                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                                NO. 02-15-00369-CV


CHRISTOPHER HOSKINS                                               APPELLANT

                                         V.

PERRY FUCHS                                                        APPELLEE

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        FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 153-280594-15



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                           DISSENTING OPINION

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                                  I. INTRODUCTION

      I respectfully dissent.   Appellee Perry Fuchs’s defamation suit against

Appellant Christopher Hoskins is based solely on statements made by Hoskins in

an Equal Opportunity Services (EOS) complaint that Hoskins filed with the
University of Texas at Arlington (UTA).1 Because Hoskins’s statements in his

EOS complaint are absolutely privileged, the trial court erred by denying

Hoskins’s motion to dismiss under the Texas Citizens Participation Act (TCPA).

            II. HOSKINS’S COMMUNICATION IS ABSOLUTELY PRIVILEGED

      An absolutely privileged communication is one for which, by reason of the

occasion upon which it was made, no remedy exists in a civil action for libel or

slander. Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942).

This is true even if the communication was false and made or published with

express malice.    Id.; Perdue, Brackett, Flores, Utt & Burns v. Linebarger,

Goggan, Blair, Sampson & Meeks, L.L.P., 291 S.W.3d 448, 451 (Tex. App.—Fort

Worth 2009, no pet.).

      In Texas, an absolute privilege attaches to communications made during

quasi-judicial proceedings and in other limited instances in which the benefit of

the communication to the general public outweighs the potential harm to an

individual. See Shell Oil Co. v. Writt, 464 S.W.3d 650, 655 (Tex. 2015); Bird v.

W.C.W., 868 S.W.2d 767, 771 (Tex. 1994); see also Reagan, 166 S.W.2d at 913

(“The rule is one of public policy. It is founded on the theory that the good it

accomplishes in protecting the rights of the general public outweighs any wrong

or injury which may result to a particular individual.”). Two requirements must be


      1
      Both Fuchs’s original and amended petitions allege the statements made
by Hoskins in the EOS complaint filed with UTA as the sole factual basis for his
defamation claim against Hoskins.

                                        2
met for the absolute privilege to apply: (1) the governmental entity must have the

authority to investigate and decide the issue—that is, it must exercise quasi-

judicial power; and (2) the communication must relate to a pending or proposed

quasi-judicial proceeding. Perdue, 291 S.W.3d at 452; see also Attaya v.

Shoukfeh, 962 S.W.2d 237, 239 (Tex. App.—Amarillo 1998, pet. denied) (“The

absolute privilege is intended to protect the integrity of the process itself and to

insure that the decision-making body gets the information it needs.”).

      Communications made in a report filed with a proper governmental entity

having the authority to determine the issues raised in the report in a quasi-judicial

proceeding satisfy this two-pronged test and are absolutely privileged. See, e.g.,

Writt, 464 S.W.3d at 659–60 (holding Shell’s alleged defamatory statements

about Writt made in a report filed by Shell with the Department of Justice

regarding possible violations of the Foreign Corrupt Practices Act were

absolutely privileged); Aransas Harbor Terminal Ry. Co. v. Taber, 235 S.W. 841,

842–43 (Tex. 1921) (holding allegedly libelous statements in a letter to the Texas

Railroad Commission that was written in response to a complaint filed before the

Commission were absolutely privileged); Watson v. Hardman, 497 S.W.3d 601,

608–09 (Tex. App.––Dallas 2016, no pet.) (holding alleged defamatory

statements made in a rule 202 petition were absolutely privileged); Crain v.

Smith, 22 S.W.3d 58, 60–61 (Tex. App.—Corpus Christi 2000, no pet.) (holding

allegedly defamatory statements made to the Unauthorized Practice of Law

Committee through its members or chairperson were absolutely privileged). As

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explained by section 587 of the Restatement (Second) of Torts, which Texas has

adopted,2

      A party to a private litigation . . . is absolutely privileged to publish
      defamatory matter concerning another in communications
      preliminary to a proposed judicial proceeding, or in the institution of
      or during the course and as a part of, a judicial proceeding in which
      he participates, if the matter has some relation to the proceeding.

Restatement (Second) of Torts § 587 (Am. Law Inst. 1977).            The reasoning

behind this doctrine is to promote the public policy of complete and unbridled

development of evidence in the settlement of disputes without fear of reprisals.

James, 637 S.W.2d at 916–17.            This absolute privilege applies to any

statements, affidavits, and pleadings in a quasi-judicial proceeding. See id.

      Communications subject to an absolute privilege cannot constitute the

basis of a civil action. Reagan, 166 S.W.2d at 912. Consequently, when the

absolute privilege applies to a communication, it functions as an immunity, not a

defense. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987)

(recognizing absolute privilege functions as “immunity” because it is based on the

actor’s status, not his motivation); see Shanks v. AlliedSignal, Inc., 169 F.3d 988,

992 (5th Cir. 1999) (“We are convinced that Texas law regards its privilege for

communications made in the context of judicial, quasi-judicial, or legislative

proceedings as a complete immunity from suit, not a mere defense to liability.”);

CEDA Corp. v. City of Houston, 817 S.W.2d 846, 849 (Tex. App.—Houston [1st


      2
       See James v. Brown, 637 S.W.2d 914, 916–17 (Tex. 1982) (adopting
section 587 of the Restatement (Second) of Torts).
                                         4
Dist.] 1991, writ denied) (“[A]bsolute privilege is not a defense.        Rather,

absolutely privileged communications are not actionable.”).

      Whether an alleged defamatory communication is related to a proposed or

existing judicial or quasi-judicial proceeding, and is therefore absolutely

privileged, is a question of law to be determined by the court. See, e.g., Perdue,

291 S.W.3d at 453; Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24, 27–28

(Tex. App.—Houston [1st Dist.] 2004, pet. denied). When deciding the issue, the

court is to consider the entire communication in its context and to extend the

privilege to any statement that bears some relation to an existing or proposed

judicial or quasi-judicial proceeding. Russell v. Clark, 620 S.W.2d 865, 870 (Tex.

Civ. App.—Dallas 1981, writ ref’d n.r.e.).

      Here, the pleadings, the supporting and opposing affidavits, and the

evidence before the trial court3 establish that the alleged defamatory

communication is contained in a form EOS complaint that Hoskins completed

and filed with UTA.     No other defamatory communication is pleaded.         The

pleadings and the evidence before the trial court establish that UTA is the

governmental entity possessing the authority to investigate and decide the issue

alleged in the EOS complaint––Fuchs’s alleged violation of UTA’s consensual

relations policy.   In fact, Fuchs’s response to Hoskins’s motion to dismiss


      3
       See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) (West 2015)
(providing that in determining whether a legal action should be dismissed under
the TCPA, the trial court shall consider the pleadings and supporting affidavits).

                                         5
attaches a “Summary of Complaint Investigation” issued by UTA showing that

UTA did in fact investigate and dispose of Hoskins’s EOS complaint. And finally,

the pleadings and evidence before the trial court establish that Hoskins’s EOS

complaint related to a quasi-judicial proceeding by UTA. Consequently, as a

matter of law, the alleged defamatory statements in Hoskins’s EOS complaint are

absolutely privileged and cannot constitute the basis for Fuchs’s civil defamation

action. See, e.g., Writt, 464 S.W.3d at 659–60; Hurlbut, 749 S.W.2d at 768;

Reagan, 166 S.W.2d at 912; Taber, 235 S.W. at 841; Watson, 497 S.W.3d at

608–09; Crain, 22 S.W.3d at 60–61; CEDA Corp., 817 S.W.2d at 849.

                      III. THE TCPA MANDATES DISMISSAL
               OF A DEFAMATION ACTION THAT IS BASED SOLELY ON
                  AN ABSOLUTELY PRIVILEGED COMMUNICATION

      An appellate court reviews the trial court’s denial of an appellant’s motion

to dismiss de novo. Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 719

(Tex. App.—Houston [14th Dist.] 2013, pet. denied), disapproved on other

grounds by In re Lipsky, 460 S.W.3d 579, 587–88 (Tex. 2015) (orig. proceeding).

The appellate court makes an independent determination and applies the same

standard used by the trial court. Id. Application of this standard is a “two-step

process.” Lipsky, 460 S.W.3d at 586. Thus, this court must first determine

whether Hoskins established by a preponderance of the evidence that Fuchs’s

legal action is “based on, relates to, or is in response to [Hoskins’s] exercise

of . . . the right to petition.” See Tex. Civ. Prac. & Rem. Code § 27.005(b) (West

2015). If Hoskins demonstrated that Fuchs’s legal action implicates Hoskins’s

                                        6
right to petition, the second step shifts the burden to Fuchs to establish by clear

and specific evidence a prima facie case for each essential element of the claim

in question. See id. § 27.005(c); Lipsky, 460 S.W.3d at 587.

       The pleadings, controverting affidavits, and evidence established that

Fuchs’s defamation action against Hoskins is based on Hoskins’s exercise of his

right to petition. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4)(A)(vi), (B),

(C) (West 2015) (defining right to petition as including, respectively, a

communication pertaining to a proceeding before a managing board of an

educational institution supported from public revenue, a communication in

connection with an issue under consideration by a governmental body or official

proceeding, and a communication encouraging review of an issue by a

governmental body in an official proceeding); § 27.001(8) (defining official

proceeding as including any type of administrative proceeding conducted before

a public servant).    The pleadings, affidavits, and evidence, establish that

Hoskins’s allegedly defamatory communication—which was made in the

handwritten form EOS complaint that he completed and filed with UTA—was a

communication expressly falling within the TCPA’s definition of the right to

petition.

       The burden therefore shifted to Fuchs to present clear and specific

evidence establishing a prima facie case for each essential element of his

defamation claim against Hoskins. The words “clear” and “specific” in the context

of the TCPA have been interpreted respectively to mean, for the former,

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“‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and, for the latter, “‘explicit’ or

‘relating to a particular named thing.’” Lipsky, 460 S.W.3d at 590. A prima facie

case “refers to evidence sufficient as a matter of law to establish a given fact if it

is not rebutted or contradicted.” Id. Prima facie evidence “is evidence that, until

its effect is overcome by other evidence, will suffice as proof of a fact in

issue. . . . In other words, a prima facie case is one that will entitle a party to

recover if no evidence to the contrary is offered by the opposite party.” Rehak,

404 S.W.3d at 726 (citation omitted).

      Here, Fuchs’s evidence––that Hoskins defamed him in an EOS complaint

filed with his employer, UTA––does not constitute evidence that is unambiguous,

sure, or free from doubt sufficient to establish proof of an actionable defamatory

communication. See Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013) (“If the

statement is not reasonably capable of a defamatory meaning, the statement is

not defamatory as a matter of law and the claim fails.”); D Magazine Partners,

L.P. v. Rosenthal, 475 S.W.3d 470, 484–85 (Tex. App.––Dallas 2015, pet.

granted) (holding plaintiff/nonmovant under TCPA had burden of establishing

prima facie case for each element of defamation claim, including establishing

prima facie case of lack of privilege); see also Murphy USA, Inc. v. Rose, No. 12-

15-00197-CV, 2016 WL 5800263, at *5 (Tex. App.—Tyler Oct. 5, 2016, no pet.)

(mem. op.) (holding nonmovant did not meet TCPA’s burden of presenting clear

and specific evidence establishing prima facie case for element of defamation

requiring defamatory statement because as a matter of law, statement was an

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opinion, which was not actionable as a matter of law). That is, even in the

absence of evidence to the contrary, Fuchs cannot recover on his defamation

claim against Hoskins because, as set forth above, the pleadings, controverting

affidavits,   and   evidence   establish   that   Hoskins’s   allegedly   defamatory

communication in the EOS complaint is absolutely privileged and is therefore not

actionable as a matter of law. When an alleged defamatory communication is

not actionable as a matter of law for whatever reason––because it is an opinion,

because it is not reasonably capable of a defamatory meaning, or because it is

absolutely privileged––a trial court errs by not granting a defendant’s TCPA

motion to dismiss the legal action based on that communication. See Rose,

2016 WL 5800263, at *5 (holding dismissal required under TCPA where

nonmovant did not present clear and specific evidence establishing prima facie

case for element of defamation requiring defamatory statement because as a

matter of law, statement was an opinion, which was not actionable as a matter of

law).

        Section 27.011 of the TCPA explains that “[t]his chapter does not abrogate

or lessen any other defense, remedy, immunity, or privilege available under other

constitutional, statutory, case, or common law or rule provisions” and declares

that “[t]his chapter shall be construed liberally to effectuate its purpose and intent

fully.” Tex. Civ. Prac. & Rem. Code Ann. § 27.011 (West 2015). The TCPA’s

declared purpose “is to encourage and safeguard the constitutional rights of

persons to petition, speak freely, associate freely, and otherwise participate in

                                           9
government to the maximum extent permitted by law and, at the same time,

protect the rights of a person to file meritorious lawsuits for demonstrable injury.”

Id. § 27.002 (West 2015); Lipsky, 460 S.W.3d at 589 (“The TCPA’s purpose is to

identify and summarily dispose of lawsuits designed only to chill First

Amendment rights.”). Because Hoskins’s allegedly defamatory communication

made in the EOS complaint that he filed with UTA is absolutely privileged and is

not actionable as a matter of law, Fuchs’s defamation lawsuit serves only to chill

the First Amendment right to petition.        And because the absolute privilege

attached to Hoskins’s allegedly defamatory communication in the EOS complaint

filed with UTA is in the nature of an immunity from suit and makes the alleged

defamatory statement inactionable as a matter of law, the trial court erred by not

granting Hoskins’s motion to dismiss.           See Shanks, 169 F.3d at 993

(characterizing absolute privilege that attaches to allegedly defamatory

communications in quasi-judicial proceeding as immunity from suit); see also In

re De Mino, No. 2001-64436, 2003 WL 25318133 (157th Dist. Ct., Harris County,

Tex. May 23, 2003, order) (dismissing professor’s retaliatory lawsuit filed against

student for want of jurisdiction based on immunity from suit when lawsuit was

based on student’s good faith report of sexual harassment filed with university).

      An interpretation of the TCPA that would uphold the denial of a dismissal

motion when the alleged defamatory communication is inactionable as a matter

of law would thwart the legislature’s declared purpose for enacting the TCPA and

would render section 27.011––providing that the TCPA does not lessen any

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immunity available at common law––a nullity.        See Tex. Gov’t Code Ann.

§ 311.023 (West 2013) (instructing that statutes should not be construed to

render portions a nullity). The legislature could not have intended such a result,

especially given the express, stated purpose of the TCPA. See In re Derzapf,

219 S.W.3d 327, 332 (Tex. 2007) (orig. proceeding).

                                 IV. CONCLUSION

      I would hold that Hoskins’s allegedly defamatory communication in his

EOS complaint is absolutely privileged; that such communication cannot form the

basis of a defamation suit as a matter of law; and that, therefore, Fuchs failed to

meet his burden under the TCPA of presenting clear and specific evidence

establishing a prima facie case of an actionable defamatory communication.

Accordingly, I would sustain Hoskins’s first issue, and I would reverse the trial

court’s judgment and render judgment dismissing Fuchs’s defamation suit

against Hoskins. I would also sustain Hoskins’s second issue and remand this

case to the trial court for a determination of costs, attorney’s fees, and other

expenses as authorized by the TCPA. See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.009(a) (West 2015). Because the majority opinion does not, I dissent.


                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

DELIVERED: December 22, 2016




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