TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00769-CV
Matthew S. Bovee, Appellant
v.
Heinz North America Div. of J.H. Heinz Co., L.P.; CBS News, Inc.; Michael Kasper
Heinz; Michael Charles Heinz; Michelle Heinz; and Jerika Duncan, Appellees
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-19-003301, THE HONORABLE DON R. BURGESS, JUDGE PRESIDING
MEMORANDUM OPINION
Matthew Bovee, as a pro se inmate, filed this interlocutory appeal of the district
court’s orders denying his motion to dismiss under the Texas Citizens Participation Act
(“TCPA”).1 See former Tex. Civ. Prac. & Rem. Code §§ 27.005(b), 51.014(a)(12). Making
unconventional use of the TCPA, Bovee’s motion sought dismissal of answers that the
defendants had not yet filed in Bovee’s suit against them concerning the reporting of his felony
offense against a child. On appeal, Bovee contends that the district court erred by denying his
1
The Legislature amended the Texas Citizens Participation Act in 2019, but those
changes do not apply here because Bovee filed suit before the effective date of the amendments.
See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 11, 12, 2019 Tex. Gen. Laws 684, 687
(specifying that TCPA amendments apply only to action filed on or after September 1, 2019);
Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 129 (Tex. 2019) (noting
that prior version of TCPA controls cases filed before September 1, 2019); see generally Tex.
Civ. Prac. & Rem. Code §§ 27.001-.011 (TCPA). This opinion cites the pre-amendment TCPA.
motion and by overruling his objections to certain exhibits. We will affirm the district court’s
orders.
BACKGROUND
Bovee files suit after CBS News report about his felony offense against child
The record reflects that while incarcerated2 on June 10, 2019, Bovee filed a pro se
lawsuit against his victim’s family members including Michael Kasper Heinz (M.K.H.); Heinz
North America limited partnership; and two media defendants, CBS News Inc. and its reporter
Jericka Duncan (collectively, CBS News), primarily asserting defamation-based claims for the
reporting of his crime.3 The CBS News report published December 10, 2018, was titled
“Hundreds of Sexual Abuse Cases Reported at Children’s Camps Across the U.S.” It discussed
the number of child-sexual-abuse cases reported at summer camps, noted that many cases may
go unreported, and identified possible reasons for the high number of cases, including the lack of
uniform regulations or background checks and the false sense of security many children may
have at summer camps. Further, the report provided resources for parents to obtain more
information about camps before deciding where to send their children.
In its discussion of past incidents of sexual abuse at camps, the report discussed
the case of one child victim, who was not identified by name, and his July 2009 experience at
Camp La Junta, an all-boys summer camp in Hunt, Texas, where Bovee was then a camp
counselor. On February 6, 2019, CBS received a letter from Bovee requesting retraction of the
2
Bovee was indicted by a grand jury for aggravated assault of a child and indecency
with a child, pleaded guilty in 2011 to the lesser-included offense of injury to a child, violated
probation for his conviction, and was sentenced to nine years’ imprisonment.
3
Bovee sued multiple parties in the underlying suit, but only Michael Kasper Heinz and
the two media defendants appeared.
2
report. CBS News sent a response letter to Bovee by overnight mail on February 28, 2019,
declining his request.4 The letter defended the news report’s accuracy and noted that Bovee
“admitted in [his] guilty plea that in 2009, while serving as a camp counselor, [he] injured an 11-
year-old boy by ‘penetrating [his] anus.’” The letter advised Bovee that because the reporting
about him was “demonstrably true,” a defamation claim as to the report would be “baseless” and
subject to dismissal and sanctions under the TCPA on CBS’s motion. See, e.g., Adams v.
Starside Custom Builders, L.LC., 547 S.W.3d 890, 896 (Tex. 2018) (noting that alleged
defamatory statements, including allegations of criminality, met TCPA definition of “matter of
public concern” to well-being of community). Over three months later, Bovee filed the
underlying suit.5
Bovee files motion to dismiss presumed “retaliatory answers”
On August 19, 2019, before any defendant had filed an answer to Bovee’s suit,
Bovee filed a motion to dismiss what he asserted would be “retaliatory answers.” Bovee’s
motion to dismiss presupposed that the defendants’ then-unfiled answers to his suit would be
“pleadings specifically requesting sanctions, monetary damages, fees, costs, interest, and the
dismissal of his declaratory judgement [sic]” and contended that those unfiled answers would be
“counter-pleadings” constituting “legal actions amenable to dismissal under the TCPA.”
On August 23, 2019, CBS News filed its answer. CBS News’ answer did not
include counterclaims or cross-claims but consisted of a general denial; special exceptions;
4
Bovee attached a copy of this letter as an exhibit to his motion to dismiss.
5
While incarcerated, Bovee also sued a parent of his victim and other media defendants
in connection with separate news reporting of the Camp La Junta incident that led to Bovee’s
felony conviction. See Bovee v. Houston Press, L.P., No. 14-17-00008-CV, 2019 Tex. App.
LEXIS 5013, at *1-2 (Tex. App.—Houston [14th Dist.] June 18, 2019, no pet.) (mem. op.).
3
“mitigating factors”; and affirmative defenses, including an assertion of TCPA protection for its
reporting of “true facts reported” on “a matter of legitimate public concern.” The following
month, CBS News filed its own TCPA motion to dismiss Bovee’s claims.
On September 20, 2019, M.K.H. filed his answer. M.K.H.’s answer did not
include counterclaims or cross-claims but consisted of a motion to transfer venue, a general
denial, special exceptions, and affirmative defenses. Among the affirmative defenses were
allegations that the claims in Bovee’s signed petition were frivolous as defined in chapters 9, 10,
and 14 of the Civil Practice and Remedies Code, which address signing of frivolous pleadings,
sanctions for filing frivolous pleadings, and frivolous inmate litigation. M.K.H. pled for
remedies under those frivolous-pleading statutes, the Uniform Declaratory Judgments Act, and
the TCPA. The following month, M.K.H. filed his own TCPA motion to dismiss Bovee’s claims
and motion to dismiss Bovee’s claims as “frivolous or malicious” inmate litigation.
The district court heard Bovee’s and CBS News’ TCPA motions to dismiss on
October 16, 2019, and Bovee participated in the proceeding by telephone from prison. During
the hearing, Bovee stated that his TCPA motion sought dismissal of CBS News’ and M.K.H.’s
answers:
Traditionally, the TCPA motion is used by defendants; however, the definition of
[the] TCPA in the [A]ct itself, permit[s] dismissal of affirmative pleadings,
including answers. It is my contention that their original answer[s] sought
affirmative defenses, including if the Court will notice in the prayer, it specifically
ask[s] for dismissal of all the plaintiff’s claims, as well as attorney’s fees.
CBS News challenged the use of the TCPA to dismiss CBS News’ subsequently filed answer:
It is an answer that we are required to file under the Texas Rules of Civil
Procedure or risk default. Despite what Mr. Bovee said, there actually is no case
4
law and no authority for the proposition that you can file [an] Anti-SLAPP motion
in response to an answer. . . . [W]hat he calls . . . retaliatory pleadings, it’s an
answer we filed in response to his lawsuit seeking to prevent my client from
speaking out on a matter of public concern.
...
[I]f Mr. Bovee’s interpretation was allowed to stand, it would mean that every
time a defendant was sued, they would have to think about whether they wanted
to risk default by not answering, or file an answer and risk having a TCPA motion
filed against them.
Similarly, M.K.H. challenged Bovee’s use of the TCPA to dismiss M.K.H.’s subsequently filed
answer:
The Court has correctly noted that Mr. Bovee’s motion to dismiss pleadings of my
client was filed a month before my client ever filed an answer. . . . Mr. Bovee has
sought to preempt what he expected my clients would do in this case after being
sued by [him,] the individual who pled guilty to harming their child at summer
camp. And he expected that we would file some sort of what [h]e calls retaliatory
pleadings. So I think the motion to dismiss on its face is improper because at the
time it was filed, there was absolutely no legal action, as that term is defined
under the TCPA, to which the motion to dismiss could be directed.
The district court ruled on the parties’ objections to evidence,6 took CBS News’
motion to dismiss under advisement,7 and orally denied Bovee’s motion to dismiss. The next
day, the district court signed an order denying Bovee’s motion to dismiss as to CBS News and a
separate order denying Bovee’s motion as to M.K.H. This appeal followed.
6
Only CBS News and Bovee presented evidentiary objections to the district court.
M.K.H. attached no exhibits to his answer or his response to Bovee’s TCPA motion.
7
The district court later signed an order granting CBS News’ motion to dismiss.
Determination of the final award of fees, court costs, expenses, and sanctions to CBS is stayed
pending resolution of this interlocutory appeal. See former Tex. Civ. Prac. & Rem. Code
§§ 27.009 (providing for award of attorney’s fees, court costs, expenses, and sanctions to moving
party if legal action is dismissed under TCPA), 51.014(a)(12), (b) (addressing automatic stay).
5
DISCUSSION
First issue: Denial of Bovee’s TCPA motion to dismiss
Bovee’s first issue challenges the district court’s denial of his TCPA motion to
dismiss as to CBS News and M.K.H. As we have noted, Bovee’s motion to dismiss complained
about answers that CBS News and M.K.H. had not yet filed in Bovee’s suit against them. Bovee
presumed that CBS News and M.K.H. would file “retaliatory answers” and “counter-pleadings”
that would be “legal actions amenable to dismissal under the TCPA.”
The Legislature enacted 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.” In re Panchakarla, 602 S.W.3d
536, 538 (Tex. 2020) (orig. proceeding) (quoting Tex. Civ. Prac. & Rem. Code § 27.002,
unchanged in 2019 amendments to TCPA). To achieve this balance, the TCPA authorizes
“expedited consideration of any suit that appears to stifle the [movant]’s communication on a
matter of public concern.” Id. (quoting In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig.
proceeding)). This is accomplished through a motion-to-dismiss procedure, providing that “[i]f a
legal 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, that party may file a motion to dismiss the legal
action.” Former Tex. Civ. Prac. & Rem. Code § 27.003; Levatino v. Apple Tree Café Touring,
Inc., 486 S.W.3d 724, 727 (Tex. App.—Dallas 2016, pet. denied).
Determining a TCPA motion to dismiss involves a “three-step decisional
process.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 132 (Tex.
2019). Initially, the movant seeking dismissal must demonstrate by a preponderance of the
6
evidence that the legal action sought to be dismissed is based on, relates to, or is in response to
the movant’s exercise of the right of free speech, the right to petition, or the right of association.
Former Tex. Civ. Prac. & Rem. Code § 27.005(b); Lona Hills Ranch, 591 S.W.3d at 132;
Levatino, 486 S.W.3d at 727; see also Cavin v. Abbott, No. 03-19-00168-CV, 2020 Tex. App.
LEXIS 4786, at *4 (Tex. App.—Austin June 26, 2020, no pet. h.) (“In analyzing the TCPA’s
applicability, courts first determine whether the party moving for dismissal has shown by a
preponderance of the evidence that the TCPA applies to the legal action against it.”). If the
movant does not meet this initial burden, the motion to dismiss fails. Duncan v. Acius Grp., LP,
No. 05-18-01432-CV, 2019 Tex. App. LEXIS 8319, at *4 (Tex. App.—Dallas Sept. 13, 2019, no
pet.) (mem. op.) (citing former Tex. Civ. Prac. & Rem. Code § 27.005(b)).
But if the movant meets this initial burden, the nonmovant must then establish “by
clear and specific evidence a prima facie case for each essential element of the claim in
question.” Former Tex. Civ. Prac. & Rem. Code § 27.005(c); Lona Hills Ranch, 591 S.W.3d at
132. If the nonmovant meets that burden, then the burden shifts back to the movant to establish
“by a preponderance of the evidence each essential element of a valid defense to the
nonmovant’s claim.” Former Tex. Civ. Prac. & Rem. Code § 27.005(d); Lona Hills Ranch, 591
S.W.3d at 132. If the trial court orders dismissal, it shall award reasonable attorney’s fees and
other costs and expenses, as well as sanctions, to the movant. Former Tex. Civ. Prac. & Rem.
Code § 27.009(a); Lona Hills Ranch, 591 S.W.3d at 132. Additionally, the trial court may award
costs and fees to the nonmovant if it finds that the motion to dismiss was frivolous or solely
intended for delay. Former Tex. Civ. Prac. & Rem. Code § 27.009(b); Lona Hills Ranch, 591
S.W.3d at 132. “In determining whether a legal action should be dismissed . . . , the court shall
7
consider the pleadings and supporting and opposing affidavits stating the facts on which the
liability or defense is based.” Former Tex. Civ. Prac. & Rem. Code § 27.006(a).
The question here is whether Bovee met his initial burden of showing that the
statutory definition of “legal action” encompasses an unfiled answer to his lawsuit. See id.
§ 27.005(b). Whether parties met their respective TCPA burdens is a question of law that we
review de novo. See Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019).
Further, the text of the TCPA dictates the outcome of this case, and we consider such statutory
construction issues de novo. See Lona Hills Ranch, 591 S.W.3d at 132.
1. What was the “legal action” brought against Bovee?
As an initial matter, we note that Bovee presents alternative contentions about
what “legal action” was brought against him by the defendants. On one hand, Bovee contends
that after he filed his suit, CBS News and M.K.H. filed “retaliatory answers.” He says that those
answers sought dismissal of his causes of action and that they were “retaliatory pleadings” filed
“[i]n response to Bovee’s exercise of the rights to petition and free speech.” On the other hand,
Bovee contends that the legal action against him preceded the filing of his suit—specifically,
CBS’s response letter to his request for retraction and M.K.H.’s threat to sue him “prior to any
legal papers being filed in this controversy.”
Regarding the latter contention, even if we were to conclude that the February 28,
2019 response letter that CBS overnighted to Bovee could constitute a “legal action” against him
under the TCPA, the record reflects that Bovee’s motion to dismiss that alleged legal action
would have been untimely. Bovee filed his motion to dismiss on August 19, 2019, more than
sixty days after service of the CBS response letter. See former Tex. Civ. Prac. & Rem. Code
8
§ 27.003(b) (requiring filing of TCPA “motion to dismiss a legal action . . . not later than the
60th day after the date of service of the legal action”). Similarly, even if we were to conclude
that M.K.H.’s alleged threat to file suit constituted a “legal action” against Bovee under the
TCPA, there is nothing in the record indicating that it occurred on a date that was within sixty
days of Bovee’s filing his motion to dismiss so that the motion would have been timely. See id.
As the TCPA movant, Bovee had the burden of showing that his motion to
dismiss was timely filed. See Chandni I, Inc. v. Patel, 601 S.W.3d 13, 23 (Tex. App.—El Paso
2019, pet. denied) (concluding that TCPA movants failed to meet their burden of showing that
their TCPA motion to dismiss was timely filed). On this record, Bovee did not make that
showing as to either of the pre-suit “legal actions” he identified, and the district court would not
have erred by denying his motion to dismiss on that basis. See Paulsen v. Yarrell, 455 S.W.3d
192, 198 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“A trial court does not err by denying
an untimely filed motion to dismiss under the TCPA.”); In re Estate of Check, 438 S.W.3d 829,
837 (Tex. App.—San Antonio 2014, no pet.) (concluding that untimeliness of movant’s TCPA
motion to dismiss “provid[ed] a basis for the trial court’s refusal to grant the motion”). We next
consider Bovee’s alternative contention that the answers CBS News and M.K.H. filed in his suit
against them constituted “legal actions” under the TCPA.
2. No “legal action” against Bovee existed when he filed TCPA motion to dismiss
As the TCPA movant, Bovee also bore the initial burden of demonstrating, by a
preponderance of the evidence, that CBS News and M.K.H. brought “legal actions” “based on,
related to, or in response to” Bovee’s exercise of his right of free speech, right of association, or
right to petition as defined in the TCPA. See former Tex. Civ. Prac. & Rem. Code § 27.005(b);
9
Sloat v. Rathbun, 513 S.W.3d 500, 503 (Tex. App.—Austin 2015, no pet.). “Legal action”—as
defined in the applicable pre-amendment version of the TCPA—means “a lawsuit, cause of
action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing
that requests legal, declaratory, or equitable relief.” Former Tex. Civ. Prac. & Rem. Code
§ 27.001(6); Cavin, 2020 Tex. App. LEXIS 4786, at *3-4. Some legal action must have been
brought against the movant before the TCPA’s dismissal procedure may be employed. Youngkin
v. Hines, 546 S.W.3d 675, 680 (Tex. 2018) (“A party may invoke the TCPA dismissal procedure
if that party shows by a preponderance of the evidence that the legal action against it ‘is based
on, relates to, or is in response to’ the party’s exercise of the right to speak, petition, or
associate.”); Damonte v. Hallmark Fin. Servs., No. 05-18-00874-CV, 2019 Tex. App. LEXIS
5954, at *12 (Tex. App.—Dallas July 12, 2019, no pet.) (mem. op.) (noting that TCPA
protection is triggered by “legal action brought against the movant”); Laura Lee Prather &
Robert T. Sherwin, The Changing Landscape of the Texas Citizens Participation Act, 52 Tex.
Tech L. Rev. 163, 166 (2020) (noting that TCPA provides protection to parties from meritless
claims “brought against them” for exercising their constitutional rights).
Here, Bovee contends that CBS News and M.K.H. filed “retaliatory answers”
against him “in response to [his] exercise of the rights to petition and free speech.” However,
when Bovee filed his TCPA motion to dismiss on August 19, 2019, no such “retaliatory
answer[]” was on file. The only pleadings filed at the time were Bovee’s original petition and
his unsworn declaration of his indigent status as an inmate. Bovee’s motion to dismiss was filed
four days before the filing of CBS News’ answer and thirty-two days before the filing of
10
M.K.H.’s answer. Thus, the record reflects that Bovee’s motion to dismiss was filed in response
to nothing. His motion relied entirely on what he assumed the defendants’ answers would say.8
To support his interpretation of the TCPA, Bovee incorrectly contends that in In
re Elliott, 504 S.W.3d 455, 461 (Tex. App.—Austin 2016, orig. proceeding), we interpreted
“legal action” as “encompassing ‘any . . . judicial pleading or filing that requests legal or
equitable relief,’” and he states that we have “even applied the term to a pre-suit deposition”
under Texas Rule of Civil Procedure 202. Bovee’s excerpt is incomplete. The complete
quotation from that part of In re Elliott refers to the statutory definition of “legal action” which,
as we have noted, “means ‘a lawsuit, cause of action, petition, complaint, cross-claim, or
counterclaim or any other judicial pleading or filing that requests legal or equitable relief.’” Id.
(quoting Tex. Civ. Prac. & Rem. Code § 27.001(6)).
Additionally, as In re Elliott plainly stated, a pre-suit deposition falls within the
TCPA definition of “legal action”—which expressly includes a “petition”—because Rule 202
requires a petition to the trial court for an order authorizing the taking of that deposition. Id. at
464; see In re Krause Landscape Contractors, 595 S.W.3d 831, 836 (Tex. App.—Amarillo 2020,
orig. proceeding) (citing Elliott, 504 S.W.3d at 463, and noting that because Rule 202 requires
petition for court order allowing pre-suit deposition, “on its face, a Rule 202 petition falls within
the description of a ‘legal action’ covered by the TCPA”); see also State ex rel. Best v. Harper,
562 S.W.3d 1, 4 (Tex. 2019) (concluding that “removal petition” is legal action under TCPA).
Nothing in In re Elliott states that a “legal action” under the TCPA encompasses an unfiled
8
Those assumptions may have been based on defensive pleadings filed in prior litigation
Bovee brought against his victim’s parent and other media defendants in connection with
separate news reporting of the Camp La Junta incident. See Bovee, 2019 Tex. App. LEXIS
5013, at *1-2.
11
answer. Cf. In re Elliott, 504 S.W.3d at 477 (Pemberton, J., concurring) (stating that “court
filings could be attacked through TCPA dismissal motions” (emphasis added)). In fact, under
Bovee’s interpretation, a TCPA dismissal motion would itself constitute a “legal action,” but the
Texas Supreme Court has noted that a “TCPA dismissal motion is not itself a TCPA ‘legal
action.’” Harper, 562 S.W.3d at 8 (citing Paulsen v. Yarrell, 537 S.W.3d 224, 233 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied)). In sum, Bovee cites no authority, and we have found
none, for the proposition that not-yet-filed answers from CBS News and M.K.H. could constitute
“legal actions” to which the TCPA applies.
Preemptive use of TCPA to dismiss unfiled answers leads to absurd results
Moreover, in construing the TCPA’s provisions, we must adhere to “the plain
meaning of the text unless a different meaning is supplied by statutory definition, is apparent
from the context, or the plain meaning would lead to an absurd or nonsensical result.” Lona
Hills Ranch, 591 S.W.3d at 133 (quoting Beeman v. Livingston, 468 S.W.3d 534, 538 (Tex.
2015)); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345,
353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Concluding that an anticipated answer
to a lawsuit that the movant himself has filed could be a “legal action” subject to dismissal under
the TCPA would lead to absurd results the Legislature could not have intended. See, e.g., Miller
Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 193-94 (Tex. App.—El Paso 2014, no pet.)
(rejecting TCPA movant’s contention that amended petition is “legal action” because that
interpretation would lead to absurd result of “creat[ing] a perpetual opportunity” for filing TCPA
dismissal motions that Legislature did not intend); Check, 438 S.W.3d at 836-37 (rejecting
TCPA movant’s contention that amended counterclaim was “legal action” and concluding that
12
such interpretation would lead to absurd results by continually resetting deadline for filing of
TCPA dismissal motions each time party amended its petition or counterclaim, even if that
amended pleading did not add new claims or parties). Under Bovee’s interpretation of the
TCPA, defendants must choose between the perils of: (1) filing an answer—even a general
denial—after being sued and potentially having a TCPA dismissal motion filed against them, or
(2) failing to answer or plead any matters necessary to avoid waiver or default under the Texas
Rules of Civil Procedure. See, e.g., Tex. R. Civ. P. 86 (addressing filing of motion to transfer
venue), 90 (addressing exceptions to defects in pleading), 91 (addressing special exceptions), 92
(addressing general denial), 93 (addressing verified pleas), 94 (addressing affirmative defenses),
99(b) (addressing defendant’s deadline to file written answer to plaintiff’s petition), 239
(addressing default judgments); see also id. R. 84 (“The defendant in his answer may plead as
many several matters, whether of law or fact, as he may think necessary for his defense, and
which may be pertinent to the cause, and such matters shall be heard in such order as may be
directed by the court, special appearance and motion to transfer venue, and the practice
thereunder being excepted herefrom.”). That nonsensical interpretation runs contrary to the
Texas Supreme Court’s admonition that “[w]e should not penalize parties or their attorneys for
acting out of an abundance of caution and protecting their interests by filing an answer.”
Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 394 (Tex. 2014); see Lalonde v.
Gosnell, 593 S.W.3d 212, 235 (Tex. 2019) (Boyd, J., dissenting) (noting that “pleading for relief
is not the same as asking the trial court to enter relief based on those pleadings”).
Nothing in the text of the TCPA indicates a legislative intention to preemptively
override the requirements and protections of an answer as set forth in the rules of civil procedure.
Rather, the TCPA specifies that “[t]his chapter does not abrogate or lessen any other defense,
13
remedy, immunity, or privilege available under other constitutional, statutory, case, or common
law or rule provisions.” Former Tex. Civ. Prac. & Rem. Code § 27.011(a). We have rejected
other novel attempts to use the TCPA, including seeking dismissal of the movant’s own
administrative appeal in district court and the filing of an appellate-level TCPA motion to
dismiss a pending appeal. See Sullivan v. Texas Ethics Comm’n, 551 S.W.3d 848, 850 (Tex.
App.—Austin 2018, pet. denied) (rejecting contention that movant could use TCPA to dismiss
his own administrative appeal); Amini v. Spicewood Springs Animal Hosp., 550 S.W.3d 843,
843-44 (Tex. App.—Austin 2018, no pet.) (rejecting contention that TCPA definition of “legal
action” authorized appellate-level motion to dismiss appeal and characterizing such motion as
presenting “jurisprudential novelty beyond the norm”); see also Prather & Sherwin, The
Changing Landscape of the Texas Citizens Participation Act, 52 Tex. Tech L. Rev. at 169-70
(noting that Legislature recently amended TCPA definition of “legal action” to prevent
“gamesmanship” by those who “were using the law as a sword in litigation rather than for its
intended purpose”). Bovee points to no authority, and we have found none, supporting the
proposition that a defendant’s unfiled answer to a suit that a TCPA movant has filed is a “legal
action” that may be preemptively dismissed. Dismissal using that interpretation of “legal action”
would ultimately relieve Bovee of the burden to prove that his claim has merit and shift the
burden to CBS News and M.K.H. to show that Bovee’s claims against them lacked merit. See
Paulsen, 537 S.W.3d at 234 (noting that “Paulsen’s proposed interpretation of ‘legal action’
could allow a plaintiff to defeat a motion to dismiss under the TCPA while avoiding the
requirement to show that his claim has merit by establishing a prima facie case for each essential
element of his claim” (citing former Tex. Civ. Prac. & Rem. Code § 27.005)). We are
unpersuaded by Bovee’s interpretation of “legal action” under the TCPA.
14
We conclude from this record that there was no “legal action” to which Bovee’s
TCPA motion to dismiss applied or responded. Cf. former Tex. Civ. Prac. & Rem. Code
§ 27.005(b); Rathbun, 513 S.W.3d 503. Because Bovee has not met his initial burden of
showing the applicability of the TCPA in this context, his motion to dismiss as to CBS News and
M.K.H. fails as a matter of law. See former Tex. Civ. Prac. & Rem. Code § 27.005(b); Levatino,
486 S.W.3d at 729 (concluding that TCPA movant failed to carry threshold burden of showing
that pre-suit demand letters were “legal action” against him under TCPA and affirming denial of
his motion to dismiss); see also Duncan, 2019 Tex. App. LEXIS 8319, at *4 (noting that if
TCPA movant fails to carry its burden under section 27.005(b), “the motion fails”).
Accordingly, we overrule Bovee’s first issue contending that the district court erred by denying
his TCPA motion to dismiss.
Second issue: Bovee’s objections to CBS News’ exhibits
Bovee’s second issue contends that the district court erred by overruling his
objections to three exhibits attached to CBS News’ Answer: (1) the May 10, 2011 Information in
Kerr County Cause No. B11-270 charging Bovee with “intentionally or knowingly caus[ing]
bodily injury to JOHNNY DOE, a child 14 years of age or younger, by penetrating the anus of
JOHNNY DOE”; (2) the “Second Amended Motion to Revoke Probation” filed in that same
cause; and (3) the “Sex Offender Conditions” that Bovee signed in that case. Bovee
acknowledges that his complaints “would be moot” if our determination of his first issue does
not consider these exhibits.9 We have not done so, and thus, we need not address Bovee’s
9
CBS News agrees that we need not reach Bovee’s second issue because the district
court’s evidentiary rulings “have no relevance to whether Bovee met his initial burden to
15
second issue. See Tex. R. App. P. 47.1 (requiring issuance of opinion that is brief as possible but
addresses every issue raised and necessary to final disposition of appeal).
CONCLUSION
Because Bovee failed to demonstrate that his TCPA motion was filed in response
to a “legal action,” we affirm both the district court’s October 17, 2019 orders denying Bovee’s
TCPA motion to dismiss. We lift the January 30, 2020 stay of trial-level proceedings that we
imposed pending our resolution of Bovee’s interlocutory appeal, see Bovee v. Heinz N. Am. Div.
of J.H. Heinz Co., L.P., No. 03-19-00769-CV, 2020 Tex. App. LEXIS 920, at *2 (Tex. App.—
Austin Jan. 30, 2020, order), and remand this cause for further proceedings consistent with this
opinion and section 27.009 of the Civil Practice and Remedies Code, see former Tex. Civ. Prac.
& Rem. Code § 27.009.
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Baker and Triana
Affirmed
Filed: September 30, 2020
demonstrate the TCPA applies to CBS News’ Answer and whether its Answer constitutes a
‘legal action’ under the TCPA.”
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