The parties agree that a hospital district board member is "a county officer[ ] ... whose office is created under the constitution or other law of this state." See Tex. Loc. Gov't Code § 87.012(15). Without deciding the issue, we accept the parties' construction for purposes of this case.

One such exemption is that the TCPA "does not apply to an enforcement action that is brought in the name of this state ... by ... a county attorney." Id. § 27.010(a). Because the legislature did not define "enforcement action," we must determine the term's "common, ordinary meaning." City of Richardson v. Oncor Elec. Delivery Co. , 539 S.W.3d 252 , 261 (Tex. 2018). "To determine a statutory term's common, ordinary meaning, we typically look first to [its] dictionary definitions...." Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n , 511 S.W.3d 28 , 35 (Tex. 2017). The common meaning applies "unless a more precise definition is apparent from the statutory context." Oncor , 539 S.W.3d at 261 ; see also Greene v. Farmers Ins. Exch. , 446 S.W.3d 761 , 765 (Tex. 2014) ("We rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results.").

An enforcement is "[t]he act or process of compelling compliance with a law, mandate, command, decree, or agreement." Enforcement , BLACK'S ; see also THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 590 (5th ed. 2011) (defining "enforce" as "[t]o compel observance of or obedience to: enforce a law "); WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 751 (1961) (defining "enforcement" as "the compelling of the fulfillment (as of a law or order)"). Applying the Black's dictionary definition, the court of appeals concluded that "there is nothing in the removal statute with which the State is seeking to compel Harper's compliance," because "Harper cannot comply with his duties if he is no longer a board member." 493 S.W.3d at 111 .

The dictionary definitions do not capture the full extent of the legislature's intent in this instance. The reason is that our precedent directing us to the dictionaries, see, e.g. , Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp. , 520 S.W.3d 887 , 893 (Tex. 2017), collides with our precedent directing us to "presume the Legislature selected language in a statute with care and that every word or phrase was used with a purpose in mind." DeQueen , 325 S.W.3d at 635 (emphasis added). Section 27.010 contains the "enforcement action" exemption, but it also contains three others. See TEX. CIV. PRAC. & REM. CODE § 27.010. The TCPA does not apply to:

(a) "an enforcement action" brought in the name of the state;

(b) "a legal action" against certain businesses;

(c) "a legal action" in certain personal injury cases; and

(d) "a legal action" arising out of certain insurance contracts.

Id.

The second, third, and fourth exemptions apply to a "legal action," id. § 27.010(b)-(d), a term the TCPA defines, see id. § 27.001(6). But the first applies to something different: an "enforcement action." Id. § 27.010(a). We must assume the legislature used a different word because it intended a different meaning. See DeQueen , 325 S.W.3d at 635 . Otherwise, the legislature would have said "legal action" all four times.

These observations demonstrate that whatever an "enforcement action" is, it must be different from a "legal action." A "legal action" is "a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief." TEX. CIV. PRAC. & REM. CODE § 27.001(6). It would be difficult to write a more capacious definition, and even more so to conceive one for an undefined term. So the definition of an "enforcement action" cannot exceed the broad definition the TCPA gives for "legal action." See id. Nor can the two terms share the same meaning. See DeQueen , 325 S.W.3d at 635 . Hence, a TCPA "enforcement action" must be a subtype of legal actions in general. That is, the term "enforcement action" must mean something less than "any legal action brought by the state." Otherwise, "enforcement action" and "legal action" would mean the same thing.

We conclude that, within the TCPA, the term "enforcement action" refers to a governmental attempt to enforce a substantive legal prohibition against unlawful conduct. This interpretation is consistent with the TCPA's text, under which enforcements are but one type of legal action. See id. § 27.001(6). It also accords with the TCPA's self-expressed purpose, which "is to encourage and safeguard constitutional rights"-not to impede the criminal or civil proceedings that law enforcement or other government agencies initiate. See id. § 27.002. Under this definition, a removal petition is not an "enforcement action" in the abstract. Instead it is a procedural device, and as such a party cannot initiate a removal action to enforce the removal statute itself. There is a range of conduct-some unlawful and some not-for which a public official may properly face removal under the removal statute. And as discussed above, the TCPA is available by default since removal actions are legal actions. However, when a removal action has its basis in unlawful conduct, the "enforcement action" exemption renders the TCPA inapplicable.

Accordingly, we must next ask whether the petition against Harper seeks to enforce a substantive legal prohibition against unlawful conduct. Under the removal statute, "[a]n officer may be removed for: (1) incompetency; (2) official misconduct; or (3) intoxication on or off duty caused by drinking an alcoholic beverage." TEX. LOC. GOV'T CODE § 87.013(a).

In his original petition, Best sought Harper's removal based on Best's allegation that Harper "exhibited incompetency by way of gross ignorance of his official duties and gross carelessness in the discharge of those duties." See id. § 87.011(2)(A)-(B) (" 'Incompetency' means: (A) gross ignorance of official duties; (B) gross carelessness in the discharge of those duties[ ]...."). Incompetency is a basis for removal under the removal statute, but it is not against the law. See id. § 87.013(a)(1). Similarly, while intoxication is also a basis for removal, and while the town drunk might make a lousy official, being the town drunk is not against the law. See id. § 87.013(a)(3).

Best's incompetency claims are a transparent retaliation against Harper's quixotic political beliefs. Harper opposed the hospital district's creation. He put his beliefs into action by running for office, and the voters of Somervell County elected him on a clearly stated anti-tax platform. Best's petition alleges Harper did exactly what he told the voters he would do upon taking office. Harper's detractors may disagree with his politics, but no law requires elected officials to support the status quo upon arriving in office. Best's removal petition was a pretext for forcing Harper to cease acting on the beliefs that won him his office in the first place.

We are not fooled. We doubt anyone else is. Harper's refusal to capitulate to Best's demands does not render him incompetent. Best thought that the hospital district was important, and he sought Harper's removal because he thought that Harper was setting the hospital up for failure, lacked candor, and sometimes communicated less than cordially. Even if a jury agreed that Harper was unfit for office, he would face no criminal or civil penalty other than removal itself. Efforts like Best's are attacks on core political speech. But the TCPA "protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." In re Lipsky , 460 S.W.3d 579 , 584 (Tex. 2015) (orig. proceeding) (footnote omitted) (citing TEX. CIV. PRAC. & REM. CODE §§ 27.001 -.011). Since the incompetency allegations in Best's petition seek to achieve Best's political goals rather than to enforce a law, they cannot form the basis of an enforcement action for purposes of the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.010(a).

Nor are we swayed by the argument that Best's incompetency claim included allegations that Harper violated the hospital district's bylaws. The bylaws require board members to discharge their duties "in good faith, with ordinary care, and in a manner the director reasonably believes to be in the best interest of the District." Similarly, the bylaws prohibit members from performing "any act with the intention of harming the District or any of its operations" or "that would make it impossible or unnecessarily difficult to carry on the intended or ordinary business of the District." Best's petition argues Harper violated the bylaws by attempting to set the district's tax rate at zero and by accusing the district's administration of violating the law.

The Somervell County Hospital District Board of Directors may promulgate bylaws pursuant to its authority to "adopt rules governing the operation of the hospital and hospital system and the duties, functions, and responsibilities of district staff and employees." TEX. HEALTH & SAFETY CODE § 286.075. Although violation of an organization's internal rules concerning "duties, functions, and responsibilities" may expose the violator to liability, the rules are just that-rules. Though they may sometimes overlap with Texas statutes, regulations, or common-law obligations, the bylaws appear nowhere within these bodies of law. Instead, they arise by agreement of the board of directors. Indeed, the bylaws include numerous references to actions required by law or the bylaws. In sum, the bylaws are not legal prohibitions against unlawful conduct, and they do not elevate the allegations in Best's petition to an "enforcement action." See TEX. CIV. PRAC. & REM. CODE § 27.010(a).

In light of our textual conclusion that an enforcement action must be something narrower than a legal action, our general understanding that an enforcement action cannot enforce itself, our specific conclusion that an enforcement action under the TCPA must enforce substantive prohibitions against unlawful conduct, and the legislature's clear instruction to construe the TCPA liberally to protect citizens' rights to participate in government, we conclude the that allegations in Best's petition do not amount to an "enforcement action" under the TCPA. See id.

However, the removal statute also allows removal for "official misconduct," which may include allegations or evidence that a public official has acted unlawfully. TEX. LOC. GOV'T CODE § 87.013(2) ; see also id. § 87.011(3) (defining "[o]fficial misconduct" as "intentional, unlawful behavior relating to official duties" including "intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed on the officer by law"). An allegation premised on unlawful conduct rather than behavior undesirable in a public official can form the basis of an "enforcement action" for purposes of the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.010(a).

Best did not allege official misconduct against Harper, but the state did. After it joined Best's petition, the state added-as an "official misconduct" ground-the allegation that Harper violated the Open Meetings Act. See TEX. GOV'T CODE § 551.143(a) ("A member ... of a governmental body commits an offense if the member ... knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter."). This allegation is sufficient to form the basis of an enforcement action. It involves reference to a specific statutory provision that contains a substantive prohibition against certain conduct, and the state alleges Harper violated that prohibition. Whatever the merits of the state's allegation, it amounts to an "enforcement" of a law-the Open Meetings Act-"brought in the name of this state." See TEX. CIV. PRAC. & REM. CODE § 27.010(a).

A removal petition is not an "enforcement action" unless it seeks to enforce a substantive legal prohibition against unlawful conduct. The removal grounds alleging Harper's incompetency do not meet this definition, which means that the TCPA's "enforcement action" exemption does not apply to them. See id. But under the same definition, the state's additional ground alleging official misconduct based on violations of the Open Meetings Act is an enforcement action. So the enforcement-action exemption renders the TCPA

inapplicable to the state's additional ground. See id.

We conclude that Harper may benefit from the TCPA's expedited-dismissal provisions for the grounds that Best's initial removal petition raised, but not for the state's additional ground alleging a violation of the Open Meetings Act.

IV

Sovereign Immunity

Because the TCPA applies, we must consider whether Harper can recover appellate fees and costs from the state. The court of appeals' judgment awarded "judgment against the state of Texas for [Harper's] appellate costs that were paid, if any, by [Harper]; and all unpaid appellate court cost[s], if any ... against the state of Texas." Similarly, the court of appeals' opinion remands the case to the trial court for a "determination of Harper's request for court costs, reasonable attorney's fees, and sanctions." 493 S.W.3d at 118 .

The state argues the award and remand were improper. Because the trial court has not yet made a "determination of" Harper's request for costs, fees, or sanctions, see id. , we can do no more than speculate whether Harper will actually obtain a judgment for any of these against Best, the state, both, or neither. See id. So we need not consider the state's argument that such an award would be improper if entered against the state. Instead, the narrow issue before us is whether sovereign immunity protects the state from the appellate fees and costs that the court of appeals has already awarded to Harper. We conclude it does not.

"Sovereign immunity in Texas embodies two concepts: immunity from liability and immunity from suit." Rusk State Hosp. v. Black , 392 S.W.3d 88 , 93 (Tex. 2012). "[I]mmunity from liability is not jurisdictional and protects [only] from judgments." Harris Cty. Hosp. Dist. v. Tomball Reg'l Hosp. , 283 S.W.3d 838 , 842 (Tex. 2009). Hence, immunity from liability "must be pleaded, or else it is waived." Kinnear v. Tex. Comm'n on Human Rights ex rel. Hale , 14 S.W.3d 299 , 300 (Tex. 2000) (per curiam); see also Tex. Dep't of Transp. v. Jones , 8 S.W.3d 636 , 638 (Tex. 1999) (per curiam) ("Like other affirmative defenses to liability, [immunity from liability] must be pleaded or else it is waived."); Davis v. City of San Antonio , 752 S.W.2d 518 , 523 (Tex. 1988) ("[T]he City waived any immunity defense by failing to affirmatively plead it.").

By contrast, immunity from suit "implicates a court's subject-matter jurisdiction" and may "be raised for the first time on appeal." Engelman Irrigation Dist. v. Shields Bros., Inc. , 514 S.W.3d 746 , 751, 755 (Tex. 2017) ; see also Jones , 8 S.W.3d at 638 . Absent legislative waiver, and when it applies to begin with, immunity from suit protects the state from suits against it. See Tex. Nat. Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849 , 855 (Tex. 2002) ; see also City of Houston v. Williams , 353 S.W.3d 128 , 134 (Tex. 2011). Legislative waiver is effective only if it is "clear and unambiguous." Tooke v. City of Mexia , 197 S.W.3d 325 , 328-29 (Tex. 2006) (citing TEX. GOV'T CODE § 311.034 ). Our cases also recognize that the state's immunity does not apply in certain situations in which the state "join[s] into the litigation process." Reata Constr. Corp. v. City of Dallas , 197 S.W.3d 371 , 376 (Tex. 2006) ; see also Kinnear , 14 S.W.3d at 300 ("Because the [state] initiated this proceeding ... and [the defendant] claimed attorney fees as a consequence of that suit, the jurisdictional question in this case was answered when the [state] filed suit[ ].... Thus the issue is whether the [state] ... is immune from liability ...." (emphasis added) ).

The state has not argued that it is immune from liability, but only that it is immune from suit. Thus, the state has waived its immunity-from-liability argument. See Kinnear , 14 S.W.3d at 300 (first citing Jones , 8 S.W.3d at 638 ; and then citing Davis , 752 S.W.2d at 519-20 ). The dispositive question, then, is whether the state is immune from suit. If it is, then Harper cannot recover his fees, at least not from the state. But if the state is not immune from suit, then he can.

The state argues that neither the TCPA nor the removal statute contains a legislative waiver of immunity and that immunity from suit therefore protects it from an award of appellate costs. The removal statute requires "the person filing the petition to post security for costs" and further directs that dismissal shall be "at the cost of the person filing the petition." TEX. LOC. GOV'T CODE § 87.016(c). The state joined Best's suit, but Best filed the initial petition, so the state argues that the removal statute does not provide a waiver of immunity. Similarly, the TCPA allows a court to award "sanctions against the party who brought the legal action." TEX. CIV. PRAC. & REM. CODE § 27.009(a)(2) (emphasis added). Because Harper initiated this action, the state also argues that the TCPA does not waive immunity. See also id. § 27.011(a) ("[The TCPA] does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.").

Nor, says the state, do any of this Court's limitations to immunity's scope apply. Reata Construction Corp. v. City of Dallas details a circumstance in which "a governmental entity does not have immunity from suit for monetary claims against it that are 'germane to, connected with, and properly defensive to' affirmative claims made by the entity," to the extent that the claims against the entity offset the entity's own claims. City of Dallas v. Albert , 354 S.W.3d 368 , 372 (Tex. 2011) (quoting Reata , 197 S.W.3d at 378 ); see also Manbeck v. Austin Indep. Sch. Dist. , 381 S.W.3d 528 , 532-33 (Tex. 2012) (per curiam) (noting that Reata applies in "cases where the governmental entity asserts an affirmative claim for monetary relief against which the opponent's claims can be offset").

Harper responds that when the state appeared in this suit, it adopted Best's live pleading stating jurisdiction was proper in the trial court. Moreover, Harper argues, the removal statute contemplates that the temporary replacement officer must pay any "costs" associated with the prosecution of an unsuccessful removal action. See TEX. LOC. GOV'T CODE § 87.016(c). Harper argues this officer is an "agent of the state" and therefore the removal statute contemplates payment by a "governmental entity." So in Harper's view, the state stepped beyond the sphere of its immunity when it appeared in the suit. Harper also points to the four-factor analysis we set out in Wichita Falls State Hospital v. Taylor for determining whether language less explicit than " 'sovereign immunity to suit is waived' ... may nevertheless waive the State's immunity from suit," to argue that the removal statute, the TCPA, or both expressly waives immunity. See 106 S.W.3d 692 , 697-98 (Tex. 2003) (footnote omitted).

We agree with the state that neither statute waives the state's immunity from suit. The portions of the removal statute discussing costs treat the temporary replacement officer as an individual, not as an agent of the state. See TEX. LOC. GOV'T CODE § 87.017. The officer is an agent of the state for purposes of carrying out his job duties, but not for purposes of paying the costs associated with an unsuccessful removal action. Consequently, the removal statute does not contain a "clear and unambiguous" waiver of the state's immunity from suit. See Tooke , 197 S.W.3d at 328-29. Nor does the TCPA contain a waiver that meets Tooke 's requirements. See id. Harper argues that the TCPA "d[oes] not expressly exempt any governmental entity from its sphere" and that "[i]f the Legislature intended to exempt the government from the TCPA ... [it] would have clearly stated so." That argument states precisely the opposite of the presumption that we apply when determining whether the legislature has waived sovereign immunity. See Taylor , 106 S.W.3d at 701 ("[W]e require the Legislature to express its intent beyond doubt and will construe ambiguities in a manner that retains the State's immunity."). The TCPA allows for awards of costs, but it does not contain any "clear and unambiguous" legislative basis for awarding costs against the state. See Tooke , 197 S.W.3d at 329. So neither the removal statute nor the TCPA expressly waives the state's sovereign immunity.

Although neither statute waives the state's immunity from suit, that conclusion does not answer the question whether immunity applies in the first place. See Engelman , 514 S.W.3d at 753 ("[S]overeign immunity is a common-law creation, and it remains the judiciary's responsibility to define the boundaries of the doctrine."); Brown & Gay Eng'g, Inc. v. Olivares , 461 S.W.3d 117 , 122 (Tex. 2015) (noting "the doctrine's judicial origins"); Reata , 197 S.W.3d at 375 ("[I]t remains the judiciary's responsibility to define the boundaries of the common-law doctrine and to determine under what circumstances sovereign immunity exists in the first instance."). When sovereign immunity is inapplicable due to judicial modification rather than legislative pronouncement, courts characterize the protection's absence as arising from abrogation rather than waiver. See Albert , 354 S.W.3d at 375 ("[T]he judiciary has abrogated [governmental entities'] common law immunity from suit as to certain offsetting claims."); Taylor , 106 S.W.3d at 696 ("[W]e have not absolutely foreclosed the possibility that the judiciary may abrogate immunity by modifying the common law....").

Reata is our foundational case discussing abrogation. See generally 197 S.W.3d at 374-77. Under the Reata rule, immunity from suit does not protect the state from counterclaims that are "germane to, connected with, and properly defensive to" certain of the state's own claims, but only to the extent that the counterclaims act as a monetary "offset" to the state's own claim. Id. at 373. In this case, the state has not asserted any claims against which Harper can counterclaim a monetary offset. Because the state seeks Harper's removal rather than an appropriate monetary recovery, the Reata rule does not apply to abrogate the state's immunity from Harper's counterclaims. But that does not mean that no rule does so.

Significant as it is, Reata is not our only case discussing abrogation, and it does not purport to map the full boundary separating counterclaims that sovereign immunity bars from those it does not. See, e.g., Nazari v. State , 561 S.W.3d 495 , 507 ("[W]e have never held that the Reata rule always applies when the government seeks any transfer of funds.... [N]or have we ever held that Reata applies only to compensatory damages.").

As an example of another type of abrogation, Harper cites our per curiam decision in Kinnear v. Texas Commission on Human Rights ex rel. Hale . See generally 14 S.W.3d 299 . There, "[t]he Texas Commission on Human Rights sued [Kinnear]

for violating the Texas Fair Housing Act." Id. at 299 . Kinnear prevailed, and he requested attorney's fees from the commission under the Fair Housing Act, which provides that a court "may award reasonable attorney fees to the prevailing party." TEX. PROP. CODE § 301.156. In analyzing whether the state abandoned its immunity from suit by initiating the litigation, we held that "the jurisdictional question ... was answered when the [state] filed suit, regardless of whether the [state] can ultimately be liable for fees." Kinnear , 14 S.W.3d at 300 . Put differently, when the state "initiated th[e] proceeding" that spurred the attorney's-fees claim, it was operating outside the bounds of its immunity from suit. Id. And because, as here, the state had waived immunity from liability by failing to plead it, we "render[ed] judgment awarding Kinnear his attorney fees and costs" under the Fair Housing Act. See id. Harper says his counterclaim is "akin" to the one in Kinnear and that he should prevail on that basis.

The state responds by citing another of our per curiam opinions, Manbeck v. Austin Independent School District , for its counterargument that a "governmental entity's decision to avail itself of a statutory right-without bringing an affirmative claim for monetary damages-does not result in a loss of immunity from a claim for attorney's fees." See generally 381 S.W.3d 528 . Manbeck addressed a counterclaim for attorney's fees after the state non-suited a judicial appeal from an administrative proceeding that arose under the Texas Workers' Compensation Act. See id. at 529 (citing TEX. LAB. CODE § 408.021(c) ). Finding the Reata rule inapplicable, we "reversed the trial court's award of attorney fees." Id. at 533 .

The parties strive to distinguish Kinnear and Manbeck -each arguing that one case or the other answers the TCPA attorney's-fees question at issue here. However, neither per curiam opinion addresses the TCPA. And since Manbeck concerned an administrative appeal in the workers' compensation context, see id. at 529 , it does not overrule Kinnear 's conclusion in the fair-housing context, see 14 S.W.3d at 299 . But, the state argues, it is not that Manbeck overrules Kinnear -it is that Reata does, or at least it establishes a new paradigm such that Kinnear is no longer good law. We disagree. Far from overruling Kinnear , Reata cited it-along with Anderson, Clayton & Co. v. State ex rel. Allred , 122 Tex. 530 , 62 S.W.2d 107 , 110 (1933), and State v. Humble Oil & Refining Co. , 141 Tex. 40 , 169 S.W.2d 707 , 708 (1943) -as the foundation for the rule it established. See Reata , 197 S.W.3d at 374-77 ; see also Nazari , 561 S.W.3d at 503 (listing Anderson , Humble Oil , and Kinnear as "the three principal cases on which Reata relied"). And we have cited Kinnear since. See Rusk , 392 S.W.3d at 97 & n.4 (listing Kinnear among cases establishing that "immunity deprives courts of subject-matter jurisdiction"); Nazari , 561 S.W.3d at 505 ("[W]hile Kinnear involved an abrogation of immunity, it was not the type of abrogation we announced in Anderson and expounded on in Reata ."); see also Jeffrey S. Boyd, Where Sovereign Immunity and Water Development Issues Collide , 39 TEX. ENVTL. L.J. 95, 116 (2009) ("The Texas Supreme Court recently reaffirmed and clarified [ Kinnear 's ] holding in Reata ...." (emphasis added) ).

In Kinnear , sovereign immunity did not protect the state from a claim for attorney's fees under the Fair Housing Act. See 14 S.W.3d at 299 . On the other hand, in Manbeck , sovereign immunity did protect the state from a claim for attorney's fees under the Workers' Compensation Act. See 381 S.W.3d at 529 . Thus, Kinnear and Manbeck stand together-and at most-for the proposition that sovereign immunity sometimes does and sometimes does not protect the state from counterclaims for attorney's fees. See Kinnear , 14 S.W.3d at 299 ; Manbeck , 381 S.W.3d at 528 ; see also Sharyland Water Supply Corp. v. City of Alton , 354 S.W.3d 407 , 424 (Tex. 2011) (reversing attorney's fees awarded against a governmental entity when the fees were a "subset" of a "breach-of-contract claim, a claim on which [the claimant could not] recover"). But neither case considers the attorney's-fees question beyond the statute it addresses.

Nor does Reata itself apply to all counterclaims for attorney's fees. Rather, Reata establishes that sovereign immunity never protects the state from certain qualifying counterclaims when the state does assert certain claims for monetary recovery. But it does not establish the inverse. That is, Reata does not establish that sovereign immunity always protects the state anytime the state does not assert a claim for monetary recovery. In short, Reata does not hold that a monetary claim is a necessary condition for abrogation in every instance.

So the question whether sovereign immunity protects the state from Harper's counterclaim for attorney's fees under the TCPA is one of first impression. Based on the TCPA's unique status and on the general principles underlying sovereign immunity, we answer that it does not.

As part of its purpose to "safeguard the constitutional rights of persons to ... participate in government," the TCPA obligates those who fail to prove a "prima facie case" to pay certain litigation costs. See TEX. CIV. PRAC. & REM. CODE §§ 27.002, .005(c), .009. Because the state should not be suing to prevent its own citizens from participating in government-especially when it lacks even a prima facie case against them-and because when it does sue, it risks paying only attorney's fees (rather than damages or some other uncapped sum), abrogating the state's sovereign immunity in the TCPA context does not present any grave danger to the public fisc. See, e.g. , Tex. Dep't of Transp. v. Sefzik , 355 S.W.3d 618 , 621 (Tex. 2011) (per curiam) ("[T]he doctrine of sovereign immunity originated to protect the public fisc from unforeseen expenditures that could hamper governmental functions...."). And because the TCPA already contains an express exemption for enforcement actions, nor does abrogation pose a threat to the state's ability to sanction wrongdoers. See TEX. CIV. PRAC. & REM. CODE § 27.010(a).

Abrogation remains the judiciary's responsibility. See Reata , 197 S.W.3d at 375. We have considered abrogation for attorney's fees in other contexts-sometimes applying it, sometimes not-but we have never addressed a counterclaim for attorney's fees under the TCPA. So while cases like Kinnear and Manbeck are instructive, neither is dispositive. Accordingly, given the TCPA's unique role in protecting the democratic processes that allow our state to function, today we conclude that sovereign immunity does not protect the state from a counterclaim for attorney's fees under the TCPA.

Because the state was not operating within sovereign immunity's bounds when it joined Best's suit, the TCPA allows Harper to recover costs against the state pursuant to the TCPA's terms. See TEX. CIV. PRAC. & REM. CODE § 27.009(a). As is relevant here, these are the TCPA's requirements with regard to fees, costs, and sanctions:

(a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:

(1) court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action as justice and equity may require; and

(2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.

Id.

The state points to the limit in section 27.009(a)(2) that courts may only award sanctions against the party who "brought" the action. Id. § 27.009(a)(2). But that limitation appears only in section 27.009(a)(2), which addresses sanctions. See id. Section 27.009(a)(2) does not limit section 27.009(a) as a whole or section 27.009(a)(1), which has its own limit-justice and equity. See id. § 27.009(a)(1). Since no sanctions have yet been awarded, we need not-and do not-address whether the state "brought" this action (as opposed to "joined" it or something else). Instead, we hold that because this is a TCPA action, the state's sovereign immunity from suit does not protect it from the appellate costs that the court of appeals has already awarded.

* * *

The court of appeals reversed the trial court's judgment, holding that the TCPA applies to the state's removal proceeding and that the state failed to establish a prima facie case for Harper's removal. See 493 S.W.3d at 111, 116 . It then remanded the case "to the trial court for rendition of an order granting Harper's motion to dismiss and for a determination of Harper's request for court costs, reasonable attorney's fees, and sanctions." Id. at 118 . We affirm the court of appeals' judgment with the modification that Harper was not entitled to dismissal of or attorney's fees for the state's allegation that he violated the Open Meetings Act. Because Harper is no longer in office, however, our holding bears only on the trial court's determination of court costs, reasonable attorney's fees, and sanctions.

Justice Boyd filed a dissenting opinion, in which Justice Johnson and Justice Lehrmann joined.

Justice Blacklock did not participate in the decision.

The Court thinks this suit to remove Paul Harper from office is a mere "pretext" and "transparent retaliation against Harper's quixotic political beliefs." Ante at 13. And because the state should not have pursued the suit, it should have to reimburse Harper's attorney's fees and court costs and, perhaps, pay additional sanctions. Ante at ----. Maybe it should. Maybe that's a good result for Harper. But "the common good is best served by faithful adherence to the rule of law, and not by individual judges seeking good in individual cases." Hon. Thomas M. Reavley & Ryan S. Killian, Against the Rule of Judges , 68 BAYLOR L. REV. 661, 669 (2016) (emphasis added). To reach its good result in this case, the Court ignores the governing statute's language and undermines our well-established sovereign-immunity precedent. Applying the statute's language and our carefully constructed immunity doctrine, I would hold that the Texas Citizens Participation Act does not apply to this enforcement action; and even if it did apply, sovereign immunity bars Harper's counterclaim for fees, costs, and sanctions. 1 I respectfully dissent.

I.

Enforcement Action

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

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

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

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

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

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

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

II.

Sovereign Immunity

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

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

The Court begins its discussion of this issue with the general assertion that "immunity does not apply in certain situations in which the state 'join[s] into the litigation process.' " Ante at 15 (quoting Reata Const. Corp. v. City of Dallas , 197 S.W.3d 371 , 376 (Tex. 2006), and citing Kinnear v. Tex. Comm'n on Human Rights , 14 S.W.3d 299 , 300 (Tex. 2000) (per curiam) ). It then acknowledges our more specific (and more recent) explanations that, under Reata , " 'a governmental entity does not have immunity from suit for monetary claims against it that are "germane to, connected with, and properly defensive to" affirmative claims by the entity,' to the extent that the claims against the entity offset the entity's own claims." Ante at 16 (emphases added) (quoting City of Dallas v. Albert , 354 S.W.3d 368 , 372 (Tex. 2011), and citing Manbeck v. Austin Indep. Sch. Dist. , 381 S.W.3d 528 , 532-33 (Tex. 2012) (per curiam) ). The Court agrees that the Reata rule does not apply here, however, because the state has not asserted any monetary claims against which Harper's counterclaims could provide an offset. Ante at ----.

But the Court then asserts that Reata "does not purport to map the full boundary separating counterclaims that sovereign immunity bars from those it does not," and our per curiam decisions in Kinnear and Manbeck reflect that "sovereign immunity sometimes does and sometimes does not protect the state from counterclaims for attorney's fees." Ante at 17, 18-19. Purporting to address an issue of "first impression," the Court announces a narrow holding that immunity from suit does not reach a counterclaim for attorney's fees under the TCPA. Ante at ----. In support of this holding, the Court claims to be promoting the TCPA's purpose to protect the constitutional rights of those who participate in government and require those who fail to prove a prima facie case to pay litigation costs. Ante at ----. And because the state "risks paying only attorney's fees," the Court believes its TCPA-specific rule abrogating immunity "does not present any grave danger to the public fisc." Ante at 19.

The Court reveals its true motivation, however, by expressing its own view that the state "should not be suing to prevent its own citizens from participating in government-especially when it lacks even a prima facie case against them." Ante at 19. While the Court certainly has the power to "abrogate" sovereign immunity however it wants, its decision in this case undermines the distinction we have recognized between the scope of immunity and a waiver of immunity. The Court's result-oriented decision to abrogate immunity in this case confuses our immunity jurisprudence, ignores the principles on which immunity is based, and eschews the deference we have consistently given to the legislature to decide whether and when to waive immunity.

This Court has carefully crafted the immunity doctrine, especially over the past few decades. Long ago, the Court stated quite broadly, and without any real analysis, that when "a state voluntarily files a suit and submits its rights for judicial determination, it will be bound thereby, and the defense will be entitled to plead and prove all matters properly defensive. This includes the right to make any defense by answer or cross-complaint germane to the matter in controversy." Anderson, Clayton & Co. v. Allred , 122 Tex. 530 , 62 S.W.2d 107 , 110 (1933). More recently, in Kinnear (a four-paragraph, per curiam opinion), the Court stated in dicta 8 that because the Texas Commission on Human Rights "initiated this proceeding under the Texas Fair Housing Act, and Kinnear claimed attorney fees as a consequence of that suit, the jurisdictional question in this case"-that is, whether immunity from suit applied or was waived-"was answered when the Commission filed suit, regardless of whether the Commission can ultimately be liable for fees." 14 S.W.3d at 300 .

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

As this Court and the courts of appeals have confirmed, Reata "clarified and modified" sovereign immunity law and "limited" Kinnear and Anderson by carefully defining the scope of immunity when the government chooses to file suit. See Albert , 354 S.W.3d at 373 ; Emps. Ret. Sys. v. Putnam, LLC , 294 S.W.3d 309 , 324-25 (Tex. App.-Austin 2009, no pet.) ("[T]he Texas Supreme Court limited Kinnear by issuing Reata ."); see also Nazari v. State , 561 S.W.3d 495 , 505, 2018 WL 3077659 (Tex. June 22, 2018) (explaining that we "expounded" on Anderson "and other cases like it" in Reata ). Contrary to the Court's assertion that Reata "does not hold that a monetary claim is a necessary condition for abrogation in every instance," ante at 19, we have remanded a number of cases for reconsideration in light of Reata , explaining that under Reata , the government " retains immunity from suit as to [counterclaims] for monetary damages ... to the extent [the counterclaimant seeks damages that] exceed amounts offsetting the [government's] monetary recovery, absent legislative waiver of that immunity." City of Irving v. Inform Const., Inc. , 201 S.W.3d 693 , 694 (Tex. 2006) (per curiam). 9 And in a separate case decided last week, the Court holds that Reata 's first requirement-that the government sue for "monetary relief"-actually requires that the government sue for monetary damages , not just any monetary relief , so "sovereign immunity protects the State from counterclaims that seek to offset a penalty." Nazari , 561 S.W.3d at 507 .

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

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

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

III.

Conclusion

I am sympathetic to the Court's desire to allow Paul Harper to recover the fees and costs he incurred defending this removal action, but sympathy cannot determine the outcome of this case. The question we must decide is whether Harper can recover those losses under the TCPA. Because this Chapter 87 removal action is an "enforcement action" regardless of the grounds asserted, the TCPA "does not apply." And even if it did apply, the state's immunity from suit bars Harper's counterclaim for court costs, attorney's fees, and sanctions because the state neither sought nor obtained any monetary recovery that an award to Harper could offset. Because Harper's counterclaim presents the only issue that is not now moot in this case, I would reverse the court of appeals' judgment remanding the case for an award of costs, fees, and sanctions and render judgment dismissing this case. Because the Court holds otherwise, I respectfully dissent.