

       In Issue Three, Pena argues that the trial court abused its discretion by severing the

claims against Perel from the claims against Quijano. In order to present an issue on appeal, the

record must show that the appellant made the complaint to the trial court by a timely and specific

request, objection, or motion. TEX.R.APP.P. 33.1. Pena asserts that he could not have objected

because no motion to sever was filed and he was not present at the hearing on the motion to

dismiss. He could have, however, brought the issue to the attention of the trial court in a motion

for new trial, but failed to do so. Consequently, it is not preserved. See Gammill v. Fettner, 297

S.W.3d 792, 803 (Tex.App.--Houston [14th Dist.] 2009, no pet.)(holding that appellants waived

complaint regarding severance error because they did not object to the severance in the trial

court). Issue Three is overruled.

                        DENIAL OF BENCH WARRANT REQUEST

       In his final issue, Pena contends that the trial court abused its discretion by denying his

request for a bench warrant.

       A trial court’s denial of a bench warrant motion is reviewed for an abuse of discretion. In

re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). A trial court abuses its discretion only when it acts

without reference to any guiding rules or principles, or acts in an arbitrary or unreasonable

manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert.



                                              -5-
denied, 476 U.S.1159 (1986). The mere fact that a trial judge may decide a matter within his

discretionary authority in a different manner than an appellate judge in a similar circumstance

does not demonstrate that an abuse of discretion has occurred. Id.

       An inmate does not have the absolute right to appear at a hearing. In re Z.L.T., 124

S.W.3d at 165. Rather, the burden falls on the inmate to justify the need for his presence at a

hearing. Id. Texas courts of appeals have recognized a variety of factors that trial courts should

consider when deciding whether to grant an inmate’s request for a bench warrant. Id. These

factors include the cost and inconvenience of transporting prisoners to courtrooms; the security

risk the prisoner may present to the courtroom as well as the public; whether the prisoner’s

claims are substantial; whether the matter’s resolution can reasonably be delayed until the

prisoner’s release; whether the prisoner can and will offer admissible, noncumulative testimony

that cannot be effectively presented by deposition, telephone, or some other means; whether the

prisoner’s presence is important in judging his demeanor and credibility; whether the trial is to

the court or a jury; and the prisoner’s probability of success on the merits. Id. at 165-66.

       The trial court denied the motion for bench warrant because the court based its decision

on the motion to dismiss on the pleadings as well as the supporting and opposing affidavits. The

court specifically found that all admissible, noncumulative testimony could be effectively

presented without Pena’s presence and that Pena’s claims were not substantial. Pena’s motion

asserted that his presence was necessary because he is not well-versed in the English language

and he would like an opportunity to respond to the motion to dismiss through an interpreter at the

hearing. By statute, the trial court’s decision on a motion to dismiss under Section 27.003 is not

based on live testimony or the argument presented at the hearing but instead must be based on

the pleadings and the supporting and opposing affidavits. See TEX.CIV.PRAC.&REM.CODE ANN.



                                                -6-
§ 27.006(a). Pena did not carry his burden of showing the necessity for his attendance at the

hearing. See In re Z.L.T., 124 S.W.2d at 166 (defendant’s request for a bench warrant included

no information by which the court could assess the necessity of his appearance and although

defendant listed the relevant factors to be considered, defendant failed to provide any factual

information showing why his interest in appearing in court outweighed the impact on the

correctional system). We conclude that the trial court did not abuse its discretion by denying the

motion for a bench warrant. Issue Four is overruled. Having overruled each issue presented on

appeal, we affirm the judgment of the trial court.


August 28, 2013
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




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