                               Fourth Court of Appeals
                                      San Antonio, Texas
                                   CONCURRING OPINION
                                         No. 04-14-00018-CV

                                Damien HERRERA and Blaine Castle,
                                          Appellants

                                                  v.
                                 Judy Stahl and Sue HensleyAppellees
                                    Judy STAHL and Sue Hensley,
                                              Appellees

                     From the 166th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012-CI-05750
                            Honorable Michael E. Mery, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice
Concurring Opinion by: Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: July 16, 2014

           I concur in the court’s judgment; however, I write separately because I do not believe the

Texas Citizens’ Participation Act (the Act) applies, or was meant to apply, in a case such as this.

           In 2011, the Texas Legislature recognized that Strategic Lawsuits Against Public

Participation (SLAPP suits), “aimed at silencing” citizens who exercise their “‘constitutional rights

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

maximum extent permitted by law,’” were becoming more common. Whisenhunt v. Lippincott,

416 S.W.3d 689, 696, 698 (Tex. App.—Texarkana 2013, pet. filed) (quoting SENATE COMM. ON

STATE AFFAIRS, BILL ANALYSIS, TEX. H.B. 2973, 82d Leg., R.S. (2011), TEX. CIV. PRAC. & REM.
Concurring Opinion                                                                     04-14-00018-CV


CODE ANN. § 27.002 (West Supp. 2013)). The legislature promulgated the Act (an “Anti-SLAPP”

law) as a shield to protect citizens who exercise their constitutional rights to communicate for the

purpose of addressing common interests, about matters of public concern, or in judicial, official,

or other public proceedings. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (“Purpose”); id.

§ 27.001 (“Definitions”).

        In this appeal, Appellants posture themselves as the “citizens” targeted by a SLAPP suit

instigated by Appellees. But there is nothing in the record to support Appellants’ contention that

Appellees are attempting to “chill” Appellants’ efforts before the City of San Antonio zoning

administrators or to hinder the efforts of the Chesapeake Condominium owners from “associating”

for the purpose of pursuing the Association’s common interests. To the contrary, the evidence

shows Appellants are using the Act as a sword to silence Appellees and prevent them from

speaking freely.

        Although the merits of Appellees’ lawsuit have not been decided at the trial level, their suit

alleges numerous failures by the Association, Herrera, and Castle to act in the best interest of the

condominium owners and to comply with the Association’s by-laws. The essence of Appellees’

defamation allegations is that Appellants are besmirching them in an effort to ostracize them from

the other condominium owners and ruin Appellees’ reputations because Appellees “have dared to

question” Herrera’s and the Association’s unfair treatment of certain residents. Appellees’ speech

criticizing Appellants’ conduct, and Appellees’ lawsuit against the Association, Herrera, and

Castle, are the types of speech and lawsuits the Act was meant to safeguard. See TEX. CIV. PRAC.

& REM. CODE ANN. § 27.002.

        On the other hand, the Act was not meant (1) to be misused as a sword to seek a dismissal

of defamation claims as Appellants attempt to do, or (2) to protect the leaders against whom

socially active citizens speak out. Therefore, under these circumstances, the Act does not apply.
                                                 -2-
Concurring Opinion                                                                   04-14-00018-CV


The constitutional rights “to petition, speak freely, associate freely, and otherwise participate in

government to the maximum extent permitted by law” at issue here are Appellees’, not

Appellants’. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.002.


                                                  Patricia O. Alvarez, Justice




                                                -3-
