Legal Case Summary

Third and fourth cases of today are 2013-205-699 and 2013-20751, Cullbertson-Wong versus Laikoset-O. May I please the court? My name is Scott Cook and I represent Amanda Cullbertson-Horay-Wong. This case involves very important issues regarding the protection of First Amendment rights and the ability of citizens to speak out against the government. This appeal largely involves what must be pled initial pleadings to even file a First Amendment retaliation case without summary dismissal. The plan is in this case for former crime lab technicians with the Houston Police Department crime lab who spoke out publicly about issues with the integrity of that crime lab and specifically breath alcohol testing vans or bat vans. In retaliation, the defendants in this case campaign to harm the plaintiffs by defaming their reputation, by threatening them with prosecution, and ultimately by causing the elimination of their jobs. Plans filed First Amendment retaliation claims in their Section 1983 and state law torsious interference claims. Did you classify your clients for me for purposes of First Amendment jurisdiction or your experience with a public employee and contractor labels of the crime of citizens? I think it's a tough call, you're on, especially on the pleadings. I think once more facts are, it'll be easier to make that call. I think it's more an ordinary citizen test where it stands now. Consistent with Kenan versus Tejada. And I think the reason is is because these employees were speaking about their former jobs and there's not a huge, in the pleadings at least, there's not a lot of facts between the connection as to their current job. We do have independent contact faces, the in bank, any weaver I think it was a decision also employed by college. Were they speaking at the time as employees of Lone Star as, as is important, or a year while employed at Lone Star, their testimony, their stays to the craft, were they employees of Lone Star at that time? Yes, sure, they were employees. I do not think they were speaking as employees. Okay, I was trying to avoid the ads work

. Okay. What about, were they still in the, and did they still have the obligation during that period of employment? I've testifying on, about tests, about blood, blood out all tests that they were complaining about. Were they still, did they still have that obligation? Your honor, I think that if we stick to the pleadings, I think that the answers that that's not clear. In the pleading state that for instance, Ms. Palmer, the defendant in ways case, has said that she wasn't going to rely on one of the plans to testify at all and breath alcohol tests. I think in the pleadings we state that Ms. Palmer stated that she would not use the plaintiffs again, in breath alcohol testing cases going forward. So I don't think it's clear exactly what the function would be. Certainly, the pleading show then this job, there's multiple functions. When they were Lone Star college, they were actually going to be testifying in regards to the Harris County Sheriff's Office. So they would not be testifying regarding the HPD bat vans, which they specifically spoke out against. Okay, so does the Lane case help you in this regard, that the Supreme Court's Lane V Franks, because it's testimony, and even if it has to do with the people's jobs, testimony is a quintessential public sentence citizen function. So how much of this is testimony so that this would be covered by Lane and protected and not subject to Garcetti? Yeah, I think Lane does help out. Lane's not exactly on point, Your Honor, but I think that the point that Lane makes is, from the very beginning of the opinion, is talking about how important public speeches in court. You owe a duty to the court, you owe the duty to the public when you testify

. I'm asking what the speech at issue is at all some sort of testimony. No, Your Honor. How much it, which is testimony, which is not? One of the protected areas of speech was when Ms. Colbert's and testified under subpoena by defense counsel. So that would be a Lane situation. I think so. I think so. That's exactly like Lane where there's subpoena by one of the parties. I think so, Your Honor. Well, subpoena, but her job was testifying. Was it not to talk about it, was she, but she also called by subpoena by the defendant, but she also testified in the half of prosecution. Because this was cost examination, if I recall, when that particularly disturbing to the police officers, her testimony was given. So she must have been called as witness, whether she was subpoenaed by the government. She was, my understanding, Your Honor, she was subpoenaed by defense counsel. Right

. But she was called down by defense counsel, which sounds to me as if she was initially called to the stand by the prosecution. And my understanding is that she was initially called to stand by the defendant in that case. So maybe mistake in your honor. But is the situation really that she was subpoenaed by the defendant's counsel? Because they knew that she would say positive things for them. And she wasn't going to be called by the prosecution. I mean, I don't mean positive things for them in a way that's not truthful. But they knew that this person had some good testimony to give. And so they perced, they subpoenaed her. And she wasn't going to be a government witness as to the tested issue. You know, it's hard for me to speculate exactly what their reasons were. That certainly could have been one of the reasons for calling her at that time. The question he asked her, I think, that would be consistent with where you're going, Judges. What was the reason why he left the Houston Police Department? A personal question. And her answer was that, you know, I believe that there were problems with the integrity of the crime lab. And I think that raises an important point though

. I mean, she was talking about a personal reason why she left employment. And that was the question at issue. And so I don't think it could be consistent with her duties at Lone Star College to be asking a personal question about why she left a former job. But to get back to the rest of your question, Judge Al-Rod, the other, there were other acts that weren't covered by Lane B. Franks. There were statements made to the press. Miss Colbert's and actually was invited and voluntarily met with the Harris County District Attorney's Office on two times, where she sat down with them and told them about her concerns. And so I think those would be all the context of Lane, but they're certainly not covered by Garcetti, because they're not performed as the, you know, essential functions of her job. I do wonder you maybe, right? But Garcetti is at least related to that. Garcetti was very concerned about the quality of the work that he was seeing. And in plain and wrong word, we poured it into a situation. Maybe the pleading state, we don't know enough about that, but that does seem similar to what you're on one of them did. Well, you know, I think looking at Williams V. Riley, you have to look very carefully, this court decision of Williams V. Riley, at the official duties, whether it was taken pursuant to their official duties

. And I agree with you. The appellees and their argument, they say that that's a factual determination. It's really hard to do that at the pleading stage. I think when we get past the pleading stage, the evidence is going to be that it was not part of her official duties to be testifying as to her personal reasons as to a former job. And it certainly wouldn't be part of her pursuant to her official duties to be speaking with the press. When did she speak to the press? Was it towards the end of September? I think as pledger on her, it would have been, it would have been middle to the second half of September. The retaliation campaign, if that's what it was, was already underway. Would there be a causation issue again, where pleads, whether a late statement to the press, I don't think it was, which one of you two clients did it. But I thought it was just a few days from the end of September and the new contractors about to be ended with, that would cut off loans. So I've, please see me at the causation connection doubt there. And there may be, I think that would be an argument to make to the jury ultimately in this case. I'm looking at it, it looks like September 17 was the first publication in the Heast and Chronicle. Well, I think she's not hiding him today. September 17, the Heast and Chronicle published an article and quoted Colbert's in Long on that day. And only a few days before the commissioners court had heard about this issue and they still had an issue to final decision

. And so an argument can be made that causation had happened earlier. But I certainly think on the pleading and I think we'll have evidence to get to trial on this issue that these statements to the press played a role in the termination. There are other hurdles along the way. Should you get to trial? That would be bad. I'd like to address briefly the county's argument. Actually, I'm going to turn back to another one of Rachel Palmer's arguments which has to do with prosecutorial immunity. She argues that she's entitled to prosecutorial immunity. To places it's never been applied before. That's contrary to who V Watson directly was dealing with administrative duties and things like that, isn't it? I think the Supreme Court is held if it's an administrative function then there is no prosecutorial immunity. And I look at this as a personnel decision. She was, if we can even go that far, I don't think the pleading's take that there. But in her best slide, it would be a personnel decision. I want to ask you, what is your claim against Palmer? What is your precise claim? Interference, retaliation, first amendment retaliation for my clients exercise their first amendment rights, torches interference with contract and torches interference with prospective business relations. This is they, this is Madison County, pretty clearly say you have no claim on retaliation. Even if she had a minimum prop emotive in what she was doing, what was protected through some mechanism where there's prosecutorial immunity or something else, she was not the act

. She did not make decisions besides in Madison County. And in two different places in our opinion, for example, the reasoning of plaintiff like herself has no relation to the liability of the individual, even to the impute her back notice to the final actor, the individual herself who was not making the decision on the termination is not lying. You're absolutely correct that the court does say that twice in the Badi opinion. We have two responses to that. One, the issue before Badi was not individual liability. At the point in time that opinion was issued, the individual defendants had already been dismissed from the case. So to the extent the court says that, we believe it's dicta. But most importantly, in a previous panel of this court, and Jet versus Dallas and the Pennant School District, the court held an individual, individual could be held for first amendment retaliation in the employment context, even if they did not make the final decision. In fact, the court said what matters is whether that defendant caused the adverse employment action. And the court, what do you even further talk about the cat ball argument, are you, which is that if somebody is making the decision, actually forces it through somebody else, is it all comparable to the factual situation in case you're talking about that we have now? I think so, Your Honor. What happened in Jet, and this was, I think before the cat's analysis even hit the courts in 86, was that the individual defendant told other people, you need to fire this person. And ultimately, the individual that did that was not the person that made the decision, but the court still found liability. And the court went further, and they rejected qualified immunity regarding the argument whether it was unclear whether an individual defendant could be held liable into circumstances. So I think Jet is controlling. I'm having a really difficult time discerning what basis the case was dismissed by the district court

. Is it, what did they determine, did the court dismiss the case for failure instead of claim? Because, because of causation or because of Garcetti, or was Pickering and Garcetti even raised to the district court, I mean, what is, what was the basis of the ruling? Your Honor, Garcetti, as far as I remember to not come up in the opinion, Pickering was not mentioned in the opinion, to be honest, the majority of the opinion dealt with, in my opinion, dealt with the plaintiff's state law, causes of action. I'm just trying to figure out what was the legal basis for finding this failed, and so that we can then, of course, we're not limited to that. If you failed to state a claim for other reasons, we would affirm. It was not clear to me. My best take, Your Honor, is that the constitutional claims were dismissed under 12 B6 for failure of state of claim, and the state law claims were dismissed under the Texas Citizens Participation Act. I want to get back to Judge Southwick's last question also. I think that Kenny Bweaver also shed some light on this Madison B. Betty argument, and that, and Kenny Bweaver, the people that got sued were not causing, did not make the final decision to end the employment either. What they did was they set a chain of events, you know, moving the ultimately led to the plaintiff's termination, in that case. Well, they were long being, they were boycotting sending their people to that academy, which is not quite what we're dealing with. Here, it had a direct effect on the academy that people were not going, as opposed to net decision was made, that was the harm. My understanding is that the plaintiff in the city was not fired, and so the harm was occurring to the academy, to the underlying overarching school, whatever it is that was running the academy. So I'm not sure it's complete magic, it's a fair point. Okay. I think that one of the plaintiffs, one of the plaintiffs and Kenny Bweaver, was on, but one of them was fired, and they were fired because the school didn't have enough business, and so I see it just like the Lone Star contract here, when they got rid of the Lone Star contract, Lone Star could not keep the plaintiffs in this case

. It was just as good as not better. And Kenny said in the front, five or one of them was not, but we were still finding harm, I'm not sure in what way, but there's only effect things through the academy that was in my suppose, so the academy was not to claim to. And I think in this case, Lone Star College obviously had an effect, they lost the contract, and the direct result of that was my clients in the plaintiffs in this case lost their jobs. And then they had, do they have a state law claim that they couldn't get a job afterwards too? Yes, your honor. Torsches and Affirms with their net will, employment contracts at Lone Star, and then Torsches and Affirms with the prospective business relations, which is what you're referring to. And you're appealing that dismissal also? Yes, your honor. And I'll move on to that. Those claims were dismissed under a relatively new law in Texas called the Texas Assistance Participation Act, TCPA. There are, as you've seen in our briefing, there are a lot of issues in regards to TCPA, but I think that this appeal can be resolved very quickly. And that is because the TCPA only applies to certain protected individuals. And those are individuals who engage in the exercise of right to free speech, association or petition. The statue is meant for a certain class. And under the TCPA, a movement must first prove by a preponderance of the evidence that they actually engage in protected activity. They must show the court that they're entitled to the protections of the TCPA. In this case, Ms

. Palmer did not meet her burden of proof. In fact, she offered absolutely no evidence. The only thing she did was point back to the plaintiff's pleadings. There was no evidence attached. We believe the plain language of the statue makes it clear that the plaintiff has failed to meet her burden. Does the plaintiff, I mean, does the defendant deny in the answer that the conduct occurred? Kind of one of the unique procedural aspects of this, if there was never an answer in this case. There's no answer. So that's what I couldn't find. And I'm just trying to figure out. In the record, there is deposition testimony. I think that general answer your question, Judge, is that she denied a lot of the things that the plaintiffs are alleging or she could not remember a lot of the things that the plaintiff was. So she didn't say yes, I said it. And it was the right thing to do because you're not trustworthy. And my goal is to get efficient, trust well-running labs. No, you're wrong. She didn't stand on her. There's no evidence in the record that she stood on her statements that she may. In fact, there's no evidence that she admits making them. It's my understanding, yes, your correct, Your Honor. Is the Texas case law split on whether or not you have to admit making them right now? And we're found by Texas law on this, right? Yes, Your Honor. I mean, it is literally cases are coming out each week and both sides have been following them and we submitted it. Not been sitting 28 J's. Yeah. And I think there's one case that I want to point the course attention to. And that's a recent opinion out of the Dallas Court of Appeals. It's pick and speak Cordia. It's in our real 28J letter. And I think it's mentioned in the police letter too. They make clear that pleadings will not suffice for meeting the burden when a defendant denies the actions in the pleadings. But we don't have that there, correct? We don't have a defendant denying in the TCVA claim

. She didn't stand on her. There's no evidence in the record that she stood on her statements that she may. In fact, there's no evidence that she admits making them. It's my understanding, yes, your correct, Your Honor. Is the Texas case law split on whether or not you have to admit making them right now? And we're found by Texas law on this, right? Yes, Your Honor. I mean, it is literally cases are coming out each week and both sides have been following them and we submitted it. Not been sitting 28 J's. Yeah. And I think there's one case that I want to point the course attention to. And that's a recent opinion out of the Dallas Court of Appeals. It's pick and speak Cordia. It's in our real 28J letter. And I think it's mentioned in the police letter too. They make clear that pleadings will not suffice for meeting the burden when a defendant denies the actions in the pleadings. But we don't have that there, correct? We don't have a defendant denying in the TCVA claim. There's no answer to that. I think that it would be either it's denial of some of the she denied. But do we consider that or not? Do we consider that she denied it in the deposition or do we have to ignore the deposition for purposes of analysis? Well, I think this is the primary face of burden the first step of the analysis, Your Honor. So you believe they have to come affirmatively and show that they admitted making the statements. And so the silent record on this is the fatal infirmity for them, not for you. Yes. And it's because the statute specifically refers to a preponderance of the evidence. I think that that plain language says you've got to come forward with something. I think that ends the TCPA analysis. Should we certify that to the subtext of Supreme Court about whether or not you have to admit making the statements is important. It's a valve's first amendment and government and all sorts of things. I think it's an important issue, Your Honor. And I think the law is unclear right now in that area. And so any help from the Supreme Court would clarify things in this area. Otherwise we just make a guess

. There's no answer to that. I think that it would be either it's denial of some of the she denied. But do we consider that or not? Do we consider that she denied it in the deposition or do we have to ignore the deposition for purposes of analysis? Well, I think this is the primary face of burden the first step of the analysis, Your Honor. So you believe they have to come affirmatively and show that they admitted making the statements. And so the silent record on this is the fatal infirmity for them, not for you. Yes. And it's because the statute specifically refers to a preponderance of the evidence. I think that that plain language says you've got to come forward with something. I think that ends the TCPA analysis. Should we certify that to the subtext of Supreme Court about whether or not you have to admit making the statements is important. It's a valve's first amendment and government and all sorts of things. I think it's an important issue, Your Honor. And I think the law is unclear right now in that area. And so any help from the Supreme Court would clarify things in this area. Otherwise we just make a guess. Well, that's, you know, I think that the court can look to the the court of appeals decisions that are coming out. I think that they look at other Texas Supreme Court press and so I don't think the court would be making a guess. Has any well and educated guests relying on the Texas Court of Appeals? Have any of the courts of appeals allowed a TCPA claim with no affirmative representation by the movement? To my understanding they have, if you read between the lines and opinions it looks like they have, but the issue was not raised like we're raising it here. There was no argument about whether there was a court. So the court's never blessed that. As far as I know the courts have not blessed that, Your Honor. And I know that there was a letter last night from opposing counsel. Then he told me I'm wrong on a recent case that came out, but as far as I know they have not blessed that, Your Honor. Okay, well I'll ask them. Okay. Another issue why we don't think the TCPA should be applied in federal court is because or why the TCPA should not apply here is because we don't believe that it should be applied in federal court. And the basis for this argument is the Supreme Court's decision and shady, shady grove. And in that case the Supreme Court provided a two-step process that can avoid waiting as they say, avoid waiting into the murky waters of the eerie doctrine. And under that test the first step is to ask whether the federal rule of civil procedure answers the question and dispute. We believe that the relevant question dispute here is under what circumstances shall acclaim be dismissed on the pleadings and even evidence beyond the pleadings

. Well, that's, you know, I think that the court can look to the the court of appeals decisions that are coming out. I think that they look at other Texas Supreme Court press and so I don't think the court would be making a guess. Has any well and educated guests relying on the Texas Court of Appeals? Have any of the courts of appeals allowed a TCPA claim with no affirmative representation by the movement? To my understanding they have, if you read between the lines and opinions it looks like they have, but the issue was not raised like we're raising it here. There was no argument about whether there was a court. So the court's never blessed that. As far as I know the courts have not blessed that, Your Honor. And I know that there was a letter last night from opposing counsel. Then he told me I'm wrong on a recent case that came out, but as far as I know they have not blessed that, Your Honor. Okay, well I'll ask them. Okay. Another issue why we don't think the TCPA should be applied in federal court is because or why the TCPA should not apply here is because we don't believe that it should be applied in federal court. And the basis for this argument is the Supreme Court's decision and shady, shady grove. And in that case the Supreme Court provided a two-step process that can avoid waiting as they say, avoid waiting into the murky waters of the eerie doctrine. And under that test the first step is to ask whether the federal rule of civil procedure answers the question and dispute. We believe that the relevant question dispute here is under what circumstances shall acclaim be dismissed on the pleadings and even evidence beyond the pleadings. And we think that rules 12 and 56 squarely answer that decision, that question. And as such the TCPA cannot be used in federal court. I'm aware that the Fifth Circuit has applied anti-slap motions in federal court before. I think there's two or three Fifth Circuit decisions. And none of those cases was this issue raised. The court basically assumed that it could be applied in federal court without reaching that decision. In a recent opinion I think in Malsey, verse, Bagley, the court kind of made that clear that hadn't been a decided and they weren't going to decide it because it hadn't been raised at the end of the year. So the Fifth Circuit has done what you're asking us to do. In some respects, yes, the ninth circuit has applied anti-slap motions in federal court. But since that initial holding they've kind of gutted their first decision. They found ultimately that the anti-slap provisions and the California statute conflict with the discovery rules. And so they will apply the anti-slap motion. They allow discovery under federal court rules, which makes it the motion much more like a rule of 56 motion than what we have here. I mean one of the issues, this is so different from the federal rules, is that discovery was stopped in this case. We got to take two deposition of one hour each and I've presented reasons in our brief while they were basically meaningless to positions

. And we think that rules 12 and 56 squarely answer that decision, that question. And as such the TCPA cannot be used in federal court. I'm aware that the Fifth Circuit has applied anti-slap motions in federal court before. I think there's two or three Fifth Circuit decisions. And none of those cases was this issue raised. The court basically assumed that it could be applied in federal court without reaching that decision. In a recent opinion I think in Malsey, verse, Bagley, the court kind of made that clear that hadn't been a decided and they weren't going to decide it because it hadn't been raised at the end of the year. So the Fifth Circuit has done what you're asking us to do. In some respects, yes, the ninth circuit has applied anti-slap motions in federal court. But since that initial holding they've kind of gutted their first decision. They found ultimately that the anti-slap provisions and the California statute conflict with the discovery rules. And so they will apply the anti-slap motion. They allow discovery under federal court rules, which makes it the motion much more like a rule of 56 motion than what we have here. I mean one of the issues, this is so different from the federal rules, is that discovery was stopped in this case. We got to take two deposition of one hour each and I've presented reasons in our brief while they were basically meaningless to positions. And so in the ninth circuit they said, yeah, they apply, but we're going to cut out some of the things that really conflict with the federal rules. The second circuit, your honor, has found the anti-slap motion to apply in federal court, I think in a 2010 decision, go to NVshanks. It's before the seventh circuit right now, I've listened to the oral argument in that case. They express some concerns over if we don't have an opinion on that. So we wouldn't be creating a circuit split if we were to rule either way on this at this point. I don't think so because I think the ninth circuit has cut their decision in half since they originally made it. And even recently there's some ninth circuit judges that have been expressing concerns over their original opinion. I think the court would be in conflict at some extent with the second circuit, but even that statute is a little bit distinguishable from the TCPA here. Are you going to be talking about the Tarnese fees in this presentation or when you come back up here? I'll try to get to it real quickly now and I can finish up in rebuttal. The district court after this case was dismissed on a pawn motion by Rachel Palmer awarded something like around $82,000 in attorneys fees. The main reason why we think that that awards should be reversed is because there's no evidence that Rachel Palmer has actually incurred the attorneys fees. The evidence that was presented was that Harris County paid for it, but we have nothing to show us that Miss Palmer, if she's awarded fees, has to pay Harris County back or that she's even willing to do so. The reason that really between Harris County and her is that the statute is written strongly enough that these are fees actually started for representation and it certainly sounds equitable for her to pay the money back, but that's up the Harris County, I would think. Not to this court to deny the recovery altogether. I think that I think that part of the reason why the statute limits it to encourage is the purpose of the statute is to protect people that can't pay for their own fees and they get bullied in court and know how the money to pay for it

. And so in the ninth circuit they said, yeah, they apply, but we're going to cut out some of the things that really conflict with the federal rules. The second circuit, your honor, has found the anti-slap motion to apply in federal court, I think in a 2010 decision, go to NVshanks. It's before the seventh circuit right now, I've listened to the oral argument in that case. They express some concerns over if we don't have an opinion on that. So we wouldn't be creating a circuit split if we were to rule either way on this at this point. I don't think so because I think the ninth circuit has cut their decision in half since they originally made it. And even recently there's some ninth circuit judges that have been expressing concerns over their original opinion. I think the court would be in conflict at some extent with the second circuit, but even that statute is a little bit distinguishable from the TCPA here. Are you going to be talking about the Tarnese fees in this presentation or when you come back up here? I'll try to get to it real quickly now and I can finish up in rebuttal. The district court after this case was dismissed on a pawn motion by Rachel Palmer awarded something like around $82,000 in attorneys fees. The main reason why we think that that awards should be reversed is because there's no evidence that Rachel Palmer has actually incurred the attorneys fees. The evidence that was presented was that Harris County paid for it, but we have nothing to show us that Miss Palmer, if she's awarded fees, has to pay Harris County back or that she's even willing to do so. The reason that really between Harris County and her is that the statute is written strongly enough that these are fees actually started for representation and it certainly sounds equitable for her to pay the money back, but that's up the Harris County, I would think. Not to this court to deny the recovery altogether. I think that I think that part of the reason why the statute limits it to encourage is the purpose of the statute is to protect people that can't pay for their own fees and they get bullied in court and know how the money to pay for it. I think that's why they're looking at the incurred matter here. The result of this will be a significant windfall to Miss Palmer, who never paid for these fees, never had to worry about paying for a defense. She will be awarded with $82,000 plus and as it stands now, I can just tell the county no thank you. I don't think the statute and the purpose of the statute means that it reaches that. You're not challenging the amount of the fees or are you because there's some load star discussion and what reasonable fees are. We did challenge the fees below your honor and that we had a couple of major objections. One was that we thought that the district court used an improper standard. The load star was used by the opposing counsel before the trial court and so we think that the load star should be used here. Instead of following the load star, the district judge basically put the burden on the plaintiffs. The district judge also said in his order and I said I'm almost out of time that a rough approximation was the standard and that's simply not the standard under Fifth Circuit Law. I'll save my time. May it please the court, Kate Davin, faculty, Rachel Palmer in her individual capacity. The court asked what judge used how he rolled on this and what he was rolling on and if you look at his opinion while it's not maybe your normal language, he does address the anti-stats of the slack statute and he dismisses the torches interference claim pursuant to that statute but then he also says that it would fail under 12b6 as well and that the retaliation claim fails under 12b6 as well for the reason that the plaintiffs in their complaint can point to no illegal activities by the defendants that cause their injury and I think Joe Southwick was getting to this and when he was talking about the causation chain which judge used also hoons and on and so I think a little bit of the background is important. ADA Rachel Palmer was the misdemeanor chief, I'm sorry the deputy chief of the Mr. Meanor division for all relevant times of this appeal, this complaint

. I think that's why they're looking at the incurred matter here. The result of this will be a significant windfall to Miss Palmer, who never paid for these fees, never had to worry about paying for a defense. She will be awarded with $82,000 plus and as it stands now, I can just tell the county no thank you. I don't think the statute and the purpose of the statute means that it reaches that. You're not challenging the amount of the fees or are you because there's some load star discussion and what reasonable fees are. We did challenge the fees below your honor and that we had a couple of major objections. One was that we thought that the district court used an improper standard. The load star was used by the opposing counsel before the trial court and so we think that the load star should be used here. Instead of following the load star, the district judge basically put the burden on the plaintiffs. The district judge also said in his order and I said I'm almost out of time that a rough approximation was the standard and that's simply not the standard under Fifth Circuit Law. I'll save my time. May it please the court, Kate Davin, faculty, Rachel Palmer in her individual capacity. The court asked what judge used how he rolled on this and what he was rolling on and if you look at his opinion while it's not maybe your normal language, he does address the anti-stats of the slack statute and he dismisses the torches interference claim pursuant to that statute but then he also says that it would fail under 12b6 as well and that the retaliation claim fails under 12b6 as well for the reason that the plaintiffs in their complaint can point to no illegal activities by the defendants that cause their injury and I think Joe Southwick was getting to this and when he was talking about the causation chain which judge used also hoons and on and so I think a little bit of the background is important. ADA Rachel Palmer was the misdemeanor chief, I'm sorry the deputy chief of the Mr. Meanor division for all relevant times of this appeal, this complaint. And as such she coordinated the breadth alcohol testing both for HPD because the DA's office handles HPD cases and then also for the Harris County Sheriff's Office and so she was working with plaintiffs Colbert's in and long when they were with HPD and then also when they moved over to Lone's star and in the course of this of working with them she had some issues with plaintiff Colbert's in credibility, reliability, showing up for things which she reported to her supervisors and which she ultimately, I'm sorry which she reported to her supervisors and according to plaintiffs and her complaint also reported to members of the Sheriff's Office and of the representatives from commissioners. Okay that's kind of vague. When you say that she had issues with her credibility is it because she was out speaking or you saying that this arose from completely or her testimony in these cases or you saying it's completely unrelated? That's fair, no it's all about the testimony in cases. So you'll see in the record there's a memo that Rachel Palmer wrote to her superior it's a 284 record where she talks expressly about why they would prefer not to use Ms. Colbert's in as a witness in cases where they don't have to because they have issues with her saying she's going to show up at certain times not showing up telling the prosecutors one thing before a trial and then saying something else on the stand and so she says you know I just prefer not to use it. Do we use any of this in determining and evaluating this case at this standard at this stage? Well it does go to causation that's what I was trying to talk about the causation. Okay but do we go to causation at this level if it's on 12 B6 am I supposed to be looking at whether or not she could actually do this through her network of reasons and whether the cats pod doctrine applies and all of these sorts of things. Now those are two different two different questions I think. Number one under 12 B6 yes you are looking at the facts and taking all of the facts in the complaint is true and you're saying even if all of these are true does this support the elements of this claim but we're not looking at what the specifics of the memos though are we? Well we're looking at and just use I think was looking at whether there was any actual retaliatory action whether there was any causation but I'll leave that in the back too. Bring up what I may be interrupting your answer. It's sort of a premise for what you're saying. The way judges go to opinion he never identifies whether it's 12 B6 he just says just message does say Tcpa to be respectful to the facts. He did have them to discover allow when to discover and you are now telling us about some things that he had came to discover or otherwise ran into Jews but seems to me to the extent he he considered that he somewhat converted this into a little bit six without announcing that he was going to I don't think that he's been very involved with the six. Seems to me that one of the biggest hurdles for you I'm not saying it's outcome determinants is that this is at the pleading stage and not at some major I did think he was getting a little ahead of himself was against him by the trial though there may be something else depending on what happens here before you got to the trial. Almost everybody talking so many judgment kind of evidence and not pleased from you I want you are already getting into some judgment evidence and not pleased

. And as such she coordinated the breadth alcohol testing both for HPD because the DA's office handles HPD cases and then also for the Harris County Sheriff's Office and so she was working with plaintiffs Colbert's in and long when they were with HPD and then also when they moved over to Lone's star and in the course of this of working with them she had some issues with plaintiff Colbert's in credibility, reliability, showing up for things which she reported to her supervisors and which she ultimately, I'm sorry which she reported to her supervisors and according to plaintiffs and her complaint also reported to members of the Sheriff's Office and of the representatives from commissioners. Okay that's kind of vague. When you say that she had issues with her credibility is it because she was out speaking or you saying that this arose from completely or her testimony in these cases or you saying it's completely unrelated? That's fair, no it's all about the testimony in cases. So you'll see in the record there's a memo that Rachel Palmer wrote to her superior it's a 284 record where she talks expressly about why they would prefer not to use Ms. Colbert's in as a witness in cases where they don't have to because they have issues with her saying she's going to show up at certain times not showing up telling the prosecutors one thing before a trial and then saying something else on the stand and so she says you know I just prefer not to use it. Do we use any of this in determining and evaluating this case at this standard at this stage? Well it does go to causation that's what I was trying to talk about the causation. Okay but do we go to causation at this level if it's on 12 B6 am I supposed to be looking at whether or not she could actually do this through her network of reasons and whether the cats pod doctrine applies and all of these sorts of things. Now those are two different two different questions I think. Number one under 12 B6 yes you are looking at the facts and taking all of the facts in the complaint is true and you're saying even if all of these are true does this support the elements of this claim but we're not looking at what the specifics of the memos though are we? Well we're looking at and just use I think was looking at whether there was any actual retaliatory action whether there was any causation but I'll leave that in the back too. Bring up what I may be interrupting your answer. It's sort of a premise for what you're saying. The way judges go to opinion he never identifies whether it's 12 B6 he just says just message does say Tcpa to be respectful to the facts. He did have them to discover allow when to discover and you are now telling us about some things that he had came to discover or otherwise ran into Jews but seems to me to the extent he he considered that he somewhat converted this into a little bit six without announcing that he was going to I don't think that he's been very involved with the six. Seems to me that one of the biggest hurdles for you I'm not saying it's outcome determinants is that this is at the pleading stage and not at some major I did think he was getting a little ahead of himself was against him by the trial though there may be something else depending on what happens here before you got to the trial. Almost everybody talking so many judgment kind of evidence and not pleased from you I want you are already getting into some judgment evidence and not pleased. Well I think if you put that aside and if you just focus on Judges' opinion and what he focuses on which is causation that's an element that they have to have sufficient evidence on to survive 12b6 and so you just don't have to have evidence they have to have sorry I'm sorry you have facts that if true would support that right and the idea is that she's very powerful in the testing community and she's supervising two of the programs and she's going to the commissioner's court who's extremely powerful telling them to taking the facts is true with the plan telling them to ditch ditch anything associated with this person because she's poisoned to the program and so then the commissioner's court said we don't want any poison in the program we want an easy easy people to deal with we want to keep our system going the way it is and we're going to discontinue that contract because we don't have to deal with her that's the causation analysis. Well and the other thing we get into with causation is and this you talked about this a little bit with the BADI case and there was a recent case out of your court that we talked about in our letter brief the more VHU case and an issue with causation here is that you have an ADA who has two levels of supervisors between her and the DA who then has the DA and the sheriff's of office who are going to commissioner's court giving their recommendations then you have commissioner's court which is an elected body of five commissioners and a county judge who vote on the contract on the loamstarr and by the way this might be important the loamstarr contract expired on its own they didn't cancel it they didn't breach it no one's alleging that they did it expired then you have the commissioner's court deciding are we going to contract with continue or contract with loamstarr or are we going to contract with DPS so they vote to to contract with DPS and then loamstarr after the Harris County contract goes away decides to far two of their three technical supervisors the plaintiffs in this case right because they don't need them anymore because they don't have the demand of the work absolutely and the demand of the work was reduced in the plaintiffs theory because the the supervisor win and told everybody who was in power that that these people were no good and that we didn't want they didn't want to deal with them anymore but the problem they have is the Kenny V Weaver problem which is even if you take everything that they say is true they aren't alleging that Rachel Palmer everyone's a loamstarr and said we're going to get rid of you if you don't fire these people in Kenny V Weaver you have police chiefs and sheriff and and sheriff's who make the decision of where to send their officers calling the owner of a police academy saying we don't like your instructors you bear fire them are we're pulling out so is your position that there's causation through the commissioner's court vote but there's a break in causation for the decision of loamstarr to actually terminate I think there's two breaks I think number one Rachel Palmer is not a final decision maker for purposes of bady and this what about the jet in more you don't have to be the final you just have to influence and if that's really consistent with employment laws development generally as well okay and that's fine the problem is if you look at the complaint and you accept everything is true they don't make any allegations that Rachel Palmer has the kind of control that she would have to have over commissioner's court the DA or loamstarr to to make you know to satisfy the cats call analysis they're not even a legend they don't say there are no facts in the complaint it say Rachel Palmer was telling me her kind of commissioner's had a vote and they were listening the all of their facts are she says this isn't a good witness I don't like this witness I don't think that she's credible that's all they can say and that she says she thinks that DPS would be a better provider of this service there's no and they don't even a legend I'm sorry yeah that was fine fine well that was too quick the definition yes response I'm the one to sort of trigger this cat's part label I don't think that's the right label for this because I think you don't have the measure of control with Palmer in the general cat's part case you have but this is the case in which it's alleged regardless depending on where the baby is good law on this point and maybe it is it's not it's good law then I think that's the potential of error and the quiver if I put it in my place it's on your vote but it's not good law then what we're looking at is very much for Judge L. R. I was saying that she said in motion this negative vote by the Harris County Commission and he said the county judge also votes on it so it's not just the five he's one of the five there are four kind of conditions in the county judge okay and they've not been sued individually the Harris County itself the county as well you weren't they've been alleged to have any retaliatory motives here okay so regardless whether they had any retaliatory motive or even taking care and they were willing to buy into this this desire by the DA or important member of the DA's operation not to avoid these people anymore so that's really that's not kept on but it is it's a cause and effect relationship that needs to provide her actions need to be a substantial contributor to the ultimate adverse action I believe is what is required on the retaliation retaliation model but what does that fit here you'll say no why not well and I think that that's where it's important to look at the more of the use case and it's even a closer it's not it's even closer for us than baby and what happens in that case is the the mayor of a small city has issues with a city employee and according to the city employee taking his complaint knowledge through the reason the mayor has problems with him is because he supported the mayor's opponent in the election in a small town and so the mayor goes to the city council and said it makes all of these statements about why this guy is admitted to job he's stealing money doing all these terrible things and city council who's the only body the only person the only entity that has the five the power to suspend this employee suspicions him he then brings an individual claim against the mayor and this court says that doesn't work not final decision maker doesn't matter what they said to city council city council made the decision you're out that answer your question well I don't know but it is you have to read it there's more to the council and I just want to talk a little bit about immunity because if we get to that point I think it's important to talk about the fact that that who who wants in case does talk about how it is our burden to use that in the brief the more case no because it just came out like two weeks ago okay see there's some letter brief that we file the letter brief that you just filed this morning yes ma'am okay yes it just came out in fact it's not even on Westlaw yet and I wish it had to be that earlier but the immunity questions across tutorial immunity so there was a representation earlier I should have clear about the administrative function while it is the general rule that prosecutors are not do you know our prosecutorial immunity for serving investigatory or administrative roles the Supreme Court in the Vandip Camp case talks about a situation where the the criminal defendant sues not the DA who are not the prosecutor who was trying her case but the supervisors of the prosecutor for the way that they train the prosecutor for how they use their computer system for how they bruise in evidence and the the same arguments were made that were made here that that doesn't apply that doesn't fall in a prosecutorial immunity and the Supreme Court says no if you look at the policy behind prosecutorial immunity what we're trying to do is we're trying to shield behavior when a when a prosecutor is acting advocate and just because they were at the super advisory level making the decisions at a higher level that apply to lots of cases that doesn't mean that they lose the shield across tutorial immunity if it's a typically you know if it's a kind of function that then has an effect in the court and we have a similar situation here where you have the deputy chief of the misdemeanor section saying I don't think we should use these these plaintiffs if you look at all of their allegations against Rachel Palmer and plead them and they're all considered them all true all that they can say is that she says that the witnesses are credible and that she thinks DPS would be a better service provider for this bright alcohol testing which is then used in every misdemeanor process. And who got some we've construed the prosecutorial immunity very narrowly haven't we this would be a vast expansion of this circuit's construction of that wouldn't it. I don't know that I would say vast I think it would expand it but I think this would expand it beyond anything we've recognized and be somewhat inconsistent with who Watson wouldn't it. I think it's a different situation I think because here you're talking about someone who actually it hasn't handed selecting all of the expert witnesses they're used in all of the misdemeanor prosecutions and I mean if you look at a balance own example what they say is that and I don't want to mess this up I want to quote it they say that immunity is you look at it's aimed at protecting prosecutorial decisions within the conscious of prosecution such as from defendants alleging constitutional rights violations based on prosecutors used of the testimony of expert who she did not believe was credible so they're saying it applies there but if here you continue to use a prosecutor in all of your cases who don't believe is credible then they're arguing it doesn't apply and that doesn't seem to fit with the policy behind prosecutorial immunity. This more case that you cited to us this is not a published case of this circuit is it it has not been published yet. No it is an unpublished case by which we are not bound. It's true it's true but I think that it shows it goes to the argument. I think you mentioned that when you were talking about it I didn't think here you say it's well it's not published but I think it's persuasive authority did you say that? No I apologize for that but I think it goes to their argument that Betty was dictated and doesn't apply on this circuit I think Betty it has been followed in other cases and that was just a recent case that it seemed to be fairly an important factual fact. It does sound like it's own point but it's all put in. And then on the anti-slap statute just a little bit about that you asked if any of the courts below had addressed and addressed this issue of whether the defendant had to affirmatively embrace this. No I did not say courts below. I said courts in the Texas courts

. Well I think if you put that aside and if you just focus on Judges' opinion and what he focuses on which is causation that's an element that they have to have sufficient evidence on to survive 12b6 and so you just don't have to have evidence they have to have sorry I'm sorry you have facts that if true would support that right and the idea is that she's very powerful in the testing community and she's supervising two of the programs and she's going to the commissioner's court who's extremely powerful telling them to taking the facts is true with the plan telling them to ditch ditch anything associated with this person because she's poisoned to the program and so then the commissioner's court said we don't want any poison in the program we want an easy easy people to deal with we want to keep our system going the way it is and we're going to discontinue that contract because we don't have to deal with her that's the causation analysis. Well and the other thing we get into with causation is and this you talked about this a little bit with the BADI case and there was a recent case out of your court that we talked about in our letter brief the more VHU case and an issue with causation here is that you have an ADA who has two levels of supervisors between her and the DA who then has the DA and the sheriff's of office who are going to commissioner's court giving their recommendations then you have commissioner's court which is an elected body of five commissioners and a county judge who vote on the contract on the loamstarr and by the way this might be important the loamstarr contract expired on its own they didn't cancel it they didn't breach it no one's alleging that they did it expired then you have the commissioner's court deciding are we going to contract with continue or contract with loamstarr or are we going to contract with DPS so they vote to to contract with DPS and then loamstarr after the Harris County contract goes away decides to far two of their three technical supervisors the plaintiffs in this case right because they don't need them anymore because they don't have the demand of the work absolutely and the demand of the work was reduced in the plaintiffs theory because the the supervisor win and told everybody who was in power that that these people were no good and that we didn't want they didn't want to deal with them anymore but the problem they have is the Kenny V Weaver problem which is even if you take everything that they say is true they aren't alleging that Rachel Palmer everyone's a loamstarr and said we're going to get rid of you if you don't fire these people in Kenny V Weaver you have police chiefs and sheriff and and sheriff's who make the decision of where to send their officers calling the owner of a police academy saying we don't like your instructors you bear fire them are we're pulling out so is your position that there's causation through the commissioner's court vote but there's a break in causation for the decision of loamstarr to actually terminate I think there's two breaks I think number one Rachel Palmer is not a final decision maker for purposes of bady and this what about the jet in more you don't have to be the final you just have to influence and if that's really consistent with employment laws development generally as well okay and that's fine the problem is if you look at the complaint and you accept everything is true they don't make any allegations that Rachel Palmer has the kind of control that she would have to have over commissioner's court the DA or loamstarr to to make you know to satisfy the cats call analysis they're not even a legend they don't say there are no facts in the complaint it say Rachel Palmer was telling me her kind of commissioner's had a vote and they were listening the all of their facts are she says this isn't a good witness I don't like this witness I don't think that she's credible that's all they can say and that she says she thinks that DPS would be a better provider of this service there's no and they don't even a legend I'm sorry yeah that was fine fine well that was too quick the definition yes response I'm the one to sort of trigger this cat's part label I don't think that's the right label for this because I think you don't have the measure of control with Palmer in the general cat's part case you have but this is the case in which it's alleged regardless depending on where the baby is good law on this point and maybe it is it's not it's good law then I think that's the potential of error and the quiver if I put it in my place it's on your vote but it's not good law then what we're looking at is very much for Judge L. R. I was saying that she said in motion this negative vote by the Harris County Commission and he said the county judge also votes on it so it's not just the five he's one of the five there are four kind of conditions in the county judge okay and they've not been sued individually the Harris County itself the county as well you weren't they've been alleged to have any retaliatory motives here okay so regardless whether they had any retaliatory motive or even taking care and they were willing to buy into this this desire by the DA or important member of the DA's operation not to avoid these people anymore so that's really that's not kept on but it is it's a cause and effect relationship that needs to provide her actions need to be a substantial contributor to the ultimate adverse action I believe is what is required on the retaliation retaliation model but what does that fit here you'll say no why not well and I think that that's where it's important to look at the more of the use case and it's even a closer it's not it's even closer for us than baby and what happens in that case is the the mayor of a small city has issues with a city employee and according to the city employee taking his complaint knowledge through the reason the mayor has problems with him is because he supported the mayor's opponent in the election in a small town and so the mayor goes to the city council and said it makes all of these statements about why this guy is admitted to job he's stealing money doing all these terrible things and city council who's the only body the only person the only entity that has the five the power to suspend this employee suspicions him he then brings an individual claim against the mayor and this court says that doesn't work not final decision maker doesn't matter what they said to city council city council made the decision you're out that answer your question well I don't know but it is you have to read it there's more to the council and I just want to talk a little bit about immunity because if we get to that point I think it's important to talk about the fact that that who who wants in case does talk about how it is our burden to use that in the brief the more case no because it just came out like two weeks ago okay see there's some letter brief that we file the letter brief that you just filed this morning yes ma'am okay yes it just came out in fact it's not even on Westlaw yet and I wish it had to be that earlier but the immunity questions across tutorial immunity so there was a representation earlier I should have clear about the administrative function while it is the general rule that prosecutors are not do you know our prosecutorial immunity for serving investigatory or administrative roles the Supreme Court in the Vandip Camp case talks about a situation where the the criminal defendant sues not the DA who are not the prosecutor who was trying her case but the supervisors of the prosecutor for the way that they train the prosecutor for how they use their computer system for how they bruise in evidence and the the same arguments were made that were made here that that doesn't apply that doesn't fall in a prosecutorial immunity and the Supreme Court says no if you look at the policy behind prosecutorial immunity what we're trying to do is we're trying to shield behavior when a when a prosecutor is acting advocate and just because they were at the super advisory level making the decisions at a higher level that apply to lots of cases that doesn't mean that they lose the shield across tutorial immunity if it's a typically you know if it's a kind of function that then has an effect in the court and we have a similar situation here where you have the deputy chief of the misdemeanor section saying I don't think we should use these these plaintiffs if you look at all of their allegations against Rachel Palmer and plead them and they're all considered them all true all that they can say is that she says that the witnesses are credible and that she thinks DPS would be a better service provider for this bright alcohol testing which is then used in every misdemeanor process. And who got some we've construed the prosecutorial immunity very narrowly haven't we this would be a vast expansion of this circuit's construction of that wouldn't it. I don't know that I would say vast I think it would expand it but I think this would expand it beyond anything we've recognized and be somewhat inconsistent with who Watson wouldn't it. I think it's a different situation I think because here you're talking about someone who actually it hasn't handed selecting all of the expert witnesses they're used in all of the misdemeanor prosecutions and I mean if you look at a balance own example what they say is that and I don't want to mess this up I want to quote it they say that immunity is you look at it's aimed at protecting prosecutorial decisions within the conscious of prosecution such as from defendants alleging constitutional rights violations based on prosecutors used of the testimony of expert who she did not believe was credible so they're saying it applies there but if here you continue to use a prosecutor in all of your cases who don't believe is credible then they're arguing it doesn't apply and that doesn't seem to fit with the policy behind prosecutorial immunity. This more case that you cited to us this is not a published case of this circuit is it it has not been published yet. No it is an unpublished case by which we are not bound. It's true it's true but I think that it shows it goes to the argument. I think you mentioned that when you were talking about it I didn't think here you say it's well it's not published but I think it's persuasive authority did you say that? No I apologize for that but I think it goes to their argument that Betty was dictated and doesn't apply on this circuit I think Betty it has been followed in other cases and that was just a recent case that it seemed to be fairly an important factual fact. It does sound like it's own point but it's all put in. And then on the anti-slap statute just a little bit about that you asked if any of the courts below had addressed and addressed this issue of whether the defendant had to affirmatively embrace this. No I did not say courts below. I said courts in the Texas courts. They are not courts below are court. I apologize. Texas courts and they appellate was correct that these Texas Supreme Court has not addresses. The two Houston courts of appeals have said that under the evidence standard in the in 27.06 for the Texas for the TCPA where it says pleadings and affidavits are evidence that you can consider the pleadings and one Houston court of appeals decision Jones V. Calkins has said that the pleaded claims demonstrate that the TCPA apply and that you can plead it just based on the face of the complaint but you didn't plead. You haven't pledged just the plaintiffs complaint solely. In that case all they looked at it was in Texas court so all they looked at was the petition. They said if the petition is based on allegations based on these the communications about public concern that carries the defendant's burden under the anti-slaps statute. Is the defendant denying that they made all the communications of issue or is the defendant admitting that they made all the communications of issue as you stand here? It has not gotten to that point in the trial court but I will tell you she's not denying that she spoke out about the credibility of the witnesses and she's not denying that she recommended DPS that the Harris County contractor did be it she admits those things. We'll have to make a comparison. There are some depositions and premiering from a post-accounts I thought without Mr. representing you can correct my sister that there was deposition test that she denied some aspects of what has said and complain in a deposition so whatever you want to say about that's quite right relevant but does any of that which is evidence in this record you'll have to consider some clear because it's an interesting does some of that evidence attack what you need in the complaint and so far it's proving what you're saying now? No no what happens in the deposition and first of all I don't really think that it is properly considered under the TCPA which decision only look at the pleadings in the affidavits. So you don't want us to look at the deposition? I don't think that you need to. I think that we objected to that below in the court denied our objection so it is in the record and in the deposition she does say that she doesn't remember specific dates specific things that she says but she when asked directly you know did you have problems with Miss Colbert's or witness did you have issues with the credibility? She says yes I absolutely did she doesn't deny that she made any of the statements that she she doesn't deny that she recommended DPS or preferred DPS or Lone Star she doesn't deny that she thought that Colbert's and was a bad witness and I think doesn't deny is different than she affirmatively stands on I did do this

. Yes that she does not do that in her deposition she does not go through each one those questions were not asked and but they had only an hour or something right right it was a limited deposition and and just quickly do dress pickings which is their case out of the Dallas court where the Dallas court appeals did say a party can't deny making the free speech and still carry their burden under the TCPA that pickings was completely different pickings petition didn't allege didn't know who made the speech an issue pickings involved an anonymous email that was sent out and a lawsuit was filed a sister against her brother saying I think he used this email I know it wasn't your name but I think he used these disparaging comments there's been some limited discovery where the brother says I didn't do it there's I have no I don't know where this email came from I'd nothing to do with it and there's no evidence at all that that was her free speech that that was his free speech it's a little bit different than here where you have affirmative claims on the face of the petition of complaints are that Miss Palmer made these statements and then they say that's what caused this issue and all of their torsionary concerns complaints are based on her lobbying of commissioners court and she never denies that she spoke to representatives from commissioners court or that she supported DPA so I think it's a little bit distinguishable and then on the attorney's fees issue the Texas the TCPA statute on attorney's fees says that the court shall award to moving party court costs reasonable attorneys fees and other expenses incurred and defending against the legal action and there are no Texas cases that I know of directly on point that that talk about our situation where the fees were incurred but they were paid by a third party but there was there's a case that did and what are those authorities say no just said there isn't there aren't any of their own activities I'm agreeing with that but there there is the one case that a talent site in their letter brief where there the court talks about whether incurred whether fees were incurred when bills were sent to a husband and wife and it's unclear who actually paid them or who was liable for them and the wife had been a defendant but then the husband was a defendant and the defendant was the actual successful movement and we get all that paid and incurred litigation in the context of personal injury law in Texas and that's gotten very strict about that it's not really incurred unless they actually have to write the write the check to the doctor for it and if it hasn't really been paid even though it says paid or incurred the Texas courts have taken a really strict interpretation of incurred in that context that is true and there but then there are other cases where the Texas Supreme Court is talking about not in that context the cases that we signed our brief where the Texas Supreme Court is talking about even if you're representing yourself you're not incurring actual fees that's okay and part of it goes to the policy of the TCPA which is a little bit different than the policy in the cases you're discussing and one of the reasons for awarding attorneys fees and sanctions are also allowed although judges do not do that is to you know kind of shift the burden of paying for this expensive litigation on to the party that actually gets to decide the argument it's later coming not to not to meet the TCPA's standard and that was one of the reasons that the anti-slaps that she was enacted okay what about the part that says in the interest of justice or that part of the phrase or the similar that the limiting language perhaps limiting language it's interesting I haven't seen that come up in the context of incurred but it has come up in the context of whether attorneys fees are mandatory or not and the argument being well they're not really mandatory because they have to satisfy these provisions and the Texas courts that have looked at this recently the Houston Court of Appeals in Shimmel V. McGregor and the Dishatting case out of El Paso have both said that their mandatory regardless of that language now how that is going to affect incurred I don't know if they're going to go the same or not again the Texas Supreme Court has not so that's it's open whether or not your client is automatically entitled to this under Texas law no now the Texas Supreme Court hasn't talked about it right but I mean it's held it's open yeah because yes the Texas Supreme Court has not talked about the only courts of appeals to talk about it and said you know let's talk about the amount okay it's a lot of money for two depositions in a no answer case isn't it well there were there were two motions to dissonous there were reply briefs there were two hearings there was I think two or I'm sorry two mediations did the district court make the appropriate findings that they would need to support this fees I think that they did I think that they did and what did the district court do that would support these fees well if you look at sorry the opinion from me the district court says talks about the fact that the reasonable the defiant amount is reasonable for the market area because that's one of our arguments they talk about the fact that plaintiff I mean I'm sorry Emily Palmer had the right to have her independence to direct her independence one of the arguments in the trial court was that we should have relied more on the Harris County Attorney's Office and that we should have relied more on the other defendant the time on their counsel and kind of just relied on their briefing and the judge there says no it was fair for them to follow all of their own briefing to preserve their own record to go to the depositions on their own to go to the mediations the trial judge looks at all that and addresses that in his opinion and says the he thinks that the the amount is reasonable and he thinks that it's also reasonable for Palmer and have her own lawyers you defend your own case so the rough approximation statements just a stray statement the rough approximation I'm sorry I'm sorry when the district court said it was a rough approximation of the amount of the fees that that's just a we should just overlook that because all the proper findings are really there well you can take it to evidence below too I mean that the we submitted all of our bills we submitted are they all up here for us yes they're a perfect all of our bills are in the record they are and if you look at the the Texas Supreme Court's recent case on the load star analysis they talk about what you need and everything that they say that we need is in there it's the experience of the lawyers the hours spent okay if it's in there we'll look at it anything you need to wrap it up okay thank you thank you may I please the court I'm Mary Baker attorney for Harris County and for Rachel Palmer and her official capacity and in the really brief time I have I just wanted to address the court's issue about the basis for the district court's decision I believe as well that the basis for the district court's decision was one of causation as you know as you well know in order to make a 1983 retaliation claim against Harris County which is the only claim which was asserted against Harris County the plaintiffs needed to need to establish first of all constitutional violation and then after that a custom policy or procedure of a final Harris County policy maker which was the moving force of the alleged constitutional violation and in his analysis judge who said first of all in the introduction page one the plaintiffs have several theories of liability for indirect injury so it seemed to me that initially he was perhaps even making a finding about the nature of the constitutional violation and let me say parenthetically before I forget it I regard judge Hughes's decision as going off completely on a 12 B6 and not as a conversion to a motion for summary judgment there were nothing in the opinion that rely on the evidence I haven't looked for that I have not seen anything your honor as it applies to the county the county was not obviously the county was not sued under the any slab statute the county did not have its deposition taken other than judge Lycos and and a D.A. Palmer had their deposition taken but no county representative so as it stands with regard to the county I believe that judge went off to Hughes went off on just a straight 12 B6 looking at the allegations in the pleadings he assumed that for example judge Lycos had recommended a contract with D.P.S. that's in his opinion you'll see that and he talked about commissioners court obviously the final decision makers the final policy makers for the county and this type of an issue and there he said there he said at page 4 two at will workers at regional college were released temporarily the firing followed the expiration of a contract between Lone Star and Harris County and we've already talked about that but the contract was not terminated ahead expired the the labs followed a decision by the county's policy board the Harris County commissioners its decision came after negotiations among officers from the county college and state then he says the negotiations were probably provoked by the officials unhappiness with the college's workers the plaintiffs picture all of the actors rubber stamping Lycos' wishes is unsupported had they automatically followed her counsel they are still deciding for themselves so in other words I believe judge Hughes was telling the county there is no direct causal link which as we know so if they knew and just to sum argue into that there's an unconstitutional intention if they know of an unconstitutional intention but receive information knowing that that's and as long as they decide for themselves they're they're not on the hook what it's not imputed to them if they know about the bad motives I believe that's correct your honor okay even if they know I know that they're not it's an easier case if they don't know that there's a bad motive from the person giving them the information but if they have purse if they actually know of the bad motive of the person giving them the information and this is a hypothetical I'm not saying there was a yes hypothetically speaking well you know it's interesting because this point has occurred to me which is in the the claims complaint they also heard from several criminal defense attorneys and so they're entitled to weigh one would imagine in the county's interests both both aspects so it even the plaintiffs have even pled that at a public hearing you know several criminal defense attorneys testified or gave statements that this was an act of retaliation well that was their opinion and Judge Lycos hand her opinion and the commissioners were charged with making a determination for the county and as Judge Hughes tells us that they did independently what's the best case for that for that it's automatically assumed that it's independent well I don't think he did cite a case and I'm asking you yes and I know I know I do not have a case to cite I certainly do not may I wrap up one more sentence okay the other really important part of Judge Hughes's decision is that he found there was no custom policy or procedure of by the county of retaliating against those with whom he disagreed thank you yes you know Harris County I what I say about the attorney's fees is Judge Southwick is correct we that's between Harris County and a your honor we let me just say that Harris County paid the $82,000 and I believe it does but you're not advocating for it I'm not advocating for it that's right it's out of our control it's after thank you so much it's probably seemed like a long time actually it seems very short your just a couple a couple of follow-ups a lot of the discussion here this morning has been about the termination but I wanted to remind the court that we pleaded two other actionable injuries and one was kind of what Palmer and Harris County did to the reputations of my clients and that was telling people publicly and privately within the prosecutors office and without that they couldn't be trusted and obviously not only does that chill their their first amendment rights it affected their employment going forward whether they could ever be hired you know to do this anywhere near Harris County or probably the state of Texas and so I think so even if there's a causation issue on that direct job there were you believe it future jobs that they've sheep they've been basically blackballed in the industry for lack of a better term if that's maybe not appropriate way to say it but yes you're on on the on the pleadings and that the causation issue of the debate we have about Madison you know Bady versus Madison County wouldn't apply to the direct action of harming someone by telling everyone that their reputation is no good or by what they did in investigating on the pleadings investigating my client Amanda Colbert's in for purgeery and what that did to her and how that chilled her her first amendment rights I will go quickly again back to the Madison the Bady versus Madison County issue and I think that what these courts are all trying to get it is causation I don't think this is perfectly a cat spot I think the cat spot can apply to part of this but if you look at jet and if you look at Kenny B weaver and if you look at Miles V Beckworth in all of those cases you didn't have a final actor that was being sued that made the decision you had individuals outside that through a chain of events caused the result and all those cases the court said that that was okay last I think that I'll I'll I'll stay that causation is something that should be I think it's much more appropriate to be analyzed at summary judgment and and then if if after summary judgment at trial it's very difficult to have these analysis of causation when you're just looking at the pleadings and that's what we have have here today there's no further questions thank you thank yo