Commission for Lawyer Discipline v. Omar Weaver Rosales, 201701087, 201700840, 201700279, 201700153, 201607308, 201607292, 201701948, 201702052

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-18-00147-CV

Commission for Lawyer Discipline, Appellant

v.

Omar Weaver Rosales, 201701087, 201700840, 201700279, 201700153, 201607308,
201607292, 201701948, 201702052, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-17-005008, HONORABLE R. H. WALLACE, JR., JUDGE PRESIDING

OPINION

The Commission for Lawyer Discipline appeals from the district court’s order

dismissing the Commission’s disciplinary action against Omar Weaver Rosales under the Texas

Citizens Participation Act (TCPA). Tex. Civ. Prac. & Rem. Code §§ 27.001–.011. Based on our

conclusion that the TCPA applies to the Commission’s disciplinary proceeding against Rosales, but

that the Commission met its burden of establishing by clear and specific evidence a prima facie case

for each element of its claim against Rosales, we reverse and remand for further proceedings.

Background

In December 2016, Rosales began sending demand letters to various medical

providers across the state asserting that the recipients’ websites violated the Americans with
Disabilities Act (ADA), 42 U.S.C. Section 12101 et seq., and rules promulgated under the ADA.

The following is representative of the letters Rosales sent:

CENTER FOR VETERANS ACCESS
PO BOX 6429
AUSTIN, TX 78762-6429
(512) 520-1919
(512) 309-5360 Fax
WWW.CENVETACCESS.ORG

JANUARY 23, 2017

VIA US MAIL CERTIFIED RRR . . .

CLINIC DIRECTOR
PATIENT EMERGENCY ROOM, PLLC
101331 I-10 EAST
BAYTOWN, TX
77521

RE: LAWSUIT ALLEGING VIOLATIONS OF TITLE 42 USC §12101,
§12181, KNOWN AS THE AMERICANS WITH DISABILITIES ACT
(ADA)

Dear Clinic Director:

I hope this letter finds you in good regards. Enclosed is a copy of the Federal
lawsuit to be filed in the Southern District of Texas, Houston Division, against your
clinic. This lawsuit alleges violations of the Americans with Disabilities Act, Title
42 U.S.C. §12101 and §12181 (known as the “ADA”) that occur on your company’s
website.

As you are aware, the Americans with Disabilities Act applies to websites.
Disabled individuals have the right to access and obtain information about medical
clinics, doctor’s offices, and urgent care centers. Disabled individuals, such as
myself, use these websites to obtain and book suitable medical treatment. Under
Federal law, your website must comply with the new requirements of the ADA and
WCAG 2.0 AA (Web Content Accessibility Guidelines).

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 I have completed a survey of your website for ADA compliance. Your
website failed. I have attached the ADA review of your website that lists the areas
where your site is not in compliance with Federal law and Title III of the ADA.

In addition, to receive Federal funds through Medicaid, Medicare, and the
Children’s Health Insurance Partnership (CHIP), you have agreed to comply with all
Federal Rules and Regulations. Since your website does not comply with Federal
law, you must immediately self-report to the Department of Health and Human
Services (DHHS) and forfeit any Federal funds received until you have completed
recertification.

Our Initial Demand to settle this unfiled lawsuit is $2000. Should you refuse
to enter settlement negotiations, I will have no choice but to file the attached lawsuit
against your company. I will also contact DHHS and discuss the possibility of a
separate civil suit under Qui Tam doctrine to obtain reimbursement of Federal Tax
dollars that you improperly obtained from the government. Please contact me, so that
we may resolve these issues.

Sincerely,

/s/ O. Rosales
O. Rosales
Attorney-at-law
ceo.cenvetaccess.org

(Grammar, underlining, and capitalization in original.)

Seven medical providers who received these letters filed grievances against Rosales

with the Office of the Chief Disciplinary Counsel of the State Bar of Texas. Ultimately, the

Chief Disciplinary Counsel brought a disciplinary proceeding against Rosales on behalf of the

Commission for Lawyer Discipline, a committee of the State Bar of Texas, in Travis County District

Court as provided for by the Texas Rules of Disciplinary Procedure. See Tex. Rules Disciplinary

P. R. 2.10–.15 (grievance process and resolution options); R. 3.01–.08 (district-court proceedings),

reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A-1. In its suit, the Commission alleged that

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Rosales’s ADA/website letters constituted professional misconduct because the letters violated the

Texas Disciplinary Rules of Professional Conduct. Tex. Disciplinary Rules Prof’l Conduct R.

1.01–9.01, reprinted in Tex. Gov’t Code, tit. 2, subtit. G., app. A (Tex. State Bar R. art. X, § 9).

Specifically, the Commission alleged that the letters violated the rules prohibiting “engag[ing] in

conduct involving dishonesty, fraud, deceit, or misrepresentation,” id. R. 8.04(a)(3); “practic[ing]

under a trade name,” id. R. 7.01(a); “stat[ing] or imply[ing] an ability to influence improperly a

government agency or official,” id. R. 8.04(a)(5); threatening medical providers with possible

disciplinary actions in order to gain an advantage, see id. R. 4.04(b)(1); and asserting frivolous

claims, see id. R. 3.01. According to the Commission, Rosales’s letters contained inaccurate and

deceptive statements regarding the ADA and its applicability to websites and regarding the origin

and legal effect of the Web Content Accessibility Guidelines (“WCAG guidelines”) referenced in

the letters.

Rosales responded to the Commission’s disciplinary action by filing, among other

pleadings, a motion to dismiss under the TCPA. Rosales asserted that the Commission’s suit against

him was based on his exercise of the right to free speech in the website demand letters, which

Rosales contends were “communication[s] made in connection with a matter of public concern.”

Tex. Civ. Prac. & Rem. Code § 27.001(3) (defining “exercise of free speech”); see id. § 27.003(a)

(allowing party to move for dismissal of claims that are “based on, relate[ ] to, or [are] in response

to a party’s exercise of the right of free speech, right to petition, or right of association”). In support

of his motion, Rosales attached various documents, including the letter reproduced above and an

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affidavit explaining, stated generally, that he had a reasonable belief that the ADA and WCAG

guidelines applied to websites when he sent his letters.

In response, the Commission argued that Rosales’s motion to dismiss should be

denied because the TCPA does not apply to lawyer-discipline cases, see id. § 27.010(a) (exempting

certain enforcement actions), and that even if the TCPA did apply, the Commission had established

a prima facie case against Rosales, see id. § 27.005(b)–(c) (requiring dismissal unless nonmovant

establishes by clear and specific evidence a prima facie case for each essential element of the claim

in question). In the alternative, the Commission asked for the opportunity to conduct further

discovery. See id. § 27.006(b) (allowing trial court to allow specified and limited discovery related

to motion to dismiss). After a hearing, the district court granted Rosales’s TCPA motion and

dismissed the Commission’s suit. This appeal ensued.

TCPA

The Texas Legislature passed the TCPA 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.” Id. § 27.002. The statute provides

a procedural mechanism that permits a party to file a motion to dismiss a “legal action” if the action

“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.” Id. § 27.003(a). Once such a movant establishes by a

preponderance of the evidence that the suit “is based on, relates to, or is in response to the party’s

exercise of” one of the enumerated rights, the trial court must dismiss the legal action unless

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the nonmovant “establishes by clear and specific evidence a prima facie case for each essential

element of the claim in question.” Id. § 27.005; see S & S Emergency Training Sols., Inc. v. Elliott,

564 S.W.3d 843, 847 (Tex. 2018) (discussing steps and burden-shifting in TCPA analysis). Even

if the nonmovant carries its burden under section 27.005(c), however, the trial court must dismiss

the legal action if the movant establishes by a preponderance of the evidence each essential element

of a valid defense to the nonmovant’s claim. Tex. Civ. Prac. & Rem. Code § 27.005(d). In

determining whether such motions to dismiss should be granted, courts are to consider the pleadings

and supporting and opposing affidavits on which the claim or defense is based. Id. § 27.006(a). The

TCPA also provides specific exemptions to its applicability, including, at issue here, an exemption

for enforcement actions brought by certain government entities. See id. § 27.010(a).

Appellate review of issues regarding interpretation of the TCPA is de novo. Youngkin

v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).

Discussion

The Commission raises four issues on appeal. First, it contends that (1) the district

court erred in granting Rosales’s motion to dismiss because the TCPA does not apply to the

Commission’s disciplinary proceedings against lawyers. In the alternative, the Commission argues

that, if the TCPA does apply, the district court erred in granting the motion to dismiss because (2) the

Commission met its burden of establishing by clear and specific evidence a prima facie case for each

essential element of its claims, or (3) the Commission was entitled to additional discovery before the

district court decided the motion. Finally, the Commission challenges (4) the district court’s award

6
of attorney fees. Because they are dispositive of this appeal, we address only the Commission’s first

two issues.

TCPA applicability

The Commission contends that the TCPA does not apply to its lawyer-discipline

actions because those proceedings are exempt under the TCPA’s exemption for government

enforcement actions; because the Commission is protected by immunity; and because of our decision

in Sullivan v. Texas Ethics Commission, 551 S.W.3d 848 (Tex. App.—Austin 2018, pet. filed). We

address each of these grounds in turn.

1. Exemption for government enforcement actions

The TCPA exempts from its applicability “an enforcement action that is brought in

the name of the state or a political subdivision of the state by the attorney general, a district attorney,

a criminal district attorney, or a county attorney.” Tex. Civ. Prac. & Rem. Code § 27.010(a). The

Commission argues that its lawyer-discipline proceedings fall under this exemption because they are

brought in the name of the Commission, which is a part of the State Bar of Texas, a subdivision of

the State,1 to enforce the Texas Disciplinary Rules of Professional Conduct. We disagree.

Although the Commission is charged with the important job of disciplining attorneys

who violate the Texas Disciplinary Rules of Professional Conduct, neither the Commission nor the

Chief Disciplinary Counsel is included among the four entities specifically listed in the TCPA’s

1
See Tex. Gov’t Code § 81.011(a) (“The state bar is a public corporation and an
administrative agency of the judicial department of government.”).

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enforcement-action exemption—i.e., “the attorney general, a district attorney, a criminal district

attorney, or a county attorney.” Id. As such, and assuming that the Commission’s disciplinary

proceeding against Rosales is a government enforcement action, see State v. Harper, 562 S.W.3d 1,

11–14 (Tex. 2018) (analyzing the meaning of “enforcement action” in TCPA), the Commission’s

action against Rosales is not exempt from the TCPA under the plain language of subsection

27.010(a). See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008); State v. Shumake,

199 S.W.3d 279, 284 (Tex. 2006) (“[W]hen possible, we discern [legislative intent] from the plain

meaning of the words chosen.”).

The Commission insists that the Legislature could not have intended to exclude its

disciplinary proceedings from this exemption, arguing that a conclusion to the contrary requires an

“overly strict reading of the concluding list of entities.” But “the plain language of a statute is the

surest guide to the Legislature’s intent,” Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 507

(Tex. 2012); see also In re Office of the Attorney General, 422 S.W.3d 623,629 (Tex. 2013) (“We

take the Legislature at its word, and the truest measure of what it intended is what it enacted.”), and

in this provision, the Legislature has unambiguously limited the TCPA’s enforcement-action

exemption to the four specifically enumerated entities, see In re Office of the Attorney General,

422 S.W.3d at 629 (“[U]nambiguous text equals determinative text,” and “‘[a]t this point, the

judge’s inquiry is at an end.’”) (quoting Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d

644, 652 (Tex. 2006)).

To construe this exemption as the Commission suggests—i.e., exempting from the

TCPA’s application government enforcement actions brought by entities other than those listed in

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the exemption—would require us to either ignore or add words to the text that the Legislature

enacted in subsection 27.010(a). We decline to do so. See Entergy Gulf States, Inc. v. Summers,

282 S.W.3d 433, 443 (Tex. 2009) (“Enforcing the law as written is a court’s safest refuge in matters

of statutory construction, and we should always refrain from rewriting text that lawmakers

chose . . . .”); TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“We

presume that the Legislature chooses a statute’s language with care, including each word chosen for

a purpose, while purposefully omitting words not chosen.”). If the Legislature had intended to

exempt from the TCPA government enforcement actions without regard to which legal authority

brought the case, it would not have included the last fifteen words of the exemption. Likewise, if

the Legislature had intended to exempt lawyer-discipline enforcement actions brought by the

Commission through the Chief Disciplinary Counsel, it could have included text to that effect.

The Commission argues relatedly that such a construction of subsection 27.010(a)

is an improper application of the negative-implication canon of statutory construction—also referred

to as expressio unius est exclusio alterius or “the expression of one thing implies the exclusion of

others.” We disagree. The specificity of the Legislature’s enumeration of the legal authorities that

may bring an exempted government enforcement action is a textbook example of the Legislature’s

intent to exclude others. See Uniguard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex. 1978)

(“When specific exclusions or exceptions to a statute are stated by the Legislature, the intent is

usually clear that no others shall apply.”); see also United States v. Giordano, 416 U.S. 505, 513–14

(1974) (holding that because statute named two types of high-ranking officials, all other officials

were excluded).

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 The Commission further contends that enforcing the plain meaning of this exemption

leads to absurd results. See Molinet v. Kimbrel, 356 S.W.3d 407, 411 (Tex. 2011) (“The plain

meaning of the text is the best expression of legislative intent unless a different meaning is apparent

from the context or the plain meaning leads to absurd or nonsensical results.”). But the “absurdity

doctrine” only comes into play if an as-written statute “leads to patently nonsensical results” that “a

rational Legislature” could not have intended. Combs v. Health Care Servs. Corp., 401 S.W.3d 623,

630 (Tex. 2013). And while credible policy arguments can be made regarding the folly or wisdom

of subjecting the Commission to the TCPA’s dismissal procedures, we cannot conclude that applying

the intended safeguards of the TCPA to the lawyer-discipline process is a result that no reasonable

legislature could have intended. See id. As such, we must adhere to the plain meaning of the

TCPA’s text and leave the policy making to the Legislature.

The Commission argues that enforcement abilities would be adversely affected by

the TCPA’s dismissal procedures. Nevertheless, the Texas Supreme Court has noted that the

TCPA’s purpose of safeguarding constitutional rights is not inconsistent with subjecting the State

to the procedural strictures of the TCPA. See Harper, 562 S.W.3d at 19. Further, when it enacted

the TCPA, the Legislature was presumably aware of the existence of government enforcement

actions and procedures—including the Commission’s authority to bring lawyer-discipline actions

in district court. See Tex. Gov’t Code §§ 81.071 (“Each attorney admitted to practice in this state

. . . is subject to the disciplinary . . . jurisdiction of the . . . Commission for Lawyer Discipline . . . .”),

.076 (authorizing Commission to ask Chief Disciplinary Counsel to “investigate and prosecute

suits”); Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990) (“A statute is presumed

10
to have been enacted by the legislature with complete knowledge of the existing law and with

reference to it.”). In this statutory context, the plain language of the exemption does not encompass

Commission disciplinary proceedings brought by the State Bar’s Chief Disciplinary Counsel, and

we cannot agree that a plain-language reading of the exemption leads to absurd results.

2. Immunity

The Commission further argues that the TCPA does not apply to its disciplinary

proceedings because the Commission is entitled to “absolute immunity.” In support of this

argument, it points to the provision providing that the TCPA “does not abrogate or lessen any other

. . . immunity available under other constitutional, statutory, case, or common law or rule

provisions,” Tex. Civ. Prac. & Rem. Code § 27.011(a), and to Rule 17.09 of the Texas Rules of

Disciplinary Procedure, which provides:

All members of the Commission, the Chief Disciplinary Counsel (including Special
Assistant Disciplinary Counsel appointed by the Commission and attorneys
employed on a contract basis by the Chief Disciplinary Counsel), all members of
Committees, all members of the Board of Disciplinary Appeals, all members of the
District Disability Committees, all officers and Directors of the State Bar, and the
staff members of the aforementioned entities are immune from suit for any conduct
in the course of their official duties. The immunity is absolute and unqualified and
extends to all actions at law or in equity.

Tex. Rules Disciplinary P. R. 17.09. According to the Commission, “[a]n obvious purpose of the

immunity provided by Rule 1[7].09 is to allow the disciplinary system to discharge their official

duties without fear of being sued or liable for monetary judgments, such as attorneys’ fees that can

be awarded in [TCPA] proceedings.”

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 The immunity granted in Rule 17.09, however, is official immunity that shields

governmental employees from personal liability so that they are encouraged to vigorously perform

their official duties. See id.; Telthorster v. Tennell, 92 S.W.3d 457, 460–61 (Tex. 2002) (“Official

immunity is an affirmative defense that shields governmental employees from personal liability so

that they are encouraged to vigorously perform their official duties.” (citing Kassen v. Hatley,

887 S.W.2d 4, 8 (Tex. 1994)). It is not the same as sovereign immunity, which protects the State,

and government entities like the State Bar, from lawsuits for money damages unless the immunity

has been waived. See, e.g., Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).

Application of the TCPA’s procedural mechanisms would not implicate the immunity offered by

Rule 17.09—i.e., immunity from suits alleging misconduct by officials. Instead, it would potentially

implicate sovereign immunity should attorney fees be assessed against the Commission under the

TCPA. The Texas Supreme Court has recently held that sovereign immunity does not protect the

State from properly assessed TCPA attorney fees:

Because the state should not be suing to prevent its own citizens from participating
in government—especially when it lacks even a prima facie case against them—and
because when it does sue, it risks paying only attorney’s fees (rather than damages
or some other uncapped sum), abrogating the state’s sovereign immunity in the
TCPA context does not present any grave danger to the public fisc.

Harper, 562 S.W.3d at 19 (citing Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011)

(per curiam) (“[T]he doctrine of sovereign immunity originated to protect the public fisc from

unforeseen expenditures that could hamper governmental functions . . . .”)).

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 We hold that the immunity invoked by the Commission does not bar application of

the TCPA to the Commission’s disciplinary proceeding against Rosales.

3. Sullivan v. Texas Ethics Commission

The Commission next asserts that the TCPA does not apply to its lawyer-discipline

proceedings based on our decision in Sullivan v. Texas Ethics Commission. We disagree. Sullivan

presented a fact-specific situation in the context of an underlying statutory framework pertaining to

the Texas Ethics Commission’s enforcement of lobbyist registration rules, and the holding was

accordingly narrow. See 551 S.W.3d at 851–52. Sullivan filed suit against the Ethics Commission

to appeal its final order determining that he had failed to register as a lobbyist and assessing a civil

penalty against him. Id. On Sullivan’s own motion, the trial court realigned the parties, naming the

Ethics Commission as plaintiff and Sullivan as defendant. Id. When the Ethics Commission then

amended its pleadings to reflect the change in party alignment, Sullivan, then a defendant, moved

to dismiss the Ethics Commission’s pleading under the TCPA. The trial court denied his motion.

Id. In affirming the trial court’s decision, this Court emphasized the unique circumstances of the

case presented—i.e., that Sullivan initiated the lawsuit in the district court and, had he not done so,

the Ethics Commission’s final administrative order against him would have remained effective and

fully enforceable—and held that:

In light of this specific statutory framework, the only reasonable way to harmonize
the TCPA and [the relevant statutes] is to conclude that the TCPA’s catch-all term
“legal action” does not encompass de novo appeals of [Ethics] Commission orders
enforcing the lobbyist-registration statute wherein the Commission seeks no new
relief but prays only that the district court uphold the Commission’s previous
violation and penalty determinations.

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Id. at 855 & n.5. In sum, Sullivan held that the TCPA did not apply because the underlying suit was

not a “legal action” under the TCPA.

Here, by contrast, the Commission filed suit against Rosales in the district court to

obtain, for the first time, an adjudication regarding whether Rosales violated the Texas Disciplinary

Rules of Professional Conduct and, if so, how Rosales should be disciplined for such professional

misconduct. See Tex. R. Disciplinary P. R. 3.01 (describing procedure for filing disciplinary

petition). When it filed its suit, the complaints against Rosales had not been resolved and there was

no final or enforceable order regarding whether Rosales had violated any rules. Absent the filing of

the proceeding and an ultimate judgment by the district court, there would not be such an

adjudication. See id. R. 3.01. Given this procedural posture and the fact that the Commission’s

petition sought affirmative legal relief against Rosales, the Commission’s disciplinary suit against

Rosales plainly falls under the TCPA’s broad definition of “legal action” as “a lawsuit, cause of

action, petition, complaint . . . or any other judicial pleading or filing that requests legal or equitable

relief,” Tex. Civ. Prac. & Rem. Code § 27.001(6), and under the supreme court’s interpretation of

that phrase as “appear[ing] to encompass any procedural vehicle for the vindication of a legal claim,”

see Harper, 562 S.W.3d at 8, 12 (also noting that “it would be difficult to write a more capacious

definition”). Accordingly, Sullivan does not control our decision here.

We overrule the Commission’s first issue.

Prima facie case

Having determined that the TCPA applies to the Commission’s proceeding against

Rosales, we turn to the Commission’s second issue, in which it asserts that the district court erred

14
in granting the TCPA motion to dismiss because the Commission met its burden of “establish[ing]

by clear and specific evidence a prima facie case for each essential element of the claim in

question.”2 Tex. Civ. Prac. & Rem. Code § 27.005(c) (providing that trial court “may not dismiss

a legal action under this section if the party bringing the legal action establishes by clear and specific

evidence a prima facie case for each essential element of the claim in question”). In this context,

“clear” means “unambiguous, sure, or free from doubt,” and “specific” means “explicit or relating

to a particular named thing.” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding).

“Prima facie case” means evidence that is legally sufficient to establish a claim as factually true if

it is not countered. Id. In other words, a prima facie case is the “minimum quantum of evidence

necessary to support a rational inference that the allegation of fact is true.” Id. The “evidence” the

trial court “shall consider” in these inquiries expressly includes “the pleadings and supporting and

opposing affidavits stating the facts on which the liability is based,” and the TCPA contemplates

primary reliance on such proof. See Tex. Civ. Prac. & Rem. Code § 27.006(a).

The Commission sued Rosales for professional misconduct. The elements of a

professional-misconduct claim include establishing that the respondent (1) is an attorney licensed

to practice law in the state of Texas who (2) engaged in acts and conduct that violate the Texas

Disciplinary Rules of Professional Conduct. See Tex. Rules of Disciplinary P. R. 3.01 (requiring

2
The Commission does not contest the district court’s determination that it sued Rosales in
response to his exercise of his constitutional right to free speech, petition, or association, the first
step of a TCPA analysis. See Tex. Civ. Prac. & Rem. Code § 27.005(b); S & S Emergency Training
Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018) (discussing steps in TCPA analysis).

15
Commission to set forth in its disciplinary petition the specific rule violated and description of the

acts and conduct that gave rise to the claim of professional misconduct).

The Commission’s pleadings and exhibits provide clear and specific evidence of a

prima facie case of its professional-misconduct claim against Rosales. In its petition, the

Commission asserted, and Rosales does not dispute, that Rosales is an attorney licensed to practice

law in Texas. The Commission also alleged that the ADA/website demand letters that Rosales

sent out to seven medical providers violate the Texas Disciplinary Rules of Professional Conduct

as follows:

• Rule 8.04(a)(3) prohibits a lawyer from “engag[ing] in conduct involving dishonesty, fraud,
deceit, or misrepresentation.” Tex. Disciplinary Rules Prof’l Conduct R. 8.04(a)(3). The
Commission pleaded that Rosales’s letters violate this provision by (1) stating categorically
that the ADA applies to websites and that the ADA requires compliance with the WCAG
guidelines when in actuality there is a split in authority as to whether the ADA applies to
websites; (2) referring to the WCAG guidelines as rules that the recipient’s website has failed
to comply with when in actuality the WCAG are guidelines, not laws; and (3) suggesting that
the WCAG establish a policing agency for the ADA and ADA compliance when in actuality
the WCAG are suggested guidelines maintained by a non-governmental entity. The
Commission also pleaded that Rosales’s use of the trade name “Center for Veterans Access”
in a letter is deceptive because it suggests some relationship to the U.S. Department of
Veterans Affairs.

• Rule 7.01(a) prohibits a lawyer from “practic[ing] under a trade name” or under “a name that
is misleading as to the identity of the lawyer or lawyers practicing under such name.” Id.
7.01(a). The Commission pleaded that Rosales’s letter to complainant Patients Emergency
Room violates this provision because it was sent by Rosales under the trade name “Center
for Veterans Access.” The Commission also pleaded that Rosales’s use of the trade name
“Center for Veterans Access” is misleading because it suggests some relationship to the U.S.
Department of Veterans Affairs.

• Rule 8.04(a)(5) prohibits a lawyer from “stat[ing] or imply[ing] an ability to influence
improperly a government agency or official.” Id. 8.04(a)(5). The Commission pleaded that
Rosales’s letters violate this provision in that the letters threaten to involve DHHS in further

16
 civil litigation and have federal funds removed from the recipients’ businesses based on the
alleged failure to comply with non-governmental guidelines.

• Rule 4.04(b)(1) prohibits an attorney from threatening “criminal or disciplinary charges
solely to gain an advantage in a civil matter.” Id. 4.04(b)(1). The Commission pleaded that
Rosales’s letters violate this provision because the letters threaten to inform DHHS of any
noncompliance in order to have the recipients’ funding removed if the recipients fail to
negotiate a settlement with Rosales. The Commission argues that because DHHS can
impose disciplinary sanctions against noncompliant entities servicing patients receiving
Medicare benefits, Rosales’s letter violates the prohibition against threatening disciplinary
action.

• Rule 3.01 prohibits an attorney from asserting frivolous claims. See id. 3.01. The
Commission asserted that Rosales’s letters violate this provision because Rosales lacks
standing to bring a claim under the ADA. In support, the Commission cites to a federal
district court order dismissing Rosales’s complaint on the grounds that Rosales lacked
standing to bring ADA claims because Rosales did not demonstrate “if and how his
disabilities prevented him from using [a business]’s website.” Rosales v. Concentra
Operating Corp., No. 5:16-CV-01070 (W.D. Tex. Feb. 13, 2017).

Rosales does not dispute that he sent the letters described by the Commission. In fact, he included

one of the letters as an exhibit to his pleadings in the district court. Likewise, Rosales acknowledges

in his pleadings that he was aware of the fact that the extent of ADA applicability to websites is, as

yet, unsettled.

Given the existence of the letter in the record, with its related demonstrable facts, and

the Commission’s detailed pleadings regarding the basis of its claims, we hold that the Commission

carried its burden under the TCPA to establish by clear and specific evidence a prima facie case that

Rosales engaged in professional misconduct by violating the Texas Disciplinary Rules of

Professional Conduct. Accordingly, we sustain the Commission’s second issue. Having done so,

we need not address its remaining issues regarding the opportunity to conduct additional discovery

and the imposition of attorney fees.

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Defense to Commission’s professional-misconduct claim

Once a TCPA nonmovant establishes a prima facie case for its claim, the movant may

still obtain a dismissal of the nonmovant’s legal action under the TCPA if the movant “establishes

by a preponderance of the evidence each essential element of a valid defense to the nonmovant’s

claim.” Tex. Civ. Prac. & Rem. Code § 27.005(d).3 On appeal, Rosales contends that he established

such a defense and, as a result, the district court did not err in dismissing the Commission’s action.

We disagree.

As noted, the Commission sued Rosales for professional misconduct, which requires

showing that Rosales (1) is an attorney licensed to practice law in the state of Texas who (2) engaged

in acts and conduct that violate the Texas Disciplinary Rules of Professional Conduct. See Tex.

Rules of Disciplinary P. R. 3.01 (requiring Commission to set forth in its disciplinary petition the

specific rule violated and description of the acts and conduct that gave rise to the claim of

professional misconduct). Rosales admits that he is an attorney licensed to practice law in the state

of Texas, and the Commission, as described in detail above, alleged that Rosales’s demand letter

violated rules 3.01, 4.04(b)(1), 7.01, 8.04(a)(3), 8.04(a)(5). Thus, for Rosales to be entitled to

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A preponderance of the evidence is that quantum of evidence allowing a determination that
is more likely true than not. See In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding)
(noting that “preponderance-of-the-evidence standard . . . is a fact-finder’s determination that
the plaintiff’s version of the events is more likely than not true”); see also Murff v. Pass,
249 S.W.3d 407, 411 n.1 (Tex. 2008) (noting that standard requires “the greater weight of the
credible evidence”).

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dismissal of the Commission’s professional-misconduct claim against him, he must establish by a

preponderance of the evidence that he did not violate the Texas Disciplinary Rules of

Professional Misconduct.

Rosales did not establish by a preponderance of the evidence that his demand letter

does not violate rule 8.04(a)(3)’s prohibition against “engag[ing] in conduct involving dishonesty,

fraud, deceit, or misrepresentation.” According to the Commission’s pleadings, Rosales’s letter

violated this rule by (1) stating categorically that the ADA applies to websites and that the ADA

requires compliance with the WCAG guidelines when in actuality there is, at best, a split in authority

as to whether or how the ADA applies to websites; (2) referring to the WCAG guidelines as rules

that the recipient’s website has failed to comply with when in actuality the WCAG are guidelines

established in the private sector, not rules promulgated under the ADA; and (3) suggesting that the

WCAG guidelines constitute a policing agency for the ADA and ADA compliance when in actuality

the WCAG guidelines are a set of suggested guidelines maintained by a non-governmental entity.

The Commission also pleaded that Rosales’s use of the trade name “Center for Veterans Access” in

a letter is deceptive in violation of this rule because it suggests some relationship to the U.S.

Department of Veterans Affairs.

On appeal, Rosales contends that the statement in his affidavit that he “did not lie,

commit fraud, act deceitfully or assert any misrepresentation of law fact in connection with the

Website Demand Letters” established a defense to the Commission’s allegations that he violated rule

8.04(a)(5). But this sort of statement does not establish a defense to the Commission’s allegation

here because it is self-serving and conclusory—meaning that it is not even sufficient to raise a fact

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issue, much less sufficient to establish the matter by a preponderance of the evidence. See In re

Lipsky, 460 S.W.3d at 592 (“Bare, baseless opinions do not create fact questions, and neither are they

a sufficient substitute for the clear and specific evidence required to establish a prima facie case

under the TCPA.”); see also, e.g., Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)

(“Conclusory affidavits are not enough to raise fact issues.”). Further, despite stating in his affidavit

that he “believe[s] that websites” must comply with the ADA and that the WCAG guidelines are

applicable standards, Rosales’s demand letters state those beliefs as facts. And regardless of whether

Rosales “believes” that the ADA applies and that the WCAG guidelines establish ADA standards,

the question of whether the ADA applies to websites is, as Rosales admits in his briefing to this

Court, an unsettled issue that courts across the country disagree on. To that extent, his statement that

“the Americans with Disabilities Act applies to websites” is, at best, a misrepresentation and, at

worst, dishonest and deceitful. See Tex. Disciplinary Rules of Prof’l Conduct R. 8.04(a)(3).

Likewise, regardless of whether Rosales “believes” that the WCAG guidelines are applicable ADA

standards, the bottom line is that those guidelines are private-industry standards with no official

status relating to the ADA. See Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 907–08 (9th Cir.

2019) (acknowledging that WCAG guidelines are not official and compulsory); Letter from the U.S.

Department of Justice, Stephen E. Boyd, Assistant Attorney General, to the Honorable Ted Budd,

U.S. House of Representatives, (Sept. 25, 2018) (acknowledging that DOJ has not yet adopted

specific regulations for ADA website compliance and explaining that “noncompliance with [WCAG

guidelines] does not necessarily indicate noncompliance with the ADA”). To that extent, Rosales’s

statement in the letter that “Under Federal law, your website must comply with the new requirements

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of the ADA and WCAG” is, at best, a misrepresentation and, at worst, deceitful. Accordingly,

Rosales failed to establish by a preponderance of the evidence that he did not violate Rule 8.04(a)(3).

And because he did not do so, he cannot have established by a preponderance of the evidence a

defense to the Commission’s claim that he engaged in professional misconduct.

Conclusion

Based on our determination that the TCPA applies to the Commission’s disciplinary

proceeding against Rosales, that the Commission met its TCPA burden of establishing by clear and

specific evidence a prima facie case for each essential element of its professional-misconduct claim

against Rosales, and that Rosales did not establish by a preponderance of the evidence each essential

element of a valid defense to the Commission’s claim, we reverse the district court’s order

dismissing the Commission’s action, including the order’s imposition of attorney fees, and remand

for further proceedings.

__________________________________________
Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Kelly and Smith
Concurring opinion by Justice Kelly

Reversed and Remanded

Filed: April 3, 2019

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