Sanchez v. Striever

Full title: ORLANDO SANCHEZ, Appellant v. STEVE STRIEVER, Appellee

Court: State of Texas in the Fourteenth Court of Appeals

Date published: Sep 22, 2020

614 S.W.3d 233 (Tex. App. 2020)

Opinion

NO. 14-19-00449-CV

09-22-2020

Orlando SANCHEZ, Appellant v. Steve STRIEVER, Appellee

Kevin Jewell, Justice

Appellant Orlando Sanchez appeals a final order dismissing his claim for "assault by offensive physical contact" under Texas Rule of Civil Procedure 91a and the Texas Citizens Participation Act ("TCPA").¹ Sanchez asserts that dismissal based on rule 91a was error because his claim has a basis in law and fact. Separately, Sanchez challenges dismissal under the TCPA because the act does not apply to his claim. In a third issue, Sanchez conditionally asks us to reverse the attorney-fee award in appellee's favor.

1 Tex. Civ. Prac. & Rem. Code §§ 27.001 -.011.

We reverse and remand.

Background

Appellee Steve Striever poured water on Sanchez's head while Sanchez addressed the media and others during a press conference. Sanchez sued Striever, asserting a single cause of action for "assault by offensive physical contact." Sanchez sought "all damages recognizable by law," including mental anguish and exemplary damages.

Striever filed a motion to dismiss under the TCPA. He later amended the motion to add a request to dismiss under rule 91a. Striever argued that dismissal under rule 91a was proper because Sanchez's assault claim had no basis in law or fact. Additionally, he argued that the TCPA required dismissal because Sanchez's assault claim was based on, related to, or in response to Striever's exercise of his rights of free speech and association, and that Sanchez could not present prima facie proof of each essential element of his claim.

Sanchez filed a response, in which he urged among other things that the TCPA is inapplicable because the lawsuit seeks redress for assault, and Striever did not show that Sanchez's assault claim is "based on, relate[d] to, or is in response to" Striever's exercise of the rights to speak or associate freely. Sanchez's response did not mention rule 91a. Neither Striever nor Sanchez filed any affidavits with the amended motion to dismiss or the response.

The trial court held a hearing on Striever's amended motion to dismiss, but only on the TCPA ground.² Neither party submitted evidence at the hearing, which concluded without a ruling; however, the trial court invited supplemental briefing from both parties addressing how Sanchez's suit implicated Striever's First Amendment rights relative to the TCPA and how Sanchez's claim for "assault by offensive physical contact" is distinct from physical assault. The court stated that it would rule without an additional hearing after receiving supplement briefs.

2 According to our record, the part of Striever's amended motion to dismiss based on rule 91a was to be submitted without hearing. Sanchez filed a timely response to Striever's rule 91a dismissal argument before the submission date.

Both Striever and Sanchez filed supplemental briefs. In relevant part, Striever argued that the act of pouring water on Sanchez was an exercise of his right of free speech and his right to associate with a group of protesters. He further contended that Sanchez had failed to establish by clear and specific evidence a prima facie case for each essential element of his claim. Sanchez in turn filed a supplemental brief, in which he reiterated that Striever's act of pouring water was not protected by the First Amendment and, alternatively, that prima facie evidence supported his claim, assuming the TCPA applies. Sanchez attached a video of the incident, which he contended established the elements of his assault claim. Striever did not object to the video and filed a supplemental reply citing it. A copy of the video is contained in our record.

The video is approximately twenty-four seconds long. It begins by showing Sanchez addressing several people, including reporters, though it is difficult to discern what he is saying. While Sanchez speaks, Striever approaches, extends his arm while holding a bottle of water, and pours the water on Sanchez's head. Striever immediately flees and is chased by onlookers. It does not appear from the video that Striever said anything before, during, or after pouring water on Sanchez.

Striever's supplemental brief also referenced a link to a news article about the lawsuit and the underlying incident. Based on the article, and according to Striever's supplemental brief, Sanchez, then Harris County Treasurer, held a press conference advocating for the State of Texas to "take over" Houston public schools. Striever said that he was present to protest.³

3 Sanchez disputes these contextual facts because they are unsupported by affidavit or evidence. This dispute is not critical to our analysis.

The trial court signed a final order granting Striever's motion to dismiss on both TCPA and rule 91a grounds. The court also awarded attorney's fees to Striever. In the order, the court stated:

First, as to Chapter 27 of the CPRC, the Court finds and concludes that the act of pouring water over Mr. Sanchez constitutes protected speech, and that the suit by Mr. Sanchez also otherwise implicates protected First Amendment rights of the Defendant.... Once the burden shifted, Plaintiff failed to adduce clear and specific evidence of a prima facie case of his claims. Specifically, Plaintiff did not adduce any evidence of any injury whatsoever, even if he could allegedly recover mental anguish damages under the circumstances.

Second, the Court also hereby DISMISSES this suit pursuant to TRCP 91a, and hereby awards the attorney's fees and costs listed above as a one time award for both the CPRC Ch. 27 Motion and TRCP 91a Motion, and not as a duplicate award.

Sanchez timely appealed.

Analysis

Sanchez contends that neither rule 91a nor the TCPA supports the trial court's order dismissing the lawsuit. He also requests that we vacate the attorney's fee award.

A. Rule 91a discussion

Sanchez argues in his first issue that the trial court erroneously granted Striever's motion to dismiss under rule 91a because his claim of assault by offensive physical contact has a basis in law and fact.

Under Texas Rule of Civil Procedure 91a, "a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact." Tex. R. Civ. P. 91a.1; Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C. , 595 S.W.3d 651, 654 (Tex. 2020). "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Tex. R. Civ. P. 91a.1. "A cause of action has no basis in fact if no reasonable person could believe the facts pleaded." Id. A court "may not consider evidence ... and must decide the motion based solely on the pleading of the cause of action." Tex. R. Civ. P. 91a.6.

"We review the merits of a Rule 91a motion de novo because the availability of a remedy under the facts alleged is a question of law and the rule's factual-plausibility standard is akin to a legal-sufficiency review." City of Dallas v. Sanchez , 494 S.W.3d 722, 724 (Tex. 2016) (per curiam) ; In re Union Pac. R.R. Co. , 582 S.W.3d 548, 550 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding). In conducting our review, we must construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine whether the cause of action has a basis in law or fact. In re Union Pac. R.R. Co. , 582 S.W.3d at 550.

In his petition, Sanchez asserted a claim for "assault by offensive physical contact." In support, he alleged:

On December 28, 2018, Defendant Steve Striever acted intentionally and/or knowingly when he committed an assault by offensive physical contact against Orlando Sanchez during a press conference by pouring water on his head. Defendant Striever knew or reasonably should have believed that Orlando Sanchez would regard the contact as offensive or provocative. As a result of the collision caused by Defendant Steve Striever, Orlando Sanchez suffered injuries and damages.

Sanchez sought all damages recognizable by law, including but not limited to past and future mental anguish.⁴

4 Sanchez later filed an amended petition, but the cause of action and supporting allegations contained in both pleadings are identical.

"In Texas, an assault is both an offense against the peace and dignity of the State, as well as an invasion of private rights." Foye v. Montes , 9 S.W.3d 436, 441 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The elements of a civil assault thus mirror those of a criminal assault. Loaisiga v. Cerda , 379 S.W.3d 248, 256 (Tex. 2012) ; Flanagan v. Womack & Perry , 54 Tex. 45 (1880). As relevant here, a person commits criminal assault under the Texas Penal Code if the person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Penal Code § 22.01(a)(3) ; Loaisiga , 379 S.W.3d at 256. Thus, proof of these elements can support a claim of civil assault.

Construing Sanchez's petition liberally, we conclude his claim for assault by offensive physical contact has a basis in law and fact. First, Sanchez's claim has a basis in law because the "allegations, taken as true, together with inferences reasonably drawn from them," would entitle him to the relief sought. See Tex. R. Civ. P. 91a.1. Sanchez pleaded each element of a claim under Penal Code section 22.01(a)(3) by alleging that Striever intentionally and/or knowingly caused physical contact with Sanchez by pouring water on his head, and that Striever knew or reasonably should have believed that Sanchez would regard the contact as offensive or provocative. These allegations, if true, would establish the required elements under section 22.01(a)(3). See Tex. Penal Code § 22.01(a)(3) ; Loaisiga , 379 S.W.3d at 256.

Striever insists that dismissal was appropriate under rule 91a because Sanchez has no personal injury to redress and no recoverable damages. A civil assault claim under section 22.01(a)(3), however, does not require personal injury. See Foye , 9 S.W.3d at 441 ; Tex. Penal Code § 22.01(a)(3). As offensive physical contact is the gravamen of the claim, the defendant is liable for contacts that are offensive and provocative regardless whether they cause physical harm. See City of Watauga v. Gordon , 434 S.W.3d 586, 590 (Tex. 2014) ; Fisher v. Carrousel Motor Hotel, Inc. , 424 S.W.2d 627, 630 (Tex. 1967) ("Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting."); see also Foye , 9 S.W.3d at 441 ; Durban v. Guajardo , 79 S.W.3d 198, 206 (Tex. App.—Dallas 2002, no pet.) ("[T]he basis for an assault and battery action is ‘not the actual harm done to the plaintiff's body.’ "). Such a claim addresses the personal indignity that often flows from an offensive or provocative invasion of personal space or interests. See Fisher , 424 S.W.2d at 630. Emotional distress is not merely incidental to a claim for certain forms of assault; it is "the essence" of it. Durban , 79 S.W.3d at 206 ; see also Fisher , 424 S.W.2d at 630. Consequently, proof of physical injury is not required for a plaintiff to recover mental anguish damages for assault by offensive physical contact. See Moore v. Lillebo , 722 S.W.2d 683, 685 (Tex. 1986) ; Fisher , 424 S.W.2d at 630.

In the landmark Fisher case, for example, Emmit Fisher was standing in line at a luncheon hosted by business associates when the manager of the club approached and "snatched the plate" from Fisher's hand, shouting that Fisher, a black man, could not be served. Fisher , 424 S.W.2d at 629. The Supreme Court of Texas upheld a jury award in Fisher's favor, stating that recovery was permitted for "humiliation and indignity" even though no actual contact occurred so long as there was contact with clothing or an object closely identified with the body. Id. The court held that the "forceful dispossession of plaintiff Fisher's plate in an offensive manner was sufficient to constitute a battery." Id. at 630. Accordingly, Fisher "was entitled to actual damages for mental suffering due to the willful battery, even in the absence of any physical injury." Id. The offensive conduct in Fisher would qualify as assault under the current version of Penal Code section 22.01(a)(3).

Striever does not dispute that mental anguish damages can be recoverable for a claim under section 22.01(a)(3) ; he contends rather that Sanchez presented no evidence of mental anguish. But evidence is irrelevant to a court's rule 91a dismissal, which must be based solely on the pleadings. Tex. R. Civ. P. 91a.6. Sanchez pleaded for all damages recoverable by law, including specifically mental anguish, and he was not required to present (nor could the court consider) evidence of mental anguish damages. Sanchez's claim has a basis in law.

Second, Sanchez's claim has a basis in fact because the facts alleged are not such that no reasonable person could believe them. Tex. R. Civ. P. 91a.1. It is quite plausible that a person could pour water on a speaker's head during a press conference.

Accordingly, the trial court erred by granting Striever's motion to dismiss based on rule 91a. We sustain Sanchez's first issue.

B. TCPA discussion

In his second issue, Sanchez argues the trial court erred in concluding that Striever's conduct constituted protected speech and dismissing the action under the TCPA. According to Sanchez, Striever did not demonstrate that the assault claim is based on, related to, or is in response to Striever's exercise of First Amendment rights. Striever disagrees and contends in particular that the TCPA applies because the act of pouring water on Sanchez was a protected exercise of free speech. Striever also argues that Sanchez's claim otherwise implicates Striever's right of association. Moreover, Striever continues, Sanchez failed to present prima facie evidence to support his claim.

Sanchez does not contend on appeal that he met his prima facie evidentiary burden, so the dispositive issue before us is the TCPA's applicability. The parties' respective arguments raise a serious question: whether the TCPA applies to a claim alleging assault by offensive physical contact when the defendant contends the assaultive conduct was a protected act of protest. We hold it does not.

1. The TCPA

By now it is well-known that the TCPA is an anti-SLAPP law;⁵ "SLAPP" is an acronym for "Strategic Lawsuits Against Public Participation." Toth v. Sears Home Improvement Prods., Inc. , 557 S.W.3d 142, 149 (Tex. App.—Houston [14th Dist.] 2018, no pet.) ; Fawcett v. Grosu , 498 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (op. on reh'g). The TCPA's stated 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 demonstrable injury." Tex. Civ. Prac. & Rem. Code § 27.002. The act protects citizens from retaliatory lawsuits that seek to intimidate or silence them from exercising their rights in connection with matters of public concern. In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). To accomplish its purpose, the TCPA establishes a mechanism to identify and summarily dispose of actions designed only to chill First Amendment rights, not to dismiss meritorious lawsuits. Id. at 589.

5 The Texas Legislature amended the TCPA in its most recent legislative session and the amendments are effective September 1, 2019. Because this suit was filed before the effective date of the amendments, it is governed by the statute as it existed before the amendments, and we refer to the TCPA as it existed prior to September 1, 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1-12, 2019 Tex. Gen. Laws 684, 684-87 (current versions at Tex. Civ. Prac. & Rem. Code §§ 27.001 -.011).

The TCPA establishes a three-step process for resolving a motion for expedited dismissal, Castleman v. Internet Money Ltd. , 546 S.W.3d 684, 691 (Tex. 2018) (per curiam), but only the first step is at issue in today's case. To meet its initial burden and invoke the TCPA, a moving party must show by a preponderance of the evidence that a legal action "is based on, relates to, or is in response to" the moving party's "exercise of the right of free speech, ... or right of association." Tex. Civ. Prac. & Rem. Code § 27.003(a) ; see Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127, 131 (Tex. 2019).

The phrase "exercise of the right of free speech" means a "communication made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code § 27.001(3). " ‘Communication’ includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1). "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. Id. § 27.001(7).

The phrase "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).

In ruling on a TCPA dismissal motion, the court must consider the pleadings and any "supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006. Although no party submitted affidavits, we will consider the evidence presented to the trial court with the supplemental briefs and included in our record because no one objected to it. See id. (in addition to affidavits, court may allow discovery relevant to motion); see generally Dyer v. Tex. Comm'n on Envtl. Quality , No. 03-17-00499-CV, 2019 WL 5090568, at *7 (Tex. App.—Austin Oct. 11, 2019, pet. filed) (mem. op. on reh'g) (evidence admitted during hearing without objection properly considered).

2. Standard of review

In construing the act and determining its applicability, we review statutory construction issues de novo. See Adams v. Starside Custom Builders, LLC , 547 S.W.3d 890, 894 (Tex. 2018) ; Toth , 557 S.W.3d at 150. As with any statute, courts must apply the TCPA as written and refrain from rewriting text that lawmakers chose. Creative Oil & Gas , 591 S.W.3d at 133. We must also analyze statutory language in its context, considering the specific sections at issue as well as the statute as a whole. Castleman , 546 S.W.3d at 688. We "must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous." Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 256 (Tex. 2008). We of course presume when the legislature enacts a statute that, among other things, "a just and reasonable result is intended" and "public interest is intended over any private interest." Tex. Gov't Code § 311.021. Also, our analysis of statutory text may be informed by the "object sought to be obtained," "circumstances under which the statute was enacted," legislative history, "common law or former statutory provisions, including laws on the same or similar subjects," and the title of the provision. See id. § 311.023(1)-(4), (7); Jardin v. Marklund , 431 S.W.3d 765, 770 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

The "surest guide to what lawmakers intended" is the enacted language of a statute, Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 463 (Tex. 2009), which necessarily includes any enacted statements of policy or purpose, see, e.g., Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n , 518 S.W.3d 318, 329 (Tex. 2017). Statutes do not always include express statements of purpose or directions for construction, but the TCPA includes both. See Tex. Civ. Prac. & Rem. Code §§ 27.002, 27.011.

We view the pleadings and evidence in the light most favorable to the non-movant. Stallion Oilfield Servs., Ltd. v. Gravity Oilfield Servs., LLC , 592 S.W.3d 205, 214 (Tex. App.—Eastland 2019, pet. denied) ; Brugger v. Swinford , No. 14-16-00069-CV, 2016 WL 4444036, at *2 (Tex. App.—Houston [14th Dist.] Aug. 23, 2016, no pet.) (mem. op.) ; Cheniere Energy, Inc. v. Lotfi , 449 S.W.3d 210, 214-15 (Tex. App.—Houston [1st. Dist.] 2014, no pet.).

3. The TCPA does not apply to Sanchez's assault claim

a. Right of free speech

Striever argues that the TCPA applies because Sanchez's claim is based on, relates to, or is in response to his exercise of the rights of free speech and association. We begin by examining his assertion regarding the right of free speech, which Striever says he was exercising by the act of pouring water on Sanchez.

Though the TCPA's free speech definition is not fully coextensive with constitutional free speech rights—and thus the act may classify certain communications as protected even though our national and state constitutions do not⁶ —the supreme court has never stated that we are to construe the act with no regard to constitutional jurisprudence. We cannot construe the act's terms liberally and faithfully to its fundamental purpose blind to the constitutional rights the act is designed to safeguard. See Tex. Civ. Prac. & Rem. Code §§ 27.002 (stating purpose is "to encourage and safeguard the constitutional rights of persons ...") (emphasis added), 27.011(b); Jardin , 431 S.W.3d at 771. Therefore, we look first to whether Striever's conduct, described by him as an act of protest, is protected speech under the First Amendment to the U.S. Constitution or article I, section 8 of the Texas Constitution.

6 See Adams , 547 S.W.3d at 892.

Although the First Amendment literally mentions only speech, Texas courts following the United States Supreme Court have held that the First Amendment also protects symbolic speech and expressive conduct as well as actual speech. See, e.g., Texas v. Johnson , 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (holding that symbolic or expressive conduct may "possess sufficient communicative elements to bring the First Amendment into play"); Faust v. State , 491 S.W.3d 733, 745 n.31 (Tex. Crim. App. 2015). But not all modes of "communication" are protected by the First Amendment. See United States v. O'Brien , 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (stating, "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled as ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea"); see also Johnson , 491 U.S. at 404, 109 S.Ct. 2533 (recognizing O'Brien 's limitation on protections of symbolic speech). Throughout our nation's history, for example, courts have long held that assaultive or other types of violent acts simply are not the sort of expressive conduct entitled to constitutional protection. "A physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment." Wisconsin v. Mitchell , 508 U.S. 476, 484, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993) ; see Roberts v. U.S. Jaycees , 468 U.S. 609, 628, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ; NAACP v. Claiborne Hardware Co. , 458 U.S. 886, 916, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) ("The First Amendment does not protect violence."). "[V]iolence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection." Roberts , 468 U.S. at 628, 104 S.Ct. 3244. In line with this view, the United States Supreme Court has added that First Amendment protection does not extend to, among other categories of speech, "speech integral to criminal conduct." United States v. Alvarez , 567 U.S. 709, 717-18, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (citing, e.g., Giboney v. Empire Storage & Ice Co. , 336 U.S. 490, 498-501, 69 S.Ct. 684, 93 L.Ed. 834 (1949) ). Likewise, Texas courts have concluded that speech is not protected by the First Amendment or the Texas Constitution when it is the "very vehicle" of a crime itself. Leachman v. Stephens , No. 02-13-00357-CV, 2016 WL 6648747, at *18 (Tex. App.—Fort Worth Nov. 10, 2016, pet. denied) (mem. op.) (op. on reh'g) (rejecting free speech arguments under First Amendment and Texas Constitution) (quoting Garcia v. State , 212 S.W.3d 877, 887 (Tex. App.—Austin 2006, no pet.) ). Put simply, there is no constitutional right to engage in criminal behavior or commit civil wrongs. Bandin v. Free & Sovereign State of Veracruz de Ignacio de la Llave , 590 S.W.3d 647, 653 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) ; Cheniere Energy , 449 S.W.3d at 219 (Jennings, J., concurring).

The conduct alleged by Sanchez and shown on the video constitutes an assault under Texas law.⁷ We therefore conclude that by pouring water on Sanchez, Striever was not exercising any free speech right protected by the U.S. or Texas constitutions.⁸ See Alvarez , 567 U.S. at 717-18, 132 S.Ct. 2537 ; Mitchell , 508 U.S. at 484, 113 S.Ct. 2194 ; Giboney , 336 U.S. at 498, 69 S.Ct. 684.

7 It is also punishable as a class C misdemeanor. Tex. Penal Code § 22.01(c) (offense under section 22.01(a)(3) generally is a class C misdemeanor).

8 The Supreme Court of Texas has not interpreted article I, section 8 of the Texas Constitution more broadly than the First Amendment in any case that does not involve an issue of a prior restraint on free speech. Tex. Dep't of Transp. v. Barber , 111 S.W.3d 86, 106 (Tex. 2003) ; cf. Davenport v. Garcia , 834 S.W.2d 4, 7-9 (Tex. 1992) (orig. proceeding) ; Ex parte Dehnert , No. 01-20-00344-CR, 605 S.W.3d 885, 895–96 (Tex. App.—Houston [1st Dist.] July 14, 2020, no pet. h.).

Because our constitutions do not protect Striever's conduct as free speech, his act can be an exercise of the right of free speech only if the TCPA deems it so. We therefore direct our attention to the act's terms, quoted above, as applied to the allegations in Sanchez's pleading, which are the "best, and all sufficient evidence of the nature" of the claim. Hersh v. Tatum , 526 S.W.3d 462, 467 (Tex. 2017).

As the Supreme Court of Texas has stated, the TCPA "casts a wide net," and the exercise of the right of free speech "extends to any ‘communication made in connection with a matter of public concern,’ " which covers "[a]lmost every imaginable form of communication, in any medium." Adams , 547 S.W.3d at 894 (quoting Tex. Civ. Prac. & Rem. Code § 27.001(3) ). The act's broad definition can include at least certain forms of expressive conduct. See Castleman , 546 S.W.3d at 690 n.4. Standing alone, the statute's facial definition of "free speech" might include "communicative" conduct made in connection with a matter of public concern. Striever asserts, and we assume, that his act of pouring water on Sanchez was meant to express opposition to Sanchez's message delivered at a press conference regarding Houston public schools.

Despite the TCPA's broad implications, however, the act "has its limits" and not every communication falls under the statute. Dyer v. Medoc Health Servs., LLC , 573 S.W.3d 418, 428 (Tex. App.—Dallas 2019, pet. denied). We cannot read section 27.001(3) in isolation or construe it in a way that renders any part of the statute meaningless. See Castleman , 546 S.W.3d at 688 ; Columbia Med. Ctr. , 271 S.W.3d at 256. "While ‘it is not for courts to undertake to make laws "better" by reading language into them,’ we must make logical inferences when necessary ‘to effect clear legislative intent or avoid an absurd or nonsensical result that the Legislature could not have intended.’ " Castleman , 546 S.W.3d at 688 (quoting Cadena Comercial , 518 S.W.3d at 338 ); see also Creative Oil & Gas , 591 S.W.3d at 133 (stating that we apply plain meaning unless doing so would lead to absurd results); Bandin , 590 S.W.3d at 652 ; Jardin , 431 S.W.3d at 770.

Reading the TCPA in its entirety, its broad definition of the "exercise of the right of free speech" is necessarily restricted by the expressly stated purpose "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. " Tex. Civ. Prac. & Rem. Code § 27.002 (emphasis added). The TCPA plainly contemplates and encourages government participation, but only law-abiding participation comes within its purview. The TCPA's statement of purpose requires us to balance recognized constitutional rights against the rights of all individuals to file lawsuits to redress harm. See Cheniere Energy , 449 S.W.3d at 216. The TCPA exists to safeguard constitutional rights, not to protect assaultive or criminal conduct under the guise of protest. Striever has a right to participate in government to his heart's desire, but if his protestive conduct devolves into that not "permitted by law," he may not seek refuge in the TCPA when called to account for his actions in court. Striever's unbounded interpretation of the act's free speech definition would overrun the act's clearly expressed legislative purpose, rendering it effectively meaningless. We construe the act's free speech definition informed by the act's purpose, not despite it. See Hebner v. Reddy , 498 S.W.3d 37, 41 (Tex. 2016) (stating that courts will not construe a statute to defeat its manifest object).

Construing the TCPA to cover assault or criminal conduct leads to absurd results. Such a reading would potentially thwart meritorious lawsuits for recoverable harm or property damage.⁹ Movants could assert the TCPA to impede claims based on any number of assaultive acts, no matter how meritorious, by simply asserting that, when they engaged in the complained-of conduct, they were "protesting." We are not the first to reject an overly broad construction of TCPA definitions in light of the act's purpose due to the absurd results that would likely follow. See, e.g., Forget About It, Inc. v. BioTE Med., LLC , 585 S.W.3d 59, 64 (Tex. App.—Dallas 2019, pet. denied) (mem. op.) ; Dyer , 573 S.W.3d at 427-29 ; Universal Plant Servs., Inc. v. Dresser-Rand Grp., Inc. , 571 S.W.3d 346, 367-68 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (Keyes, J., concurring); ExxonMobil Pipeline Co. v. Coleman , 464 S.W.3d 841, 847 (Tex. App.—Dallas 2015), rev'd on other grounds , 512 S.W.3d 895 (Tex. 2017) ; Cheniere Energy , 449 S.W.3d at 219 (Jennings, J., concurring); see also Kawcak v. Antero Res. Corp. , 582 S.W.3d 566, 583 (Tex. App.—Fort Worth 2019, pet. denied) (stating, "to give the right of association the breadth advocated by Kawcak would require a reading that makes the statute a sword to protect the commission of civil wrongs and that ignores the stated purpose of the statute to protect the right to file meritorious lawsuits"). We relied on this principle recently in Bandin when we held the TCPA does not apply to the Mexican State of Veracruz's claim that its former governor conspired with others to misappropriate or embezzle state funds. Bandin , 590 S.W.3d at 653-54.

9 Claims for bodily injury are specifically exempted. Tex. Civ. Prac. & Rem. Code § 27.010(c).

The TCPA establishes a procedure to identify and summarily dispose of retaliatory actions designed only to chill First Amendment rights. In re Lipsky , 460 S.W.3d at 584, 589. Sanchez's claim for assault by offensive physical contact is not fairly characterized as falling into that category. His assault claim is not "retaliatory" to, or factually predicated on, any message Striever may have wished to express. The assault claim is founded factually on an alleged physical intrusion of personal interests. Based on the pleading, Sanchez does not seek to silence any disagreement Striever may have had with Sanchez's positions. The pleading does not complain of any communication, and it is not for assault victims to speculate whether an actor, by his or her assaultive conduct, may or may not have intended to impart a message on a matter of public concern. Sanchez is seeking redress for the assaultive impact of Striever's conduct, not any communicative impact. As one court has stated, we cannot "blindly accept" attempts by a TCPA movant to characterize the claims as implicating protected expression. Damonte v. Hallmark Fin. Servs. Inc. , No. 05-18-00874-CV, 2019 WL 3059884 at *5 (Tex. App.—Dallas July 12, 2019, no pet.) (mem. op.). "To the contrary, we view the pleadings in the light most favorable to the nonmovant, favoring the conclusion that its claims are not predicated on protected expression." Id. Striever may have intended his act to convey a message in connection with a public matter, but that purported message has nothing to do with the gravamen of the claim as pleaded. See Kawcak , 582 S.W.3d at 587 ("[S]imply alleging conduct that has a communication embedded within it does not create the relationship between the claim and the communication necessary to invoke the TCPA.").

In sum, the TCPA does not provide a shield to those who commit assaultive acts in the name of political protest. We hold that the TCPA cannot reasonably be construed to protect assault as an exercise of the right of free speech. Assuming that Striever intended to communicate a message on a matter of public concern by his act of pouring water on Sanchez, we do not construe the TCPA to apply to such conduct because doing so contravenes the act's express purpose and would lead to absurd results the legislature could not have intended. In light of our holding, we need not address Sanchez's remaining argument that Striever judicially admitted that his conduct does not qualify as a protected act of free speech under the TCPA.

b. Discovery requests

Sanchez's original petition included several requests for production of documents. The requests generally sought communications between Striever and others regarding the press conference and Sanchez. In his brief, Striever cites the discovery requests as evidence that Sanchez's claim for assault by offensive physical contact is based on, relates to, or is in response to Striever's right of free speech or right of association.

The parties dispute whether we may consider the discovery requests in our analysis. Sanchez urges us to consider only "pleadings," as section 27.006 indicates, and that discovery requests are not "pleadings." Striever says the discovery requests were included in Sanchez's original petition and are part of the pleadings. Neither party cites authority addressing to what extent a court may consider the existence and nature of written discovery requests in determining whether a legal action to which the discovery pertains can meet a TCPA movant's burden to show that the action is based on, relates to, or is in response to the movant's exercise of the rights of free speech or association.

A discovery request is not a "legal action" as defined by the TCPA. See Dow Jones & Co. v. Highland Capital Mgmt., L.P. , 564 S.W.3d 852, 854 (Tex. App.—Dallas 2018, pet. denied) (subpoena seeking discovery from a third party is not a legal action under TCPA). The purpose of discovery is to allow a party to garner relevant facts pertaining to its claims or defenses that are pleaded in a legal action. See Johnson v. Perry Homes , No. 14-96-01391-CV, 1998 WL 751945, at *12 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (not designated for publication).

Assuming without deciding that the requests for production included in Sanchez's original petition are properly considered as evidence in determining the TCPA's applicability, we do not believe they are sufficient to demonstrate the TCPA applies to the legal action. The requests at issue seek facts relevant to Sanchez's pleaded claim because the requested information might reveal whether Striever acted intentionally or knowingly and whether he actually knew that Sanchez would regard his conduct as offensive or provocative—required elements of the claim. See Tex. Penal Code § 22.01(a)(3). Sanchez seeks relief for the assault itself; he does not seek redress for the fact that Striever may have communicated with others, nor is the fact of communication with others prior to the event, if it occurred, a necessary element of the claim. As explained, we have concluded that the TCPA does not apply to Sanchez's claim for assault by offensive physical contact. Accepting Striever's view would permit TCPA movants to invoke the act when it would not otherwise apply merely because the non-movant served written discovery requests that sought communications that are believed to include statements relevant to the underlying claim.

* * *

On the present record, we conclude that Striever has not shown that Sanchez's claim for assault by offensive physical contact is based on, related to, or in response to Striever's exercise of the rights of free speech or association. We sustain Sanchez's second issue.

C. Attorney's Fees and Costs

The trial court awarded Striever attorney's fees and costs of $7,643.00, plus conditional appellate fees. The court awarded these amounts based on its authority under both rule 91a and the TCPA.

In his third issue, Sanchez asserts that if we reverse the dismissal order we should also vacate the award of fees and costs. He also requests a remand for assessment of attorney's fees and costs in his favor under rule 91a.7.

The version of rule 91a applicable when this suit was filed in January 2019 mandated an award of reasonable and necessary attorney's fees and costs to the party prevailing on a rule 91a motion.¹⁰ If a court orders dismissal of an action under the TCPA, it must award attorney's fees and costs to the movant. See Tex. Civ. Prac. & Rem. Code § 27.009(a)(1). Unlike rule 91a, the TCPA does not apply a "prevailing party" framework for fee awards.

10 The rule was amended effective September 1, 2019, and now any award of fees and costs is discretionary, not mandatory. Tex. R. Civ. P. 91a.7 & cmt. 2019.

Because we have reversed the dismissal order on both TCPA and rule 91a grounds, we sustain Sanchez's third issue, vacate the award of attorney's fees and costs, and remand for further proceedings consistent with this opinion. See Weizhong Zheng v. Vacation Network, Inc. , 468 S.W.3d 180 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).

Conclusion

We reverse the trial court's dismissal order and vacate the award of attorney's fees and costs. We remand the case to the trial court for further proceedings consistent with this opinion.

( Hassan, J., concurring and dissenting).

CONCURRING AND DISSENTING OPINION

Meagan Hassan, Justice

Appellant, Orlando Sanchez, challenges the trial court's dismissal of his suit against Appellee, Steve Striever, contending the trial court erred in granting Striever's motion to dismiss pursuant to (1) Texas Rule of Civil Procedure 91a because Sanchez's assault claim had a basis in law and fact; and (2) the Texas Citizen's Participation Act¹ ("TCPA") because Striever did not show that Sanchez's "lawsuit was based on, related to, or was in response to Appellee's exercise of his First Amendment Right." Sanchez also requests that we reverse the trial court's attorney's fees award in Striever's favor. Because I agree with the majority's disposition of Sanchez's first issue but disagree with the majority's disposition of Sanchez's second and third issues, I respectfully concur in part and dissent in part.

1 See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001 -.011.

BACKGROUND

On December 28, 2018, Sanchez (who was the Harris County Treasurer at the time) held a press conference concerning the Houston Independent School District. At some point during the press conference, Striever walked up behind Sanchez and poured water on Sanchez's head. Sanchez filed suit against Striever on January 31, 2019, alleging:

• Striever "committed an assault by offensive physical contact on Plaintiff that proximately caused Plaintiff's injuries and damages";

• "[a]s a result of the unnecessary occurrence, Plaintiff's claim [sic] all damages recognizable by law, including but not limited to past and future mental anguish"; and

• "Defendant's conduct was outrageous, malicious or otherwise morally culpable conduct that should be penalized by having exemplary damages awarded against him."

Sanchez included in his original petition requests for disclosure, requests for production, and interrogatories.

On March 8, 2019, Striever filed "Defendant's Motion to Dismiss, Original Answer & Request for Disclosure". He (1) moved "to dismiss [Sanchez's] lawsuit pursuant to Texas Civil Practice and Remedies Code § 27.003"; (2) "plead[ed] a general denial"; and (3) included a request for disclosure.

On April 1, 2019, Striever filed "Defendant's Amended Motion to Dismiss, Original Answer & Request for Disclosure", which stated, among other things:

• "Defendant moves to dismiss this lawsuit pursuant to Texas Rule of Civil Procedure 91a and Texas Civil Practice and Remedies Code § 27.003. Plaintiff's action relates to or is in response to Defendant's exercise of free speech or right of association."

• "Defendant is sorry for the incident that occurred on December 28, 201[8] and regrets pouring water on Plaintiff. However, Plaintiff's lawsuit is not meritorious. Plaintiff did not suffer demonstrable injury and Plaintiff has no damages."

• "Defendant moves to dismiss Plaintiff's cause of action for assault because it has no basis in law or fact."

• Sanchez's original petition and discovery requests "reveal that Plaintiff's lawsuit is based on, relates to, or is in response to Defendant's right of free speech or right of association."

• "Defendant requests that the court enter a finding that Plaintiff's legal action was brought to deter or prevent Defendant from exercising constitutional rights and for improper purpose, including harassment."

• "Plaintiff's lawsuit must be dismissed unless Plaintiff provides ‘clear and specific’ evidence to support every element of his claim."

• "Striever requests that the court dismiss Plaintiff's claims, award Plaintiff [sic] attorney fees and costs for bringing the Anti-SLAPP motion, award sanctions, and for other just relief."

Sanchez filed a first amended petition on April 4, 2019 that is essentially identical to his original petition except it does not include discovery requests.

On April 17, 2019, Sanchez filed a "Response to Defendant's Motion to Dismiss & Motion for Attorney's Fees & Costs". He argued that (1) the TCPA is inapplicable because none of Striever's "actions that form the basis of this lawsuit are protected by the Anti-SLAPP statute"; (2) Striever "has provided no evidence that Plaintiff's lawsuit[ ] is even remotely based on, relates to, or is in response to Defendant's right of free speech or right of association"; and (3) the trial court "should find that Defendant's use of the Anti-SLAPP statute is frivolous" because "Defendant's act of pouring water on Plaintiff's head during Plaintiff's press conference was a direct attack on Plaintiff's right to assembly and free speech."

On April 22, 2019, the trial court held a hearing on Striever's amended motion to dismiss pursuant to the TCPA. The trial court expressed several times that it had difficulty understanding Striever's argument regarding how the TCPA applied in the present case:

STRIEVER'S COUNSEL: ... And I'm not arguing that the act of pouring water over Mr. Sanchez's head is a protected free speech right. It's not. That's not what I'm arguing. The statute is much broader than that.

What I'm arguing and what the statute, I think, provides is that Mr. Sanchez's reaction to it, the filing of this lawsuit for a million dollars over this incident where he has no damages, is an act that is designed to try and harass my client and squelch his free speech rights.

And if you look at the discovery that's included in the petition, Mr. Sanchez has — it's evident that that's what he wants.

THE COURT: I don't understand. If you're saying what he did was not protected speech or something — or some other act that comes within Chapter 27, how does Chapter 27 apply?

COUNSEL: Because Chapter 27 is very broad. And if you read the actual language —

THE COURT: Yes, but the first prong has to be — doesn't the first prong have to be that the conduct complained of comes within the act?

COUNSEL: No, it does not. All I have to show is that Mr. Sanchez's lawsuit relates to my client's constitutional rights for free speech and free association. And as evidenced by the discovery that Mr. Sanchez has included in his petition, that's exactly what this is about. And if you've seen the video, it's obvious Mr. Sanchez has no damages.

* * *

COUNSEL: It's harassment by Mr. Sanchez, who has no damages, to go after things having to do with my client's communications with other protesters that were there that day that have nothing to do with this incident. That's what this lawsuit is all about.... I've met my burden of coming forth with preponderance of evidence that his claims relate to my client's free association rights. Maybe not free speech rights but free association certainly.

* * *

THE COURT: I'm not talking about discovery. I don't understand how you are parsing this. Mr. Sanchez is in the parking lot for a press conference. Your client was there ostensively protesting what he had to say....

* * *

THE COURT: All right. Something happened involving water, and then Mr. Sanchez files a lawsuit for assault. You're saying now — you're not saying that the act of pouring water, which seems plain to me was in an act of protest, is not the basis of your Chapter 27 motion — or is not the free speech right implicated by the lawsuit but something else is.

COUNSEL: Correct.

THE COURT: And I don't know what the something else is.

COUNSEL: I do not believe that pouring water on someone, throwing something at someone — I mean, we're seeing a lot of this in the news lately — I don't believe those are protected free speech acts. But the statute is so broad....

After Striever concluded his argument, Sanchez argued that Striever "failed to meet [his] burden that the statute even applies to the pleading that was filed by" Sanchez. Sanchez argued his claim (1) "is very clear that this is an assault by a[n] offensive physical conduct"; (2) "is based upon the pouring of the water, which is an offensive physical conduct"; and (3) "is not about free speech or association." The trial court disagreed with Sanchez and expressed its own view of the case:

THE COURT: It is [about free speech and association]. It really is. I don't know why you're not arguing it is, but here's why. Mr. Sanchez was there to make a point to the press. The protesters were there to protest. They were there — they were not there to beat up Mr. Sanchez because they didn't like him. They were obviously there to protest what he had to say.

It's no different than glitter or a pie in the face. It was water, the same thing he did in the shower that morning. All right. It was to make a point, a political point. It's all about free speech. It's all about the First Amendment. I don't know why you're not arguing that. Here's the case if you need it.

COUNSEL: I would like that case, Your Honor. And I will amend and make that argument now.

THE COURT: We'll see. There's a California case, 2008 Westlaw 4359534.

* * *

THE COURT: That's all I got, is a Westlaw cite. 2008 Westlaw 4359534. The — it's called Yan, Y-a-n, versus Sing Tao, S-i-n-g, second word, T-a-o, Newspapers.

* * *

THE COURT: S-i-n-g, Sing, Tao, T-a-o, Newspapers. In that case there was an assault case brought by a criminal defendant coming out of a courtroom. I think it was a criminal defendant. It might have been a civil case.

And the press was there and there was a photographer who — he was trying to shield his face. The plaintiff in the lawsuit was the ultimate lawsuit at issue here who was the person coming out of the courtroom, attempted to shield his face with his briefcase to block the photographer's view.

The photographer moved his hand and briefcase away from his face so she could take pictures, and he sued her for assault, claiming that she accosted him. And the California court ruled that that was clearly protected by the First Amendment and dismissed the case.

Now, I know that's a California statute, not a Texas statute; but it seems to me that the point still obtains and — so my view, I think it applies for that reason. But that's not the reason that [Striever] was arguing. I still don't quite understand [Striever]'s argument.

In response, Sanchez expressed his disagreement with the trial court's view and presented further argument. The trial court brought the hearing to a close and invited Striever to submit a supplemental or amended motion explaining how Sanchez's suit implicates Striever's First Amendment rights relative to the TCPA.

As requested, Striever filed "Defendant's Supplement to and Brief in Support of Amended Motion to Dismiss" on April 26, 2019. He argued, among other things:

• "Defendant has shown by a preponderance of the evidence that Plaintiff's suit is based on, relates to, or is in response to Defendant's right to free speech, right to associate freely, and right to petition."

• "After reading the California case^{[ 2 ]} cited by the Court at the April 22, 2019 hearing, and further research, review, and consideration of the context of Defendant's actions, Defendant agrees with the Court that his pouring water on Plaintiff was an act of free speech being exercised in conjunction with his right of free association with a group of protestors."

• "Plaintiff has failed to establish by clear and specific evidence a prima facie case for each essential element of its claim for assault by offensive physical conduct."

• "It is undisputed that Defendant [sic] had no bodily injury. Plaintiff has not argued or provided any evidence that Defendant threatened Plaintiff with imminent bodily injury. Plaintiff has not argued or provided any evidence that Defendant knew or should have reasonably believed that the physical contact of water on Plaintiff would be regarded by Plaintiff as offensive or provocative."

• "Plaintiff's pleadings (including with the discovery requests and interrogatories contained in his petition) and

2 Striever cited to Yan v. Sing Tao Newspapers S.F. Ltd. , A120311, 2008 WL 4359534 (Cal. Ct. App. Sept. 25, 2008) (unpublished).

the evidence in the record prove that Plaintiff filed this lawsuit in response or in relation to [Defendant] and his fellow protestors' right of association, the right of free speech, and right to petition."

Sanchez filed a "Response to Defendant's Motion to Dismiss under Rule 91a" on April 29, 2019, arguing the trial court should deny Striever's Rule 91a motion because Sanchez pleaded a cause of action for assault by offensive physical contact that is recognized by law and stated sufficient facts to assert the claim.

A day later, Sanchez filed "Plaintiff's Supplemental Response to Defendant's Supplement and Brief in Support of Motion to Dismiss". Sanchez argued (1) Striever judicially admitted at the April 22, 2019 hearing that his act of pouring water on Sanchez is not a protected right to free speech; (2) the Yan case is inapplicable and has no precedential value in Texas; (3) Striever failed to provide any authority to support an assertion that his "assault is a protected First Amendment Right covered by the anti-SLAPP statute"; (4) the burden of proof never shifted to Sanchez, and even if the court believed that Striever "has shifted the burden, [Sanchez] has [presented] ‘clear and specific evidence [of] a prima facie case for each essential element of the claim in question’ "; (5) an assault by offensive physical contact does not require a showing of actual injury; and (6) the video showing Sanchez's assault (viewed by the trial court) constitutes "clear and specific evidence that Defendant intentionally and knowingly poured water on Plaintiff's head[,] [a]nd ... that Defendant knew it was offensive because he ran away after committing the assault."

Striever filed a reply to Sanchez's responses on May 5, 2019, contending that (1) Sanchez failed to establish by clear and specific evidence a prima facie case for each essential element of his assault claim because he admitted that he suffered no actual injury and the only damages "he seeks are for his alleged mental anguish"; (2) Striever established by a preponderance of the evidence that Sanchez's suit "is based on, relates to, or is in response to [Striever]'s constitutional right of free speech, free association, and to petition"; and (3) Striever's attorney's statement that he did not believe pouring water on someone was a protected free speech act does not constitute a judicial admission because an attorney "cannot judicially admit what the law is or a legal conclusion to be drawn from facts pleaded."

On May 15, 2019, the trial court signed an order (1) granting Striever's motion to dismiss pursuant to the TCPA and Rule 91a and (2) awarding attorney's fees incurred in "defending the action and bringing his Motion to Dismiss" (as well as conditional appellate attorney's fees). In its dismissal order, the court provided the following reasons for its ruling:

First, as to Chapter 27 of the CPRC, the Court finds and concludes that the act of pouring water over Mr. Sanchez constitutes protected speech, and that the suit by Mr. Sanchez also otherwise implicates protected First Amendment rights of the Defendant. The Court overrules Plaintiff's judicial admission argument. Once the burden shifted, Plaintiff failed to adduce clear and specific evidence of a prima facie case of his claims. Specifically, Plaintiff did not adduce any evidence of any injury whatsoever, even if he could allegedly recover mental anguish damages under the circumstances.

Second, the Court also hereby DISMISSES this suit pursuant to TRCP 91a, and hereby awards the attorney's fees and costs listed above as a one time award for both the CPRC Ch. 27 Motion

and TRCP 91a Motion, and not as a duplicate award.

Sanchez filed a timely notice of appeal.

ANALYSIS

I. Motion to Dismiss Pursuant to Rule 91a

Sanchez argues in his first issue that the trial court erroneously granted Striever's motion to dismiss under Rule 91a because there is a basis in law and fact for Sanchez's claim of assault by offensive physical contact.

Texas Rule of Civil Procedure 91a provides that a party "may move to dismiss a cause of action on the grounds that it has no basis in law or fact." Tex. R. Civ. P. 91a.1; Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C. , 595 S.W.3d 651, 654 (Tex. 2020). "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Tex. R. Civ. P. 91a.1; Bethel , 595 S.W.3d at 654. "A cause of action has no basis in fact if no reasonable person could believe the facts pleaded." Tex. R. Civ. P. 91a.1. In ruling on a Rule 91a motion, a court "may not consider evidence ... and must decide the motion based solely on the pleading of the cause of action." Tex. R. Civ. P. 91a.6.

The merits of a Rule 91a motion are reviewed "de novo because the availability of a remedy under the facts alleged is a question of law and the rule's factual-plausibility standard is akin to a legal-sufficiency review." City of Dallas v. Sanchez , 494 S.W.3d 722, 724 (Tex. 2016) (per curiam) ; In re Union Pac. R.R. Co. , 582 S.W.3d 548, 550 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding) (per curiam). In conducting its review, a court must construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine whether the cause of action has a basis in law or fact. In re Union Pac. R.R. Co. , 582 S.W.3d at 550.

"In Texas, an assault is both an offense against the peace and dignity of the State, as well as an invasion of private rights." Foye v. Montes , 9 S.W.3d 436, 441 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). "The elements of a civil assault mirror those of a criminal assault." Loaisiga v. Cerda , 379 S.W.3d 248, 256 (Tex. 2012). In relevant part, a person commits an assault under the Texas Penal Code if he intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Pen. Code Ann. § 22.01(a). In this case, an assault requires these two elements: (1) the defendant "intentionally or knowingly causes physical contact with" the plaintiff; and (2) the defendant "knows or should reasonably believe that the [plaintiff] will regard the contact as offensive or provocative." See id. § 22.01(a)(3) ; Loaisiga , 379 S.W.3d at 256.

Based on the live petition, I agree with the majority's conclusion that Sanchez's assault claim has a basis in law and fact. Sanchez pleaded that (1) Striever intentionally and/or knowingly caused physical contact with Sanchez during a press conference by pouring water on his head; and (2) Striever knew or reasonably should have believed that Sanchez would regard the contact as offensive or provocative. Sanchez also pleaded for damages. Sanchez's "allegations, taken as true, together with inferences reasonably drawn from them," would entitle him to the relief sought. See Tex. R. Civ. P. 91a.1.

I also agree with the majority's rejection of Striever's contention on appeal that dismissal was appropriate under Rule 91a because Sanchez (1) "had no personal injury to redress and no recoverable damages", and (2) presented no evidence of mental anguish.

First, although "proof of injury or intent to injure may be a requirement under other provisions of the penal code, actual injury is not required under section 22.01(a)(3)." Foye , 9 S.W.3d at 441 ; see also Tex. Pen. Code Ann. § 22.01(a)(3). "[I]t was the offensive nature of the contact, not its extent, that made the contact actionable: ‘Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting.’ " City of Watauga v. Gordon , 434 S.W.3d 586, 590 (Tex. 2014) (quoting Fisher v. Carrousel Motor Hotel, Inc. , 424 S.W.2d 627, 630 (Tex. 1967) ); see also Foye , 9 S.W.3d at 441 ("[R]ather than physical injury, offensive contact is the gravamen of the action; consequently, the defendant is liable not only for contacts which cause actual physical harm, but also for those which are offensive and provocative.") and Durban v. Guajardo , 79 S.W.3d 198, 206 (Tex. App.—Dallas 2002, no pet.) ("[T]he basis for an assault and battery action is ‘not the actual harm done to the plaintiff's body.’ "). Emotional distress is not merely incidental to a claim for assault; instead, it is "the essence" of it. Durban , 79 S.W.3d at 206 ; see also Fisher , 424 S.W.2d at 630. Proof of physical injury is not required for a plaintiff to recover mental anguish damages for assault by offensive physical contact. See Moore v. Lillebo , 722 S.W.2d 683, 685 (Tex. 1986) ; Fisher , 424 S.W.2d at 630.

Second, Rule 91a specifically provides that, in ruling on a Rule 91a motion, a court "may not consider evidence ... and must decide the motion based solely on the pleading of the cause of action." Tex. R. Civ. P. 91a.6. Sanchez was not required to introduce "direct evidence" of mental anguish damages. Accordingly, I agree with the majority that the trial court erred by granting Striever's motion to dismiss pursuant to Rule 91a, and I would sustain Sanchez's first issue.

II. Motion to Dismiss Pursuant to the TCPA

In his second issue, Sanchez argues the trial court erroneously granted Striever's motion to dismiss under the TCPA because Striever failed to prove that Sanchez's "suit for assault was based on, related to, or was in response to [Striever]'s exercise of his First Amendment right."

A. Standard of Review and Applicable Law

The TCPA³ is an anti-SLAPP law; "SLAPP" is an acronym for "Strategic Lawsuits Against Public Participation." Toth v. Sears Home Improvement Prods. , Inc. , 557 S.W.3d 142, 149 (Tex. App.—Houston [14th Dist.] 2018, no pet.) ; Fawcett v. Grosu , 498 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (op. on reh'g). The TCPA is intended "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." Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.002 ); Toth , 557 S.W.3d at 150. This statute "protects citizens from retaliatory lawsuits that seek to intimidate or silence them" from exercising their First Amendment rights and provides a procedure for the "expedited dismissal of such suits." In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding).

3 The Texas Legislature amended the TCPA in its most recent legislative session and the amendments are effective September 1, 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1-12, 2019 Tex. Gen. Laws 684, 684-87 (current versions at Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001 -.011). Because this suit was filed before the effective date of the amendments, it is governed by the statute as it existed before the amendments, and all citations are to the TCPA as it existed prior to September 1, 2019, unless otherwise indicated.

To effect its stated purpose, the TCPA provides a mechanism for trial courts to identify and summarily dispose of those suits designed specifically to chill First Amendment rights. Id. at 589. However, the TCPA is not intended to dispose of meritorious lawsuits. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.002 ) (balancing "the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law" against "the rights of a person to file meritorious lawsuits for demonstrable injury"); see also In re Lipsky , 460 S.W.3d at 589.

A trial court's denial of a TCPA motion to dismiss is reviewed de novo. O'Hern v. Mughrabi , 579 S.W.3d 594, 602 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Under this standard, we "make an independent determination and apply the same standard used by the trial court in the first instance." Cox Media Grp., LLC v. Joselevitz , 524 S.W.3d 850, 859 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We construe the TCPA liberally to effectuate its purpose and intent. O'Hern , 579 S.W.3d at 602. However, "interpreting the TCPA has presented challenges to the courts of appeals because of the breadth of its plain language." Bandin v. Free & Sovereign State of Veracruz de Ignacio de la Llave , 590 S.W.3d 647, 650 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).

The TCPA establishes a three-step process for resolving a motion for expedited dismissal. Castleman v. Internet Money Ltd. , 546 S.W.3d 684, 691 (Tex. 2018) (per curiam). First, the moving party must show by a preponderance of the evidence that the plaintiff's claim "is based on, relates to, or is in response to the [moving party's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.005 ). If the moving party makes the initial showing, the burden shifts to the plaintiff to "establish[ ] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. Even if the plaintiff satisfies the second step, the court shall dismiss the plaintiff's claim if the moving party "establishes by a preponderance of the evidence each essential element of a valid defense to the [plaintiff]'s claim." Id.

This framework is applied to a relatively limited universe of evidence. Toth , 557 S.W.3d at 150. To determine whether a claim should be dismissed under the TCPA, the court "shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 963 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.006 ).

B. The TCPA's Applicability

Sanchez argues the trial court erred because Striever failed to show Sanchez's assault claim was "based on, related to, or was in response to [Striever]'s exercise of his First Amendment right." In that regard, Sanchez contends (1) Striever admitted he committed assault; (2) Striever "judicially admitted that his assault was not free speech"; (3) legal precedent establishes that "Striever's assault is not a protected First Amendment right"; and (4) Striever presented "no other factual evidence that established" how the assault was an exercise of the right of free speech, the right to petition, or the right of association.

Striever counters, inter alia , that Sanchez's judicial admission argument is without merit because (a) "the law itself cannot be judicially admitted" and (b) he retracted his statement "that he did not believe that pouring water on someone was a protected free speech act."

In determining whether the assault claim is based on, related to, or is in response to Striever's exercise of his right of free speech or his right of association, courts recognize that they "must interpret the Act with awareness of the dissonance created by the fact that the TCPA's express purpose is to protect constitutional rights, yet the definitions of the rights set out in the TCPA are not drafted to mimic the boundaries of constitutional rights established by the First Amendment." Kawcak v. Antero Res. Corp. , 582 S.W.3d 566, 575 (Tex. App.—Fort Worth 2019, pet. denied) ; see also Adams v. Starside Custom Builders, LLC , 547 S.W.3d 890, 892 (Tex. 2018) ("The TCPA provides its own definition of ‘exercise of the right of free speech.’ The statutory definition is not fully coextensive with the constitutional free-speech right protected by the First Amendment to the U.S. Constitution."). Courts thus adhere to the TCPA's plain language and do not import limitations on that language that may exist (either in the constitutional right of free speech or right of association) but which are not found in the TCPA's statutory definitions. See Kawcak , 582 S.W.3d at 575.

The TCPA defines an "[e]xercise of the right of association" as "a communication between individuals who join together to collectively express, promote, pursue, or defend common interests." Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 961 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2) ). An "[e]xercise of the right of free speech" is defined as "a communication made in connection with a matter of public concern." Id. (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3) ). A "communication" includes "the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1) ); see also Adams , 547 S.W.3d at 894 (the TCPA's definition of "communication" includes "[a]lmost every imaginable form of communication, in any medium"). Further, a " ‘[m]atter 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." Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 961 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7) ).

Sanchez first contends Striever failed to establish the assault claim was "based on, related to, or was in response to [Striever]'s exercise of his First Amendment right" because Striever admitted that he committed assault when he poured water on Sanchez's head. I would reject the contention that a party may judicially admit a question of law that controls our analysis. Connick v. Myers , 461 U.S. 138, 148 n.7 & 10, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ("The inquiry into the protected status of speech is one of law, not fact."); Cohen v. Tour Partners, Ltd. , No. 01-15-00705-CV, 2017 WL 1528776, at *5 (Tex. App.—Houston [1st Dist.] Apr. 27, 2017, no pet.) (mem. op.) (" ‘A party may not judicially admit a question of law.’ ") (quoting H.E. Butt Grocery Co. v. Pais , 955 S.W.2d 384, 389 (Tex. App.—San Antonio 1997, no pet.) ); Jefferson Cty. v. Nguyen , No. 09-13-00505-CV, 2015 WL 4597560, at *17 (Tex. App.—Beaumont July 31, 2015, no pet.) (mem. op.). Furthermore, Sanchez failed to explain how the alleged judicial admission supports an argument that his pleaded assault claim is not based on, related to, or in response to Striever's exercise of his First Amendment right.

Instead, Sanchez argues that the trial court erroneously dismissed his assault claim under the TCPA because legal precedent establishes that "Striever's assault is not a protected First Amendment right." However, the question presented in this case is not (as Sanchez has attempted to frame it) whether pouring water on Sanchez's head is constitutionally protected speech under the First Amendment. Rather, the question is whether Sanchez's lawsuit is based on, related to, or in response to Striever's exercise of the right of free speech or the right of association as defined by the TCPA when he poured water on Sanchez's head. Sanchez has not cited (and I have not found) any legal authority that an assault by offensive contact is not an exercise of a right of free speech or right of association under the TCPA; based on the plain language of the TCPA, I would therefore reject this argument.

Further, a general holding that only law-abiding conduct comes within the purview of the TCPA (and any alleged conduct that is not law-abiding cannot serve as an exercise of a right of free speech under the TCPA) creates numerous potential issues going forward. The statute was significantly amended by the legislature in 2019, and although this case is governed by the previous version of the statute, this fact pattern still falls squarely within the definition of "matter of public concern" and therefore will foreseeably come before us or other Texas courts of appeals in the future. In a society increasingly marked by public protests, I am deeply concerned that the elimination of TCPA protections in protest cases will lead to a deterioration of the People's rights and remedies under the law. The legislature has instructed the courts to balance (1) the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and (2) the rights of a person to file meritorious lawsuits for demonstrable injury. If Striever had accidentally coughed on Sanchez during a pandemic while holding a protest sign, Sanchez might still have brought a claim for assault by offensive physical contact alleging that the coughing was deliberate, and — if we agreed that Striever was expressing his right of free speech and association while holding the sign — we would move to the second prong, under which Sanchez would be required to prove the deliberate nature of Striever's action as a prima facie element of the cause of action. Under the majority's opinion, however, Sanchez's pleading that the cough was deliberate (i.e. , assault) would be taken as true for purposes of proving an underlying unlawful act with no further requirement that he make a prima facie case of same, thereby entirely frustrating the purpose of the TCPA.

I cannot agree with the majority's holding that some participation in government is less valid than others. Nothing in the TCPA itself limits the actions to those that are protected by the First Amendment or that are law-abiding under Texas law, and I reject the majority's attempts to write words into the statute. "Specifically, when dealing with the TCPA, the supreme court warns against ‘improperly narrow[ing] the scope of the TCPA by ignoring the Act's plain language and inserting ... requirement[s]’ not found in that language." Kawcak , 582 S.W.3d at 575 (quoting ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 900 (Tex. 2017) (per curiam) ). The supreme court also instructs that "[w]e must construe the TCPA according to its text. The statute assigns detailed definitions to many of the terms it employs, and we must adhere to statutory definitions." Adams , 547 S.W.3d at 894 (citations omitted).

Additionally, "[w]hen applying the ordinary meaning, courts ‘may not by implication enlarge the meaning of any word in the statute beyond its ordinary meaning, and implications from any statutory passage or word are forbidden when the legislative intent may be gathered from a reasonable interpretation of the statute as it is written. ’ " Monsanto Co. v. Cornerstones Mun. Util. Dist. , 865 S.W.2d 937, 939 (Tex. 1993) (quoting Sexton v. Mount Olivet Cemetery Ass'n , 720 S.W.2d 129, 138 (Tex. App.—Austin 1986, writ ref'd n.r.e.) (emphases in original)); see also Jaster v. Comet II Constr., Inc. , 438 S.W.3d 556, 562 (Tex. 2014) ("We must enforce the statute ‘as written’ and ‘refrain from rewriting text that lawmakers chose.’ ") (quoting Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 443 (Tex. 2009) ); and Commonwealth of Mass. v. United N. & S. Dev. Co. , 140 Tex. 417, 168 S.W.2d 226, 229 (1942) (adding provisos to a statute "would extend the statute by implication, and no language in the statute authorizes a resort to implication to arrive at some other intent").

Further, the legislature amended the TCPA in 2019 to (among other things) add eight new categories of exemptions, none of which address an exemption for criminal conduct, let alone one that is as broad as the majority would hold today. See Tex. Civ. Prac. & Rem. Code Ann. § 27.010(a)(5)-(12).

Finally, I would reject Sanchez's assertions that Striever failed to (1) present any "other factual evidence" that Striever's "assault was a communication ... made in connection with a matter of public concern" and (2) establish by a preponderance of the evidence that Sanchez's claim is not related to Striever's exercise of the right of free speech. Although Striever and Sanchez did not offer affidavits in the trial court, they both submitted (without objection) links to videos and news coverage of what occurred. Sanchez submitted a link to a video that shows Striever pouring water on Sanchez's head while Sanchez is holding a press conference. The video includes the words "Orlando Sanchez, Harris County Treasurer" across an image of Sanchez, contains arrows pointing to Striever before the incident, and shows a crowd of people surrounding Sanchez as he speaks (several of whom are holding signs concerning education). Striever included a link to a February 1, 2019 "breaking news" video and news article from channel KHOU-11 about the lawsuit and underlying incident.⁴ The video there shows Striever pouring water on Sanchez's head and the accompanying news article reads:

4 The link is: https://www.khou.com/article/news/local/former-harrisco-treasurer-orlando-sanchez-files-1m-lawsuit-against-man-who-poured-water-onhim/285-540d5cca-70c8-45c0-a2b2-87de03db4b70.

Former Harris Co. Treasurer Orlando Sanchez files $1M lawsuit against man who poured water on him

The water-pouring incident happened as the official held a press conference outside HISD's headquarters in December 2018.

[video of the incident]

HOUSTON — Former Harris County Treasurer Orlando Sanchez is suing the man who dumped water on him during a news conference in December 2018.

Sanchez wants more than $1 million in damages, according to documents filed in the Harris County 151st District Court. The protester, identified in the civil lawsuit as Steve Striever, was upset because Sanchez wanted the State of Texas to take over Houston public schools.

The incident happened during a press conference across from Houston ISD's headquarters.

RELATED: Protester pours water on Harris County treasurer during news conference [accompanied by another link to the original news article and video of the incident from December 28, 2018 with more detailed information about what occurred at Sanchez's press conference].

Protesters disrupted the start of Sanchez's news conference. When he tried to get it started, the group would chant, ‘Go away, TEA’ and ‘You got voted out.’

Things got heated when he was answering one of KHOU 11's questions. Someone from the group ran up and dumped water on him. Someone from Sanchez's team confronted the man. He ended up on the ground and police were called. Both sides claimed they were assaulted. The news conference was supposed to be for Sanchez to call for the state to take over HISD.

"Taxpayers are fed up and it's time for the governor and the Texas Education Agency to step up and make sure that children in HISD, which 83 percent of them are minority, get an education," said Sanchez at the time.

As the Texas Supreme Court has stated, the "TCPA casts a wide net" and "covers any legal action that is ‘based on, relates to, or is in response to’ a party's ‘exercise of the right of free speech.’ " Adams , 547 S.W.3d at 894. The exercise of the right of free speech "extends to any ‘communication made in connection with a matter of public concern" which covers "[a]lmost every imaginable form of communication, in any medium.’ " Id. Striever's evidence shows that Sanchez was the Harris County Treasurer (a public official) at the time Striever poured water on him and that Sanchez was holding a press conference where citizens were protesting Sanchez's position concerning public schools in Houston.⁵

5 Additionally, Striever argued that he poured the water on Sanchez during the press conference to express that he "was upset because Sanchez wanted the State of Texas to take over Houston public schools."

Striever's evidence therefore establishes that Sanchez's assault claim is based on, relates to, or is in response to Striever's exercise of the right of free speech as defined by the TCPA because it involved a communication made in connection with an issue related to (1) economic well-being, (2) community well-being (i.e. , the education provided to students in Houston's public schools), or (3) the government; as a result, Striever's conduct was a communication (via the medium of pouring water) that was "made in connection with a matter of public concern." See Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 961 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3) ); see also id. (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7) ). Having (1) construed the TCPA liberally to effectuate its purpose and intent;⁶ (2) adhered to the TCPA's plain language (and not imported limitations on that language that may exist in the constitutional right of free speech but which are not found in the TCPA's statutory definitions);⁷ and (3) considered the evidence in the record, I would conclude that Striever satisfied his burden of proving by a preponderance of the evidence that Sanchez's claim is based on, relates to, or is in response to Striever's exercise of the right of free speech as defined by the TCPA. Accordingly, and because Sanchez declined to even attempt to meet his burden imposed by the second prong of the statute, I would hold that the trial court did not err in granting Striever's motion to dismiss under the TCPA, and I would overrule Sanchez's second issue.

6 See O'Hern , 579 S.W.3d at 602.

7 See Kawcak , 582 S.W.3d at 575.

III. Attorney's Fees

In his third issue, Sanchez asserts that the trial court's award of attorney's fees and costs in favor of Striever should be vacated and, upon remand, the trial court should hear evidence and award reasonable and necessary attorney's fees as well as costs in favor of Sanchez as mandated by Rule 91a.7.

Sanchez correctly states that Rule 91a.7 provides for a mandatory award of attorney's fees and costs to the prevailing party. See Tex. R. Civ. P. 91a.7. ("[T]he court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court."). He also correctly states that the TCPA provides for a mandatory award of attorney's fees and costs in favor of the moving party upon dismissal of a legal action. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 961 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.009 ).

However, because I would conclude that the trial court properly granted Striever's motion to dismiss pursuant to the TCPA (as expressed above), I would hold that (1) Striever was entitled to attorney's fees and costs and (2) the trial court properly complied with the TCPA's mandate and awarded fees and costs as provided in section 27.009. Because I would determine (as the majority does) that the trial court erroneously dismissed Sanchez's claim pursuant to Rule 91a, I would remand this cause for the trial court to award Sanchez (as the prevailing party with respect to the Rule 91a motion), reasonable and necessary attorney's fees and costs as mandated by Rule 91a. See Tex. R. Civ. P. 91a.7; Weizhong Zheng v. Vacation Network, Inc. , 468 S.W.3d 180, 187-88 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Accordingly, I would sustain Sanchez's third issue with regard to the trial court's attorney's fees and costs award in favor of Striever under Rule 91a.

CONCLUSION

For all the reasons expressed above, I respectfully concur in part and dissent in part.