Opinion issued January 23, 2020




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-19-0009-CV
                           ———————————
     PROPUBLICA, INC.; HEARST NEWSPAPERS, LLC D/B/A THE
    HOUSTON CHRONICLE, CHARLES ORNSTEIN, AND MICHAEL
                   HIXENBAUGH, Appellants
                                       V.
                DR. O. HOWARD “BUD” FRAZIER, Appellee

                   On Appeal from the 234th District Court
                            Harris County, Texas
                      Trial Court Case No. 2018-45639

                         MEMORANDUM OPINION

      Dr. O. Howard “Bud” Frazier sued ProPublica, Inc., Hearst Newspapers, LLC

doing business as The Houston Chronicle, Charles Ornstein, and Michael

Hixenbaugh [collectively, “ProPublica”], for defamation and intentional infliction
of emotional distress [“IIED”] in relation to a news story published about him on

ProPublica’s website and in The Houston Chronicle. ProPublica moved to dismiss

under the Texas Citizens Participation Act [“TCPA”]1, and the trial court denied its

motion. Because the trial court failed to follow the proper procedures in TCPA

cases, we reverse the trial court’s order and remand for further proceedings.

                                   BACKGROUND

      Dr. O. Howard “Bud” Frazier is one of the world’s leading heart transplant

surgeons and is one of the medical researchers responsible for the development of

the Left Ventricular Assist Device [“LVAD”], a device implanted in patients that

pumps blood through the heart when the heart can no longer do so on its own.

Frazier is the Director of Cardiovascular Surgery Research at Texas Heart Institute

[“THI”], which is affiliated with, and housed and supported by, St. Luke’s Episcopal

Health System.




1
      See TEX. CIV. PRAC. & REM. CODE §§27.001–27.011. The Texas Legislature
      amended certain provisions of the TCPA in 2019. Act of May 17, 2019, 86th Leg.,
      R.S., ch. 378, §§ 1–9, § 12, sec. 27.001, 27.003, 27.005–.007, 27.0075, 27.009–.010
      (to be codified at TEX. CIV. PRAC. & REM. §§ 27.001, 27.003, 27.005–.007, 27.0075,
      27.009–.010). The amendments became effective September 1, 2019. Id. at § 11.
      Because suit was filed before the effective date of the amendments, this case is
      governed by the statute as it existed before the amendments. See id. All our citations
      and analyses are to the TCPA as it existed prior to September 1, 2019.

                                            2
The Article

      On May 24, 2018, ProPublica published an article about Frazier on its website;

the identical article appeared on the Houston Chronicle website on the same date.

On Sunday, May 27, 2018, a print version of the article appeared in the Houston

Chronicle. The article contained a quote in the headline: “Things . . . I just couldn’t

imagine,” followed by the title: “A PIONEERING SURGEON’S HIDDEN

HISTORY OF RESEARCH VIOLATIONS, CONFLICTS OF INTEREST AND

POOR OUTCOMES.”

      The article recognized Frazier’s status as a pioneer in the field of mechanical

heart pumps, but also focused on:

      (a) findings of research protocol violations that led St. Luke’s/THI to
          voluntarily report the violations to the federal Office for Human
          Research Protections (“OHRP”), pledging several reforms, and
          repaying millions of dollars to the government;

      (b) allegations contained in a prior federal lawsuit filed against St.
          Luke’s/THI and Frazier;

      (c) assertions from several of Frazier’s colleagues about his conduct
          regarding the experimental LVAD research and reporting of its
          results;

      (d) Frazier’s failure to disclose conflicts of interest in medical journals;
          and

      (e) the high rate of mortality among Frazier’s patients, as reflected in
          official Medicare statistics.




                                           3
      The online versions of the article contain links to many of its authors’ sources.

Some of those sources include:

      (1) “The Self-Reporting Letter”—a July 2008 letter from St.
      Luke’s/THI to OHRP, in which it disclosed that it found “instances on
      ongoing research noncompliance in connection with” the HeartMate II
      Study. Specifically, the hospital reported that patients participated in
      Frazier’s HeartMate II Study even though they did not meet the
      qualifications for participation. St. Luke’s/THI agreed to repay
      millions of dollars that it had received in federal funding, to audit all
      then-current studies in which Frazier was the Principal Investigator, and
      to outsource their Institutional Review Board (“IRB”).

      (2) “The Board Summary”—a document prepared by St. Luke’s
      executives and presented to its Board of Directors, which was also
      described in the Self-Reporting Letter. The Board Summary found
      “ongoing research noncompliance” in connections with the protocols
      governing the HeartMate II Study. The Board Summary recommended
      repaying millions to the Centers for Medicare and Medicaid Services
      because of protocol violations in the HeartMate II Study “for claims
      associated with the use of the investigations devices in these patients.
      The Board review also references a Legal Compliance Review
      conducted by the Anson Group that focused on the HeartMate II study
      and its protocols. Finally, the Board Summary included information
      submitted by Dr. James Young, who was retained to assess the
      transplant program led by Frazier. In the Board Summary, Young
      characterized the program as “an aggressive program that pushes the
      limits.”

      (3) “The Federal Qui Tam Lawsuit”—a lawsuit filed by St. Luke’s
      employee, Joyce Riley, against St. Luke’s. In the lawsuit, Riley alleged
      that an unlicensed physician, Dr. Branislav Radovanevic (“Brano”),
      illegally treated heart failure patients at St. Luke’s/THI. The article
      quoted from Riley’s pleadings: “Dr. Frazier knew of, directed, and
      personally participated in the fraudulent conduct and false claims
      described herein.” The Article then summarized portions of Frazier’s
      deposition in the lawsuit regarding Brano’s participation in treating
      Frazier’s patients.


                                          4
      (4) “Statements by Frazier’s Former Colleagues”—Dr. Frank Smart,
      a THI transplant cardiologist from 2003-2006, stated that Frazier
      implanted heart pumps in some patients that were not sick enough to
      justify the implant and that it was not the right thing to do. He also
      reported that there were instances in which, once a patient received a
      pump, Frazier would then turn down donor hearts for those patients.
      Smart also reported “hiding” patients from Frazier so that he would not
      recommend experimental heart pumps to them. Dr. Billy Cohn, a THI
      heart surgeon reported that Frazier did not want to publish their findings
      that a quarter of the initial 71 patients implanted with the heart pump
      had suffered strokes. Cohn said that Frazier didn’t want to “freak people
      out” with research showing a high rate of serious complications. The
      Article says that the “initial stroke findings were never published in a
      formal study,” but acknowledged that they were included in short
      abstracts at presentations.

      (5) “Evidence Regarding Failure to Disclose Conflicts”—the Article
      discussed research the reporters had obtained showing that Frazier
      disclosed conflicts of interest in only 10% of his papers. When one
      journal was contacted, its editor contacted Frazier for a response. The
      editors reported back that Frazier had agreed to submit revised
      disclosure forms, which he did. And, the Board Summary had noted
      that he had failed to accurately complete a conflict of interest form and
      that the hospital had addressed the issue with him, but “Dr. Frazier still
      doesn’t understand.”

      (6) “Medicare Data Regarding Dr. Frazier’s High Mortality Rate”—
      the Article stated that from 2010-2015, Frazier’s mortality rate for
      LVAD patients was almost 50%, which the Article described as “one
      of the highest mortality rates in the nation.” The Article included
      Frazier’s objection to using only Medicare patients in his mortality, but
      included an explanation of why it used such data, as well as including
      a hyperlink showing how it conducted its analysis.

      After the Article was published, ProPublica made two minor corrections, as

follows:

      An earlier version of this article incorrectly said that an abstract
      describing strokes in patients who received HeartMate II LVADs had

                                          5
      been presented at one conference. It was presented at two conferences.
      It also said that the abstract was not available online; the second abstract
      was online prior to publication of this article. The article also
      incorrectly characterized a legal settlement involving St. Luke’s
      hospital, O.J. “Bud” Frazier and other defendants. The story said the
      $500,000 settlement did not include the share given to the nurse who
      brought the suit; the settlement did include the nurse’s share.

The TCPA Motion to Dismiss Proceedings

      On July 9, 2018, Frazier sued for defamation and intentional infliction of

emotional distress. After ProPublica filed its answer, it filed, within the statutory

deadline, a Motion to Dismiss pursuant to the TCPA. Regarding Frazier’s

defamation claim, the motion alleged that (1) Frazier could not establish material

falsity; (2) the article is privileged as a fair report of official proceedings and fair

comment on matters of public concern; (3) that the Article accurately reported third-

party allegations on matters of public concern, and that (4) many of the statements

mentioned in Frazier’s Petition are nonactionable opinion. Regarding Frazier’s IIED

claim, ProPublica argued it should be dismissed because (1) IIED is a “gap-filler”

under Texas law and is barred by the First Amendment, and (2) its conduct was not

“extreme and outrageous” as a matter of law.

The Hearing on the Motion to Dismiss

      On December 11, 2018, the trial court held a hearing on ProPublica’s Motion

to Dismiss. Before the hearing, ProPublica moved to strike several of Frazier’s

exhibits, primarily the expert report of Shannon LeBove. ProPublica argued that


                                           6
LeBove’s report “purport[ed] to interpret the meaning of the article.” Specifically,

ProPublica complained that LaBove “was asked by [Frazier’s] counsel to evaluate

whether an ordinary reader would believe the false impressions of Dr. Frazier

created by the May 2018 article.”        ProPublica objected that LeBove’s report

constituted improper evidence because it purported to determine what a

“hypothetical, objectively reasonable reader” would believe based on the article, and

that such a determination was “a quintessentially judicial test.” ProPublica also

objected that LeBove’s report was based, in part, on a survey of 12 people, who were

asked to give their impressions of the story. The trial court denied ProPublica’s

motion to strike LeBove’s report, stating that “I will give it the weight it deserves.”

In the trial court’s Findings of Fact and Conclusions of Law, the trial court

referenced the LeBove report four times as evidence it had relied on in reaching its

decision.

      At the hearing on the Motion to Dismiss, the parties also argued to the trial

court about whose evidence it should consider in determining whether both parties

had met their respective burdens of proof on the issue of falsity/substantial truth. At

trial, Frazier’s counsel argued that substantial truth was not a proper defense to be

raised at the dismissal stage of the case.

      [Frazier’s counsel]: And I think to be very, very clear that substantial
      truth, first of all, is not a defense at this stage. The Texas Supreme Court
      has been clear that because the . . Plaintiffs have the burden at this stage
      of litigation that to establish falsity, substantial truth is not a defense.
                                             7
And that is the D Magazine case[.] . . . And the Texas Supreme Court
is clear. At this juncture it’s substantial truth, which are all of the
arguments that the Defendants are making that they had all of these
different things that showed that what they wrote in the report or that
article is true. That’s not a defense at this stage. So, what we’ve heard
from most of the Defendants’ argument is not relevant to what the Court
has to decide. The only thing for us is establishing a prima facie case
of defamation and the Defendants establishing their defense by a
preponderance of the evidence. That’s it. We’re not here at this point
trying to establish fact questions. And the Fort Worth Court said it best.
“That the Supreme Court has rejected an argument that in a case
involving a matter of public concern once a Plaintiff in a TCPA case
has met her burden to establish by clear and specific evidence a prima
facie case for falsity the Motion to Dismiss can be defeated by
providing evidence to the contrary.” The Texas Supreme Court has
rejected the idea that if they provide evidence contradicting what we
said is false that that helps them in any way. (Emphasis added).

[Trial Court]: That sounds very similar to the Supreme Court standard
of disregarding evidence to the contrary. Maybe not indulging all
inferences in your favor, but at least it sounds like the idea that we’ve
had for a while of disregarding evidence to the contrary, which I know
they told me some case law that says that’s not the case here. But you’re
saying the D Magazine case supports your proposition? (Emphasis
added).

[Frazier’s counsel]: Yes, Your Honor. Like I said . . . . It’s very clear. .
..

ProPublica’s counsel responded on the substantial-truth issue as follows:

[W]ith regard to the D Magazine case. They are trying to turn First
Amendment law on its head and completely misinterpreting this case.
We’re talking about two sides of the same claim, material falsity and
substantial truth. We’re allowed to show our side of that claim. So
they’re trying to turn that on its head and that is entirely inapposite with
the First Amendment. So, they’re supposed to be able to establish
material falsity. We do have the right to establish substantial truth and
D Magazine does not say differently. (Emphasis added).


                                     8
      After the trial court denied ProPublica’s motion, it filed Findings of Fact and

Conclusions of Law. The Findings of Fact reference only evidence presented by

Frazier, and the Conclusions of Law state, “Defendants cannot raise the “substantial

truth” defense at this stage of the proceedings as a matter of law.”

Findings of Fact and Conclusions of Law

      In its Findings of Fact and Conclusions of Law, the trial court found that the

Article created five materially false impressions: (1) that Frazier had federal

research violations, (2) that Frazier had ethical violations, (3) that Frazier hid

research showing an increased rate of stroke in LVAD patients, (4) that Frazier had

conflicts of interest that impacted the accuracy of his research about the HeartMate

II, and (5) that Frazier was an old and incompetent surgeon who should not have

been operating in his seventies. After concluding that Frazier had presented clear

and specific evidence that these impressions were false, the trial court denied

ProPublica’s Motion to Dismiss, and this interlocutory appeal followed.

                      DENIAL OF MOTION TO DISMISS

      In its first issue, ProPublica contends that the trial court erred in denying its

Motion to Dismiss under the TCPA. In connection with this issue, ProPublica

contends that the trial court failed to properly apply the TCPA by (1) refusing to

consider its arguments and evidence establishing that the article is substantially true;

(2) refusing to consider its arguments and evidence establishing the fair reporting


                                           9
and fair comment privileges set forth in TEX. CIV. PRAC. & REM. CODE §

73.002(b)(1),(2); (3) refusing to consider appellant’s arguments and evidence

establishing a complete defense for Frazier’s intentional-infliction-of-emotional-

distress claim; and (4) relying on a “legally irrelevant and fatally flawed expert report

and survey” in finding that Frazier had met his evidentiary burden to overcome

dismissal. We address each argument respectively.

Standard of Review and Applicable Law

      The Texas Citizens Participation Act is a bulwark against retaliatory lawsuits

meant to intimidate or silence citizens on matters of public concern. Dallas Morning

News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019); see In re Lipsky, 460 S.W.3d

579, 586 (Tex. 2015). A defendant in a case that “is based on, relates to, or is in

response to a party’s exercise of the right of free speech” may move for dismissal

under the Act. TEX. CIV. PRAC. & REM. CODE § 27.003(a). Dismissal requires two

steps. First, the party moving for dismissal must show, by a preponderance of the

evidence, that the “legal action is based on, relates to, or is in response to a

[movant]’s exercise of the right of free speech.” Id. § 27.003(a) (internal punctuation

omitted). The burden then shifts to the plaintiff to establish “by clear and specific

evidence a prima facie case for each essential element of the claim in question.” Id.

§ 27.005(c). Additionally, subsection (d) requires a court to dismiss the legal action




                                           10
if “the moving party establishes by a preponderance of the evidence each essential

element of a valid defense to the nonmovant’s claim.” Id. § 27.005(d).

      A prima facie case is “the minimum quantum of evidence necessary to support

a rational inference that the allegation of fact is true.” Hall, 579 S.W.3d at 377;

KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 721 (Tex. 2016) (citing Lipsky,

460 S.W.3d at 590). Requiring “clear and specific evidence” means the plaintiff

“must provide enough detail to show the factual basis for its claim” and must provide

enough evidence “to support a rational inference that the allegation of fact is true.”

Hall, 579 S.W.3d at 377; Lipsky, 460 S.W.3d at 590–91; TEX. CIV. PRAC. & REM.

CODE § 27.005(c). The plaintiff may rely on circumstantial evidence—indirect

evidence that creates an inference to establish a central fact—unless “the connection

between the fact and the inference is too weak to be of help in deciding the case.”

Hall, 579 S.W.3d at 377; Lipsky, 460 S.W.3d at 589.

      If the plaintiff fails to carry its burden—or if the movant establishes by a

preponderance of the evidence the essential elements of a valid defense under former

section 27.005(d) —the trial court must dismiss the suit. Hall, 579 S.W.3d at 377.

In deciding if dismissal is warranted, we consider all the “pleadings and supporting

and opposing affidavits stating the facts on which the liability or defense is based.”

Hall, 579 S.W.3d at 377; TEX. CIV. PRAC. & REM. CODE § 27.006(a). We review de

novo the court’s determinations that the parties met or failed to meet their burdens


                                         11
of proof under section 27.005. See Hall, 579 S.W.3d at 377; see generally TEX. CIV.

PRAC. & REM. CODE § 27.005.

         Neither party disputes that the Act applies to this case. Thus, the burden under

subsection (c) shifts to Frazier to make out a prima facie case for each element of

his claims. See TEX. CIV. PRAC. & REM. CODE § 27.005(c), (d). The essential

elements of a defamation claim are (1) the publication of a false statement of fact to

a third party, (2) that was defamatory concerning the plaintiff, and (3) was made

with the requisite degree of fault. Dall. Morning News, Inc. v. Tatum, 554 S.W.3d

614, 623 (Tex. 2018). Of these elements, only falsity is in dispute. To not be false,

“[a] statement need not be perfectly true[ ] as long as it is substantially true.” Toledo,

492 S.W.3d at 714 (citing Neely v. Wilson, 418 S.W.3d 52, 63–64 (Tex. 2013)). If

Frazier successfully makes a prima facie showing, ProPublica must establish its

subsection (d) claim that a preponderance of the evidence supports its defenses. TEX.

CIV. PRAC. & REM. CODE § 27.005(d).

Refusing to Consider ProPublica’s Substantial-Truth Defense

         It is clear from the Findings of Fact and Conclusions of Law that the trial court

disregarded, as it was urged to do so by Frazier’s counsel, all ProPublica’s evidence

and arguments about substantial truth. ProPublica contends this was error. We

agree.




                                             12
      The case that Frazier urged the trial court to rely on is D Magazine Partners,

LP v. Rosenthal, 529 S.W.3d 429 (Tex. 2017). In D Magazine, the gist of the alleged

defamatory story was that the plaintiff, Rosenthal, had fraudulently obtained welfare

benefits. Id. at 439. The court held that Rosenthal presented a prima facie showing

of falsity by introducing evidence that the Texas Health and Human Services

Commission had conducted an investigation and had concluded that she engaged in

no wrongdoing in obtaining the welfare benefits. Id. On appeal, D Magazine argued

that it was entitled to dismissal because it had established its truth defense by a

preponderance of the evidence. Id. at 440. The court disagreed that D Magazine

had proved its defense by a preponderance of the evidence. Id. In so holding, it

noted that, “[b]ecause falsity is an element of Rosenthal’s claim, at this stage of the

proceeding she was required to make a prima facia case by clear and specific

evidence that the gist of the article was not substantially true. As discussed,

Rosenthal has met this burden.” Id. (citation omitted).

      At least one appellate court has interpreted D Magazine to mean that if a

plaintiff makes a prima facia showing of falsity, the media defendant is prohibited

from attempting to prove its substantial-truth defense by a preponderance of the

evidence by producing evidence that contradicts the plaintiff’s prima facia evidence.

See Van Der Linden v. Khan, 535 S.W.3d 179, 200 (Tex. App.—Fort Worth 2017,

pet. denied) (“[T]he supreme court has rejected the argument that in a case involving


                                          13
a matter of public concern, once a plaintiff has met his burden to establish by clear

and specific evidence a prima facia case for falsity, the motion to dismiss can be

defeated by providing evidence to the contrary.”).

         We believe that the Fort Worth court reads D Magazine too broadly. While it

is true that D Magazine does not detail the media defendant’s substantial-truth

evidence, it does not say that the defendant’s arguments and evidence should not be

considered at all. We believe that, even if the plaintiff makes a prima facia showing

of falsity with its own evidence, the defendant should be given the opportunity to

meet its higher burden of proof—preponderance2—on the falsity/substantial truth

issue.

         Indeed, a more recent case from the Texas Supreme Court indicates that the

substantial-truth defense continues to exist, and the defendant may attempt to

establish it by a preponderance, even after a prima facia case of falsity has been

made. In Dallas Morning News, Inc. v. Hall, the court noted that “[if] the plaintiff

fails to carry its [prima facie] burden—or if the movant establishes the essential

elements of a valid defense under section 27.005(d)—the trial court must dismiss

the suit.” 579 S.W.3d at 377. The court first considered only the plaintiff’s evidence



2
         We note that, effective September 1, 2019, defendants must prove their defenses “as
         a matter of law,” an even higher standard than “preponderance.” See TEX. CIV.
         PRAC. & REM. CODE § 27.005(d).

                                             14
of falsity before concluding that the plaintiff had failed to make a prima facie

showing of falsity. Id. at 379. The defendant had also argued that the trial court

improperly rejected its substantial-truth defense under section 27.005(d). The

supreme court did not evaluate whether the defendant had met its defense burden,

noting that “[b]ecause we hold that [the plaintiff] failed to carry its burden to survive

dismissal under section 27.005(c), we need not decide whether [the defendant]

established its substantial-truth defense under section 27.005(d).” Id. at 380. The

clear implication of these words is that, had the plaintiff made a prima facie showing

of falsity, the supreme court would have considered whether the defendant had

proved its substantial-truth defense. The supreme court did not question whether the

substantial-truth defense could be proved by a defendant even after a plaintiff had

made a prima facie showing of falsity.

      Indeed, other courts have considered media defendants’ defenses even after a

plaintiff makes a prima facie showing. See Tervita, LLC v. Sutterfield, 482 S.W.3d

280, 285 (Tex. App.—Dallas 2015, pet. denied) (dismissing based on defendant’s

judicial-proceeding privilege and stating that “even if plaintiff met this [prima facie]

burden, the trial court was required to dismiss his claims if [defendant] established

by a preponderance of the evidence each essential element of a valid defense to

[plaintiff’s] claim”). This is true even when a plaintiff makes a prima facie showing

in a defamation claim. See Camp v. Patterson, No. 03-16-00733-CV, 2017 WL


                                           15
3378904, at *10 (Tex. App.—Austin August 3, 2017, no pet.) (considering

defendant’s substantial-truth defense and concluding that it had not been proven by

preponderance of evidence after plaintiff’s prima facie showing of defamation).

      We believe that our interpretation is consistent with the statute, which

provides: “Notwithstanding the provisions of Subsection (c) [which requires the

plaintiff to make a prima facia showing], the court shall dismiss a legal action against

the moving party if the moving party establishes by a preponderance of the evidence

each essential element of a valid defense to the nonmovant’s claim.” TEX. CIV. PRAC.

& REM. CODE § 27.005(d). The statute itself makes it clear that the defendant’s

ability to put on evidence of its substantial-truth defense is not affected by the

plaintiff’s prima facie showing of falsity. Although falsity and substantial truth are

two sides of the same coin, the parties, under the statute, have different burdens of

proof. It makes no sense that a prima facie showing of falsity would always defeat

a preponderance of substantial-truth. To accept the trial court’s interpretation of the

burden-shifting analysis in TCPA cases, i.e., that the burden never shifts on falsity

if the plaintiff makes a prima facie showing, would deny media defendants the right

to attempt to meet their own preponderance burden of proof. In fact, even before

the defenses were incorporated into the TCPA in section 27.005(d), this Court held

that “[a]n interpretation of the TCPA that would prohibit a movant from procuring

dismissal based on a showing of truth would thwart the Legislature’s declared


                                          16
purpose for enacting the TCPA . . . .” Newspaper Holdings, Inc. v. Crazy Hotel

Assisted Living, Ltd., 416 S.W.3d 71, 82 (Tex. App.—Houston [1st Dist.] 2013, pet.

denied).

      Because the trial court erred in not affording ProPublica the opportunity to

attempt to prove its substantial-truth defense by a preponderance of the evidence, we

sustain this portion of ProPublica’s first issue.

ProPublica’s Fair-Report and Fair-Comment Privileges

      In its Conclusions of Law, the trial court stated, “Defendants are not entitled

to dismissal based upon the fair reporting privilege or the fair comment privilege,

because neither privilege applies when a defendant acts with actual malice, as was

unilaterally stipulated for purposes of this motion, and when a plaintiff establishes

that defendants published false statements and impressions to a third party.”

      ProPublica contends the trial court erred by refusing to consider its arguments

and evidence establishing the fair reporting and fair comment privileges set forth in

section 73.002 of the Texas Civil Practices and Remedies Code, which provides:

      (a) The publication by a newspaper or other periodical of a matter
          covered by this section is privileged and is not a ground for a libel
          action. This privilege does not extend to the republication of a
          matter if it is proved that the matter was republished with actual
          malice after it had ceased to be of public concern.

TEX. CIV. PRAC. & REM. CODE § 73.002(a) (emphasis added).




                                           17
      The fair-report privilege bars liability for defamation when the publication is

a “fair, true, and impartial account” of judicial, executive, and other official

proceedings.    Id. § 73.002(b)(1)(A-D).         The fair-comment privilege covers

“reasonable and fair comment on or criticism of . . . matter[s] of public concern

published for general information. Id. § 73.002(b)(2). Neither privilege applies “to

the republication of a matter if it is proved that the matter was republished with

actual malice after it had ceased to be of public concern.” Id. § 73.002(a).

      However, as Frazier agrees in his brief, “the elements of falsity and of actual

malice overlap with the privileges.” And, the Supreme Court has noted that the

privileges found in section 73.002 “bear[] on substantial truth.” See Hall, 579

S.W.3d at 380. Because the trial court erroneously failed to consider ProPublica’s

substantial-truth defense, it similarly erred in refusing to consider its section 73.002

privileges.3

      Accordingly, we sustain this portion of ProPublica’s first issue.

ProPublica’s Intentional-Infliction-of-Emotional-Distress Defense

      In its conclusions of law, the trial court stated, “Defendants are not entitled to

dismissal based on defenses raised to Plaintiff’s claim of intentional infliction of

emotional distress because such defenses are dispositive legal questions and the


3
      We need not address ProPublica’s argument that it did not stipulate to actual malice,
      but that it only agreed not to require Frazier to prove it at the Motion to Dismiss
      stage. It is clear from the record that ProPublica did not stipulate to falsity.
                                           18
Texas Citizens Participation Act does not provide a procedural avenue for raising

such questions.”    Specifically, Frazier argues that ProPublica presents “legal

questions about IIED claims, not factual defenses that courts can weigh by the

preponderance standard”4 and that “[t]he proper avenue for Appellants’ IIED

arguments is not a TCPA motion but a motion to dismiss [under Rule 91a of] the

Texas Rules of Civil Procedure.”

      In support, Frazier cites only to a footnote in Youngkin v. Hines, 524 S.W. 3d

278, 289 n.7 (Tex. App.—Waco 2016), rev’d, 546 S.W.3d 675 (Tex. 2018), in which

the appellate court refused to address a legal defense raised for the first time on

appeal and noted, in dicta, that “the TCPA does not provide a procedural avenue for

raising potentially dispositive legal questions; it only provides for the nonmovant’s

establishment of a prima facie case or the movant’s establishment of a valid defense

by a preponderance of the evidence.” Id.

      However, Youngkin has been reversed and Frazier cites no other authority

suggesting that legal defenses, in addition to factual defenses that must be proved by

a preponderance, may not be raised in response to a TCPA motion to dismiss. Such

an interpretation would also seem to run afoul of section 27.011 of the TCPA, which

provides that “[t]his chapter does not abrogate or lessen any other defense, remedy,


4
      In its Motion to Dismiss, ProPublica made the legal argument that Frazier’s IIED
      claim was not permissible because it is a “gap-filler” claim and that an alternative
      cause of action, i.e., defamation, would provide him a remedy.
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immunity, or privilege available under other constitutional, statutory, case, or

common law or rule provisions.” TEX. CIV. PRAC. & REM. CODE § 27.011.

      But, we also note that ProPublica did, in fact, raise a factual defense to

Frazier’s IIED claim. Specifically, ProPublica claimed that Frazier could not make

a prima facia showing for his IIED claim because he could not show “extreme and

outrageous” conduct by ProPublica. Indeed, Frazier’s claim that ProPublica caused

him severe emotional distress is based on his claim that it published a false story

about him. But, publication of a substantially true but embarrassing story is not

extreme and outrageous conduct. See KTRK Television v. Felder, 950 S.W.2d 100,

108 (Tex. App.—Houston [14th Dist.] 1997, no writ) (holding that “substantially

true” broadcast was not outrageous conduct as matter of law). Thus, just as the trial

court erred in refusing to consider ProPublica’s substantial-truth defense and its

section 73.002 privileges, it also erred in failing to consider ProPublica’s IIED

defense.

Consideration of Irrelevant Expert Report

      At the Motion to Dismiss hearing, Frazier offered, and the trial court admitted,

over objection, a report and survey conducted by Dr. Shannon LaBove. LaBove

stated that she “was instructed to assume that the impressions made by the

Defendants,” i.e., Frazier’s interpretation of the “gist” of the statements in the article,

were false. LeBove then conducted a survey and asked whether the participants


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would agree with the article if they were given additional information that Frazier

claimed was favorable to him. The trial court relied on the LaBove Report and

Survey in its Findings of Fact, stating four times, “Dr. Frazier presented clear and

specific evidence—in the form of an expert report and the impressions of focal group

participants—that an average reader would not have agreed with the false impression

. . . if the reader had known the truth and full context.”

      At the hearing and on appeal, ProPublica contends, among other things, that

the LeBove report is irrelevant because it provides subjective interpretations of

whether the article is susceptible of defamatory interpretation, which is an issue that

should be objectively determined by the court.

      However, in light of this Court’s holding that the trial court erred in failing to

consider any of ProPublica’s substantial-truth, privilege, and IIED defenses, we need

not also determine whether it considered inadmissible evidence by Frazier, and we

decline to do so. The trial court may, of course, revisit its evidentiary rulings on

remand should it decide to do so.

    CROSS-POINT ON CONSTITUTIONALITY OF TCPA DEFENSES

      In a conditional cross-point on appeal,5 Frazier contends that, even if the trial

court erred by refusing to consider ProPublica’s defenses, this Court should



5
      Because Frazier’s cross-point does not seek to alter the trial court’s judgment, no
      notice of appeal was required. See Dean v. Lafayette Place (Section One) Council
                                           21
nonetheless affirm because section 27.005(d) is unconstitutional. Specifically,

Frazier argues that section 27.005(d), which allows defendants to prove their

defenses by a preponderance of the evidence, usurps a plaintiff’s right to a jury

because it allows the trial court to weigh evidence and determine whether the

defendant has brought forth a preponderance to support its defense.

      ProPublica responds that we have no jurisdiction over Frazier’s

constitutionality argument because the trial court did not consider and address it in

its order denying the motion to dismiss. We agree with ProPublica.

      In Hearst Newspapers, LLC. v. Status Lounge, Inc., the plaintiff argued in its

response to the TCPA motion to dismiss and in a separate motion that the TCPA was

unconstitutional. 541 S.W.3d 881, 894 (Tex. App.—Houston [14th Dist.] 2017, no

pet.). The trial court denied the defendant’s TCPA motion to dismiss without

mentioning constitutionality and denied by separate order the motion seeking to

declare the statute unconstitutional. Id. The appellate court held that it did not have

jurisdiction over the plaintiff’s constitutional arguments because the applicable

interlocutory appeal statute limits the court’s jurisdiction to review of the order

denying the motion to dismiss. Id. (“Because this court has jurisdiction only over

the trial court’s interlocutory order denying the defendants’ motions to dismiss under



      of Co-Owners, Inc., 999 S.W.2d 814, 817 (Tex. App.—Houston [1st Dist.] 1999, no
      pet.)
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the TCPA . . . , we cannot consider the order denying Status Lounge’s motion to

declare the TCPA unconstitutional on interlocutory appeal”).

      In this case, the trial court’s order denying the motion to dismiss does not

address plaintiff’s constitutionality argument and constitutionality is not mentioned

in the trial court’s Findings of Fact and Conclusions of Law. Indeed, when Frazier

moved for a ruling on his constitutional challenge, he stated that he “does not ask

the Court to modify its December 18 order denying Defendants’ motion to dismiss.”

The trial court did not, even after a request to do so, rule on Frazier’s constitutional

challenge. Because the trial court never ruled on the constitutionality of the TCPA

in connection with the Motion to Dismiss, this Court has no interlocutory jurisdiction

to consider it. See Status Lounge, 541 S.W.3d 894.

                                   CONCLUSION

      ProPublica argues not only that the trial court erred by not considering its

substantial-truth defense, it also asks this Court to do so as a matter of first

impression and to render a judgment of dismissal in its favor. However, it is clear

from the record that the trial court never considered ProPublica’s substantial-truth

defense, its privileges, or its IIED defenses when ruling on the motion. All of these

are integral parts of a proper analysis of a motion to dismiss under the TCPA. Thus,

as a court of review, we remand to the trial court to give it an opportunity to do so.

See Iola Barker v. Hurst, No. 01-17-00838-CV, 2018 WL 3059795, at * (Tex.


                                          23
App.—Houston [1st Dist.] June 21, 2018, no pet.) (memo. op.) (“We do not,

however, reach the merits of [the defendants’] TCPA motion to dismiss with respect

to [plaintiff’s] claim because there is no indication in the record that the trial court

actually considered the motion in regard to her.”).

        Accordingly, we reverse the trial court’s order denying ProPublica’s Motion

to Dismiss and remand for further proceedings. We overrule all pending motions as

moot.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Landau and Hightower.




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