On Justice Boyd's Dissent in State of Texas v. Harper (Tex. June 29, 2018) (regarding issue of sovereign immunity to attorney fee claim under the TCPA)

Note: A motion for rehearing is pending in State ex rel. Best v. Harper, ___ S.W.3d ___, 

No. 16-0647, 2018 WL 3207125 (Tex. June 29, 2018) 

I am starting to like Justice Jeff Boyd, not because I necessarily agree with him, but because it is refreshing to see that he is willing to go out on a limb when he finds it necessary to part ways with his fellow Republicans on the Texas High Court and expose flaws in the reasoning marshaled to justify the disposition. - Even if it makes him unpopular and the target of verbal darts by this peers.

In State v. Harper, Boyd accuses the Court, of which he is not the most senior member, of having messed with its own prior sovereign immunity jurisprudence, and having carved out an unprincipled exception to favor a particular individual against the State, - a very unusual occurrence. 

But the particular individual is one a majority of the Court had sympathy for. The majority's opinion itself is pretty clear on that point. So, not much guesswork needed to understand what motivated the majority to pursue the strained outcome. 

Boyd uses a strong words for what the Court has done: served up results-oriented jurisprudence. 

Critics of the Texas Supreme Court might observe that this has been going on for years, if not decades. Still, it's refreshing to see one of the more recent appointees to the supreme elective body articulate it in no uncertain terms. If an appellate practitioner dared to do this, he or she may face discipline for impugning the integrity of the august tribunal. So Justice Boyd is doing the appellate bar a great service, writing in dissent from the losing side in this case.

Body Dissent in State of Texas v. Harper 

BOYD DISSENT IN STATE V. HARPER 

IN THE SUPREME COURT OF TEXAS

══════════

No. 16-0647

══════════

THE STATE OF TEXAS EX REL.

GEORGE DARRELL BEST, PETITIONER,

v.

PAUL REED HARPER, RESPONDENT

══════════════════════════════════════════

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS

══════════════════════════════════════════

JUSTICE BOYD, joined by JUSTICE JOHNSON and JUSTICE LEHRMANN, dissenting.

The Court thinks this suit to remove Paul Harper from office is a mere "pretext" and "transparent retaliation against Harper's quixotic political beliefs." Ante at ___. And because the state should not have pursued the suit, it should have to reimburse Harper's attorney's fees and court costs and, perhaps, pay additional sanctions. Ante at ___. Maybe it should. Maybe that's a good result for Harper. But "the common good is best served by faithful adherence to the rule of law, and not by individual judges seeking good in individual cases." Hon. Thomas M. Reavley & Ryan S. Killian, Against the Rule of Judges, 68 BAYLOR L. REV. 661, 669 (2016) (emphasis added). 

To reach its good result in this case, the Court ignores the governing statute's language and undermines our well-established sovereign-immunity precedent. Applying the statute's language and our carefully constructed immunity doctrine, I would hold that the Texas Citizens Participation Act does not apply to this enforcement action; and even if it did apply, sovereign immunity bars Harper's counterclaim for fees, costs, and sanctions.^[1] I respectfully dissent.

I.

Enforcement Action

The Texas Citizens Participation Act (TCPA) "does not apply" to "an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney." TEX. CIV. PRAC. & REM. CODE § 27.010(a). Here, a county attorney, acting for the state, sought to remove Harper from his elected position on a hospital district's board under Chapter 87 of the Local Government Code. See TEX. LOC. GOV'T CODE § 87.013(a)(1), (2). The first issue is whether this Chapter 87 removal action is an "enforcement action." If it is, Harper cannot recover his costs, fees, or sanctions under the TCPA because the TCPA "does not apply."

The TCPA does not define "enforcement action." Considering its common, ordinary meaning and its statutory context, the Court construes the term to mean a legal action that attempts "to enforce a substantive legal prohibition against unlawful conduct." Anteat ___. Although I cannot fully join the Court's reasoning,^[2] I agree that its definition adequately captures the term's common, ordinary meaning.^[3] But I do not agree with the Court's application of that definition.

The Court agrees that this Chapter 87 removal action is an enforcement action to the extent it seeks removal based on Harper's alleged "official misconduct," because his alleged misconduct arises from "unlawful" actions in violation of the Texas Open Meetings Act.^[4] Ante at ___. But the Court holds that this is not an enforcement action to the extent it seeks removal based on Harper's alleged "incompetency" because incompetency "is not against the law." Ante at ___. According to the Court, Harper could seek dismissal and recover attorney's fees, costs, and sanctions under the TCPA to the extent the state sought removal based on incompetency allegations, but not to the extent the state relied on misconduct allegations. Ante at ___. By inventing this dichotomy, the Court finds a way to allow Harper to recover at least some costs and fees under the TCPA.^[5] But it does so only by ignoring Chapter 87's governing provisions, which—for both incompetency and misconduct—permit removal only to enforce an officer's statutorily imposed "official duties."

Chapter 87 describes three grounds for removal: "incompetency," "official misconduct," and "intoxication on or off duty caused by drinking an alcoholic beverage." TEX. LOC. GOV'T CODE § 87.013(a). As the Court notes, the statute defines official misconduct to mean "intentional, unlawful behavior," but the remainder of that definition explains that the behavior must relate "to official duties by an officer entrusted with the administration of justice or the execution of the law. The term includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed on the officer by law." Id. § 87.011(3) (emphases added). In the very same way, the statute defines incompetency as "gross ignorance of official duties;" "gross carelessness in the discharge of those duties;" or "unfitness or inability to promptly and properly discharge official duties because of a serious physical or mental defect that did not exist at the time of the officer's election." Id.§ 87.011(2) (emphases added).

The Court simply ignores this statutory language and suggests that Chapter 87's incompetency ground permits removal merely for "behavior undesirable in a public official." Ante at ___. But according to the statute's language, the behavior that justifies removal—whether based on incompetency or misconduct—must involve the officer's failure to fulfill the office's "official duties."^[6] "A finding of guilt, or the sustaining of the allegation or cause of any one of such charges, by a verdict of the jury, would authorize and justify the judgment for removal." Huntress v. State, 88 S.W.2d 636, 648 (Tex. Civ. App.-San Antonio 1935, no writ) (emphasis added).

A county officer's "official duties" are substantive duties imposed by statutory law. A failure to fulfil those duties runs afoul of that law. The Texas Constitution provides that county officers' duties shall be "prescribed" or "regulated" by the legislature. TEX. CONST. art. V §§ 20, 21, 23. Pursuant to that authority, the legislature has provided that a county hospital district has a statutory duty to "provide adequate hospital services for the district," and its board has a statutory duty to "manage, control, and administer the district" to fulfill that purpose. TEX. HEALTH & SAFETY CODE §§ 282.050, .041(a). Before taking office, a board member must take an oath "to faithfully and impartially discharge the duties of a board member." Id. § 282.022(a)(1).

When the state pursues a Chapter 87 suit to remove a board member from office, it seeks to compel compliance with the officer's "official duties," regardless of whether it alleges incompetency or misconduct. TEX. LOC. GOV'T CODE § 87.011(2), (3). Under either ground for removal, the suit is an enforcement action under the common, ordinary meaning of that phrase. See, e.g., State v. Ennis, 195 S.W.2d 151, 152 (Tex. Civ. App.-San Antonio 1946, writ ref'd n.r.e.) (explaining that the "right sought to be enforced" under Chapter 87 is "a public right as distinguished from a private right") (emphasis added). Contrary to the Court's assertion, this suit to remove Harper from the district's board—whether based on incompetency or misconduct— seeks to compel compliance with that position's official duties. It is thus an enforcement action under the term's common, ordinary meaning, and the TCPA "does not apply." TEX. CIV. PRAC. & REM. CODE § 27.010(a).

II.

Sovereign Immunity

After holding that an incompetency-based removal action under Chapter 87 is not an enforcement action and thus the TCPA applies, the Court then holds that immunity from suit does not protect the state from Harper's TCPA counterclaim for attorney's fees, costs, and sanctions.^[7] This holding represents a radical departure from our immunity jurisprudence. Although this Court certainly has authority to alter sovereign immunity's contours, the Court alters them here—and drastically so—simply because the Court believes the state should have to pay Harper's costs, fees, and sanctions. Upholding our well-reasoned and well-established immunity jurisprudence, I would hold that sovereign immunity from suit bars Harper's counterclaim because the state does not seek any kind of monetary damages or recovery against which his claim could provide an offset.

As the Court explains, immunity from suit is jurisdictional and, absent waiver, prevents courts from exercising jurisdiction over a claim against the state. Ante at ___. We defer to the legislature to waive the state's immunity, and any such waiver is effective only when it is clear and unambiguous. Ante at ___. The Court correctly concludes that neither the TCPA nor Chapter 87 clearly and unambiguously waives the state's immunity. Ante at ___. Yet the Court decides to "abrogate" immunity against Harper's counterclaim for attorney's fees, costs, and sanctions under the TCPA. Ante at ___.

The Court begins its discussion of this issue with the general assertion that "immunity does not apply in certain situations in which the state `join[s] into the litigation process.'" Ante at ___ (quoting Reata Const. Corp. v. City of Dallas, 197 S.W.3d 18 371, 376 (Tex. 2006), and citing Kinnear v. Tex. Comm'n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000) (per curiam)). It then acknowledges our more specific (and more recent) explanations that, under Reata, "`a governmental entity does not have immunity from suit for monetary claims against it that are "germane to, connected with, and properly defensive to" affirmative claims by the entity,' to the extent that the claims against the entity offset the entity's own claims." Ante at ___ (emphases added) (quoting City of Dallas v. Albert, 354 S.W.3d 368, 372 (Tex. 2011), and citing Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528, 532-33 (Tex. 2012) (per curiam)). 

The Court agrees that the Reata rule does not apply here, however, because the state has not asserted any monetary claims against which Harper's counterclaims could provide an offset. Ante at ___.

But the Court then asserts that Reata "does not purport to map the full boundary separating counterclaims that sovereign immunity bars from those it does not," and our per curiam decisions in Kinnear and Manbeck reflect that "sovereign immunity sometimes does and sometimes does not protect the state from counterclaims for attorney's fees." Ante at ___, ___. Purporting to address an issue of "first impression," the Court announces a narrow holding that immunity from suit does not reach a counterclaim for attorney's fees under the TCPA. Ante at ___. In support of this holding, the Court claims to be promoting the TCPA's purpose to protect the constitutional rights of those who participate in government and require those who fail to prove a prima facie case to pay litigation costs. Ante at ___. And because the state "risks paying only attorney's fees," the Court believes its TCPA-specific rule abrogating immunity "does not present any grave danger to the public fisc." Ante at ___.

The Court reveals its true motivation, however, by expressing its own view that the state "should not be suing to prevent its own citizens from participating in government—especially when it lacks even a prima facie case against them." Ante at ___. While the Court certainly has the power to "abrogate" sovereign immunity however it wants, its decision in this case undermines the distinction we have recognized between the scopeof immunity and a waiver of immunity. The Court's result-oriented decision to abrogate immunity in this case confuses our immunity jurisprudence, ignores the principles on which immunity is based, and eschews the deference we have consistently given to the legislature to decide whether and when to waive immunity.

This Court has carefully crafted the immunity doctrine, especially over the past few decades. Long ago, the Court stated quite broadly, and without any real analysis, that when "a state voluntarily files a suit and submits its rights for judicial determination, it will be bound thereby, and the defense will be entitled to plead and prove all matters properly defensive. This includes the right to make any defense by answer or cross-complaint germane to the matter in controversy." Anderson, Clayton & Co. v. Allred, 62 S.W.2d 107, 110 (Tex. 1933). More recently, in Kinnear (a four-paragraph, per curiam opinion), the Court stated in dicta^[8] that because the Texas Commission on Human Rights "initiated this proceeding under the Texas Fair Housing Act, and Kinnear claimed attorney fees as a consequence of that suit, the jurisdictional question in this case"—that is, whether immunity from suit applied or was waived—"was answered when the Commission filed suit, regardless of whether the Commission can ultimately be liable for fees." 14 S.W.3d at 300.

After Kinnear, however, the Court held in Reata that the state "does not have immunity from suit as to [counterclaims] which are germane to, connected with, and properly defensive to the [government's] claims, to the extent [the counterclaims] offset those asserted by the [government]." Reata, 197 S.W.3d at 373. We explained that, although "there may have been some question after Anderson regarding whether sovereign immunity continues to exist when an affirmative claim for relief is filed by a governmental entity, subsequent cases indicate that under such circumstances immunity from suit no longer completely exists for the governmental entity." Id. at 376 (emphasis added). And we cited Kinnear for the proposition that "the trial court had jurisdiction over claims against the State in a case where the State had filed suit." Id. (citing Kinnear, 14 S.W.3d at 300). We held in Reata that when the state chooses to involve itself in litigation, immunity from suit does not apply to its opponent's counterclaims if (1) the government is seeking to recover "monetary relief," (2) the counterclaims are "germane to, connected with, and properly defensive to" the government's claims, and (3) any recovery on the counterclaims serves only to "offset" the monetary relief the government may recover. Id.at 376-77. Once the government "asserts affirmative claims for monetary recovery," we explained, the government "must participate in the litigation process as an ordinary litigant, save for the limitation that the [government] continues to have immunity from affirmative damage claims against it for monetary relief exceeding amounts necessary to offset the [government's] claims." Id. at 377 (emphases added).

As this Court and the courts of appeals have confirmed, Reata "clarified and modified" sovereign immunity law and "limited" Kinnear and Anderson by carefully defining the scope of immunity when the government chooses to file suit. See Albert, 354 S.W.3d at 373; Emps. Ret. Sys. v. Putnam, LLC, 294 S.W.3d 309, 324-25 (Tex. App.-Austin 2009, no pet.) ("[T]he Texas Supreme Court limited Kinnear by issuing Reata."); see also Nazari v. State, ___ S.W.3d ___, ___ (Tex. June 22, 2018) (explaining that we "expounded" on Anderson "and other cases like it" in Reata). Contrary to the Court's assertion that Reata "does not hold that a monetary claim is a necessary condition for abrogation in every instance," ante at ___, we have remanded a number of cases for reconsideration in light of Reata, explaining that under Reata, the government "retainsimmunity from suit as to [counterclaims] for monetary damages . . . to the extent [the counterclaimant seeks damages that] exceed amounts offsetting the [government's] monetary recovery, absent legislative waiver of that immunity." City of Irving v. Inform Const., Inc., 201 S.W.3d 693, 694 (Tex. 2006) (per curiam).^[9] And in a separate case decided last week, the Court holds that Reata's first requirement—that the government sue for "monetary relief"—actually requires that the government sue for monetary damages, not just any monetary relief, so "sovereign immunity protects the State from counterclaims that seek to offset a penalty." Nazari, ___ S.W.3d at ___.

But here, the Court carves out an exception applicable only to counterclaims for costs, attorney's fees, and sanctions under the TCPA. The fact that Harper seeks only that relief, however, does not justify the Court's holding, at least not according to our post-Reata decisions. See Manbeck 381 S.W.2d at 532-33 (holding that, under Reata,immunity from suit barred counterclaim for attorney's fees because the governmental entity did not assert a claim for "money damages"); Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011) (holding that, under Reata, immunity from suit applies even to a counterclaim for attorney's fees unless the fees can serve as an offset against the government's monetary recovery). Consistent with these decisions and Reata, immunity from suit bars Harper's counterclaims because the state has not sought any kind of monetary relief against which Harper's recovery could provide an offset.

The Court, however, concludes that the legislature's purpose in enacting the TCPA justifies the Court's decision to abrogate the state's immunity from suit against TCPA counterclaims. Ante at ___. Unlike the Court's misplaced reliance on the TCPA's purpose to construe the statutory term "enforcement action," see supra n.2, the Court relies on that purpose here to shift the responsibility for its own policy decision. The Court cannot claim to be promoting the legislature's purpose when—as the Court itself agrees—the legislature did not waive the state's immunity from suit in the TCPA. See ante at ___. Nor does anything about the TCPA suggest that the legislature wanted the Court to treat the TCPA differently than any other statute that allows for an award of attorney's fees. To the contrary, the legislature has made clear its view (and we have consistently and repeatedly agreed) that we cannot find that a statute waives immunity unless it does so by "clear and unambiguous" language. TEX. GOV'T CODE § 311.034. Because the legislature has not clearly and unambiguously waived immunity in the TCPA, the Court cannot genuinely claim to be promoting the legislature's purpose by judicially abrogating immunity the legislature has not waived. See supra n.3. Because the legislature has not waived immunity in the TCPA, the Court's implementation of its own purposes contradicts the legislature's purpose by waiving the state's immunity when the legislature has chosen not to waive it.

To be sure, the Court has authority to abrogate sovereign immunity in whole or in part, but its holding today represents a sea change from our current immunity jurisprudence. I cannot join the Court's cavalier approach to such a well-established and important doctrine.

III.

Conclusion

I am sympathetic to the Court's desire to allow Paul Harper to recover the fees and costs he incurred defending this removal action, but sympathy cannot determine the outcome of this case. The question we must decide is whether Harper can recover those losses under the TCPA. Because this Chapter 87 removal action is an "enforcement action" regardless of the grounds asserted, the TCPA "does not apply." 

And even if it did apply, the state's immunity from suit bars Harper's counterclaim for court costs, attorney's fees, and sanctions because the state neither sought nor obtained any monetary recovery that an award to Harper could offset. Because Harper's counterclaim presents the only issue that is not now moot in this case, I would reverse the court of appeals' judgment remanding the case for an award of costs, fees, and sanctions and render judgment dismissing this case. Because the Court holds otherwise, I respectfully dissent.

_____________________
Jeffrey S. Boyd
Justice
Opinion delivered: June 29, 2018

BELOW: MAJORITY OPINION IN BY JUSTICE  BROWN 

THE STATE OF TEXAS EX REL. GEORGE DARRELL BEST, Petitioner,
v.
PAUL REED HARPER, Respondent.

No. 16-0647.

Supreme Court of Texas.

Argued November 8, 2017. Opinion delivered: June 29, 2018.

Joseph R. Larsen, for Freedom of Information Foundation of Texas, Amicus Curiae.

Andrew W. Lucas, C. Alfred Mackenzie, for State of Texas, Petitioner.

Cleve Doty, Nichole Beth Bunker-Henderson, Brantley D. Starr, Scott A. Keller, Atty. Gen. W. Kenneth Paxton, Jr., James E. Davis, Jeffrey C. Mateer, Angela V. Colmenero, for Texas Attorney General's Office, Other Interested party.

Mary H. Barkley, Christopher A. Brown, for Paul Reed Harper, Respondent.

On Petition for Review from the Court of Appeals for the Tenth District of Texas.

JUSTICE BROWN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE GUZMAN, and JUSTICE DEVINE joined.

JUSTICE BOYD filed a dissenting opinion, in which JUSTICE JOHNSON and JUSTICE LEHRMANN joined.

JUSTICE BLACKLOCK did not participate in the decision.

JEFFREY V. BROWN, Justice.

The Texas Citizens Participation Act (the TCPA) allows a defendant to obtain expedited dismissal of certain legal actions for which the party bringing the action does not establish prima facie support. We conclude that this suit to remove a county official from elected office under chapter 87 of the Texas Local Government Code (the removal statute) is a legal action under the TCPA. However, the TCPA does not apply when a government attorney brings an enforcement action in the state's name. We further conclude that only one of the several allegations against the county official constitutes an enforcement action. Finally, as to the allegations that are not enforcement actions, we conclude that the state's sovereign immunity does not protect it from the county official's claim for appellate costs. We affirm the court of appeals' judgment, with a modification.

I

Background

When Paul Harper ran for a position on the Somervell County Hospital District Board, he campaigned on pledges to eliminate the tax that supports the district and to replace the district's administrative employees. He won the election, joined the board, and allegedly tried to make good on his promises. In response, a county resident named George Best sought to remove Harper from the board by filing this suit under the removal statute. SeeTEX. LOC. GOV'T CODE §§ 87.001-.043. Specifically, Best alleged that Harper violated the district's bylaws at a board meeting by moving to set the district's tax rate at zero—even though Harper knew that eliminating the tax revenue would bankrupt or otherwise harm the district. Best also alleged that Harper posted a blog that falsely accused the district's administrative employees of violating the law. Best argued these actions were enough to remove Harper for incompetency under the removal statute. See id. § 87.013(a)(1).

Post-Mortem Elder Abuse? Comment on Johnson Dissent in Archer v. Anderson, No. 16-0256 (Tex. June 22, 2018)

 Archer v. Anderson, 406 S.W.3d 228 (Tex. 2018) 

AT LEAST A SCINTILLA OF SYMPATHY FOR THE DEARLY DEPARTED, 

OR THEIR LAST WISHES, COMPOS MENTIS AND PRE-DIMINISHED CAPACITY 

Over the years, the Texas Supremes have done a very effective job chipping away at citizen-friendly acts of the Texas Legislature such as the Whistleblower Act, the Texas Tort Claims Act, and the Texas Public Information Act. The program to pare down the civil justice system, however, has not been limited to thwarting the will of past Legislatures.

After successful completion of its mission to put government actors and entities beyond the reach of civil lawsuits under a Republican version of the doctrine that the King and his Minions can do no wrong, the High Court recently went beyond government actors and bestowed industry-wide immunity upon its most captive constituency – lawyers and law firms. Litigation privilege is now known as attorney immunity, and it’s based on status alone. Flash your bar card, and you are off the hook for civil wrongs. The merits won't matter. No further evidence needed. 

Membership in the State Bar has its privileges. Tort immunity is now one of them. 

But that’s not all.

On June 22, 2018 a majority of the Texas High Court did some more paring on the cutting edge of tort law. It declared the tort of tortious interference with inheritance defunct in Texas, precluding judges from granting relief in situations not addressed by the Probate Code (now Estates Code), thus abrogating the High Court's role of overseeing and give continuing vitality to the common law. 

As if the enactment of the Probate Code had resulted in field preemption and turned Texas into a Roman-law jurisdiction.

That was too much even for old-timer Phil Johnson, who bemoaned in dissent that the courthouse door was being shut to a vulnerable group of people, the elderly.

Or rather--more significantly--their disinherited would-have-been or should-have-been heirs.

Post-mortem Elder Abuse?

Let’s think about it for a moment. Does Justice Johnson’s professed concern for abuse of the elderly so often befuddled if not bedeviled by diminishing mental faculties--however genuine--really have much of a bearing on how their assets are disposed of after their death, assuming they had any left to leave at the point of demise? 

As opposed to the elderly being stripped of what they own in their lifetime when they are no longer compos mentis? 

What with the testator or the intestate being deceased, isn’t it just a matter of who will get the spoils, with the parties in such often unseemly fights merely advancing alternative interpretations of what the dearly departed really wanted to happen post-checkout? Interpretations advanced in each party’s own self-interest, at the expense of competing claimants to a share of the spoils, if not all of them?

The formerly asset-blessed dearly departed is beyond the jurisdiction of worldly courts and can no longer receive any material relief posthumously. Whether from a court of law and equity or otherwise. And the retroactive imputation of substance and contours of the last wishes upon the dead person is left to the imagination and quality of hired legal talent marshaled by those still living.

How is the growing population of vulnerable elders victimized, or even affected, by the legal rules employed to divvy up their estate among competing claimants; -- assets that they were, like other mere mortals, unable to hold on to and take with them when they took their last breath and expired?

Justice Johnson’s concern for elder abuse is commendable. It should not be instrumentalized to resolve a dispute of this nature. 

JOHNSON DISSENT 

 IN THE SUPREME COURT OF TEXAS

444444444444

NO. 16-0256

444444444444

RICHARD T. ARCHER, DAVID B. ARCHER,

CAROL ARCHER BUGG, JOHN V. ARCHER,

KAREN ARCHER BALL, AND SHERRI ARCHER, PETITIONERS,

v.

T. MARK ANDERSON AND CHRISTINE ANDERSON, AS

CO-EXECUTORS OF THE ESTATE OF TED ANDERSON, RESPONDENTS

4444444444444444444444444444444444444444444444444444

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

4444444444444444444444444444444444444444444444444444

JUSTICE JOHNSON, joined by JUSTICE LEHRMANN, JUSTICE BOYD, and JUSTICE BROWN,

concurring in part and dissenting in part, and concurring in the judgment.

JUSTICE JOHNSON, joined by JUSTICE LEHRMANN, JUSTICE BOYD, and JUSTICE BROWN, concurring in part and dissenting in part, and concurring in the judgment.

I. It's Too Soon

I agree with the Court's conclusion that in this case, as was the situation in Kinsel v. Lindsey, 526 S.W.3d 411 (Tex. 2017), there is no need to allow the Archers^[1] to recover for harm they suffered due to Ted Anderson's intentional interference with the inheritance benefit that in reasonable likelihood they were to receive from Jack Archer. That is because the Archers had adequate remedies otherwise. Ante at ___. But just as the Court did not see the need to completely reject the cause of action in Kinsel, I see no need to do so today. To the contrary, I see the need not to do so. Accordingly, I join the Court's judgment but dissent from its blanket rejection of the type of cause of action the Archers asserted. The cause of action is designed to protect persons damaged by another's intentional interference with a benefit that the persons in reasonable likelihood would have received as an inheritance absent the interference. The exact label and elements of such a cause of action vary slightly from jurisdiction to jurisdiction, between the Restatement (Second) of Torts and the Restatement (Third) of Torts, and commentator to commentator. See ante at ___ (discussing amendments to the Restatement); see generally Diane J. Klein, River Deep, Mountain High, Heir Disappointed: Tortious Interference with Expectation of Inheritance—A Survey with Analysis of State Approaches in the Mountain States, 45 IDAHO L. REV. 1 (2008) (discussing the adoption of the cause of action in the various Mountain States). The Court refers to the cause of action generally as "intentional interference with inheritance," so for consistency and ease of reference, I will also use that label.

The Court says that probate law protects a donor's right in freely choosing how to dispose of his or her property. Ante at ___. Of course it does, at least to a large degree. But not always. Where I part ways with the Court is over its conclusion that there are and will be no circumstances under which a tort for intentional interference with inheritance need be available to Texans, even though such a cause of action might be the only viable avenue of relief against someone who wrongfully took or diverted assets in frustration of the asset owner's intent. The Court's justification? "Because existing law affords adequate remedies for the wrongs the tort [of intentional interference with an inheritance] would redress, and because the tort would conflict with Texas probate law. . . ." Ante at ___.

I disagree with both reasons. As to the first reason, I disagree that the Court can realistically predict that the law in its current state affords adequate remedies for all situations that might arise in the future where bad actors wrongfully relieve elderly persons of assets intended for others. With respect, the Court's confidence in existing remedies is too great in light of human experience with those among us who prey on the elderly. As to the second reason, the cause of action would not conflict with probate law but would augment it when properly cabined in. Both probate law and the cause of action for intentional interference with inheritance are designed to protect persons' rights to transfer their property to whomever they choose.

At a minimum, withholding a decision about whether to recognize or reject the tort until the full effects of our decision in Kinsel can be seen and evaluated poses little downside. To begin with, Kinsel and this case are the first two cases in which the Court has directly addressed the cause of action. Next, the courts of appeals have considered the cause of action in only a relatively small number of cases, and that small number does not portend a large number of such claims waiting to be pursued. That is especially so in light of our explaining the limits of the cause of action in Kinsel. And an increase in cases would be even less likely if, in this case, we were to follow and reinforce Kinsel's lead. Were we to do so, then between Kinsel and this case, we would have firmly clarified just when the cause of action could be maintained: only if no other theory of liability or avenue of relief is available. Under the circumstances, there likely would be little confusion about if and when the cause of action would be viable.

II. Diminished Capacity in the Elderly — A Growing Issue

Jack Archer's stroke left him with diminished capacity to manage his affairs and susceptible to manipulation by his long-time friend, Anderson. Anderson did not take advantage of Jack's condition to benefit himself. But whether his actions benefitted him is not the real question. The question is who had the right to determine how Jack's assets would be disposed of and who would receive his estate. Here, the evidence supports the jury's finding that Anderson did not, and that his actions in relation to Jack, Jack's assets, and Jack's estate were tortious.

Jack's condition of diminished capacity is not unusual among the aging population where stroke, illness, or just the general infirmities of age can reduce the ability to manage one's affairs generally, properly care for one's business and assets, and resist the influence of others over those decisions. Such reduced capacity creates opportunities for the elderly to be taken advantage of, even to the point of their being persuaded or coerced into taking actions that directly contradict earlier, competently professed desires regarding disposition of their estates, as happened with Jack. The problem is not inconsequential and it is growing. Texas has the third largest elderly population among the states. See TEXAS DEMOGRAPHIC CTR., AGING IN TEXAS: INTRODUCTION 2-3 (2016) (defining "older" or "elder" population as "those aged 65 years and older"). The elderly population in Texas grew by 49.5% from nearly 2.1 million in 2000 to nearly 3.1 million in 2014. Id. at 3. This type of growth will inexorably lead to more and more Texans being in the position in which Jack and the Archer family found themselves—an older person with diminished capacity being taken advantage of to the detriment of that person's desires as expressed before his capacity became diminished, or if no desires had been expressed, then to the detriment of the natural objects of his affections.

Texas is making progress in providing protections for its aging citizens and their assets. See, e.g., TEX. EST. CODE § 1101.151 (providing for the court appointment of a guardian with full authority over an incapacitated person upon a finding that the proposed ward is totally without capacity to care for himself, manage his property, operate a motor vehicle, make personal decisions regarding residence, and vote in a public election); TEX. GOV'T CODE § 155.102 (requiring certification for certain guardians). This Court has brought issues relating to Texas's expanding elderly population to the forefront in several ways. Two of these are the establishment of a Working Interdisciplinary Network of Guardianship Stakeholders (WINGS), and calling for the Texas Judicial Council, the policy-making body of the judicial branch of government, to study issues related to the aging population and make recommendations for reforming Texas's approach to issues involving our elderly.

But even with these efforts, experience teaches that where there is opportunity for persons to take advantage of others, they will do so in inventive and unusual ways that simply cannot be fully anticipated. In written testimony to the United States House of Representatives Committee on Ways and Means dated March 22, 2017, David Slayton, the Administrative Director for the Texas Office of Court Administration (OCA), reported that pursuant to a pilot project to assist Texas courts in monitoring guardianship cases, OCA has reviewed over 13,600 guardianship cases in fourteen Texas counties. According to Slayton's testimony:

1. As of December 31, 2016, there were 51,388 active guardianships in Texas; the number had increased by 37% in the preceding five years; guardianships were one of the fastest growing case types in the state; and the estimated value of estates under guardianship in Texas exceeded 5 billion dollars.

2. The majority of guardians appointed in Texas are licensed attorneys, family members, or friends of the ward.

3. Forty-three percent of guardianship cases were out of compliance with reporting requirements of law, and the large majority of those cases were cases in which family members of friends were guardians.

4. A review of accountings that were filed showed that on a regular basis there were: unauthorized withdrawals from accounts, unauthorized gifts to family members and friends; unsubstantiated and unauthorized expenses, and a lack of backup data to substantiate accountings.

Examining the Social Security Administration's Representative Payee Program: Joint Hearing on Who Provides Help Before the Oversight Subcomm. and Social Sec. Subcomm. of the H. Ways & Means Comm., 115th Cong. (2017) (statement of David Slayton, Administrative Director, Office of Court Administration, Texas Judicial Branch).

The OCA study did not include the innumerable elderly for whom no formal guardianship was established, as was Jack's situation from August 1998 until December 1999. And even if formal guardianship proceedings have shortcomings in protecting the elderly with diminished capacity and their assets as is shown by the OCA's study, how much more protection do the elderly with diminished capacity need when there is no formal guardianship and no pretense of supervision such as is provided for in a formal guardianship proceeding? In my view, much. And the family or other persons who have expectations of inheriting from an older family member or friend are logically the most likely to raise the question of whether improper advantage has been taken of an older person. This case demonstrates how such a tort, properly limited, works to enforce the principle that when testators have freely made provision for disposition of their estates, those decisions will be protected by the law.

III. An Expectancy Based on More Than Speculation

Before his stroke, Jack executed his 1991 will. No one questions the validity of that will, which left the bulk of his estate to his family. The evidence is practically uncontroverted that the 1991 will was the last valid instrument expressing Jack's freely adopted intended disposition of his estate. So the distribution of Jack's estate was effectively locked in before Anderson began influencing Jack's post-stroke decisions. Thus, the expectancy of inheritance the Archers had as to Jack's estate was more than a speculative hope. If, after Jack's stroke, Anderson had convinced him to transfer assets to a third party who then consumed or dissipated the assets before Jack died, or to a third party who disappeared, and the Archer family did not discover the transfers until after Jack's death, then both Jack's reasonable expectancy that his last valid will would control the disposition of his estate, and the Archers' reasonable expectancy of inheriting the bulk of his estate in accordance with his last competent intentions would have been frustrated. Why? Because there would have been no estate. Under those circumstances, the remedies of a constructive trust and restitution would have been of little, if any, benefit to the Archers in enforcing Jack's intent regarding his estate. Thus, the existence of a gap-filling cause of action against Anderson for interference with the Archers' expectancy of inheritance might well have been the only viable vehicle to remedy Anderson's actions. Even if a remedy other than tortious interference with expectancy of inheritance was viable in such a situation, then having the tortious interference remedy as a backup would do no harm. And if, under all the facts, another remedy was not viable, the tortious interference cause of action might well afford relief where otherwise there would be none. However, the situation where after his stroke, Jack's estate was intentionally diverted or dissipated and the perpetrators or assets gone, is not before us. In the case that is before us, the Archers had, and took advantage of, adequate remedies available to them, other than a claim for tortious interference with their reasonable certainty of inheriting from Jack in accordance with the intentions he expressed in his 1991 will. That is also what the plaintiffs in Kinsel did. There we noted that although this Court has not recognized a cause of action for intentional interference with inheritance, some courts of appeals had—including in two cases where we denied petitions for review. Kinsel, 526 S.W.3d at 422-23 & n.4 (citing Stern v. Marshall, 471 S.W.3d 498, 516 (Tex. App.-Houston [1st Dist.] 2015, no pet.); Magana v. Citibank, N.A., 454 S.W.3d 667, 685 (Tex. App.-Houston [14th Dist.] 2014, pet. denied); In re Estate of Valdez, 406 S.W.3d 228, 233 (Tex. App.-San Antonio 2013, pet. denied); In re Estate of Russell, 311 S.W.3d 528, 535 (Tex. App.-El Paso 2009, no pet.)). Nevertheless, we saw "no compelling reason to consider a previously unrecognized tort if the constructive trust [awarded in the case] proved to be an adequate remedy." Id. at 424 (noting that a relevant factor when considering an unrecognized cause of action is the existence and adequacy of other protections). We went on to conclude that the constructive trust provided redress for the injuries, so the facts did not warrant enlarging the body of Texas's tort law by recognizing a new cause of action. Id. at 425.

In regard to the intentional interference with expectation of inheritance question, this case is postured similarly to Kinsel. The Court concludes that the Archers had an adequate remedy because they ultimately received their inheritance, albeit minus attorney's fees and a settlement with the charities. Ante at ___. But rather than leaving open the issue of whether to recognize the cause of action as we did in Kinsel, the Court changes course and closes that door. It does so even though that door might, in some instances, provide the only avenue to relief for parties who suffer loss at the hands of actors who intentionally—not merely negligently—caused the loss. The Court indicates that we should do so now in order to eliminate confusion based on conflicting decisions in the courts of appeals in Houston. Ante at ___. The Court points out that after our opinion in Kinsel issued, the Court of Appeals for the First District recognized the cause of action in Yost v. Fails, 534 S.W.3d 517, 530 (Tex. App.-Houston [1st Dist.] 2017, no pet.), while the Court of Appeals for the Fourteenth District declined to do so in Rice v. Rice, 533 S.W.3d 58, 63 (Tex. App.-Houston [14th Dist.] 2017, no pet.). But in Yost, the first court did not award damages for intentional interference with an inheritance. 534 S.W.3d at 531-33. So even taking these two cases into consideration, I am confident that Texas courts are fully capable of prospectively applying the guidance in Kinsel regarding intentional interference with inheritance cause of action—guidance that would be emphasized and more fully explained in this case should we choose to follow the same path we took in Kinsel.

The Court says that a judicially recognized gap-filler cause of action is unnecessary because statutory probate law provides adequate remedies. Ante at ___. My overriding concern is that neither we nor the courts of appeals have considered a sufficient spectrum of factual circumstances for us to confidently conclude that foreclosing the cause of action will not leave parties without any avenue of relief against those whose actions intentionally and wrongfully divest an elderly person with diminished capacity of assets and thus interfere with that person's last-expressed true intentions about the disposition of his or her property.

The Court addresses and dismisses four fact scenarios that commentator Diane J. Klein argues necessitate the recognition of the tort of intentional interference with an inheritance. Ante at ___ (citing Diane J. Klein, A Disappointed Yankee in Connecticut (or Nearby) Probate Court: Tortious Interference with Expectation of Inheritance—A Survey with Analysis of State Approaches in the First, Second, and Third Circuits, 66 U. PITT. L. REV. 235, 247 (2004)). While acknowledging that these scenarios are "by no means an exhaustive list," the Court concludes that it is "unable to imagine a situation in which the lack of a full remedy is not a legislative choice or a matter for targeted legislative amendments to probate law and procedures." Ante at ___. But even allowing for what the Court describes as the Legislature being "active and creative in protecting the vulnerable," ante at ___, it is beyond reasonable belief that all the possible circumstances and designs of persons focused on taking advantage of those with diminished capacity have been anticipated, or are even capable of being anticipated. After all, that is the reason common law causes of action and remedies have arisen—although I do not dispute that probate law will be applicable and provide an adequate remedy in many situations.

Nevertheless, under certain circumstances probate proceedings may not be a viable option for relief to a would-be beneficiary. For example, such a proceeding might offer no relief in a case where the statutory probate limitations period expired before the would-be beneficiary learned of the testator's death, as was the situation in Schilling v. Herrera,952 So. 2d 1231, 1237 (Fla. Dist. Ct. App. 2007) (holding that the plaintiff's tort claim was not barred by the plaintiff's failure to appear in a probate proceeding when the defendant concealed the testator's death until after the expiration of the statutory limitations period). And another example might be where the wrongful interference occurs with a decedent's nonprobate assets, such as payable on death accounts or life insurance proceeds. See Valdez v. Ramirez, 574 S.W.2d 748, 750 (Tex. 1978). But as I have noted above, experience teaches that it is impossible to anticipate the limitless ways in which unscrupulous persons can take advantage of others, in this instance elderly persons. Indeed, if those ways could be anticipated, then preventative measures would already have been devised, publicized, and widely adopted. And there would be negligible (well, at least a reduction of) fleecing of our older population. But that is not going to happen. So long as humans with human traits and desires exist, there will be those among us who devise new and more effective ways of taking advantage of the vulnerable elderly who have assets.

The Court recognizes that a constructive trust can provide a remedy for unfairness. Anteat ___. But the typical remedy of imposing a constructive trust resulting from a successful restitution action is not always available or may not provide an adequate remedy, as this Court has recognized. While we have stated that "[t]he specific instances in which equity impresses a constructive trust are numberless," Pope v. Garrett, 211 S.W.2d 559, 560 (Tex. 1948) (quoting 4 POMEROY'S EQUITY JURISPRUDENCE § 1045, at 97 (5th ed. 1941)), we have also acknowledged that "the reach of a constructive trust is not unlimited." KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 87 (Tex. 2015). The imposition of a constructive trust generally requires the requesting party to establish (1) a breach of a special trust or fiduciary relationship or actual or constructive fraud, (2) unjust enrichment of the wrongdoer, and (3) an identifiable res that can be traced back to the original property. Id. As applied in the inheritance context, the would-be beneficiary must trace the fraudulently obtained property to funds received by the wrongdoer. See Meadows v. Bierschwale, 516 S.W.2d 125, 133 (Tex. 1974) (stating that "[w]hen property subject to a constructive trust is transferred, a constructive trust fastens on the proceeds"). However, if the property has been dissipated or traceable funds have been depleted, there will be nothing remaining upon which to impose a constructive trust. A judgment obtained from a tort action, on the other hand, would provide the expectant beneficiary with at least potential redress.

Some states have recognized the tort of interference with inheritance and have adopted what are seemingly pragmatic and workable standards. See, e.g., Doughty v. Morris, 871 P.2d 380, 384 (N.M. Ct. App. 1994) (recognizing the tort of tortious interference with an expected inheritance and requiring a plaintiff to prove "(1) the existence of an expectancy; (2) a reasonable certainty that the expectancy would have been realized, but for the interference; (3) intentional interference with that expectancy; (4) tortious conduct involved with interference, such as fraud, duress, or undue influence; and (5) damages"); DeWitt v. Duce, 408 So. 2d 216, 218 (Fla. 1981) (discussing a claim for wrongful interference with a testamentary expectancy and when such a claim is considered a collateral attack on a probate decree). Of course, the elements of a cause of action in Texas would not necessarily mirror the elements of the action in other states. But the experience of other states can give focus and guidance.

In the end, it is hard to overestimate the creativity of those seeking to obtain or redirect money or assets that belong to another. Members of the increasing aging population with money and assets are ripe targets for predators. Said another way, the current target-rich environment for those who would prey on our elderly is expanding. I would not now foreclose the option of a tort action for intentional interference with inheritance to be used in circumstances where no alternative adequate remedy is available, and the tort would provide the only avenue for relief. The appropriate situation for recognizing the tort did not present itself in this case. However, the past does not control the future— it only undergirds it. The number of cases in which the cause of action has been asserted in the past indicates the potential for an increase in the number of cases asserting such claims. And if we were to use this case to reinforce what we said in Kinsel, it would surely foreclose most claims for intentional interference with inheritance.

Finally, the persons benefitted by the Court's action today are those who prey on some of the most vulnerable among us—seniors who have worked to accumulate estates to care for themselves in their twilight years, and to at death, either pass those estates on to their loved ones or distribute however else they might decide. We should be both sensitive to the needs of that vulnerable segment of the population and protective of their right to distribute the fruit of their life's work to whomever they competently and validly choose. I would not run the risk of shielding those who prey on them from being held responsible for their actions.

IV. Conclusion

I join the Court's judgment affirming that of the court of appeals. But I respectfully dissent from the Court's barring the possibility of tort relief to those persons damaged by another's intentional interference with a benefit that the person in reasonable likelihood would have received as an inheritance. I would follow the approach we took in Kinsel.That is, I would go no further than to hold that we need not recognize the cause of action in this case and reserve judgment about whether to completely foreclose it.

CASE STYLE: 

RICHARD T. ARCHER, DAVID B. ARCHER, CAROL ARCHER BUGG, JOHN V. ARCHER, KAREN ARCHER BALL, AND SHERRI ARCHER v. T. MARK ANDERSON AND CHRISTINE ANDERSON, AS CO-EXECUTORS OF THE ESTATE OF TED ANDERSON, No. 16-0256 (Tex. June 22, 2018) (Motion for Rehearing denied 10/19/2018) (Archer v. Anderson opinion by CJ Hecht in PDF (22 pgs); Phil Johnson's Dissent in Archer v. Anderson (14 pgs). 

CITATION: Archer v. Anderson, 406 S.W.3d 228 (Tex. 2018) 

This blog post was updated 1/9/2019