A judge has dismissed the disciplinary lawsuit that the Commission for Lawyer Discipline brought against an Austin attorney for his alleged misconduct in sending demand letters to businesses alleging that their websites violated rules under the Americans for Disabilities Act.

In an order signed Feb. 20, Judge R.H. Wallace Jr. of Fort Worth's 96th District Court, sitting by assignment, granted Rosales' motion to dismiss Commission for Lawyer Discipline v. Omar Weaver Rosales. Wallace dismissed all of the CFLD's claims against Rosales “with prejudice to refiling of the same.”

Rosales, a solo practitioner, declined comment and referred questions to his attorney. He had filed his motion to dismiss the CFLD's suit pursuant to the Texas Citizens' Participation Act, commonly called the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.

Gaines West, who represents Rosales, said, “This is the first order, of which I am aware, dealing with the TCPA anti-SLAPP statute in a grievance lawsuit.”

West is a partner in West, Webb, Allbritton & Gentry in College Station and served as chairman of the State Bar of Texas Grievance Oversight Committee from 2006 to 2010.

The CFLD filed its suit against Rosales in 2017 after receiving grievances that claimed Rosales was sending abusive demand letters, mostly to healthcare businesses, that alleged the recipients' websites violated the ADA and demanding payments of $2,000 from each recipient.  To most of his letters, Rosales attached an “unfiled lawsuit” and a list of areas in which the recipients' websites violated supposed rules of the ADA. But the CFLD alleged in its petition that Rosales had copied the rules from an online checklist and misrepresented that they came from federal administrative rules.

Rosales stated in his letters to healthcare providers that they had to report themselves to the federal Department of Health and Human Services and to forfeit federal funds until their websites were recertified. If a business failed to self-report, the letter stated that Rosales he would contact DHHS and discuss reimbursement of federal tax dollars that the business “improperly obtained from the government.”

The CFLD alleged that Rosales' letters contained frivolous assertions because Rosales lacks standing. According to Rosales' motion for dismissal, however, he is “a disabled citizen himself” and was merely communicating the failure of each recipient's website.

The motion to dismiss argued, among other thing, that Rosales is entitled to dismissal of the suit against him because a preponderance of the evidence establishes that the CFLD's suit is based on, relates to or is in response to his “exercise of free speech” about a matter of public concern.

Rosales had run into problems in 2016 with separate ADA lawsuits he had filed alleging disability discrimination in the access to Austin area businesses. He was suspended for three years from practicing in the U.S. District Court for the Western District of Texas and ordered to pay almost $176,000 in sanctions for alleged misconduct.

According to Rosales' motion to dismiss the CFLD's suit, the commission's reliance on the Western District's orders is “inapplicable.”

West said that Wallace ordered the State Bar to pay $65,000 in the CFLD case.  If a motion to dismiss is granted in an anti-SLAPP case, the court has to award attorney's fees, he said.

What the bar might do regarding the case is unknown.

“We need to consult with our client, which is the Commission for Lawyer Discipline,” said Claire Mock, a bar spokeswoman.