Elite Auto Body LLC, D/B/A Precision Auto Body Rey R. Hernandez Yesica Diaz And David Damian v. Autocraft Body Works, Inc., Now Known as Wasson Road Ventures, Inc. D/B/A Autocraft Bodywerks

ACCEPTED
03-15-00064-CV
4445641
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/10/2015 4:45:02 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-15-00064-CV

FILED IN
3rd COURT OF APPEALS
In the Court of Appeals AUSTIN, TEXAS
For the Third Court of Appeals District 3/10/2015 4:45:02 PM
Austin, Texas JEFFREY D. KYLE
Clerk

ELITE AUTO BODY LLC, d/b/a PRECISION AUTO BODY, REY R.
HERNANDEZ, YESICA DIAZ, AND DAVID DAMIAN,
Appellants,
v.
AUTOCRAFT BODYWERKS, INC., now known as WASSON ROAD
VENTURES, INC., d/b/a AUTOCRAFT BODYWERKS,
Appellee.

Expedited Appeal from the 353rd Judicial District Court,
Travis County, Texas, the Hon. Tim Sulak, Presiding

APPELLANTS’ BRIEF

Rick Harrison
Texas Bar No. 09120000
rharrison@fbhh.com
FRITZ, BYRNE, HEAD & HARRISON, PLLC
98 San Jacinto Boulevard, Suite 2000
Austin, Texas 78701
Telephone: (512) 476-2020
Telecopier: (512) 477-5267

COUNSEL FOR APPELLANTS

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure,

Appellant lists the following parties affected by this appeal, and their respective

counsel:

APPELLANTS APPELLEE

Elite Auto Body, LLC d/b/a Precision Autocraft Bodywerks, Inc., now known
Auto Body, Rey R. Hernandez, Yesica as Wasson Road Ventures, Inc., d/b/a
Diaz, and David Damian Autocraft Bodywerks

Trial and Appellate Counsel: Trial and Appellate Counsel:

Rick Harrison James Ruiz
Texas Bar No. 09120000 Texas Bar No. 17385860
rharrison@fbhh.com jruiz@winstead.com
S. King Jacylyn G. Austein
Texas Bar No. 24067708 Texas Bar No. 24069760
aking@fbhh.com Jaustein@winstead.com
Dale L. Roberts W INSTEAD, P.C.
Texas Bar No. 24001123 401 Congress Avenue, Suite 2100
droberts@fbhh.com Austin, Texas 78701
FRITZ, BYRNE, HEAD & HARRISON, Telephone: (512) 370-2818
PLLC Facsimile: (512) 370-2850
98 San Jacinto Blvd., Suite 2000
Austin, Texas 78701
Telephone: (512) 476-2020
Facsimile: (512) 477-5267

i
 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ......................................................... i
TABLE OF CONTENTS ....................................................................................... ii
I. STATEMENT OF THE CASE .........................................................................1
II. STATEMENT REGARDING ORAL ARGUMENT .................................2
III. ISSUES PRESENTED ...................................................................................2
IV. STATEMENT OF FACTS ............................................................................2
V. SUMMARY OF THE ARGUMENT ............................................................5
VI. ARGUMENT ..................................................................................................7
A. The TCPA Applies to Autocraft’s Claims Against the Precision
Parties ..............................................................................................................7
1. The scope of the TCPA and the rights it protects are broad ..................7
2. Autocraft’s claims are in response to, or relate to, the Precision
Parties’ exercise of their freedoms of association and free speech .......10
B. Because Autocraft wholly failed to meet its evidentiary burden, the
trial court was required to dismiss Autocraft’s claims. ............................12
1. Conclusory statements in affidavits do not constitute “clear and
specific evidence.” ......................................................................................12
2. Autocraft failed to submit prima facie case for each essential
element of its claims .................................................................................14
C. The Precision Parties are entitled to an award of their reasonable
attorneys’ fees and expenses ........................................................................16
D. The trial court erred by refusing to hear live testimony at the
hearing on Motion to Dismiss ......................................................................17
CONCLUSION AND PRAYER ...........................................................................18
CERTIFICATE OF SERVICE ............................................................................20
CERTIFICATE OF COMPLIANCE ..................................................................21

ii
 TABLE OF AUTHORITIES

CASES
Beck v. Law Offices of Edwin J. (“Ted”) Terry, Jr., P.C., 284 S.W.3d 416
(Tex. App.—Austin 2009, no pet.) .......................................................................14

Campbell v. Campbell, Cause No. 03-07-00672-CV, 2010 WL 2477782
(Tex. App.—Austin June 18, 2010, no pet.) .........................................................13

Combined Law Enforcement Assocs. of Texas v. Sheffield, Cause No. 03-13-
00105-CV, 2014 WL 411672 (Tex. App.—Austin, January 31, 2014, pet.
filed) ............................................................................................................. 8, 9, 10

Rehak Creative Svcs., Inc. v. Witt, 404 S.W.3d 716 (Tex. App. – Houston
[14th Dist.] 2013, pet. denied) .............................................................. 8, 12, 13, 14

Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App.—Houston [1st Dist.]
2014, pet. filed) .....................................................................................................13

Sprayberry v. Siesta MHC Income Partners, L.P., Cause No. 03-08-00649-
CV, 2010 WL 1404598 (Tex. App.—Austin April 8, 2010, no pet.) ...................13
STATUTES

TEX. CIV. PRAC. & REM. CODE § 27.001 ................................................................1, 6

TEX. CIV. PRAC. & REM. CODE § 27.001(2) ...............................................................9

TEX. CIV. PRAC. & REM. CODE § 27.001(3) ...............................................................9

TEX. CIV. PRAC. & REM. CODE § 27.001(7)(e) ...........................................................9

TEX. CIV. PRAC. & REM. CODE § 27.002 ................................................................5, 8

TEX. CIV. PRAC. & REM CODE § 27.003(a) ................................................................8

TEX. CIV. PRAC. & REM. CODE § 27.005(b) ...............................................................6

iii
TEX. CIV. PRAC. & REM. CODE § 27.005(c)..................................................... 6, 8, 12

TEX. CIV. PRAC. & REM. CODE § 27.006 ..................................................................18

TEX. CIV. PRAC. & REM. CODE § 27.009 ..................................................................16

TEX. CIV. PRAC. & REM. CODE § 27.011(b) ...............................................................9

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12) .........................................................1

TEX. CIV. PRAC & REM. CODE § 134A.002 ....................................................... 14, 16

TEX. CIV. PRAC. & REM. CODE § 134A.004 .............................................................14

iv
 I. STATEMENT OF THE CASE

In response to Appellants’ desire to pursue their common interest in

operating a competing business, Appellee filed suit against Appellants seeking

injunctive relief and damages. [CR 3-11] In particular, Appellee claims that

Appellants have misappropriated alleged trade secrets as Appellants engage in a

competitive business in the marketplace. These claims are a veiled attempt to

thwart Appellants’ exercise of association, both with regard to the internal

management of their business as well as with recruiting qualified labor to their

company. Appellants filed a Motion to Dismiss Pursuant to Chapter 27 of the

Texas Civil Practice and Remedies Code (the “Motion to Dismiss”), because

Appellee’s claims are in response to, or are at least related to, Appellants’ exercise

of their freedom of association and speech as defined in the Texas Citizens

Participation Act (“TCPA”). See TEX. CIV. PRAC. & REM. CODE § 27.001, et seq.

[CR 18-31] The trial court conducted a hearing on the Motion to Dismiss on

January 22, 2015, and entered an order denying the Motion to Dismiss on January

23, 2015. [CR 49] Appellants filed this expedited appeal pursuant to TEX. CIV.

PRAC. & REM. CODE § 51.014(a)(12) on January 28, 2015. [CR 50-51]

APPELLANTS’ BRIEF PAGE 1
 II. STATEMENT REGARDING ORAL ARGUMENT

This appeal arises from a relatively new statute that has been a matter of

significant debate among the appellate courts as to its scope and application. The

trial court’s decision regarding the scope of the statute’s coverage conflicts with

decisions made by this Court. Accordingly, Appellants believe that oral argument

would likely be helpful in this matter and therefore respectfully requests that oral

argument be granted.

III. ISSUES PRESENTED

1. Did the trial court commit reversible error when it denied the Motion to
Dismiss on the grounds that the TCPA did not apply to Appellee’s claims despite
evidence showing that such claims were in response to, or related to, Appellants’
exercise of their rights of free association?

2. In the absence of clear and specific evidence establishing a prima facie case
for each element of Appellee’s claims, was it error for the trial court to deny the
Motion to Dismiss and refuse to award the Precision Parties’ their attorneys’ fees
and expenses?

3. Was the trial court correct to refuse live testimony at the hearing for the
Motion to Dismiss where the statute does not preclude such evidence?

IV. STATEMENT OF FACTS

Appellee, Autocraft Bodywerks (“Autocraft”), is an automobile body repair

business in Austin. [CR 4] Until recently, John Borek was Autocraft’s owner and

general manager. Borek Affidavit, ¶ 1 [CR 41] By multiple accounts, Borek was

APPELLANTS’ BRIEF PAGE 2
a harsh manager whose abusive behavior eventually led to key employees leaving

the company to form a competing business. Hernandez Declaration, ¶ 4 [CR 26];

Damian Declaration, ¶¶ 3, 5 [CR 29-30] Two Appellants, Rey R. Hernandez

(“Hernandez”) and David Damian (“Damian”), are former Autocraft employees.

Hernandez Declaration, ¶ 4 [CR 26]; Damian Declaration, ¶¶ 3-5 [CR 29-30]

Before working for Autocraft, Hernandez gained extensive expertise

performing various types of auto bodywork for over nineteen years including

several years at a BMW assembly plant in California. Hernandez Declaration, ¶ 2

[CR 25] After coming to Austin in 2008, Hernandez worked for Autocraft for

approximately one year. Hernandez Declaration, ¶ 4 [CR 26] Ultimately,

Hernandez resigned from Autocraft due to the hostile work environment created by

Borek. Hernandez Declaration, ¶ 6 [CR 26] During his time at Autocraft,

Hernandez was never asked to sign a non-competition, non-solicitation or non-

disclosure agreement. Hernandez Declaration, ¶ 5 [CR 26]

After leaving Autocraft, Hernandez began operating Precision Automotive

(“Precision”) in 2009. Over the years, Precision developed into a successful auto

body repair business under Hernandez’s leadership. Hernandez Declaration, ¶¶ 6-

7 [CR 26-27] Through his experience in the auto body repair business, Hernandez

became aware of the general business practices employed by such repair shops

APPELLANTS’ BRIEF PAGE 3
including the use of forms, checklists and Technical Service Bulletins. Hernandez

Declaration, ¶¶ 3,5 [CR 25, 27]

Damian likewise has many years of experience in the auto body repair

industry including several years working for Autocraft as its Production Manager.

Before working for Autocraft, Damian worked for many years in his father’s auto

body repair shop. Damian Declaration, ¶¶ 2-3 [CR 29] During that time, Damian

became aware of the common business practice of using forms and checklists such

as those used by Autocraft on which Autocraft’s alleged trade secret and

confidential information claims are based. Damian Declaration, ¶¶ 2,4,6 [CR 29-

30] In March, 2014 after several years at Autocraft, David Damian left Autocraft’s

employment and joined Precision. Damian Declaration, ¶¶ 3-5 [CR 29-30]

During his time at Autocraft, Damian was never asked to sign a non-competition,

non-solicitation or non-disclosure agreement. Damian Declaration, ¶ 4 [CR 30]

Likewise, he was not told that any of the business practices employed by Autocraft

(which were not unique or secret in the industry) were confidential or trade secrets.

Not long after Damian joined Precision, Joyce Garcia, Autocraft’s office

manager, followed. The employees at Precision enjoy a healthy and productive

working environment in contrast to the stressful and often hostile environment

created by Autocraft’s former manager, Borek. Damian Declaration, ¶¶ 3-5 [CR

APPELLANTS’ BRIEF PAGE 4
29-30] Hereafter, the Appellants Elite Auto Body, LLC d/b/a Precision Auto, Rey

R. Hernandez, Yesica Diaz, and David Damian are referred to collectively as the

“Precision Parties.” Autocraft’s claims have impacted their communications

among the Precision Parties regarding common business practices that Autocraft

now claims constitute proprietary information as well as communications with

potential customers and potential employees that are currently employed by

Autocraft. Hernandez Declaration, ¶¶ 8-9 [CR 27]; Damian Declaration, ¶ 6 [CR

30]

V. SUMMARY OF THE ARGUMENT

The TCPA must be broadly construed to protect parties’ rights of association

and free speech. TEX. CIV. PRAC. & REM. CODE § 27.002. The trial court in this

case failed to follow that admonition. The trial court narrowly construed the

TCPA and incorrectly concluded that the statute did not apply to Autocraft’s

claims. Because the TCPA actually applies to Autocraft’s claims, the trial court

incorrectly failed to dismiss the action in the absence of clear and specific evidence

of a prima facie case for each element of Autocraft’s claims.

This action was clearly instituted in response to the Precision Parties’

exercise of their rights to freedom of association and free speech under the TCPA.

Specifically, Autocraft’s claims target the Precision Parties’ communications in

APPELLANTS’ BRIEF PAGE 5
pursuit of their common interest of operating a competitive automobile body repair

business. See TEX. CIV. PRAC. & REM. CODE § 27.001(2-3) (defining the rights of

association and free speech under the TCPA). Although cast as trade secret

misappropriation, Autocraft’s claims are a thinly veiled attempt to interfere with

the Precision Parties’ lawful business competition by preventing them from

communicating non-proprietary business practices and communicating with

Autocraft’s employees. Notably, there is zero evidence of business information

that arguably constitutes trade secret or confidential information. The Precision

Parties clearly met their burden and established that Autocraft’s claims “relate to,

or [are] in response to” the Precision Parties’ exercise of their rights of association

and free speech. TEX. CIV. PRAC. & REM. CODE § 27.005(b).

Because the TCPA applies to Autocraft’s claims, Autocraft bore the burden

of “establish[ing] by clear and specific evidence a prima facie case for each

essential element” of its claims. TEX. CIV. PRAC. & REM. CODE § 27.005(c).

Autocraft wholly failed to meet that burden. Instead of providing clear and

specific evidence, Autocraft submitted a conclusory affidavit that primarily recited

allegations from its pleadings. In the absence of clear and specific evidence of

each element of Autocraft’s claims, the trial court was required to dismiss this

APPELLANTS’ BRIEF PAGE 6
action and award the Precision Parties their reasonable attorneys’ fees and

expenses.

VI. ARGUMENT

A. The TCPA Applies to Autocraft’s Claims Against the Precision Parties

Autocraft’s claims are in response to, or at least relate to, the Precision

Parties’ exercise of their rights of association and free speech. Those rights, as

defined by the TCPA, have broad reach and include the Precision Parties’

communications in pursuit of their common interest – the Precision Parties’

competing business – and regarding the Precision Parties provision of services in

the marketplace. Because Autocraft’s claims relate to those communications, the

TCPA applies.

1. The scope of the TCPA and the rights it protects are broad.

Before the enactment of Chapter 27 of the TEXAS CIVIL PRACTICE AND

REMEDIES CODE, there was no means to avoid the significant expense required to

defend baseless claims intended to stifle people’s rights to freely associate and

communicate. As enacted, the statute’s purpose is 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

APPELLANTS’ BRIEF PAGE 7
demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002. The statute

accomplishes that purpose by requiring Autocraft to produce clear and specific

evidence of a prima facie case for each essential element of Autocraft’s claims

covered by the statute. Id. § 27.005(c).

Chapter 27 applies to a broad swath of actions to protect people’s rights of

association and free speech. The statute applies to any legal action that “is based

on, relates to, or is in response to a party’s exercise of the right of free speech . . .

or right of association.” Id. § 27.003(a) (emphasis added). Thus, the statute

applies to any claim that merely relates to a party’s exercise of their freedoms of

association and free speech. See Rehak Creative Svcs., Inc. v. Witt, 404 S.W.3d

716, 733 (Tex. App. – Houston [14th Dist.] 2013, pet. denied) (holding that

conversion and misappropriation claims were covered by the TCPA where they

had “a connection to” protected communications).

The rights covered by the TCPA are broader than the protections provided

by the Constitution for those same rights. See Combined Law Enforcement Assocs.

of Texas v. Sheffield, Cause No. 03-13-00105-CV, 2014 WL 411672, at *11-12

(Tex. App.—Austin, January 31, 2014, pet. filed). Indeed, the exercise of the right

of association is defined by the statute as follows:

APPELLANTS’ BRIEF PAGE 8
 “Exercise of the right of association” means a communication between
individuals who join together to collectively express, promote, pursue, or
defend common interests.

Id. § 27.001(2) (emphasis added). The exercise of free speech has broad reach as

well:

“Exercise of the right of free speech” means a communication made in
connection with a matter of public concern.

Id. § 27.001(3). Matters of public concern include “an issue related to . . . a good,

product, or service in the marketplace.” Id. § 27.001(7)(e).

In addition to those broad definitions, the TCPA clearly states that it must

“be construed liberally to effectuate its purpose and intent fully.” Id. §

27.011(b)(emphasis added). The TCPA’s scope reaches beyond public

participation in government and media defendants. See Combined Law

Enforcement Assocs. of Texas v. Sheffield, Cause No. 03-13-00105-CV, 2014 WL

411672, at *2, n.1 (Tex. App.—Austin, January 31, 2014, pet. filed) (“There is

nothing in the plain language of the statute that limits its scope, as Sheffield

argues, to a media defendant or solely to public participation in government.”)

(emphasis added). Rather, this Court recognized that the TCPA reaches beyond

constitutional protections “to require a preliminary substantiation of legal actions

relating to a broad range of organizational communications.” Id., at *12.

APPELLANTS’ BRIEF PAGE 9
Accordingly, this Court found that communications among an organization’s

members to promote the organization’s purpose were covered by the TCPA. Id., at

*5.

2. Autocraft’s claims are in response to, or relate to, the Precision
Parties’ exercise of their freedoms of association and free speech.

All of Autocraft’s claims center upon the Precision Parties communications

as they promote and pursue their common interests in developing and maintaining

a competitive auto body repair business. Autocraft’s claims are based on the

alleged disclosure of general business information or the alleged attempts by the

Precision Parties “to convince employees to leave Autocraft and join [Precision].”

Pl.’s Orig. Pet. at ¶ 13 [CR 6]; see also id. at ¶ 16 (seeking injunctive relief

prohibiting communication of alleged confidential information and solicitation of

Autocraft’s employees)[CR 6]; id. at ¶ 21 (alleging that the Precision Parties are

conspiring to use Autocraft’s alleged trade secrets) [CR 7]; id. at ¶ 28 (claiming

that Damian assisted in “unfairly competing with Autocraft,” communicated

business information to the other Precision Parties, and communicated with

Autocraft employees encouraging them to change jobs). [CR 8] Based on

Autocraft’s own pleadings, it is clear that Autocraft’s claims relate to the Precision

Parties’ communication in pursuit of their common interest and regarding their

services in the marketplace.

APPELLANTS’ BRIEF PAGE 10
 Beyond the pleadings, the Precision Parties’ evidence likewise establishes

that Autocraft’s claims impinge on the Precision Parties’ exercise of their rights of

association and free speech. Rey Hernandez testified that on multiple occasions he

communicated with Autocraft employees about potential employment

opportunities at Precision and, absent Autocraft’s claims in this lawsuit, he

expected that he would continue to do so. [CR 26] It is obvious that Borek’s

abusive management style was causing Autocraft to hemorrhage employees, with

many seeking employment with the Precision Parties and Autocraft filed this suit

to prevent communications with its employees that could lead to them relocating.

Likewise, Both Hernandez and Damian testified that all of the mundane business

practices claimed to be trade secrets in this case were not kept confidential and

were well known throughout the industry. [CR 25-27, 29-30] Even so,

Autocraft’s claims, if successful, would prevent the Precision Parties from

communicating regarding business procedures that are commonly employed in the

automobile body repair shop industry. [CR 27, 30]

Clearly, the Precision Parties have met their burden establishing that

Autocraft’s claims are in response to, or at least relate to, the Precision Parties’

exercise of their rights of association and free speech. Autocraft’s claims seek to

curtail the Precision Parties’ use and communication of allegedly proprietary

APPELLANTS’ BRIEF PAGE 11
information as they pursue their common interest of their competing business and

recruit potential employees. Yet Autocraft wholly failed to put on evidence of the

proprietary nature of the information or that the Precision Parties ever used it. The

trial court committed reversible error by finding that the TCPA did not apply.

B. Because Autocraft wholly failed to meet its evidentiary burden, the trial
court was required to dismiss Autocraft’s claims.

Because the TCPA applies to Autocraft’s claims, the burden shifted to

Autocraft to establish by clear and specific evidence a prima facie case for each

essential element of its claims. See Rehak Creative Svcs., Inc., 404 S.W.3d. at

723-724 (discussing the burden-shifting characteristics of the TCPA). Autocraft

did not come close to meeting its burden. Autocraft’s sole, conclusory affidavit

amounts to no evidence of its claims, and certainly does not provide the clear and

specific evidence required by the TCPA. Therefore dismissal of Autocraft’s

claims was required.

1. Conclusory statements in affidavits do not constitute “clear and
specific evidence.”

Conclusory statements without factual foundation do not meet the “clear and

specific evidence” burden required by TEX. CIV. PRAC. & REM. CODE § 27.005(c)

to avoid dismissal. Thus, a party’s conclusory statements regarding causation in a

tortious interference with contract claim failed to meet the TCPA’s burden

APPELLANTS’ BRIEF PAGE 12
resulting in the dismissal of the plaintiff’s claims. See Schimmel v. McGregor, 438

S.W.3d 847, 860-862 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) (“We agree

with Schimmel that the Buy-Out Owners presented only their conclusory

statements, unsupported by any facts, that Schimmel’s actions caused the City of

Galveston to fail to close on the purchases.”). Likewise, conclusory statements

regarding damages are insufficient to meet the TCPA’s burden of clear and

specific evidence. See Rehak Creative Svcs, Inc., 404 S.W.3d at 734 (“This

conclusory assertion does not rise to the level of ‘clear and specific’ evidence

sufficient to make out a prima facie case of damages caused by and attributable to

the alleged misappropriation.”). And this Court has long held that affidavits that

do not provide a basis for the affiant’s conclusions or their personal knowledge are

fatally defective and constitute no evidence. See Campbell v. Campbell, Cause No.

03-07-00672-CV, 2010 WL 2477782, at *4-5 (Tex. App.—Austin June 18, 2010,

no pet.) (finding affidavit insufficient because it did not show the basis for the

affiant’s personal knowledge of facts recited therein); Sprayberry v. Siesta MHC

Income Partners, L.P., Cause No. 03-08-00649-CV, 2010 WL 1404598, at *3-4

(Tex. App.—Austin April 8, 2010, no pet.) (discussing insufficiency of a

conclusory affidavits because it “consists of factual or legal conclusions or

APPELLANTS’ BRIEF PAGE 13
opinions that are not supported by facts”). Thus, Autocraft had to present more

than conclusory evidence to meet its burden and avoid dismissal.

2. Autocraft failed to submit prima facie case for each essential
element of its claims.

Autocraft’s sole affidavit submitted in response to the Precision Parties’

Motion to Dismiss misses the mark. Autocraft asserts claims for trade secret

misappropriation, unfair competition, and breach of fiduciary duty. Autocraft was

required to present clear and specific evidence for each element for each of those

claims. See Rehak Creative Svcs, Inc., 404 S.W.3d at 732-734 (analyzing whether

plaintiff had provided prima facie evidence of its claims for tortious interference,

intentional infliction of emotional distress, conspiracy, and conversion and then

dismissing those claims in the absence of evidence).

With regard to misappropriation of trade secrets (as well as Autocraft’s other

claims relying on such allegations), Autocraft was required to establish all of the

elements set forth in TEX. CIV. PRAC & REM. CODE § 134A.002 for both

“misappropriation” and “trade secret.” Likewise, all of Autocraft’s causes of

action require evidence of damages and causation. See id. § 134A.004 (stating that

a claimant seeking damages must prove causation or the amount of a reasonable

royalty for the alleged trade secrets); Beck v. Law Offices of Edwin J. (“Ted”)

Terry, Jr., P.C., 284 S.W.3d 416, 429 (Tex. App.—Austin 2009, no pet.)(listing

APPELLANTS’ BRIEF PAGE 14
elements for breach of fiduciary duty claims including existence of a fiduciary

duty, breach of that duty, causation, and damages). 1

Instead of providing clear and specific evidence for its claims, Autocraft

instead submitted a sole, conclusory affidavit from John Borek. But Borek’s

affidavit is rife with speculation and unsubstantiated conclusions. These include:

• “Autocraft has reason to believe David Damian and other former
employees who recently left and joined Rey Hernandez and Precision
Auto Body . . . may have used or disclosed Autocraft’s confidential,
proprietary, and trade secret information . . ..” [CR 42, ¶ 2]
(emphasis added)

• “After David Damian and Joyce Garcia joined Precision Auto . . .
Autocraft learned Prevision Auto was using its proprietary business
forms and documents . . ..” [CR 42, ¶ 4] (emphasis added)

• “It is my understanding and belief that David Damian and/or Joyce
Garcia and possibly others, provided Rey Hernandez with most, if not
all, of the above-mentioned confidential, proprietary and trade secret
documents and information . . ..” [CR 42, ¶ 6] (emphasis added)

• “It is also my understanding and belief that Precision Auto has used
Autocraft’s confidential information, including employee salary
information, to recruit and solicit more Autocraft employees to join
Precision Auto.” [CR 42, ¶ 7] (emphasis added)

Statements based on Borek’s understanding or belief do not provide any evidence

of Autocraft’s claims and certainly do not provide clear and specific evidence.

Furthermore, Borek provides no factual basis to establish his purported personal
1
In addition to these elements, Autocraft was required to submit clear and specific evidence for each element of
Autocraft’s other causes of action as well including its claims for injunctive relief, civil conspiracy, and vicarious
liability. See, e.g., Chon Tri v. J.T.T., 162 S.W.2d 552, 556 (Tex. 2005) (listing elements for civil conspiracy).

APPELLANTS’ BRIEF PAGE 15
knowledge of any actions taken by the Precision Parties or any of his conclusions

that the Precision Parties are unfairly competing with him.

In fact, Borek’s affidavit provides absolutely no evidence regarding: (1) the

efforts Autocraft took, if any, to maintain the secrecy of the alleged proprietary

information, (2) the Precision Parties’ appropriation of that information by

improper means, or (3) that the information derives economic value from not being

generally known or ascertainable by proper means. See TEX. CIV. PRAC. & REM.

CODE § 134A.002 (defining the elements to show misappropriation by improper

means and the existence of a trade secret). Similarly, and without limitation,

Autocraft failed to provide any evidence of damages or causation for its claims.

Because Autocraft failed to provide clear and specific evidence for each element of

its claims, all of Autocraft’s claims should have been dismissed.

C. The Precision Parties are entitled to an award of their reasonable
attorneys’ fees and expenses.

The trial court likewise erred by failing to award attorneys’ fees and

expenses to the Precision Parties. Upon dismissal of an action pursuant to the

TCPA, the moving party is entitled to an award of its “court costs, reasonable

attorneys’ fees, and other expenses incurred in defending against the legal action.”

TEX. CIV. PRAC. & REM. CODE § 27.009. The Precision Parties’ counsel presented

evidence, without objection, of their reasonable and necessary attorneys’ fees and

APPELLANTS’ BRIEF PAGE 16
expenses incurred at the time of the hearing. [RR 29-30] Because the Precision

Parties were entitled to dismissal of Autocraft’s claims under the TCPA, they are

entitled to an award of their attorneys’ fees and expenses in the amount of $15,250.

D. The trial court erred by refusing to hear live testimony at the hearing on
Motion to Dismiss.

Although the Precision Parties’ evidence attached to the Motion to Dismiss

was sufficient to meet their burden, they were nonetheless prepared to present live

testimony at the hearing on the Motion to Dismiss. But the trial court refused to

hear that testimony. [RR 22-24] That testimony would have provided additional

evidence of the impact Autocraft is urging upon the Precision Parties’ freedoms of

association and free speech.2 [RR 24-26] Without limitation, that evidence would

have shown that the forms claimed to be trade secrets by Autocraft are well known

in the industry and can be freely found and ordered online. That evidence would

have also established that the Precision Parties have been restricted from

communicating with potential customers and employees. [RR 25-26]

The trial court excluded this evidence based upon an unduly narrow reading

of section 27.006 which states:

2
The declarations of Hernandez and Damian along with Autocraft’s pleadings provide ample evidence that
Autocraft’s claims relate to the Precision Parties’ rights of association and free speech. However, and in the
unlikely event that this Court finds that the Precision Parties failed to meet their burden, the proffered but excluded
testimony should be considered in that regard. [CR 25-28, 29-31]

APPELLANTS’ BRIEF PAGE 17
 In determining whether a legal action should be dismissed under this
chapter, the court shall consider the pleadings and supporting and
opposing affidavits stating the facts on which the liability or defense
is based.

TEX. CIV. PRAC. & REM. CODE § 27.006. While that provision requires the trial

court to consider the pleadings and affidavits, it does not restrict the evidence to

pleadings and affidavits. The fact that materials other than the pleadings and

affidavits may be considered is foreshadowed by other portions of the statute.

Indeed, the TCPA allows for other discovery (including depositions or

interrogatories) on a showing of good cause. Id. Such discovery would be

meaningless if the discovery materials could not be considered as evidence relating

to the Motion to Dismiss. The trial court erred by excluding the Precision Parties’

live testimony.

CONCLUSION AND PRAYER

The Precision Parties were entitled to dismissal of this action. Autocraft’s

claims directly impact, and certainly relate to, the Precision Parties’

communications in pursuit of their common interest and regarding their services in

the marketplace. Under these circumstances, Autocraft was required by the TCPA

to present clear and specific evidence of each element of its claims. Autocraft

wholly failed to do so thereby requiring that Autocraft’s action be dismissed and

APPELLANTS’ BRIEF PAGE 18
the Precision Parties be awarded their attorneys’ fees and expenses. Accordingly,

this Court should provide the Precision Parties the relief they deserve.

Accordingly, the Precision Parties respectfully request that this Court

reverse the trial court’s order denying the Motion to Dismiss, order that all of

Autocraft’s claims in this matter shall be dismissed, award the Precision Parties

their attorneys’ fees and expenses described above, and grant the Precision Parties

such other and further relief to which they show themselves justly entitled.

Respectfully submitted,

FRITZ, BYRNE, HEAD & HARRISON, PLLC

BY: /s/ Rick Harrison
Rick Harrison
Texas Bar No. 09120000
rharrison@fbhh.com
S. King
Texas Bar No. 24067708
aking@fbhh.com
Dale L. Roberts
Texas Bar No. 24001123
droberts@fbhh.com

ATTORNEYS FOR APPELLANTS

APPELLANTS’ BRIEF PAGE 19
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has
this 10th day of March, 2015, been forwarded to counsel of record via electronic
service, as follows:

James Ruiz
Texas Bar No. 17385860
jruiz@winstead.com
Jacylyn G. Austein
Texas Bar No. 24069760
Jaustein@winstead.com
W INSTEAD, P.C.
401 Congress Avenue, Suite 2100
Austin, Texas 78701
Telephone: (512) 370-2818
Facsimile: (512) 370-2850

ATTORNEYS FOR APPELLEES

/s/ Rick Harrison
Rick Harrison

APPELLANTS’ BRIEF PAGE 20
 CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the word limit of Tex. R. App. P.
9.4(i)(2)(B) because this brief contains 3,616 words, excluding the parts of the
brief exempted by Tex. R. App. P. 9.4(i)(1).

/s/ Rick Harrison
Rick Harrison

Dated: March 10, 2015

APPELLANTS’ BRIEF PAGE 21
 APPENDIX INDEX

ORDER DENYING MOTION TO DISMISS

ROBERTS DECLARATION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HERNANDEZ DECLARATION

DAMIAN DECLARATION

BOREK AFFIDAVIT

COMBINED LAW ENFORCEMENT ASS’N OF TEXAS V. SHEFFIELD

SCHIMMEL V. McGREGOR

TEX. CIV. PRAC. & REM CODE § 27.001 – 27.006
 DC BK15044 PG310

Filed In The District Court
of ~ty, Te~as
on flQt,~DI~:
at I \:00 lrM.
CAUSE NO. D-1-GN-14-004535 Velva 1.. Price, District Clerk

AUTOCRAFT BODYWERKS, INC., § IN THE DISTRICT COURT
§
Plaintiff, §
§
vs. §
§
ELITE AUTO BODY LLC, §
dba PRECISION AUTO BODY, §
REY R. HERNANDEZ, § TRAVIS COUNTY, TEXAS
YESICA DIAZ, and §
DAVID DAMIAN, §
§
Defendants, §
§
vs. §
§
JOHN BOREK, §
§
Tltird-Party Defendant. § 345th JUDICIAL DISTRICT

ORDER DENYING DEFENDANTS' MOTION TO DISMISS PURSUANT TO
CHAPTER 27 OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE

On the 22nd day of January, 2015, the Court heard Defendants' Motion to Dismiss

Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code (the "Motion"). After

considering the pleadings, affidavits, and legal arguments, llle-Gourt lind• tlmt Chopter 27 of tl>e ~/.
'Fexas Civil Prac dee and Remedies Code is inapplicable t6 tb:i~ ~ttit. It is therefore, 'I z.~/'.5
ORDERED that the Motion is hereby DENIED in all respects.

Signed this 2.~"day of January 2015.

49
 CAUSE NO. 03-15-00064-CV

In the Court of Appeals
For the Third Court of Appeals District
Austin, Texas

ELITE AUTO BODY LLC, d/b/a PRECISION AUTO BODY, REY R.
HERNANDEZ, YESICA DIAZ, AND DAVID DAMIAN,
Appellants,
v.
AUTOCRAFT BODYWERKS, INC., now known as WASSON ROAD
VENTURES, INC., d/b/a AUTOCRAFT BODYWERKS,
Appellee.

DECLARATION OF DALE L. ROBERTS

1. My name is Dale L. Roberts. I am fully competent to make this

Declaration. I have personal knowledge of the facts stated in this

Declaration. I am one of the attorneys representing the Appellants in this

matter.

2. The Finding of Fact and Conclusions of Law contained in the Appendix

of Appellants’ Brief is a true and correct copy of that signed by Judge

Sulak on February 20, 2015.

3. My name is Dale L. Roberts. My date of birth is February 6, 1970, and

my address is 1309 Choquette Drive, Austin, Texas 78757. As

authorized by Section 132.001 of the Texas Civil Practice and Remedies

1
Code, I declare under penalty of perjury that the foregoing is true and

correct.

Executed in Travis County, State of Texas, on March 10, 2015.

/s/ Dale L. Roberts
Dale L. Roberts

2
 CAUSE NO. D-1-GN-14-004535

AUTOCRAFT BODYWERKS, INC., § IN THE DISTRICT COURT
now known as WASSON ROAD §
VENTURES, INC, dba AUTOCRAFT §
· BODYWERKS, §
§
Plaintiff, §
§
§
vs. § TRAVIS COUNTY, TEXAS
§
ELITE AUTO BODY LLC, d/b/a PRECISION §
AUTO BODY, REY R. HERNANDEZ, §
YESICA DIAZ, AND DAVID DAMIAN, §
§
Defendants. §

DECLARATION OF REY R. HERNANDEZ

1. My name is Rey R. Hernandez. I am fully competent to make this Declaration. I

have personal knowledge of all the facts stated in this Declaration.

2. I have been working in the auto body manufacture or repair industry for over 19

years. I have worked for BMW for over 12 years, achieving a management position overseeing

body work on new BMW vehicles. In addition, I have worked in auto body repair shops for

seven years.

3. Through my experience in the auto body repair industry, I have become aware of

common practices employed by auto body repair shops. It is common practice in the industry to

use forms and checklists for tracking payment receipts, insurance information, workflow

assignments and other information. Although the forms and checklists may follow different

formats, they commonly contain information such as payment, information, authorizations, and

vehicle and customer information.

Page I

4R£4&&&4Zi&&2SEE&EE I EXHIBIT

1
25
 4. When I came to Austin in 2008, I accepted a job as a production manager at

Autocraft Bodywerks ("AB") and worked there for approximately twelve months. During that

time, the working conditions at AB were very unpleasant and hostile. AB's former owner, and

now manager, John Borek, created that unpleasant working environment. For example, Mr.

Borek frequently used abusive and vulgar language when speaking with employees and

threatened them with reprisals, illegally withheld paychecks, and on occasion, physically

assaulted them. Despite Mr. Borek's behavior, it was my impression that AB's employees were

very competent and often talented.

5. While working at AB, I was never asked to sign or even agree to any limitations

on my ability to compete with AB or solicit AB's employees following my employment.

Likewise, I was never asked to sign a confidentiality agreement nor was I informed that any

information about how AB conducted its business was secret or confidential. In fact, with the

exception of Mr. Borek's behavior, AB's business was conducted similar to other auto body

repair businesses. This included the use and content of AB's forms and checklists as well as

referencing, when necessary, any technical service bulletins relating to a repair. I was never told

by Mr. Borek, or anyone else, that AB's forms, checklists or compilation of technical service

bulletins were secret or confidential, and I did not consider them to be secret because the use of

similar forms, checklists and technical service bulletins is commonplace in the industry.

6. Due in large part to the unhealthy working environment caused by Mr. Borek, I

left AB, and started Precision Auto Body ("Precision") in March, 2009. Over the next several

years and through my experience in the industry, we developed Precision into a successful

business. As part of that business, Precision subscribed to Alldata. That service provides access

to, and the ability to search, all technical service bulletins that have been issued by all automobile

Page2

26
manufacturers. Precision remains a subscriber to that setvice to this day. Whenever a Precision

employee needs to reference a technical setvice bulletin, the materials are obtained from Alldata.

7. By the beginning of 2014, Precision had seven employees and the business was

continuing to grow. In March 2014, Precision hired David Damian to work as body shop

manager. Over the years since leaving AB, I have occasionally been contacted by AB

employees inquiring as to whether Precision could hire them, and on some occasions Precision

has done so. That is how Damian came to work for Precision as well as Joyce Garcia. Mr.

Damian, Ms. Joyce, and I have all expressed a desire to continue to grow Precision's business

and attract experienced and talented individuals to work for Precision.

8. Because it was my impression that many of AB's employees were talented, I

would expect and intend to communicate with AB employees regarding employment

opportunities at Precision just as I would expect to communicate with any other potential

Precision employees that are unrelated to AB. If AB is successful in its lawsuit, or even obtains

a temporary i-qjunction as it has requested, I would not be able to communicate with any other

AB employees about potential employment opportunities.

9. Precision has not used any confidential or secret information in its business that

was disclosed by either Mr. Damian or Joyce Garcia. Precision has not used any AB payroll or

other AB financial information in arty manner. This includes, without limitation, any

employment decisions concerning any current or potential Precision employees. With regard to

the business practices claimed by AB to be confidential or secret, these allegations would

prevent me and others at Precision from communicating regarding mundane business issues such

as using checklists and forms to ensure that office and shop procedures are followed.

Page3

27
 10. My name is Rey R. Hemandez. My date of birth is January 4, 1976, and my

address is 1261 Cherrywood, Kyle, Texas 78640. As authorized by Section 132.001 of the

Texas Civil Practice and Remedies Code, I declare under penalty of peljury that the foregoing is

true and correct.

Executed in Travis County, State of Texas on this~O th day of December, 20

Page4

28
 CAUSE NO. D-1-GN-14-004535

AUTOCRAFT BODYWERKS, INC., § IN THE DISTRICT COURT
now known as WASSON ROAD §
VENTURES, INC. dba AUTOCRAFT §
BODYWERKS, §
§
Plaintiff, §
§
§
vs. § TRAVIS COUNTY, TEXAS
§
ELITE AUTO BODY LLC, d/b/a PRECISION §
AUTO BODY, REY R. HERNANDEZ, §
YESICA DIAZ, AND DAVID DAMIAN, §
§
Defendants, §

DECLARATION OF DAVID DAMIAN

1. My name is David Damian. I am fully competent to make this Declaration. I

have personallmowledge of all the facts stated in this Declaration.

2. I have been working in the auto body repair industry for over 16 years. Through

my experience in the auto body repair industry, I have become aware of common practices

employed by auto body repair shops. It is common practice in the indushy to use forms and

checklists for tracking payment receipts, insurance information, workflow assignments and other

information.

3. Between 2008 until March 2014, !.worked as a Production Manager at Autocraft

Bodywerks ("AB"). During that time, the working conditions at AB were very unpleasant and

hostile. AB's former owner, and now manager, John Borek, created that unpleasant working

environment. Mr. Borek constantly cursed at employees and was prone to angry outbursts.

Page 1

EXHIBIT

W4E&E&MUMIM 1(1
:a 29
 4. While working at AB, I was never asked to sign, or even agree to, any limitations

on my ability to compete with AB or solicit AB's employees following my employment.

Likewise, I was never asked to sign a confidentiality agreement nor was I informed that any

information about how AB conducted its business was secret or confidential. AB's business was

conducted similar to other auto body repair businesses. This included the use and content of

AB's forms and checklists as well as referencing, when necessary, any technical service bulletins

relating to a repair. I was never told by Mr. Borek, or anyone else, that AB's forms, checklists or

compilation of technical service bulletins were secret or confidential, and I did not consider them

to be secret because the use of similar forms, checklists and technical service bulletins is

commonplace in the industry.

5. Due in large part to the unhealthy working environment caused by Mr. Borek, I

left AB, and joined Precision. Mr. Hernandez, Ms. Garcia, and I have all expressed a desire to

continue to grow Precision's business and attract experienced and talented individuals to work

for Precision.

6. I have not used any AB payroll or other AB financial information in any manner

since leaving the employ of AB, and certainly not in any negotiations or business decisions.

With regard to the business practices claimed by AB to be confidential or secret, these

allegations would prevent me and others at Precision from communicating regarding mundane

business issues such as using checklists and forms to ensure that office and shop procedures are

followed.

Page 2

30
 7. My name is David Damian. My date of birth is June 10, 1978, and my address is

11303 Stormy Ridge Road, Austin, Texas 78739. As authorized by Section 132.001 of the

Texas Civil Practice and Remedies Code, I declare under penalty of perjury that the foregoing is

true and correct.

Executed in Travis County, State of Texas on this lOth day of December, 2014.

Page 3

31
 CAUSE NO. D-1-GN-14-004535

AUTOCRAFT BODYWERKS, INC., § IN THE DISTRICT COURT
§
Plaintiff. §
§
vs. §
§
ELITE AUTO BODY LLC, §
dba PRECISION AUTO BODY, §
REY R. HERNANDEZ, § TRAVIS COUNTY, TEXAS
YESICA DIAZ, and §
DAVID DAMIAN, §
§
Defendants, §
§
vs. §
§
JOHN BOREK, §
§
Third-Party Defendant. § 345th JUDICIAL DISTRICT

AFFIDAVIT OF JOHN BOREK

STATE OF TEXAS §
§ ( CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL,
JUDGMENT, AND APPEAL > SUBTITLE B. TRIAL MATTERS > CHAPTER 27. ACTIONS
INVOLVING THE EXERCISE OF CERTAIN CONSTITUTIONAL RIGHTS

§ 27.001. Definitions
In this chapter:
(1) "Communication" includes the making or submitting of a statement or document in any form or medium,
including oral, visual, written, audiovisual, or electronic.
(2) "Exercise of the right of association" means a communication between individuals who join together to
collectively express, promote, pursue, or defend common interests.
(3) "Exercise of the right of free speech" means a communication made in connection with a matter of public
concern.
(4) "Exercise of the right to petition" means any of the following:
(A) a communication in or pertaining to:
(i) a judicial proceeding;
(ii) an official proceeding, other than a judicial proceeding, to administer the law;
(iii) an executive or other proceeding before a department of the state or federal government or a subdivision
of the state or federal government;
(iv) a legislative proceeding, including a proceeding of a legislative committee;
(v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that
entity;
(vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported
directly or indirectly from public revenue;
(vii) a proceeding of the governing body of any political subdivision of this state;
(viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi),
or (vii); or
(ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or
other matters of public concern occurring at the meeting;
(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial,
or other governmental body or in another governmental or official proceeding;
(C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative,
executive, judicial, or other governmental body or in another governmental or official proceeding;
(D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue
by a legislative, executive, judicial, or other governmental body or in another governmental or official
proceeding; and
(E) any other communication that falls within the protection of the right to petition government under the
 Page 2 of 2
Tex. Civ. Prac. & Rem. Code § 27.001
Constitution of the United States or the constitution of this state.
(5) "Governmental proceeding" means a proceeding, other than a judicial proceeding, by an officer, official, or
body of this state or a political subdivision of this state, including a board or commission, or by an officer,
official, or body of the federal government.
(6) "Legal action" 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.
(7) "Matter of public concern" includes an issue related to:
(A) health or safety;
(B) environmental, economic, or community well-being;
(C) the government;
(D) a public official or public figure; or
(E) a good, product, or service in the marketplace.
(8) "Official proceeding" means any type of administrative, executive, legislative, or judicial proceeding that may be
conducted before a public servant.
(9) "Public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the
following, even if the person has not yet qualified for office or assumed the person's duties:
(A) an officer, employee, or agent of government;
(B) a juror;
(C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or
determine a cause or controversy;
(D) an attorney or notary public when participating in the performance of a governmental function; or
(E) a person who is performing a governmental function under a claim of right but is not legally qualified to do so.

History
Enacted by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, effective June 17, 2011.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.
 Tex. Civ. Prac. & Rem. Code § 27.002
This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL,
JUDGMENT, AND APPEAL > SUBTITLE B. TRIAL MATTERS > CHAPTER 27. ACTIONS
INVOLVING THE EXERCISE OF CERTAIN CONSTITUTIONAL RIGHTS

§ 27.002. Purpose
The purpose of this chapter is 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.

History
Enacted by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, effective June 17, 2011.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.
 Tex. Civ. Prac. & Rem. Code § 27.003
This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL,
JUDGMENT, AND APPEAL > SUBTITLE B. TRIAL MATTERS > CHAPTER 27. ACTIONS
INVOLVING THE EXERCISE OF CERTAIN CONSTITUTIONAL RIGHTS

§ 27.003. Motion to Dismiss
(a) If 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.
(b) A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of
the legal action. The court may extend the time to file a motion under this section on a showing of good cause.
(c) Except as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is
suspended until the court has ruled on the motion to dismiss.

History
Enacted by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, effective June 17, 2011.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.
 Tex. Civ. Prac. & Rem. Code § 27.004
This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL,
JUDGMENT, AND APPEAL > SUBTITLE B. TRIAL MATTERS > CHAPTER 27. ACTIONS
INVOLVING THE EXERCISE OF CERTAIN CONSTITUTIONAL RIGHTS

§ 27.004. Hearing
(a) A hearing on a motion under Section 27.003 must be set not later than the 60th day after the date of service of the motion
unless the docket conditions of the court require a later hearing, upon a showing of good cause, or by agreement of the
parties, but in no event shall the hearing occur more than 90 days after service of the motion under Section 27.003,
except as provided by Subsection (c).
(b) In the event that the court cannot hold a hearing in the time required by Subsection (a), the court may take judicial notice
that the court's docket conditions required a hearing at a later date, but in no event shall the hearing occur more than 90
days after service of the motion under Section 27.003, except as provided by Subsection (c).
(c) If the court allows discovery under Section 27.006(b), the court may extend the hearing date to allow discovery under
that subsection, but in no event shall the hearing occur more than 120 days after the service of the motion under Section
27.003.

History
Enacted by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, effective June 17, 2011; am. Acts 2013, 83rd Leg., ch. 1042 (H.B.
2935), § 1, effective June 14, 2013.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.
 Tex. Civ. Prac. & Rem. Code § 27.005
This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL,
JUDGMENT, AND APPEAL > SUBTITLE B. TRIAL MATTERS > CHAPTER 27. ACTIONS
INVOLVING THE EXERCISE OF CERTAIN CONSTITUTIONAL RIGHTS

§ 27.005. Ruling
(a) The court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the
motion.
(b) Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action
against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on,
relates to, or is in response to the party's exercise of:
(1) the right of free speech;
(2) the right to petition; or
(3) the right of association.
(c) The 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.
(d) Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the
moving party establishes by a preponderance of the evidence each essential element of a valid defense to the
nonmovant's claim.

History
Enacted by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, effective June 17, 2011; am. Acts 2013, 83rd Leg., ch. 1042 (H.B.
2935), § 2, effective June 14, 2013.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.
 Tex. Civ. Prac. & Rem. Code § 27.006
This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL,
JUDGMENT, AND APPEAL > SUBTITLE B. TRIAL MATTERS > CHAPTER 27. ACTIONS
INVOLVING THE EXERCISE OF CERTAIN CONSTITUTIONAL RIGHTS

§ 27.006. Evidence
(a) In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and
supporting and opposing affidavits stating the facts on which the liability or defense is based.
(b) On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and
limited discovery relevant to the motion.

History
Enacted by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, effective June 17, 2011.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.