Opinion issued October 25, 2012




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                            ————————————
                                NO. 01-10-01022-CV
                             ———————————
                           JESUS MIRANDA, Appellant
                                          V.
                           STEPHEN BYLES, Appellee


                    On Appeal from the 269th District Court
                             Harris County, Texas
                       Trial Court Case No. 2008-73708


                   DISSENTING OPINION ON REHEARING

      I withdraw my dissenting opinion dated February 16, 2012, and issue this

opinion in its stead. I continue to respectfully dissent.
      This is a defamation suit arising out of a family dispute over the reporting of

the alleged sexual abuse of a three-year-old child to authorities and family

members. The trial court awarded damages for defamation per se to the plaintiff,

appellee Stephen Byles, the alleged abuser, against appellant, Jesus Miranda, the

great-uncle of the child, for two statements Jesus made to family members during

the Department of Family and Protective Services’ (“DFPS’s”) investigation of an

outcry made against Byles by Jesus’s great-niece, L.S., the granddaughter of

Byles’s common-law wife and Jesus’s sister, Lisa Villareal. Following trial on the

merits, the trial court found Jesus not to be immune from liability under Texas

Family Code section 261.106, which grants immunity from civil liability for

statements made in good faith in the course of an investigation of child abuse. The

court then found both statements defamatory, and awarded Byles $75,000 in

damages. Jesus appeals the judgment but does not appeal the trial court’s ruling

denying him immunity from liability under section 261.106. The majority affirms

the trial court’s judgment based on one of the comments.

      I would first address Jesus’s immunity from liability as jurisdictional error.

The jurisdiction of the trial court to enter judgment on Byles’s suit for damages for

defamation depended upon Jesus’s lack of immunity from personal liability.

Therefore, the trial court should have determined Jesus’s immunity from liability

under Family Code section 261.106 before deciding the merits of Byles’s

                                         2
defamation suit. It should have held that Jesus was immune from liability on

Byles’s claims, and it should have dismissed the defamation suit for failure to state

a claim for which relief could be granted. Because the trial court determined the

merits of Byles’s defamation suit before determining the issue of Jesus’s

immunity, Jesus was subjected to a judgment for damages which the trial court

lacked jurisdiction to enter.

      I would vacate the judgment of the trial court, render judgment that Jesus is

immune from personal civil liability for Byles’s defamation claims under Family

Code section 261.106, and dismiss the suit on the ground that the trial court lacked

jurisdiction to try the merits of Byles’s claim and to enter a judgment for damages

for defamation against Jesus. Alternatively, without regard to Jesus’s immunity

defense, I would hold that the single statement made by Jesus to his brother Juan

that the majority affirms as defamatory was both privileged and opinion and was

neither shown to be a statement of fact nor proved to be false. Thus, it does not

support the trial court’s judgment. Therefore, I would reverse and render judgment

that Byles take nothing on the merits of his claim.

                                 Additional Facts

      I adopt the majority’s account of the record but would respectfully add the

following facts.




                                          3
      On October 5, 2007, L.S. first volunteered to her mother, Valerie Villareal,

and her aunt, Vanessa Villareal, that Byles had touched her vagina. At the time,

Valerie, Vanessa, L.S., and L.S.’s younger brother, F.S., were all staying with Lisa

(Valerie and Vanessa’s mother and L.S.’s grandmother) and Byles.              Valerie

testified in this case, “I was [giving L.S.] a shower and she told me that she—

[Byles] had touched her down there, and that was it. She showed me with a hand

gesture, and that was it.” The outcry was made the day after Byles left on a

business trip to Singapore. Lisa refused to believe Valerie’s report that anything

had happened. Valerie did not initially take L.S. to be medically examined.

      Jesus found out about the outcry through family members and urged Valerie

to take L.S. to be examined, saying he would do so if she would not. His sister,

Lisa, refused to talk to him about the allegations. On October 8, 2007, three days

after L.S.’s outcry, Valerie took L.S. to Memorial Hermann Hospital Southwest in

Houston to be examined. The hospital required that the Child Protective Services

division of DFPS (“CPS”) be notified, and CPS and the Austin County Sheriff’s

Department both opened investigations.

      L.S. would not let medical authorities examine her on October 8, but they

were able to question her. She named Stephen Byles as a person who had touched

her inappropriately. Valerie reported this information to her uncle Jesus.




                                         4
      Jesus kept insisting there be a medical examination of L.S., and Lisa kept

resisting. Valerie finally took L.S. into Memorial Hermann Hospital, at Jesus’s

urging, on October 22, 2007, for another interview and a medical examination.

Jesus drove her there. A police officer from Austin County was also present. L.S.

repeated her outcry to medical personnel at the Children’s Assessment Center

(“CAC”) during the interview, naming Byles.        The medical examination was

inconclusive.

      The January 5, 2008 CPS “Investigation Report” introduced into evidence at

the trial of this case states, with respect to the October 22, 2007 examination of

L.S., that the case had been referred from Austin County CPS to Harris County

CPS. It reports that the Austin County social worker said there were no protective

issues with the mother but also that

      [L.S.] said she was touched and pointed to her vagina by AP [alleged
      perpetrator] who is her grandmother’s boyfriend. [L.S.] was not able
      to distinguish to whether she was penetrated or how she was touched.
      A medical was attempted at Memorial but was not successful. OV
      [outcry victim] had a medical exam done today at the CAC clinic.
      She said Ms. [Valerie] Villarreal does believe that this happened but
      her mother [Lisa] does not believe.

The report further states that Valerie reported that “[w]hen everything came out her

mother put her out of the house because she does not believe anything happened.

Law enforcement is going to follow through on charges but she did not know what

the charge would be. He has requested the tape and medical records.” The case

                                         5
was “administratively closed due to it being work[ed] by a social worker and law

enforcement.” No tape recordings of the interviews and no medical records of the

examinations were introduced into evidence in this case.

      The Investigation Report also records several contacts and attempted

contacts by CPS with family members in connection with the case. On November

26, 2007, the investigator was unable to reach Lisa Villareal. On November 30,

2007, the report states that Jesus contacted CPS and “advised he is Lisa’s brother

and is concerned for [L.S. and F.S.] because he heard Lisa was taking them out of

the country.” Jesus “advised he spoke with Detective Homes [in Austin County]

and he is very upset with Austin County not pursuing this case more seriously.”

The investigator reported that Jesus

      wanted law enforcement to get Lisa to come in by telling her
      (untruthfully) that her daughter had attempted suicide but Detective
      Homes was not interested. I advised Mr. Miranda I was not interested
      either. Mr. Miranda advised he will do anything to assist in the
      investigation and to please call him if we have questions.

      The CPS report for December 3 records a conversation with Lisa’s attorney,

who stated that “[Lisa] and the children were living in Houston away from

[Byles].” The attorney and CPS arranged to transfer the case to Harris County, in

which Houston is located, “so we can get this matter resolved.” On December 4,

2007, Lisa’s attorney told CPS where Lisa and the children were living and said it

was “okay for CPS to speak with his client directly.”

                                         6
      In early December 2007, Lisa filed proceedings in Harris County to obtain

custody of the children. Jesus learned about this and, he testified, called CPS at the

direction of the Austin County District Attorney to notify it.1

      The Investigation Report reflected that L.S. was interviewed on December 7,

2007, and that she “stated that no one has touched her inappropriately. . . . She

stated that she has not seen [Byles] who is her grandmother[’s] boyfriend in a long

time.” However, Vanessa Villareal reported to the investigator “that [L.S.] did

state to her and her sister that [Byles] was touching her private parts. Vanessa

stated that she then told her mother who immediately packed their things and they

left for a hotel. She stated that [Byles] has not been around since this incident.”

      Similarly, the Investigation Report reflected that, in her January 3, 2008

interview, Valerie

      stated that [L.S.] told her that [Byles] touched her private parts. She
      stated that she took [L.S.] to the Southwest hospital for examination
      and the test did not disclose anything. She stated that the next day she
      brought [L.S.] to the Children Assessment Center for [an] interview
      and examination. She stated that the doctor stated there was
      discharge[] but it was inconclusive if there was sexual abuse. She
      stated that she does not believe that her mother is allowing contact
      between [Byles] and children.

      The report of the investigator’s December 27 interview with Lisa reflects

that Lisa “stated that her daughter told her that [L.S.] stated that [Byles] had

1
      The trial court found Jesus’s testimony not to be credible. However, his statement
      of the facts stated above is consistent with the testimony of the other witnesses,
      whom the court found to be credible, and is consistent with CPS records.
                                          7
fondled her. She stated that after hearing this she gather[ed] their things and they

went to a hotel. Lisa stated that [Byles] has not had any contact with the children

since this incident.”

      The Investigation Report concludes: “Disposition and Risk Finding: Ruled

Out with factors controlled UTD [unable to determine] for SXAB [sexual abuse]

on for [L.S.].”

      The CPS “Risk Assessment Report,” also completed on January 5, 2008, and

also introduced into evidence in this case, references allegations of neglectful

supervision of both L.S. and her little brother, F.S., against Valerie and Lisa, which

were “Ruled Out”; a report of sexual abuse of F.S. by Byles, which was “Ruled

Out”; and a report of sexual abuse of L.S. by Byles, which the report deemed

“Unable to Determine.” The Risk Assessment Report concluded, “Significant risk

factors were identified, but family strengths and available resources are sufficient

to provide for the child(ren)’s safety for the foreseeable future.”       The stated

rationale for the finding was that the children were living with Lisa, appeared to be

clean and healthy, did not disclose abuse or neglect, and “[t]he children do not

have any contact with [Stephen Byles].”

      The “Case History of Investigations” noted that the investigation was

assigned to an investigator by CPS on November 16, 2007, and completed on

January 11, 2008. Like the Risk Assessment Report, the Case History recorded

                                          8
allegations of neglectful supervision of L.S. and her brother, F.S., by both Valerie

and Lisa Villarreal, which were “Ruled Out”; allegations of sexual abuse of F.S. by

Byles, which was “Ruled Out”; and allegations of sexual abuse of L.S. by Byles,

which were marked “Unable to Determine.” The overall disposition was “unable

to determine,” and the risk finding was “factors controlled.”

      On December 12, 2007, Jesus left a recorded voice-message for Lisa, in

which he stated, “Stephen’s hand on your granddaughter’s vagina isn’t what

dictates this.” This statement is the first of the two statements by Jesus that the

trial court found to be defamatory per se in awarding damages to Byles.

      The family court held a hearing on temporary custody of L.S. and F.S. in

Lisa’s custody suit on January 11, 2008. Before the hearing, Jesus called Valerie,

told her not to back down, and said, “What if next time he penetrates your

daughter?”

      Also in January 2008, Jesus made the second statement on which he was

found liable for defamation. Neither the exact date nor the specific content of this

oral statement by Jesus to his brother Juan was recorded. The trial court found,

however, on the basis of Juan’s unobjected-to deposition testimony, which was

introduced into evidence, that, “In January 2008, Jesus Miranda published a

statement to Juan Miranda that a doctor had examined L.S. and that the doctor had

confirmed that L.S. had been sexually molested by [Stephen Byles].”

                                         9
      On January 29, 2008, the family court entered an order giving Lisa indefinite

temporary custody of L.S. and F.S. The order also enjoined Lisa from “allow[ing]

the minor children to be in the presence of [Stephen Byles] until further order of

this court.” The amicus attorney ultimately represented to the family court that the

children would be better off in Lisa and Byles’s possession. In May 2008, the

family court lifted the portion of its temporary order that prohibited Byles from

being in the presence of the two children. Lisa was ultimately awarded custody of

L.S. and F.S.

      Byles filed the instant defamation suit against Jesus on December 12, 2008,

asserting claims of slander per quod, slander per se, and intentional infliction of

emotional distress based on Jesus’s recorded statement to Lisa, “Stephen’s hands

on your granddaughter’s vagina isn’t what dictates this,” and on Juan’s report that

Jesus had told him after the October 22 examination of L.S. that the doctor had

confirmed that Byles had sexually assaulted L.S.

      In the trial of this case, Juan testified by deposition, without objection, as to

the second statement as follows:

      Q:    What statement did Mister—or what statements did Jesus make
            about [Stephen Byles] to put him in a negative light?
      A:    That he had molested one of my—my niece’s kids.
      Q:    And who did he—well, strike that. Which child?
      A:    [L.S.]


                                         10
....
Q:     Okay. And when in time was it that Jesus made this statement
       to you?
A:     This was in January—I believe January of ’08.
Q:     Okay. And how did the statement come about? Did he call
       you, or was it in person?
A:     It was a telephone call.
Q:     Okay. And he called you and said what?
A:     That, you know, he knew that [Byles] had done—had molested
       that—[L.S.]
Q:     Did he express it as an opinion that he thought the child had
       done—that [Byles] had done this, or that he expressed it as a
       fact?
A:     That he knew.
Q:     Did he—did Jesus report to you that he had reported to others
       negative comments about [Byles]?
A:     That he had reported to other family members that—right there
       and then he did not state that he had told anybody else, no.
Q:     Okay. And did you later come into any information that that
       had happened?
A:     Yeah.
Q:     What information did you receive?
A:     From one of my brothers that had come over to my house and
       they told me that he had already heard a recording and that they
       knew that, that she has been molested according to—
Q:     And where did they get that information from?
A:     My brother.
Q.     And your brother, you’re talking about your brother, Jesus,
       reported it to what other family members?


                                  11
      A:     My brother Gabriel and my brother Andy as far as I knew
             because they had came and told me.
      ....
      Q:     Okay. Now, did Jesus make any statements to you with regards
             to whether or not [L.S.] had been taken to a doctor with regards
             to the sexual abuse claim?
      A:     Yes. Yes. Because I—I really hadn’t known that she went until
             he told me.
      Q:     And what did he tell you about the doctor appointment?
      A:     That she was a—confirmed that she was molested.
      Q:     That a doctor had confirmed that she had been sexually
             molested by [Byles]?
      A:     Yes.
      Q:     And he told you that in the same conversation?
      A:     That was the only conversation I had with him.

      In an additional excerpt from his deposition testimony, Juan admitted that

Byles had loaned him $5,000, that the arrangement with regard to his paying it

back was, “Get back on, you know, financially by self-set in order for me to get the

money back to him,” and that Byles had also “always offered to help” with his

children’s schooling. Juan also testified that the family was deeply divided over

the issue of whether Byles had sexually assaulted L.S.; that Jesus had stated that he

“knew” that Byles had molested L.S. as a matter of fact, not as his belief; that

information about the alleged assault relayed to him by Lisa prior to his

conversation with Jesus constituted “allegations” that were potentially being


                                         12
investigated; and that what he himself believed—that the molestation had not

occurred because “[Byles] would not do that”—was his opinion.

       Following trial, the trial court entered the following findings of fact relevant

to this dissent:

       11.    On December 12, 2007, Jesus Miranda published a statement
              stating “[Stephen’s] hands on your granddaughter’s vagina isn’t
              what dictates this.”

       12.    In January 2008, Jesus Miranda published a statement to Juan
              Miranda that a doctor had examined L.S. and that the doctor
              had confirmed that L.S. had been sexually molested by
              [Stephen Byles].

       13.    Jesus Miranda’s statements described in ¶¶ 11–12 of the
              Findings of Fact (“Defamatory Statements”) were defamatory
              concerning plaintiff.

       14.    The Defamatory Statements were false.

       ....

       28.    Neither the Defamatory Statements nor [other statements] were
              made while assisting in the investigation of a report of alleged
              child abuse or neglect or while testifying or otherwise
              participating in a judicial proceeding arising from a report,
              petition, or investigation of alleged child abuse or neglect.

       The trial court also entered the following conclusions of law:

       14.    Under TEX. FAM. CODE § 261.106(a), a person who in good
              faith reports or assists in the investigation of alleged child abuse
              or who testifies or participates in a judicial proceeding arising
              from a report or investigation of alleged child abuse is immune
              from civil liability that might otherwise arise.



                                           13
       15.    Under TEX. FAM. CODE § 261.106(c), a person who acts in bad
              faith or with malicious purpose in reporting alleged child abuse
              or neglect is not immune from civil or criminal liability.

       16.    [Miranda] is not immune from liability for [Byles’s] claims.

                                    Jurisdiction

       Jesus pled in the trial court that he was immune from civil liability for

defamation under section 261.106 of the Child Protection Act, Chapter 261 of the

Family Code. The trial court tried Jesus’s pleading of immunity simultaneously

with the merits of Byles’s defamation claim, rejected Jesus’s immunity defense,

and    entered    judgment    against   Jesus    on   Byles’s    defamation      claim.

The trial court found that the “Defamatory Statements” did not fall within the

protective scope of section 261.106 and concluded that Jesus lacked immunity

from liability. Although he appealed the judgment, Jesus did not appeal the trial

court’s immunity finding and its conclusion of law that he was not immune from

liability.   Nevertheless, a jurisdictional question cannot be waived; it may be

raised, even for the first time, on appeal; it may be raised by the appellate court sua

sponte; and the appellate court has jurisdiction to decide both its own and the trial

court’s jurisdiction. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 445–46 (Tex. 1993).

       I would address the immunity issue as fundamental jurisdictional error on

the ground that the trial court erred in denying Jesus immunity that protected him


                                          14
from personal liability and erroneously exercised its jurisdiction to render a

judgment for liability against him, despite Byles’s failure to state a claim on which

relief could be granted.

      Family Code section 261.106 provides:

      (a) A person acting in good faith who reports or assists in the investigation of
          a report of alleged child abuse or neglect or who testifies or otherwise
          participates in a judicial proceeding arising from a report, petition, or
          investigation of alleged child abuse or neglect is immune from civil or
          criminal liability that might otherwise be incurred or imposed.
         ….
      (c) A person who reports the person’s own abuse or neglect of a child or who
          acts in bad faith or with malicious purpose in reporting alleged child
          abuse or neglect is not immune from civil or criminal liability.

TEX. FAM. CODE ANN. § 261.106 (Vernon 2008).

      Section 261.106’s companion statute, Family Code section 261.101,

provides, in relevant part:

      (a) A person having cause to believe that a child’s physical or mental health
          or welfare has been adversely affected by abuse or neglect by any person
          shall immediately make a report as provided by this subchapter.

      (b) If a professional has cause to believe that a child has been abused or
          neglected or may be abused or neglected, or that a child is a victim of an
          offense under Section 21.11, Penal Code [“Indecency with a Child”], and
          the professional has cause to believe that the child has been abused as
          defined by Section 261.001 or 261.401, the professional shall make a
          report not later than the 48th hour after the hour the professional first
          suspects that the child has been or may be abused or neglected or is a
          victim of an offense under Section 21.11, Penal Code. . . .

Id. § 261.101 (Vernon 2008).

                                         15
      The trial court found that “the Defamatory Statements” were not “made

while assisting in the investigation of a report of alleged child abuse or neglect or

while testifying or otherwise participating in a judicial proceeding arising from a

report, petition, or investigation of alleged child abuse or neglect.” It therefore

concluded that Jesus was “not immune from liability for Plaintiff’s claims” under

subsections 261.106(a) and (c), and it entered a money judgment for $75,000

against Jesus on Byles’s defamation claims.

      I disagree with the trial court’s actions. The trial court should have held a

preliminary evidentiary hearing on the jurisdictional facts relating to Jesus’s claim

of immunity. On the basis of evidence presented, the trial court should have held

that Jesus’s comments, upon which Byles’s defamation suit was based, were

privileged statements of opinion made to family members in the course of an

investigation of child abuse and that, therefore, Jesus was immune from liability

for Byles’s suit for defamation under Family Code section 261.106. It should then

have concluded that Byles failed to state a claim upon which relief could be

granted and that it lacked jurisdiction to enter the money judgment sought. The

court should have dismissed the case. Because it did not, I would vacate the

judgment as void, and I would enter the judgment the trial court should have

entered, dismissing the case for failure to state a claim.




                                          16
      “‘[J]urisdiction’ is the power to hear and determine a controversy,

which . . . includes the power to decide whether or not a pleading filed in the court

is sufficient to state a cause of action . . . .” Jud v. City of San Antonio, 184

S.W.2d 821, 822 (Tex. 1945). “As a general proposition, before a court may

address the merits of any case, the court must have jurisdiction over the party or

the property subject to the suit, jurisdiction over the subject matter, jurisdiction to

enter the particular judgment, and capacity to act as a court.” State Bar of Tex. v.

Gomez, 891 S.W.2d 243, 245 (Tex. 1994). “Subject matter jurisdiction requires

that the party bringing the suit have standing, that there be a live controversy

between the parties, and that the case be justiciable.” Id. Thus, “The trial court

must determine at its earliest opportunity whether it has the constitutional or

statutory authority to decide the case before allowing the litigation to proceed.”

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

“[F]or a controversy to be justiciable, there must be a real controversy between the

parties that will be actually resolved by the judicial relief sought.” Gomez, 891

S.W.2d at 245. When a court initially has jurisdiction to grant relief to resolve a

live controversy between parties with proper standing, but the case subsequently

becomes non-justiciable, the court retains certain limited authority to dispose of the

case by dismissal. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865 (Tex.

2010). If the district court lacks jurisdiction in any of these senses, then its

                                          17
decision does not bind the parties. Gomez, 891 S.W.2d at 245. “[A] decision that

does not bind the parties is, by definition, an advisory opinion prohibited by Texas

law.” Id.

      Immunity from liability is an affirmative defense, as opposed to immunity

from suit, which deprives a court of subject matter jurisdiction ab initio. See

Miranda, 133 S.W.3d at 224. Thus, “[i]mmunity from liability and immunity from

suit are two distinct principles.” Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638

(Tex. 1999) (per curiam) (holding that, like other affirmative defenses to liability,

immunity from liability must be pleaded or else it is waived). Immunity from

liability does not protect a defendant from all suits, but it “protects the [defendant]

from judgment even if the Legislature has expressly consented to the suit.” Id.

(emphasis added). Thus, immunity from liability bars a suit for monetary relief

against the immune defendant, even though it does not bar a suit for other remedies

when the defendant has violated the law. See City of El Paso v. Heinrich, 284

S.W.3d 366, 368–69 (Tex. 2009) (stating, in governmental immunity case,

“Sovereign immunity protects the State from lawsuits for money damages,”

although sovereign immunity does not bar suits for other remedies where

defendant has violated law) (quoting Tex. Natural Res. Conservation Comm’n v.

IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002)). An action may no longer be continued




                                          18
against a defendant who cannot be held liable, and no judgment may be rendered

against him. See Brown v. Gay, 13 S.W. 472, 472–73 (Tex. 1890).2

      Whether undisputed evidence of jurisdictional facts establishes a trial court’s

jurisdiction is a question of law. See Miranda, 133 S.W.3d at 226. However, “in

some cases, disputed evidence of jurisdictional facts that also implicate the merits

of the case may require resolution by the finder of fact.” Id. When the existence

of jurisdictional facts is challenged, the court must consider evidence when

necessary to resolve the jurisdictional issues raised. See id. at 223; Bland Indep.

Sch. Dist. v Blue, 34 S.W.3d 547, 555 (Tex. 2000). A trial court “has the right to

hear the necessary evidence to enable it to decide as to whether or not it has power

to try the case it is sought to have it adjudicate, whether the allegations disclosing

such want of jurisdiction appear in the petition of the plaintiff, or in the plea to the

jurisdiction by the defendant,” or, as here, in the affirmative-defense pleadings of

the defendant. See Miranda, 133 S.W.3d at 226 (quoting Gentry v. Bowser, 21

S.W. 569, 570 (Tex. Civ. App.—Fort Worth 1893, no writ)). As the party seeking

to invoke the trial court’s jurisdiction, the plaintiff must “allege facts that


2
      Most immunity law has been developed in the context of governmental immunity,
      which presents an analogous but not identical situation. Unlike civil immunity,
      sovereign immunity exists ab initio, must be waived by the state, and, if not shown
      to be waived, constitutes sufficient reason to dismiss a claim for lack of
      jurisdiction. Civil immunity must be shown and, if shown, results in failure to
      state a claim on which relief can be granted, for which the proper remedy is
      dismissal.
                                          19
affirmatively demonstrate the court’s jurisdiction to hear the cause.” See Tex.

Ass’n of Bus., 852 S.W.2d at 446.

      The purpose of a plea to the jurisdiction is to establish a reason why the

merits of the plaintiff’s claim should not be reached. See Bland Indep. Sch. Dist.,

34 S.W.3d at 554. However, “a court deciding a plea to the jurisdiction is not

required to look solely to the pleadings but may consider evidence and must do so

when necessary to resolve the jurisdictional issues raised.” Id. at 555. The court

should, however, “confine itself to the evidence relevant to the jurisdictional

issue.” Id. “Whether a determination of subject-matter jurisdiction can be made in

a preliminary hearing or should await a fuller development of the merits of the case

must be left largely to the trial court’s sound exercise of discretion.” Id. at 554.

The “ultimate inquiry” in a challenge to the trial court’s jurisdiction is whether the

facts pled by the plaintiff and not negated, taken as true, and liberally construed

“affirmatively demonstrate a claim or claims within the trial court’s subject-matter

jurisdiction.” Brantley v. Tex. Youth Comm’n, 365 S.W.3d 89, 94 (Tex. App.—

Austin 2012, no pet.); see also Jud, 184 S.W.2d at 823 (holding that determination

whether plaintiff-fireman had alleged cause of action against members of pension

fund board, so that trial court had jurisdiction over that claim, could not be

determined “in limine on a hearing of the plea to the jurisdiction” but must await

development of facts).

                                         20
      When a plaintiff fails to demonstrate a waiver of immunity from liability by

the defendant, and thus fails to state a cause of action upon which the relief sought

can be granted, and his claim cannot be repled to state a cause of action, the trial

court should not permit repleading but should dismiss the suit. See Reata Constr.

Corp. v. City of Dallas, 197 S.W.3d 371, 378 (Tex. 2006) (holding that where

plaintiff Reata failed to demonstrate waiver of City’s immunity from liability under

Tort Claims Act plaintiff’s claims were properly dismissed and plaintiff was not

entitled to replead); see also Brantley, 365 S.W.3d at 94 (stating that where

pleadings affirmative negate existence of jurisdiction, plea to jurisdiction may be

granted without allowing plaintiff opportunity to amend).3


3
      The majority argues that the issue of Jesus’s immunity to Byles’s claims is not
      jurisdictional, was not preserved, and, therefore, cannot be addressed by this Court
      on appeal. Slip Op. at 13–14 (citing Harris Cnty Hosp. Dist. v. Tomball Reg’l
      Hosp., 283 S.W.3d 838, 842 (Tex. 2009) and Tex. Dep’t of Parks & Wildlife v.
      Miranda, 133 S.W.3d 217, 224 (Tex. 2004)). The cases cited by the majority
      distinguish between immunity from suit and immunity from liability in the context
      of sovereign immunity. In a sovereign immunity case, the issue of immunity from
      liability is typically not reached unless the State has already waived immunity
      from suit. Therefore, the court’s jurisdiction to entertain the suit is generally
      already established and all that is at issue is the jurisdiction to enter the judgment.
      The supreme court has consistently held that, even when the issue is sovereign
      immunity, immunity from liability may protect the state from suits for money
      damages even though it does not protect against other suits. See City of El Paso v.
      Heinrich, 284 S.W.3d 366, 371–73 (Tex. 2009). Likewise, the courts have
      consistently held that when a private citizen’s immunity from liability is
      established, the case should be dismissed for failure to state a claim upon which
      relief can be granted. See Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398,
      405–07 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (dismissing case
      against attorneys immune from civil liability for actions taken in connection with
      representation).
                                            21
      Here, the trial court heard evidence of the jurisdictional facts upon which

Jesus’s affirmative defense of immunity was based only during the trial on the

merits of Byles’s defamation claim. The jurisdictional evidence included evidence

as to what Jesus said, to whom he said it, and when and under what circumstances

it was said. This evidence went to the fact of Jesus’s immunity from liability and,

therefore, to Byles’s statement of a claim for which Jesus could be held liable and

to the trial court’s jurisdiction to try Byles’s defamation suit and to render a money

judgment against Jesus. The jurisdictional issue should have been heard first and

the trial court’s jurisdiction to proceed to trial on the merits determined

preliminarily. This did not happen.

      Had the trial court heard the jurisdictional facts first, it is inconceivable to

me that a reasonable judge would have permitted Byles’s defamation suit against

Jesus to proceed to trial on its merits. On October 5, 2007, L.S. made an outcry

that she had been sexually abused by Byles and described with gestures what he

had done. Section 261.106(a) provides that “[a] person acting in good faith who

reports or assists in the investigation of a report of alleged child abuse or neglect or

who testifies or otherwise participates in a judicial proceeding arising from a

report, petition, or investigation of alleged child abuse or neglect is immune from

civil or criminal liability . . . .” TEX. FAM. CODE ANN. § 261.106(a). No one

denied that the outcry was made on October 5 and that neither L.S.’s mother

                                          22
Valerie, her aunt Vanessa, nor her grandmother Lisa initially reported the outcry to

authorities. Only Jesus, to whom the incident was reported by Valerie, insisted

that L.S. be taken to CAC to be examined. In other words, only Jesus obeyed the

mandate of section 261.101 that “[a] person having cause to believe that a child’s

physical or mental health or welfare has been adversely affected by abuse or

neglect by any person shall immediately make a report as provided by this

subchapter.” Id. § 261.101(a). All of the other persons with knowledge of the

outcry disregarded his or her statutory duty. By contrast, when Valerie agreed to

take L.S. to be examined three days later, on October 8, the hospital immediately

followed its own mandate under section 261.101(b) by reporting the outcry to CPS

and the Austin County Sheriff’s office. See id. § 261.101(b). Both CPS and the

Austin County Sheriff’s Department began investigations.

      During her first interview at the hospital on October 8, 2007, L.S. reaffirmed

her outcry to medical personnel, naming Byles as the perpetrator.         Although

medical personnel were unable to perform a physical examination, due to L.S.’s

refusal to cooperate, the physician did confirm to Valerie that L.S. had named

Byles, and Valerie reported that information to Jesus.

      The CPS and Austin County Sheriff’s Department investigations were

hampered by L.S.’s removal from the house and the county. However, Jesus

continued to urge that L.S. be taken back to the CAC for a physical examination.

                                        23
In short, he was the only family member who showed an active interest in

cooperating with an ongoing investigation into child sexual abuse by appropriate

authorities.

      Jesus succeeded in getting Valerie to take L.S. back to the CAC on October

22, 2007, where a second interview was conducted, in which L.S. again named

Byles. A physical examination was also performed, but it was inconclusive as to

whether L.S. had been assaulted. The medical records are not in the record of this

case. However, the January 5, 2008 CPS “Investigation Report” is in the record. It

records notes entered by CPS on October 22, 2008, in accordance with the mandate

of section 261.001(b).

      It is unclear from the record where L.S. was or with whom she was living in

October and November 2007. The investigations by CPS and the Austin County

Sheriff’s Department stalled. Jesus, however, persisted, and Lisa subsequently

contacted CPS through her attorney and told them that L.S. was living with her in

Houston.       That information led to interviews of family members by a CPS

investigator in December 2007 and January 2008 and also to Austin County’s

dropping the investigation because L.S. was now out of its jurisdiction. Lisa also

initiated custody proceedings in Harris County seeking to obtain custody of both

L.S. and her younger brother, F.S.




                                       24
      The January 5, 2008 CPS “Investigation Report” includes the investigator’s

report of her interviews with Valerie and other family members.             The report

records Valerie’s statement that L.S. had told her that Byles had “fondled” her and

had shown her by gestures what he had done. It also includes the statement that

Valerie “stated that the doctor stated that there was discharge[] but it was

inconclusive if there was sexual abuse.”        Lisa and all other family members

reported that Byles had been kept away from L.S. after her outcry.

      The first statement the trial court found to be defamatory, and on which

Jesus’s liability is predicated—the December 12, 2007 statement in a voicemail

message to Lisa that “[Stephen’s] hands on your granddaughter’s vagina isn’t what

dictates this”—was made after L.S. had repeated her outcry several times, after

medical personnel were unable to determine whether L.S. had been sexually

assaulted, after Lisa had initiated custody proceedings, during the active CPS

investigation of the case, and before the hearing on Lisa’s custody suit.

      The second statement the trial court found to be defamatory— “a statement

to Juan Miranda that a doctor had examined L.S. and that the doctor had confirmed

that L.S. had been sexually molested by [Stephen Byles]”—was made “[i]n

January 2008” to Jesus’s brother, also L.S.’s great-uncle. While no exact date is

attributed to the second statement, and no context is given for it, it appears that this

statement occurred before the January 8, 2008 hearing on Lisa’s custody suit. Juan

                                          25
testified in his deposition that this was the only time he talked with Jesus about

L.S.’s complaint, that he had already heard about the complaint from his other

brothers, who said Jesus had heard a tape of the CAC interview with L.S. (which

was not introduced into evidence as proof of the falsity of Jesus’s alleged

comment), and that the family was deeply divided over whether Byles had sexually

assaulted L.S.

      If Jesus’s unrecorded statement to Juan was not made before the January 8

hearing, it was necessarily made before or within two days after the family court’s

January 29, 2008 order that awarded custody of L.S. to Lisa and enjoined her from

allowing Byles to be around L.S. and F.S. It was also made in the same month as

the final CPS Investigation Report, completed January 5, 2008, which recorded

interviews with Valerie, Vanessa, and Lisa, all of whom acknowledged and

described L.S.’s outcry. And it was made in the same month in which CPS

concluded that reports of neglectful supervision by Valerie and Lisa of L.S. and

F.S. and of sexual abuse by Byles of L.S. and F.S. were “Ruled Out with factors

controlled UTD [unable to determine] for SXAB [sexual abuse] on for [L.S.].”

      Jesus’s second reported statement was also made in the same month as

CPS’s “Risk Assessment Report.” This report included the same results of the

various investigations as the Investigation Report, noted that Byles had been kept

away from the children after L.S.’s outcry, and concluded, “Significant risk factors

                                        26
were identified, but family strengths and available resources are sufficient to

provide for the child(ren)’s safety for the foreseeable future.” These risk factors

were deemed significant enough by the trial court to support an injunction on

January 29, 2008, preventing Lisa from allowing Byles to be around the children

until further order of the court.

      Upon hearing the evidence regarding Jesus’s immunity, along with all the

other evidence, in what appears to have been a highly emotionally charged trial

involving all—and only—family members, the trial court found that “[n]either the

Defamatory Statements nor [other statements] were made while assisting in the

investigation of a report of alleged child abuse or neglect or while testifying or

otherwise participating in a judicial proceeding arising from a report, petition, or

investigation of alleged child abuse or neglect,” and it concluded as a matter of law

that Jesus was not immune from liability under section 261.106.

      The trial court’s conclusion that Jesus was not immune for his statements

under section 261.106 followed directly from its finding of fact that the

Defamatory Statements were not made while assisting in the investigation of a

report of alleged child sexual abuse. In my view, this conclusion is rationally

unsustainable under the facts of this case.

      A trial court’s conclusions of law are reviewed de novo. BMC Software

Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). The sufficiency of the

                                         27
evidence supporting a trial court’s challenged findings of fact following a bench

trial is reviewed under the standards used to review the legal or factual sufficiency

of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295,

297 (Tex. 1994). When the appellate record includes the reporter’s record, the trial

court’s factual findings, whether express or implied, are not conclusive and may be

challenged for legal and factual sufficiency. See Middleton v. Kawasaki Steel

Corp., 687 S.W.2d 42, 44 (Tex. App.—Houston [14th Dist.]), writ ref’d n.r.e., 699

S.W.2d 199 (Tex. 1985). The test for legal sufficiency is “whether the evidence at

trial would enable reasonable and fair-minded people to reach the verdict under

review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In reviewing

a factual sufficiency challenge, the appellate court considers and weighs all the

evidence supporting and contradicting the challenged finding and sets the finding

aside only if the evidence is so contrary to the overwhelming weight of the

evidence as to make the finding clearly wrong and manifestly unjust. Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986) (per curiam). In my view, a reasonable and fair-

minded fact finder could not have found that Jesus’s comments to Lisa and to his

brother Juan during the CPS investigation of L.S.’s outcry were not made while

Jesus was assisting in the investigation of a report of child abuse. Therefore, I

would hold that the evidence supporting the trial court’s finding of fact was so

weak as to make its finding clearly wrong and manifestly unjust. And I would

                                         28
hold that the trial court’s conclusion of law number sixteen was, therefore,

erroneous.

      It is also inconceivable to me that a “reasonable and fair-minded” court

could find, on the basis of the evidence in this case, that Jesus was anything other

than “[a] person acting in good faith who report[ed] or assist[ed] in the

investigation of a report of alleged child abuse or neglect or who . . . otherwise

participate[d] in a judicial proceeding arising from a report, petition, or

investigation of alleged child abuse or neglect” or that it could find that the two

statements on which the trial court predicated Jesus’s liability were outside the

scope of the protection extended to such persons by section 261.106(a). See TEX.

FAM. CODE ANN. § 261.106(a), (c); City of Keller, 168 S.W.3d at 827.

      There is no evidence of Jesus’s “bad faith or malicious purpose” in urging

the investigation of L.S.’s outcry. Jesus Miranda, alone among the many family

members aware of L.S.’s outcry, was the only one who took seriously the mandate

of section 261.101 that persons “having cause to believe that a child’s physical or

mental health or welfare has been adversely affected by abuse or neglect by any

person shall immediately make a report as provided by this subchapter” and the

only one who urged that a report be made to authorities about L.S.’s outcry. TEX.

FAM. CODE ANN. § 261.101(a).        Upon investigation by the CAC, the Austin

County Sheriff’s Department, and CPS, the evidence that Byles had assaulted L.S.

                                        29
was found by CPS to be “significant” enough to support a finding of “unable to

determine,” together with a conclusion that the risk was “significant” but

“controlled” because Byles had been kept away from L.S. since the date of the

outcry. The evidence was also found by the family court to be sufficient to support

an order on January 29, 2008, enjoining Lisa from allowing Byles to be around

L.S. “until further order of the court.”

      I would hold that the trial court erred in finding that Jesus was not immune

from liability for defamation for his statements under Family Code section

261.106.    I would further hold that the trial court erred in not hearing the

jurisdictional facts pertinent to Jesus’s immunity defense before proceeding to trial

on the merits of Byles’s defamation suit and entering judgment on Byles’s claim

rather than dismissing Byles’s suit for lack of jurisdiction due to Byles’s failure to

state a claim upon which relief could be granted. See Miranda, 133 S.W.3d at 223;

see also Brown, 13 S.W. at 472–73 (holding that no judgment can be rendered

against defendant who cannot be held liable); Alpert v. Crain, Caton & James,

P.C., 178 S.W.3d 398, 405–07 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)

(affirming dismissal for failure to state cause of action after law firm establish

defense of qualified immunity). Accordingly, I would vacate the judgment of the

trial court and dismiss the case.




                                           30
       In my opinion, this case presents fundamental jurisdictional error.       See

McCauley v. Consol. Underwriters, 304 S.W.2d 265, 266 (Tex. 1957) (per curiam)

(holding error to be fundamental when record shows jurisdictional defect). The

record clearly shows that Jesus was held liable to Byles for civil damages for

defamation in a suit brought against him for his remarks made to family members

during an ongoing investigation by CPS, medical authorities, and police of an

outcry of sexual abuse by a three-year-old child against Byles.          A trial for

defamation and a money judgment in favor of a person against whom an outcry of

child sexual abuse is made and against a person who urges family members to

investigate the outcry has a potentially deeply chilling effect on the reporting of

child sexual abuse to persons in a position to investigate the allegations. This suit

thus directly undermines the fundamental purpose of the “Protection of the Child

Act,” Family Code Chapter 261, which is to protect children from abuse and

neglect. See TEX. FAM. CODE ANN. §§ 261.101, 261.106 (imposing duty to report

suspected child abuse or neglect and child sexual abuse and providing immunity

for report).

       In support of treating this case as one of fundamental jurisdictional error, I

stress that I find absolutely no evidence in the record that Jesus’s report was made

in bad faith, despite Byles’s emotional briefing on appeal and on rehearing, and

despite what appears to have been a circus atmosphere involving all family

                                         31
members in the courtroom. The reporting of suspected child abuse is an extremely

serious issue, and it was precisely to protect persons who make such reports and to

ensure that they will freely report actual outcries of child abuse and will not be

punished for their good-faith reports that the immunity statute was passed. The

further purpose of that statute is to ensure that threats to the economic well-

being—and reputation—of persons who report suspected abuse in good faith will

not succeed and will not be rewarded with large financial awards, even if, as here,

the sanctions placed on the purported abuser by child protection authorities on the

basis of professional evaluations by CPS, medical personnel, and law enforcement

authorities are ultimately lifted.

      My conviction that this is a case of fundamental jurisdictional error is

strengthened by the fact that the majority in this case, after reviewing the record,

can find only one statement by Jesus that it concludes supports a defamation

finding. For the reasons argued in the next section, I find that lone statement to be

privileged, and, even if it were not privileged, it is not a statement of fact that could

be or was objectively shown to be false. Rather, it is an undated, unspecific

hearsay statement of opinion reportedly made by Jesus to his brother, Juan, that the

doctor to whom L.S. was taken following her outcry had stated that the child had

been sexually assaulted by Byles. Even if that statement were not privileged, and

were not hearsay reported only in Juan’s deposition, the burden in a defamation

                                           32
suit would have been on Byles to show exactly what Jesus said, that it was a

statement of fact, and that, in fact, the doctor reported that the child was not

sexually assaulted or was not assaulted by Byles, that Jesus saw the report and

knew for a fact that what he said was false, and that he said it anyway—outside the

family and investigatory process—for the purpose of injuring Byles’s reputation.

There was absolutely no such showing by Byles. Indeed, the tape of L.S.’s CPS

interview and her medical records, which might have shown whether Jesus even

made a false report, were never introduced into evidence by Byles in support of his

defamation claim.

      My arguments and authorities on the merits of Byles’s defamation claim are

set forth below.

                                   Defamation

      Were I to reach the merits of Byles’s defamation claim, I would sustain

Jesus’s second issue, and I would reverse the judgment of the trial court and render

judgment that Byles take nothing by his claim.

      In his second issue, Jesus argues that the trial court erred in holding that he

defamed Byles because “at least one of the allegedly defamatory statements,

uttered by [Jesus], is inherently incapable of objective verification or disproof,”

and, therefore, Byles cannot prove defamation. I would hold that Jesus’s statement

to Lisa is incapable of objective verification or disproof and that neither that

                                        33
statement nor his statement to Juan was shown to be a false and defamatory

statement of fact made without legal excuse, as required for Byles to carry his

burden of proof.

       A. Legal Excuse

       “Slander is a defamatory statement that is orally communicated or published

to a third person without legal excuse.” Randall’s Food Mkts., Inc. v. Johnson,

891 S.W.2d 640, 646 (Tex. 1995).           In Randall’s, the Texas Supreme Court

developed the doctrine of legal excuse in the employer/employee context. It held

that “an employer has a conditional or qualified privilege that attaches to

communications made in the course of an investigation following a report of

employee wrongdoing.”             Id.   “The privilege remains intact as long as

communications pass only to persons having an interest or duty in the matter to

which the communications relate.” Id. The privilege can be defeated only by

proof that a statement was motivated by actual malice existing at the time of

publication. Id. “In the defamation context, a statement is made with actual

malice when the statement is made with knowledge of its falsity or with reckless

disregard as to its truth.” Id.

       In Randall’s, store employees communicated to each other that a customer

had left the store without paying for a wreath. Id. at 646. The customer admitted

that fact but said she did not have the intent to steal. Id. The statement was

                                           34
communicated to several managers on duty on the night of the incident, the

security guard who investigated the incident, the assistant store manager, the

director of the store, the district manager for the store, and the vice president of

Randall’s human resources. Id. at 647. The supreme court observed that “all of

the employees who gave or received statements about the wreath incident had an

interest or duty in the matter.” Id. It held, “Randall’s established an absence of

malice with regard to these statements by conclusively proving that its employees

had reasonable grounds to believe that their statements were true.” Id. (citing

Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)).

       Similarly, in this case, Jesus satisfied the criteria set out in Randall’s for

attachment of a legal excuse by meeting the requirements for immunity from civil

liability under Family Code section 261.106.               Both statements were

“communications made in the course of an investigation following a report

of . . . wrongdoing.” Id. at 646. Both were communications made only to “persons

having an interest or duty in the matter to which the communications relate[d].”

Id.   Nor was there any evidence that the statements were made with “actual

malice,” i.e., “knowledge of [their] falsity or with reckless disregard as to [their]

truth.” Id.

       Jesus’s statements followed L.S.’s repeated outcries; they followed the

statement made to him by Valerie after the October 8, 2007 interview that L.S. had

                                         35
made an additional outcry to the medical personnel who had interviewed her and

had named Byles as the perpetrator of the assault; and they followed the report

made to him by Valerie after the physical examination of L.S. on October 22 that

the physician had stated he was unable to determine whether L.S. had been

sexually assaulted by Byles. Also during this time period, CPS issued a report that

included Valerie’s statement that “the doctor stated there was discharge[] but it

was inconclusive if there was sexual abuse”; two CPS reports ruled out allegations

of neglectful supervision by Valerie and Lisa, but stated that the investigators were

“unable to determine” whether Byles had sexually assaulted L.S., and therefore

found “significant risk factors” in L.S.’s living with Lisa, but found that those risk

factors were controlled by Lisa’s prohibiting Byles from being around L.S.; and

the family court granted custody of L.S. and F.S. to Lisa, but also enjoined her

from allowing Byles to be around the children until further order of the court.

There is no evidence that Jesus’s statements were made with knowledge of their

falsity or with reckless disregard as to their truth. See id. Nor was any evidence

introduced—such as the tape of the CPS interview of L.S.—that might have shown

Jesus’s statements to be, indeed, false statements of facts. Thus, because Jesus’s

comments were made in the course of his “assist[ing] in the investigation of a

report of alleged child abuse” or “otherwise participat[ing] in a judicial proceeding

arising from a report . . . or investigation of alleged child abuse,” I would find that

                                          36
his communications were statutorily protected and therefore legally excused. See

TEX. FAM. CODE ANN. § 261.106(a); Randall’s, 891 S.W.2d at 646.

      Even if Jesus had failed to establish a legal excuse for his statements under

section 261.106, however, I would still hold that the first statement to Lisa was not

an objectively verifiable statement of fact as a matter of law and that Byles did not

prove that the second statement to Juan was a false statement of fact.

      B. Lack of Objective Verifiability

      To establish defamation, the plaintiff must prove that the defendant

published a false statement of fact. See El-Khoury v. Kheir, 241 S.W.3d 82, 85

(Tex. App.—Houston [1st Dist.] 2007, pet. denied); AccuBanc Mortg. Corp. v.

Drummonds, 938 S.W.2d 135, 149 (Tex. App.—Fort Worth 1996, writ denied)

(“Defamation involves the publication of a false statement of fact about the

plaintiff.”). To succeed on a defamation claim, a plaintiff must demonstrate that

(1) the defendant published a factual statement (2) that was capable of defamatory

meaning (3) concerning the plaintiff (4) while acting with either negligence, if the

plaintiff is a private individual, or actual malice, if the plaintiff is a public figure or

public official, concerning the truth of the statement.          Vice v. Kasprzak, 318

S.W.3d 1, 12 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing WFAA-

TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)). “[A] private individual

may recover damages from a publisher or broadcaster of a defamatory falsehood as

                                            37
compensation for actual injury upon a showing that the publisher or broadcaster

knew or should have known that the defamatory statement was false.” Foster v.

Laredo Newspapers, Inc., 541 S.W.2d 809, 811, 819 (Tex. 1976); A.H. Belo Corp.

v. Rayzor, 644 S.W.2d 71, 80, 82–83 (Tex. App.—Fort Worth 1982, writ ref’d

n.r.e.).

       By contrast to false statements of fact injurious to reputation, all assertions

of opinion are protected by the First Amendment of the United States Constitution

and Article 1, Section 8 of the Texas Constitution. Carr v. Brasher, 776 S.W.2d

567, 570 (Tex. 1989); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–40,

94 S. Ct. 2997, 3007 (1974) (stating, “Under the First Amendment there is no such

thing as a false idea. . . . But there is no constitutional value in false statements of

fact.”). To put it another way, a plaintiff, to establish a cause of action for libel, is

required to prove that “the defendant published a false, defamatory statement of

fact, rather than an opinion,” or “[i]n other words, the plaintiff must prove that the

statements    contained    false,   defamatory    facts   rather   than   opinions    or

characterizations.” Columbia Valley Reg’l Med. Ctr. v. Bannert, 112 S.W.3d 193,

198 (Tex. App.—Corpus Christi 2003, no pet.).

       Whether a statement is an opinion or a statement of fact is a question of law

for the courts. Carr, 776 S.W.2d at 570; Bannert, 112 S.W.3d at 198. The

threshold issue of whether words are capable of defamatory meaning is also a

                                           38
question of law for the courts. Turner v. KTRK Television, Inc. 38 S.W.3d 103,

114 (Tex. 2000); Vice, 318 S.W.3d at 17; Bannert, 112 S.W.3d at 198. The courts

construe the statement as a whole in light of the surrounding circumstances based

on how a person of ordinary intelligence would perceive it. Vice, 318 S.W.3d at

17; Bannert, 112 S.W.3d at 198. The test as to whether words or statements are

defamatory is the reasonable person test. Vice, 318 S.W.3d at 17. “The analysis

for distinguishing between an actionable statement of fact and a constitutionally

protected expression of opinion focuses on the statement’s verifiability and the

entire context in which it was made.” Id. at 18. A statement is capable of

defamatory meaning if it is both false and injurious to the reputation of the person

about whom it is made. See Casso v. Brand, 776 S.W.2d 551, 554 (Tex. 1989); see

also Gertz, 418 U.S. at 339–40, 94 S. Ct. 2997, 3007; N.Y. Times Co. v. Sullivan,

376 U.S. 254, 279–80, 84 S. Ct. 710, 726 (1964).

      In this case, as the majority states, “There is no evidence in the record that

this matter was being discussed by anyone other than the officials in charge of the

various investigations, and Lisa’s family.” Slip Op. at 20. Therefore, this is a

private person/private person defamation case, and Byles, as the plaintiff, had the

burden of proving that the statements upon which he based his defamation claims

were objectively verifiable statements of fact, that they were false and injurious to

his reputation, and that they were made negligently, i.e., were below the standard

                                         39
of care of an ordinary person making such a statement, given the entire context of

the statement—assuming they were not protected by section 261.106 as statements

made by Jesus in good faith in the course of assisting in the investigation of a

report of child abuse, i.e., L.S.’s outcry. See TEX. FAM. CODE ANN. § 261.106(a).

      The first statement, “Stephen’s hand on your granddaughter’s vagina isn’t

what dictates this,” is plainly not a verifiable statement of fact, but a statement of

opinion or characterization. See Bannert, 112 S.W.3d at 198. As such, it is

constitutionally protected speech. See Gertz, 418 U.S. at 339–40, 94 S. Ct. at

3007; Carr, 776 S.W.2d at 570.

      In the case of the second statement, neither the content nor the entire context

of the statement is objectively verifiable. Nor was the statement shown to be a

false statement of fact. See Vice, 318 S.W.3d at 18. The out-of-court unrecorded

statement by Jesus was made approximately two years before Juan’s deposition, in

which Juan testified as follows:

      Q:     What statement did Mister—or what statements did Jesus make
             about [Byles] to put him in a negative light?
      A:     That he had molested one of my—my niece’s kids.
      Q:     And who did he—well, strike that. Which child?
      A:     [L.S.]
      ....
      Q:     Okay. And when in time was it that Jesus made this statement
             to you?


                                         40
A:   This was in January—I believe January of ’08.
Q:   Okay. And how did the statement come about? Did he call
     you, or was it in person?
A:   It was a telephone call.
Q:   Okay. And he called you and said what?
A:   That, you know, he knew that Steven had done—had molested
     that—[L.S.]
Q:   Did he express it as an opinion that he thought the child had
     done—that Steven had done this, or that he expressed it as a
     fact?
A:   That he knew.
Q:   Did he—did Jesus report to you that he had reported to others
     negative comments about [Byles]?
A:   That he had reported to other family members that—right there
     and then he did not state that he had told anybody else, no.
Q:   Okay. And did you later come into any information that that
     had happened?
A:   Yeah.
Q:   What information did you receive?
A:   From one of my brothers that had come over to my house and
     they told me that he had already heard a recording and that
     they knew that, that she has been molested according to—
Q:   And where did they get that information from?
A:   My brother.
Q:   And your brother, you’re talking about your brother, Jesus,
     reported it to what other family members?
A:   My brother Gabriel and my brother Andy as far as I knew
     because they had came and told me.



                                41
(Emphasis added.) The recording that Juan testified Jesus had heard was not

introduced into evidence by Byles as proof of the falsity or recklessness of Jesus’s

report.

      As it is, this testimony does not even support the trial court’s finding that

Jesus had told Juan “that a doctor had examined L.S. and that the doctor had

confirmed that L.S. had been sexually molested by [Stephen Byles].” The closest

Juan’s deposition testimony comes to conforming to the finding of fact by the trial

court is the following:

      Q:     Okay. Now, did Jesus make any statements to you with regards
             to whether or not [L.S.] had been taken to a doctor with regards
             to the sexual abuse claim?
      A:     Yes. Yes. Because I—I really hadn’t known that she went
             until he told me.
      Q:     And what did he tell you about the doctor appointment?
      A:     That she was a—confirmed that she was molested.
      Q:     That a doctor had confirmed that she had been sexually
             molested by [Byles]?
      A:     Yes.
      Q:     And he told you that in the same conversation?
      A:     That was the only conversation I had with him.

      In this deposition testimony, Juan did no more than confirm words put in his

mouth by Byles’s attorney after he had failed to use those words in his initial

deposition testimony. However, even if the content of Jesus’s statement is taken to

be what the trial court found it to be—that Jesus told Juan that a doctor had
                                        42
confirmed that L.S. had been sexually molested by Byles—this statement is not

shown by anything in the record of this case to be false. Byles had the burden of

establishing the falsity of Jesus’s statement, and he failed to include in the record

either the tape of the CAC interview, which Juan testified Jesus had heard, or

L.S.’s medical records that might have shown that Jesus’s report was false.

Therefore, Byles failed to carry his burden of proof. See Foster, 541 S.W.2d at

811; El-Khoury, 241 S.W.3d at 85; AccuBanc Mortg., 93 S.W.2d at 149.

Moreover, Valerie’s statement that the doctor reported to her on October 22, 2007,

that “there was discharge[] but it was inconclusive if there was sexual abuse” tends

to confirm the substantial truth of the statement, or, at least, tends to negate the

statement’s having been made recklessly and with disregard of its truth or with

actual knowledge of its falsity.

          Furthermore, because Jesus’s statement to Juan was supported by evidence

deemed credible enough by both CPS and the family court to justify a court order

enjoining Lisa from allowing Byles to be around L.S., it cannot be said that Jesus’s

statement was unreasonable or that his statement was made in bad faith. See Vice,

318 S.W.3d at 17 (setting out reasonable person test); TEX. FAM. CODE ANN.

§ 261.106(c) (stating that immunity does not extend to statements made in bad

faith).




                                         43
      Were I to reach the merits of Byles’s defamation claim, I would hold that

Jesus’s statement to Lisa was either an expression of Jesus’s opinion or his

characterization of what he had been told by Valerie and had heard on the

recording and that Byles did not prove that Jesus’s statement to Juan was false.

See Bannert, 112 S.W.3d at 198. Nor did Byles show that the statements on which

Jesus’s liability was predicated were made negligently or with reckless disregard

for the truth. Rather, they were made in the context of the investigation of an

outcry which Jesus and all persons with knowledge were required by Family Code

section 261.101 to report, and they have evidentiary support in the record.

Therefore, even if I did not believe, as I do, that the trial court’s entry of a

judgment against Jesus for damages for defamation was barred by Jesus’s statutory

immunity from civil liability under Family Code section 261.106, I would hold that

the trial court erred in entering judgment in favor of Byles on his defamation

claims.

      Accordingly, I would sustain appellant’s second issue.

                                   Conclusion

      This is a case of fundamental jurisdictional error. I believe the trial court

erred in trying appellant Jesus Miranda’s defense of immunity from liability under

Family Code section 261.106 for statements made to family members during the

course of an investigation of alleged child sexual abuse simultaneously with its


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trial of the merits of appellee Stephen Byles’s defamation suit against Jesus based

on those statements; that it erred in finding Jesus not to be immune from liability

for his statements; and that it erred in exercising jurisdiction over the merits of

Byles’s defamation claim and in rendering a judgment for damages against Jesus

on that defamation claim.

      I would hold that Jesus was immune from civil liability on Byles’s

defamation claim under Family Code section 261.106. Therefore, the trial court

should have granted Jesus’s claim of immunity from liability, and it should have

dismissed Byles’s defamation claim for failure to state a claim upon which relief

could be granted.

      Even if I were to find that Jesus was not immune from liability for his

statements and that, therefore, the trial court did have jurisdiction to enter a money

judgment against him for defamation, I would still find that the single hearsay

statement allegedly made by Jesus to his brother that the majority agrees is

defamatory was not shown to be a false statement of fact capable of supporting a

judgment for liability for defamation. Accordingly, I respectfully dissent from the

majority’s opinion and judgment affirming the trial court’s judgment.




                                         45
      I would vacate the judgment of the trial court and render the judgment the

trial court should have rendered, dismissing the case for lack of jurisdiction.

Alternatively, I would reverse and render judgment that Byles take nothing by his

claims.




                                            Evelyn V. Keyes
                                            Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Justice Keyes, dissenting.




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