Tex. Right to Life v. Stean

1

Texas Right to Life and John Seago, Appellants v. Allison Van Stean; Planned Parenthood of Greater Texas Surgical Health; Planned Parenthood South Texas Surgical Center; Planned Parenthood Center for Choice; Bhavik Kumar, M.D; North Texas Equal Access Fund; Lilith Fund for Reproductive Equity, Inc.; The Afiya Center; Fund Texas Choice; West Fund; Frontera Fund; Clinic Access Support Network; The Bridge Collective; Monica Faulkner; Michelle Tuegel; Ghazaleh Moayedi, D.O.; and Jane Doe, Appellees

No. 03-21-00650-CV

Court of Appeals of Texas, Third District, Austin

May 26, 2023

From the 98th District Court of Travis County No d-1-gn-21-004179, the Honorable David Peeples, Judge Presiding

Before Justices Baker, Triana, and Theofanis

MEMORANDUM OPINION

Gisela D. Triana, Justice

Appellants Texas Right to Life and John Seago (collectively, "Texas Right to Life") challenge the trial court's order denying their motion to dismiss filed under the current version of the Texas Citizens Participation Act (TCPA). - ^[1]See generally Tex. Civ Prac. &Rem. Code §§ 27.001-.011. In the underlying case, the Planned Parenthood and Van Stean appellees challenge the constitutionality of the Texas Heartbeat Act, also known as Senate Bill 8 or SB 8, and seek to enjoin Texas Right to Life from enforcing it. ^[2] SB 8 prohibits a physician in Texas from providing an abortion after the detection of cardiac activity within the gestational sac. See Tex. Health &Safety Code § 171.204(a); see also id. § 171.201(1), (3) (defining terms); see generally id. §§ 171.201-.212. Because we conclude that the TCPA does not apply to the Planned Parenthood and Van Stean appellees' claims seeking declarations that SB 8 violates the Texas Constitution and injunctive relief from SB 8's enforcement, we affirm.

BACKGROUND

In 2021, the Texas Legislature enacted SB 8, which added Subchapter H to Chapter 171 of the Texas Health and Safety Code. See Act of May 13, 2021, 87th Leg., R.S., ch 62, 2021 Tex. Gen. Laws (codified at Tex. Health &Safety Code §§ 171.201-.212). SB 8 took effect on September 1, 2021. As stated above, SB 8 prohibits abortion after the detection of cardiac activity within the gestational sac. Tex. Health &Safety Code § 171.204(a); see also id. § 171.201(1), (3) (defining terms). SB 8 created a unique statutory enforcement scheme. See Whole Woman's Health v. Jackson, 141 S.Ct. 2494, 2496 (2021) (order denying injunctive relief) (Roberts, C.J., dissenting) (describing SB 8 as "statutory scheme" that "is not only unusual, but unprecedented"). It does not impose criminal sanctions or administrative penalties on those who violate the statute, and it specifically prohibits state officials from enforcing the law. See Tex. Health &Safety Code § 171.207(a). Instead, SB 8 authorizes enforcement of the law only by private citizens through civil litigation. Id. § 171.208(a); see also id. § 171.207(a) ("[T]he requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208."). Section 171.208 provides as follows:

(a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

(1) performs or induces an abortion in violation of this subchapter;

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or

(3) intends to engage in the conduct described by Subdivision (1) or (2).

Id. § 171.208(a). Section 171.208(b) establishes the relief that must be awarded to a successful private enforcer of the statute:

(b) If a claimant prevails in an action brought under this section, the court shall award:

(1) injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;

(2) statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and

(3) costs and attorney's fees.

Id. § 171.208(b).

In September 2021, fourteen lawsuits were filed against Texas Right to Life challenging the constitutionality of SB 8 and seeking declaratory and injunctive relief from it. See generally Tex. Civ. Prac. &Rem. Code §§ 37.001-.011 (Uniform Declaratory Judgments Act (UDJA)). One case was filed by the Planned Parenthood appellees; the other thirteen were filed by the Van Stean appellees, who are organizations and individuals involved in different aspects of providing abortions in Texas. In their petitions, all the appellees challenged the private civil enforcement scheme created by SB 8. The Van Stean appellees alleged that SB 8 "was purposefully and improperly designed to try to insulate it from any judicial review, usurping both the executive function by deputizing private citizens who oppose abortion to enforce the law (rather than public officials), and supplanting the judiciary's function by depriving citizens of avenues for challenging an unconstitutional law, based solely on the content of the claims they would bring."^[3] See Whole Woman's Health, 141 S.Ct. at 2496 (Roberts, C.J., dissenting) ("The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.").

Soon after the suits were filed, Texas Right to Life filed a motion with the judicial panel on multidistrict litigation ("MDL Panel") to transfer the fourteen cases to a pretrial court as allowed by Rule 13.3 of the Rules of Judicial Administration. In October 2021, the MDL Panel appointed the Honorable David Peeples to serve as the pretrial judge for the fourteen cases. In November 2021, the MDL court heard argument on Texas Right to Life's plea to the jurisdiction, its TCPA motion to dismiss, and the Planned Parenthood and Van Stean appellees' summary-judgment motions. On December 9, 2021, the MDL court signed an order denying Texas Right to Life's plea to the jurisdiction and granting in part and denying in part the Planned Parenthood and Van Stean appellees' summary-judgment motions. Relevant to this appeal, the MDL court in the same order denied Texas Right to Life's TCPA motion to dismiss.

After summarizing the rulings made in its forty-eight-page order and identifying issues that remained pending, the MDL court stated its intent to sign an order of severance so that all the issues addressed in its order would be immediately appealable. However, Texas Right to Life filed its notice of appeal from the denial of its TCPA motion to dismiss almost immediately after the trial court's order was signed. Accordingly, this interlocutory appeal concerns only the MDL court's ruling on the TCPA motion to dismiss. See Tex. Civ. Prac. &Rem. Code § 51.014(a)(12) (authorizing interlocutory appeal of order denying motion to dismiss filed under Tex. Civ. Prac. &Rem. Code Section 27.003).

ANALYSIS

Standard of Review

We review de novo a trial court's ruling on a TCPA motion to dismiss, including whether each party has carried its respective burden under the TCPA. See Long Canyon Phase II & III Homeowners Ass'n, Inc. v. Cashion, 517 S.W.3d 212, 217 (Tex. App.-Austin 2017, no pet.) (stating that "[w]e review de novo whether each party carried its assigned burden"); see also Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.-Houston [1st Dist.] 2017, no pet.) ("We review de novo the denial of a TCPA motion to dismiss."). To determine whether the dismissal of a legal action is warranted, we "consider the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or defense is based." Tex. Civ. Prac. &Rem. Code § 27.006(a). "The basis of a legal action is not determined by the defendant's admissions or denials but by the plaintiff's allegations." Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017). We review the pleadings and evidence in the light most favorable to the nonmovant. Warner Bros. Entm't, Inc. v. Jones, 538 S.W.3d 781, 801 (Tex. App.-Austin 2017), aff'd, 611 S.W.3d 1 (Tex. 2020). Whether the TCPA applies is an issue of statutory interpretation that we also review de novo. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).

TCPA's Purpose and Framework

The TCPA's purpose "is to encourage and safeguard the constitutional rights of persons to petition, speak freely associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. &Rem. Code § 27.002; ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017). The Texas Legislature has mandated that the TCPA "shall be construed liberally to effectuate its purpose and intent fully." Tex. Civ. Prac. &Rem. Code § 27.011(b). To accomplish the statute's purpose, the Legislature established "a motion-to-dismiss procedure that allows defendants who claim that a plaintiff has filed a meritless suit in response to the defendant's proper exercise of a constitutionally protected right to seek dismissal of the underlying action, attorneys' fees, and sanctions at an early stage in the litigation." Dolcefino, 540 S.W.3d at 198 (citing Tex. Civ. Prac. &Rem. Code §...