R. Burk Morris v. John Thomas, Mike Walker, and The Archer Advocate--Appeal from 97th District Court of Archer County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00325-CV

R. Burk Morris,

Appellant

v.

John Thomas, Mike Walker,

and The Archer Advocate,

Appellees

From the 97th District Court

Archer County, Texas

Trial Court No. 04-10-0130A-CV

MEMORANDUM Opinion

R. Burk Morris, Archer County Attorney, sued Appellees, namely the Archer Advocate newspaper, the Advocate s managing editor John Thomas, and Mike Walker, an employee of the Advocate, for libel for publishing articles alleging that Morris illegally used his county office for his private law practice without prior approval by the Commissioners Court.[1] The trial court rendered summary judgment for Appellees. Morris appeals. We affirm.

In Morris s four issues, he contends that the trial court erred in granting Appellees motions for summary judgment. In Morris s first issue, he contends that Appellees statements were not substantially true. In Morris s second issue, he contends that the statements were defamatory as a matter of law. In Morris s third issue, he contends that he raised a fact issue on whether Appellees acted with actual malice in publishing the statements. In Morris s fourth issue, he contends that Appellees publication of the statements was not privileged.

To recover for defamation, . . . public-figure plaintiffs must prove that the defendants published a false and defamatory statement with actual malice. [2] Hearst Corp. v. Skeen, 159 S.W.3d 633, 636-37 (Tex. 2005) (per curiam) (citing Huckabee v. Time Warner Entm t Co., 19 S.W.3d 413, 420 (Tex. 2000)); see Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); cf. Tex. Civ. Prac. & Rem. Code Ann. 73.001 (Vernon 2005). Actual malice describes the First Amendment protections for speech injurious to reputation. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 161 (Tex. 2004) (quoting Bentley v. Bunton, 94 S.W.3d 561, 590 (Tex. 2002)); see U.S. Const. amend. I. Actual malice requires proof that the defendant published a statement with knowledge that it was false or with reckless disregard of whether it was true or not. New York Times at 279-80; accord Hearst at 637; Casso v. Brand, 776 S.W.2d 551, 554 (Tex. 1989). Reckless disregard is a subjective standard, requiring evidence that the defendants entertained serious doubts as to the truth of the article at the time it was published. Hearst at 637; see St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

A libel defendant is entitled to summary judgment under Texas law if it can negate actual malice as a matter of law. Hearst, 159 S.W.3d at 637 (citing Huckabee, 19 S.W.3d at 420). The defendants [h]aving negated actual malice, the burden shift[s] to the plaintiffs to raise a fact issue. Hearst at 637 (citing Huckabee at 424). [A] plaintiff must establish actual malice by clear and convincing evidence. Huckabee at 420; see Waters v. Churchill, 511 U.S. 661, 669 (1994); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 511 n.30 (1984); Freedom Newspapers v. Cantu, 168 S.W.3d 847, 859 n.49 (Tex. 2005); Casso, 776 S.W.2d at 558.

When a trial court s order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (quoting Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)).

Appellees evidence negates actual malice. Appellees affidavits establish that, as to the Commissioners Court s approval of Morris s use of the county office, Walker searched the records of the District and County Clerks and the minutes of the Commissioners Court, and found no record of approval. Walker also interviewed Morris, the County Judge, and current and former commissioners, and confirmed that the Commissioners Court had not voted to approve Morris s use of his county office. As to the legality of Morris s use of his county office, Walker interviewed the District Attorney, who confirmed that Morris s use of the office without prior approval was a violation of law. Appellees affidavits also establish that [a]t the time the articles about Mr. Morris use of his public office for his private law practice were written, Appellees believed them to be fair, objective and truthful in every respect and had no reason to doubt their truthfulness. (1 C.R. at 54; see id. at 60.) The burden thus shifts to Morris to raise a fact issue. He fails to do so.

Morris points, first, to a misquotation in one of the Advocate s articles. The article purports to quote a letter opinion of the Texas Attorney General as follows: [a] county attorney may use county paid employees, or county facilities, to perform private work in the county attorney s private practice of law, so long as the county commissioners court has approved the practice prior to the time the attorney renders services to the county. (Br. at 22 (quoting [2] C.R. at 221) (emphasis added by Morris)); see Tex. Att y Gen. LO93-51 (1993). Morris complains of the italicized words, which do not appear in the letter opinion. (See 2 C.R. at 221); Tex. Att y Gen. LO93-51. Even a deliberate alteration, however, does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., unless alteration results in a material change in the meaning conveyed by the statement. Freedom Newspapers, 168 S.W.3d at 855 (quoting Masson, 501 U.S. at 517); see New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The letter opinion interprets Texas Government Code Section 41.011, which provides, A . . . county attorney who is not prohibited by law from engaging in the private practice of law may, at the discretion of the commissioners court of a particular county, conduct a private practice of law using the . . . county office provided by that county for conducting his official duties. Tex. Gov t Code Ann. 41.011 (Vernon 2004). The letter opinion assumes that Section 41.011 explicitly limits the use of the office, including the facilities, office space, and telephones, and interprets the restriction to extend to employees, such as secretaries, as well. Tex. Att y Gen. LO93-51. The Advocate s misquotation did not result in a material change in the meaning conveyed by the letter opinion.

Morris also points to what he argues is evidence that Jody Wade, one of the owners of the Archer Advocate, may have caused or allowed the articles to be published in order to discredit Mr. Morris so as to effect his removal as County Attorney because . . . Wade was a controlling figure in an auto wrecking company that was receiving little business impounding cars in Archer County purportedly due to Mr. Morris. [3] (Br. at 23.) Ill will, however, is not proof of actual malice. Freedom Newspapers, 168 S.W.3d at 858; accord Casso, 776 S.W.2d at 558. A public-figure plaintiff cannot impose liability for libel on the basis of a defendant s hatred, spite, ill will, or desire to injure. Freedom Newspapers at 858 (quoting Letter Carriers v. Austin, 418 U.S. 264, 281 (1974)). [A]ctual malice concerns the defendant s attitude toward the truth, not toward the plaintiff. Id. (quoting New Times, 146 S.W.3d at 165). Morris does not point to evidence that Appellees entertained doubts about the truth of the articles at the time the Advocate published them.

The trial court s order does not specify the ground relied on for its ruling. Morris has not presented sufficient evidence to raise a fact issue about actual malice. The trial court did not err in finding that Morris did not raise a fact issue on whether Appellees acted with actual malice. We overrule Morris s third issue. Having overruled Morris s third issue, we need not reach his other issues.

Having overruled Morris s third issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed September 19, 2007

[CV06]

[1] After the publication of the articles, the Commissioners Court specifically approved Morris s use of his county office to conduct his private law practice.

[2] The parties agree that Morris is a public-figure plaintiff.

[3] Morris points, in particular, to the following evidence. First, he points to his deposition testimony as follows:

[T]he reason this article was written is because Jody Wade felt I was cutting into his income. And he is, I assume, half owner of the Archer Advocate, and he was trying to do something about it, trying to influence me on the way I do my job.

Q. How do you contend that was cutting into his income or what was cutting into his income, first of all?

A. Well, Mr. Wade owns or is an officer of and I m not exactly sure what the ownership percentage or anything is, but he ociated [sic] with and is an officer in Presidential Limousine, Presidential Taxi, Big Daddy s Wrecker, and then also a partner in Archer Advocate. And he is, made some arrangement with the Archer County Sheriff to where most of the people that are stopped and arrested in Archer County that Big Daddy s Wrecker picks up their car. Many of those vehicles are then towed over here to Wichita Falls to the Big Daddy yard here in Wichita Falls, and so when those people get out of jail they have to hire a taxicab to go to Wichita Falls to pick up their vehicle, and then have to pay Big Daddy s Wrecker to get their vehicle out. These troopers, young troopers, Corey Lain and Jason Dudley, were, they were depressed or upset with me because they re young hard chargers, and they ought to have to plead to DWI. . . . . So many times if I feel somebody, you know, that they don t deserve the punishment that comes with that. I will plead them to obstruction of highway.

(1 C.R. at 133-34.) Morris also points to the affidavit of a former employee of Wade, to the following effect:

4. Jody Wade had previously had many meetings with the Department of Public Safety Highway Patrol Troopers in his office. I learned from these meetings the Troopers were upset with Burk Morris because they did not like the way he did his job as Archer County Attorney. They were therefore not working in Archer County as much and instead were working in Wichita County.

5. Because of this, they were not making as many arrests in Archer County and Jody Wade s company, Big Daddy s Wrecker, Inc. was not making as much money since it did not get to impound as many cars.

(2 C.R. at 337.)