*1 why report his 1681b(a) he credit eating be knew can A violation Section run, finding appellant supports If criminal a was a civil or a violation. either violation,2 be Even under the Wood appellant would acted bad faith. then civil test, legally sufficient he had damages course entitled —of I appel would review actually support No one the conviction. none here. used appellant’s remaining from the credit in the brief. personal lant’s information issue not, report respect- was majority and that the does I report, he knew Because the Moreover, criminal case. being fully run his dissent. reported not need to be civil case would Department. Police
to the Galveston requires knowing
A criminal violation appellant violation.3
and intentional Yet. accidentally run report that the was
knew request at
in an manner incorrect attorney. prosecuting PARTNERS, D jury appel A all of free to D MAGAZINE L.P. disbelieve- d/b/a testimony Magazine, Magazine his Limited Part testimony including lant’s — Inc., ners, L.P., Media, report grievance Allison that he told was police. jury Appellants The free believe testimony that knowingly the officers’ he v. identity theft. See report made a false Janay ROSENTHAL, Appellee Bender (Tex State, 235 S.W.3d Jones .Crim.App.2007) (jury to believe is.free No. 05-14-00951-CV part). witness whole or disbelieve Texas, Appeals Court of addition, Donoho.testified Officer Dallas. filed two appellant already different August complaints against arresting Opinion officer Filed investigated first was Tennessee. to be The second unfounded.
determined allega- exact
complaint contained the same again reinvestigated He found
tions. allegations groundless un-
those to be testimony jury
founded. From this certainly
could have that this lat- believed grounded if in fact— grievance
est —even solely leverage made in his crimi-
nal trial “obtain action on'á grievance.”
valid There
D. is evidence bad faith. testimony appellant piece supply a critical of informa-
failed 29th,
tion, his letter from December indi- 1681n, 1681q. §§ 15 U.S.C. 2. See 15 U.S.C. 1681o. 3. See *5 Bloom, Dallas, P.
Jason Thomas J. Williams, Worth, Fort for Appellant. DeFeo,-Dallas, John E. Appellee. Francis, Myers, Before Justices Brown
OPINION Opinion by Myers Justice Partners, D Magazine D Mag L.P. d/b/a azine, Partners, L.P., Magazine Limited Media, and Allison Inc. appeal the trial court’s their denial of motion under the (“TCPA”) Participation Texas Act Citizens to- Janay dismiss Bender Rosenthal’s libel *6 s e Appellants bring on claim. thre issue (1) appellee appeal asserting did meet establishing of her burden on her libel cláim case each element evidence; (2) appellants established essential-elements one aby prepon or more defenses affirmative evidence; derance of the and case ¿'determination should be remanded appellants’ attorney’s fees and costs. We denying affirm the trial order court’s motion to dismiss.
BACKGROUND1 May years In and after divorcé chiíd-custody proceedings against her for- drained, financially mer husband left her summary appellee's 1. This factual response is drawn from the motion to dismiss and Rem, parties' pleadings statements in the and Code from the motion. See Tex. Civ. Prac. & (West 2015) appellants' affidavits and attachments to. 27.006 Ann. recordings government Appellee applied for benefits testified telephone calls to before Nutritional HHSC Supplemental Assis- under the published article was showed a (“SNAP”). woman had The Texas Program tance appellee. called to be pretending Commission Human Services Health and This appellee’s security caller social used (“HHSC”) application her and approved SNAP; number infor- date birth to obtain and In early under paid her benefits mation ac- appellee’s about benefits SNAP minor daughter and her count spending and her benefits. fiancé, living appellee’s with who were Appellee she recognized stated caller’s City Dallas near the a home owned ex-girlfriend voice as that of her fiancé’s home University Park. The harassing who been her. had Independent School Dis- Highland Park daughter trict, appellee’s attended Appellee, individually and as next friend in that district. public Appellee school against appel- of her daughter, filed suit lants, to receive SNAP benefits while alleging negli- continued causes of action for defamation,, se, Appellee gent per per her fiancé. testified libel libel with malice, dating fiancé, quod her with actual that while she was violations of ex-girlfriend. Deceptive the Texas Practices-Con- Appel- his Trade was harassed (“DTPA”) sumer Act impersonated Protection stated womari lee Identity and Protec- Theft Enforcement gotten persons impersonate police (“ITEPA”). tion & Act See Tex. Bus. representatives” control and “disease Com. (West §§ 17.41-.63 & appellee’s reputation. attempts rain Code Amn. (DTPA); §§ Supp.2014) id. 521.001-.152 Dof Maga- 2013 edition the March (West (ITEPA). Supp.2014) Appellee .re- zine, published an appellants article about quested damages actual exemplary as appellee’s The article described appellee. attorney’s well as an award her fees. benefits, change government of ad- Appellants moved under dismissal house, property fianeé’s dress listed TCPA. hearing, After court trust, daughter’s- living in her affidavit granted motion to as dismiss record, appellee’s criminal indigency, DTPA ITEPA action causes of and on spending grocery using stores and her all daughter. claims on behalf of appellee’s Appellee SNAP benefits. contends that The court denied motion dismiss as her, wrongly, having article accused appellee’s claims her own behalf for “welfare fraud.” Following committed libel. The court stated in the order that article, publication of the appellee’s fiancé “the Court has finds Plaintiff estab- *7 Appellee her. was up broke with shunned by lished evidence a acquaintances, and she had difficul- her. case of defamation.” ty employment. Appellee obtaining al- leged day, search of “[t]o. [her THE ARTICLE pulls up on internet] name numerous The upper- on article was mentioned regarding articles welfare fraud.” magazine’s left as corner cover fol- lows: published, article After the was HHSC, which
contacted administers [CRIME] Texas, to if in out SNAP find had done wrong. Deputy A anything Inspector THE CITIES PARK investigated told HHSC had General QUEEN WELFARE PAGE 16 the article the facts asserted in “found anyone has fraudulently ob- no page. itself was one top abused left page tained or otherwise state'benefits.” of the corner word n (HHSC), on was a “pulse.” Below that the left side which program. oversees the photograph' public of' with a towel But records indicate that Rosen- by- around her neck and shoulders taken thal must have been less than forthcom- in police County following Collin her arrest ing when she application renewed her n for sur- photograph theft. Appellee’s Every online in October 2012. six gilded months, rounded an ornate frame. The she has had to establish that photograph “Glamour caption, had the she is still An Eligibil- destitute. Janay shot: Rosenthal was Bender arrest- ity Department officer who would not County, for ed theft in Collin where'all provide his name confirmed Rosen- mug shots are with a towel gray taken per thal will receive month through $367 wrapped perp’s neck.” To the around April Assuming 2013. she has received right photograph part is the first every that same benefit month during n thetime she has been the article: SNAP, in enrolled [CRIME]1 figure we she has received a cool $10,276. THE PARK CITIES QUEEN WELFARE Boyfriend 2. Move in with Your University figured Park mom One has Rosenthal’s current driver’s license lists get stamps out how to food while Drive, an old address on La Cabeza in lap luxury. By Anonymous Dallas, Far North a house within the Park Cities Parent boundaries district where she at- spending Who extra wouldn’t like some high tended school. The house owned money each month? Cash for those lit- by a According Eligibility [R.B.]. to an Tom tle treats at 'Foods and officer, Whole Department it is the same ad- Well, yours just Thumb? can it be with dress contained the HHSC database ’ you a little All tó effort. have do and sworn to on an indigency affidavit of that, apply stamps. you food What’s that Rosenthal County filed Dallas say? You Park (Fal- live Cities.and August District Court on 2012. qualify? Hogwash. would never Just sifying felony.) such document is a have look 40-year-old at how Univer- 22, 2012, on February But in a divorce sity Janay mom Park Rosenthal Bender proceeding, Rosenthal filed document pulls it off. oath'stating under that her address had changed -a Irving location -in one The rest of article is out in set five Drive, Bryn University Mawr columns, headings “1. Know the with the Park. That same as address is listed System,” Boy- “2. Move in with Your a Highland child’s in Park ISD school friend,” “3,.Say Head the House- You’re directory. 6,000-square-foot, five- hold,” Job,’’ “4. Your Don’t Lose and -“5. bedroom UP house is on the rolls for tax Only Commit Minor Crimes.” million. $1.15 System 1.Know the Say You’re Head of the Household When applied Rosenthal funds from *8 Bryn the Supplemental Nutritional Assistance .The house is Mawr owned [M.Z.], Program (SNAP) 2011, sometime before President a real estate and she to prove qualified had she for wel- construction business....' He fare. about head of Information individuals re- household because he owns and available, ceiving in the publicly July police aid is not so lives house. In a report, say we can’t what she told ’the [M.Z.] sure Rosenthal stated photo, Health her fiancé. In a Services Commission recent Facebook Human a Thumb where wearing occurred at Tom store can be seen a dia- Rosenthal Card, hand, routinely Lone Star she uses her fin- ring mond left fourth the state uses to card that debit requires ger. application The SNAP .According funds. to distribute SNAP name, ad- applicants that- include officer, eligibility department, the HHSC number, dress, signature of phone 27, spent on December Rosenthal $43.50 gives you gifts pays or any who person East Tom Thumb. at the Lover’s Lane. bills, money your and the amount 5, at January spent On she $141.67 . brings “into Rosen- person the home.” (On Thumb. Janu- Preston/Royal Tom blank, to part according thal left- ary upscale, spending went more According to another HHSC officer. money at the Whole in welfare $23.19 District, Appraisal the Dallas Central Road.) Interestingly, on Preston Foods relationship has Rosenthal other report if her run-ins Rosenthal did even households, properties, too. are Nine law, might award with the the state still daughter’s the name of her listed in Goodman, Stephanie benefits. living trust. communications, says, HHSC director of Lose Your 4. Don’t Job drug only felony check for convic- “We you if boss. To Especially your are own tions.” benefits, applicants must receive SNAP Maga- Queen, Cities Park D Welfare a work employed participating or in be Mar, (footnote added). zine, at They must show bank state- program. copy of the article Besides the printed paychecks ments and either self-em- magazine, published the article was ployment records.2 These documents appel- form on also available electronic benefits, just required are not renew day through least the lants’ at website , started, According Ro- get them hearing on the motion dismiss. indigency, August affidavit of senthal’s just in a time she bank at the $60 ACT CITIZENS PARTICIPATION account, cashj. jewelry, no $50 “to of the TCPA is encour- purpose $3,000. 10-year-old Suzuki valued age safeguard rights constitutional shows that the box The affidavit-.also persons petition, speak freely, associ- -but “unemployed” marked was checked freely, participate in ate and otherwise Instead, out. the “self- then scribbled per- government to the maximum extent employed” box was checked. Her Octo- and, time, pro- law at the same mitted ber renewal lists a check- SNAP $135 rights of meritori- person tect the file to,the account, ing according HHSC eli- injury.” ous lawsuits for demonstrable officer, gibility department and $35 Rem, Prac. & 27.002 Code Ann. Tex. Civ. expenses for the Suzuki. (West 2015): Although we construe the only 5. Commit Minor Crimes liberally “to its purpose TCPA effectuate police fully,” Public records for Rosenthal show the act abro- and intent “does defense, gate any remedy, numerous theft-related arrests and eon- or lessen immunity, victions in One arrest under oth- privilege North Texas. available The internet version of the article renew. included That was inaccurate. stating: this location footnote at these when a client checks renews makes too, benefits, generally happens which ev story An version of this *Correction: earlier ery months. stated that HHSC checks income and re six only print person This in the version of records when first footnote sources SNAP,benefits, applies they not when the .article.
479 constitutional, case, ing statutory, opposing stating or com- affidavits er the § provisions.” liability Id. 27.011. facts on which mon law or rule or defense 27.006(a). § based.” Id. provides a mechanism for The TCPA early of a cause action that “is dismissal Lipsky, In re In 460 579 S.W.3d on, to, response to a or is based relates (Tex.2015) (orig. proceeding), supreme party’s right speech, free exercise - meaning court discussed the of the re- right petition, right to or of association.... quireihent that the' nonmovant ] “establish! ” § Id. 27.003. “‘Exercise of the by specific prima a evidence facie a right speech’ of free communica means case for each essential element.” “Clear” made in with a tion matter connection sure, “unambiguous, means or free “ §, 27.001(3), public concern.” Id. ‘Com doubt,” “specific” means or “explicit making munication’ or includes the submit relating to’a particular thing.” named Id. or ting any of a document statement “prima at 590. A facie case” is “the mini medium, oral, visual, including or form quantum mum' necessary to evidence written, audiovisual, or Id. electronic.”' support a rational inference that the alle §,27.001(1). public “‘Matter of concern! gation fact is (quoting true.” Id. In re (B) an issue to ... includes related envi Co., E.I DuPont de Nemours & 136 ronmental, economic, community or well- 218, (Tex.2004)). 223 S.W.3d It refers to (C) being; government.” ... [or] a evidence sufficient as matter of law 27.001(7). §Id. fact if it given establish is not rebutted initial TCPA-imposes burden or specific Id. “Clear and contradicted. moving for to establish party dismissal quality evidence” refers to the of evidence by preponderance of the evidence “that , case, prima to establish a required on, to, legal action is based relates “prima term facie case” refers to response party’s in' exercise required the amount of to satisfy evidence right Id. speech....” free minimal factual burden. nonmovant’s 27.005(b)(1). § If -the. movant makes Blunt, 352, v. 466 S.W.3d 358 Serafine showing, the burden shifts the nonmov- h.). pet. no (Tex.App.-Austin ant specific clear and- “establish[ ] requirement “clear and evidence” for each evidence facie case essen- not impose evidentiary does an elevated question.” tial element of the claim in Id. standard, categorically reject nor does it 27.005(c). However, § even if the nonmov- circumstantial Lipsky, evidence. showing, ant makes ..this the trial court at 591. S.W.3d must dismiss the cause action if preponderance movant “establishes OF STANDARD REVIEW each essential .a element of defense the nonmovant’s We de court’s valid claim.”- review novo the trial 27.005(d). determining Id. parties wheth- met determinations that When action, legal proof er to dismiss the court failed meet their burdens under Malouf, pleadings support- Shipp must consider “the section-27.005.3 See Conner, (Tex.2015) Lipsky, supreme (per 3. In concluded that 458 S.W.3d court curiam). the trial court “did abuse its discretion in supreme appear It does not denying” chapter under the motion dismiss ap- court addressed review on has whether pase, Lipsky, 27. 460 S.W.3d at peal of a motion to from the denial dismiss reviewing supreme petition court was chapter under 27 should be de novo or for an mandamus, for writ of mandamus issues Therefore, we follow our abuse of discretion. abuse of to correct an discretion. See'In re *10 480 2014, or a 432, opinion question fact is (Tex.App.-Dallas statement of 437
S.W.3d denied). of law. Id. pet. dispute appel- not parties do PRIMA CASE FACIE on, to, or libel “is based relates lee’s action issue, In them first appellants appellants’ to” is in exercise response by court determin contend erred Therefore, right speech. appel- of free ing appellee prima a facie case established prima her
lee the burden establish specific 'hér claim libel specific facie case clear evidence. argue the “clear and Appellants evidence. See Tex. Civ. Code Prac. & Rem. Ann. requires standard more evidence” (c). 27.005(b), § argue They than also “some”- evidence. dstándard, is expressed heightene in this a is defamation standard Libel by pre form. that is requiring “evidence unaided graphic written or Civ. (West inferences, sumptions, or’ 73.001 intendments.” Prac. & Rem. Code Ann. 2011). (1) Servs., Witt, prove must Creative Inc. v. plaintiff A libel See Rehak 716, publication (Tex.App.-Houston of a false statement fact to a 404 726 S.W.3d denied). (2) defamatory 2013, party, pet. third con The su Dist.] [14th (3) requisite cerning plaintiff, preme disapproved concepts with the court of these fault, damages, Lipsky.4 Lipsky, See at degree of some 460 S.W.3d 587-88, 460 at Lipsky, supreme rejected cases. S.W.3d 593. A court if legislature imposed it tends to in the notion that the an defamatory statement is expose or jure subject’s reputation, evidentiary prohibit standard elevated - ridicule, hatred, or fi ed Id. at 591. public contempt, circumstantial evidence. impeach provide enough or must injury, integrity, plaintiff “[A] nancial detail honesty, máy or Id. A statement show factual for its In a virtue. claim. basis false, abusive, TCPA, unpleasant, objection implicates defamation be case defamatory light being pleadings able without and evidence that establishes when, where, said, surrounding facts circumstances.' Id. and what was statements, capable defamatory Whether a is of a de nature of the statement famatory initially question they damaged a and how meaning plaintiff should Moreover, law the court. Id. to be be-sufficient to resist a TCPA motion to actionable, determining a must assert an ob Id. In statement dismiss.” whether case, jectively plaintiff fact than a presented prima verifiable rather an we Merely opinion. only pleadings Id. defama consider expressing evidence “opinion” tory plaintiffs in the form of in favor of case. We statement do it liability presented does from tort consider not shield be whether defendant case; opinions imply often rebutting plaintiffs cause facts. Id. We evidence ’ - classify opinion appropriate as fact such in determin statement verifiability ing summary based the statement’s and' motion for defendant’s- determining at judgment’or- entire context which the statement trial but plaintiff presented Id. Whether a statement is whether the made. 2014, Krantz, denied), precedent Young pet. review las the trial court’s deter- v. 335, minations de novo. 434 (Tex.App.-Dallas S.W.3d 342-43 pet.). Lipsky, no S.W.3d disapproved supreme 4. The also court of simi- 587, 591. Shipp lar in this cases of statements Court's Malouf, (Tex.App.-Dal- 439 S.W.3d *11 case.5 See Tex. claiming facie publication defamation on a Civ. Prac. & Rem. based 27.005(c) (issue § is whether as a whole Ann. prove must Code publica the prima claimant facie case for established ‘gist’ tion’s is defamatory false and and the element). . each essential publication is not privileged.” otherwise Id. at 115. A private may individual re “when, where, case, In this and what damages publisher cover from a for defa itself, magazine article was said” was the (1) mation upon a showing that: the printed in its media both form mailed subscrib- defendant knew or ers and sold in' around Dallas should newsstands have known the and, form, publication false; 2013 in its electronic still was the content present through on the at least internet of the publication a reasonably would warn hearing in the date of the the trial court. prudent defamatory editor of potential. its Appellants the was not assert article de- Scripps Newspapers, Tex. L.P. v. Belalca however, famatory, because the overall zar, 829, 99 (Tex.App.-Corpus S.W.3d 837 “gist” substantially of the was true. denied).- 2003, pet. Christi “Negligent con asking duct is determined ‘whether the pub In a determining whether reasonably defendant acted in checking the defamatory, is lication we construe the ar or falsity truth or defamatory, character of light surrounding ticle as a of the whole in ” the communication it.’ publishing before upon person how a circumstances based Id. (quoting (Seoond) Restatement ordinary perceive intelligence would it. ,cmt. § 1977)). g 580B (Am. Television, Inc., Torts Inst. Turner v. KTRK Law 38 Thus, appellee 103, (Tex.2000). determine whether es publica S.W.3d 114 “[A] facie.case, prima tablished a we must de convey defamatory a false and can tion gist article, facts, the or the meaning by omitting juxtaposing whether the termine false, gist story’s gist is though even all is defamato individual state whether .the whether, ry, publication “the literally ments in isolation not other considered were is Id. non-defamatory.” plaintiff privileged,”6 true or wise “[A] whether was case, prima paraphrases 5. The dissent this statement of facie the court considers whether established,a determining the standard of review for defendant "by valid defense --preponderance a prima considering existence of a facie case as evidence.” Id. 27.005(d). § "only plaintiff’s Determination of evidence” and states this whether 27.006(a) interpretation preponderance-of-the-evi- defendant met the would ren section proof requires dence burden of meaningless requirement der consideration the statute’s evidence, of all the regardless of its opposing that the source. court consider affidavits in determining a to dismiss motion under the TCPA. See Tex. Civ. Prac. & Rem. Code 6. Whether the privilege lack of is. an element Ann. First, 27.006(a). disagree. case, § plaintiff’s We consider or whether the exis defense, ing plaintiff prima privilege whether the tence of a established a is an affirmative case, Turner, facie is not sup supreme we consider the In clear. court case, ports regardless appears plaintiff's privilege of wheth indicate that lack of-a opposing part plaintiff’s supporting pleading proof. er it was in a or .of burden Tur .the ner, Second, Wilson, or Neely before the 38 at affidavit. court reaches v. 114. S.W.3d (Tex.2013), question plaintiff 418 supreme whether has es S.W.3d 52 court Id, case, prima tablished a facie the court indicated it at must 56. Tradi defense. tionally,, opinion first determine whether the defendant fair has has been comment "by preponderance qualified privilege shown of the evidence” considered a and an affir plaintiff’s that the cause of mative defense A.H. action concerns & See Belo Co. 777, right Looney, 112 of free defendant’s exercise 246 S.W. 781-83 (1922). - speech, petition, right right purposes opinion, For. of this- -we 27.005(b). And, Therefore, ways. view it both association. Id. if we first consid plaintiff er court determines whether established a established 482 at 594. Lipsky, son. See We per S.W.3d
damaged the defamation was unless gist actually that the combi- conclude se, negligent appellants were whether appellee’s state- nation of appellants’ id.; publishing WFAA- article. person gist. ments of the A reasonable TV, McLemore, 978 S.W.2d Inc. v. the article criticism would conclude (Tex.1998); Lipsky, also see S.W.3d SNAP, who appellee, which allowed theft, to receive been convicted benefits *12 living million and while home $1.15 of Article The Gist filing in- defrauding false while HHSC disagree what parties over The formation with HHSC. gist Appel- of the article. constitutes the gist Appellants’ of assertion the article’s that gist was article lee asserts the of is a of of the set forth in list some facts fraud. committed welfare appellee had article, but it not into does take consider- argue gist of the article Appellants headline, its “The Park Cities Wel- ation -Rosenthal, who had a criminal “was that Queen,” categorization fare theft, obtaining using history was and article, term “[Crime].” The “Welfare mil living in a SNAP while $1.15 benefits Queen” it can meanings; has two mean HPISD,”7 wealthy lion home in (1) either a woman who has defrauded the is its “main “gist” the article system by using false information welfare part,” material its “essence.” point or legal- obtain benefits which she not Gist, New Third International entitled, mean Webster’s ly and it can also English Unabridged Dictionary op Language exploited sys- who woman has welfare (1981); Gist, also see 59 by having children Black’s of wedlock 9 tem out and Dictionary (10th ed.2014). 805 We avoiding relationships pur- for marital Law meaning of a legally publication pose continuing qualify determine the case, per- perception government of a reasonable benefits.8 In 2013), Queen, (Dec. 19, privilege Iittp://www. case of the element lack Slate evidence, slate.com/articIes/news_and_polifics/history/ and we con- clear then established, appellants privi- sider 2013/12/linda_taylor_welfare_queen_ronald_ whether lege by preponder- reagan_made_her_a_notorious_american_ as an affirmative defense evidence.; ance of the money Taylor villain.html used the ("Slate”). cars, lifestyle expensive to finance a of new gist Appellants’, appeal statement on clothes, coats, jewelry. Taylor fur Slate. expansive set of the article is more than that $8,000 stealing eventually was convicted dismiss forth in their motion to in the using welfare funds four aliases. Id. Ronald gist court: “The Article Defendants' Reagan Taylor’s welfare dur referred fraud receiving was benefits that Plaintiff was SNAP ing his campaign, Presidential and he 1976 expensive while of the most one phrase queen" used the "welfare a radio neighborhoods in Dallas." commentary. Wikipedia; Slate. The term m was later notorious applied cases of queen" 8. The its first ter "welfare with Williams, People welfare fraud. 106 meaning in the was coined in 1974 in articles 767, 771 (Cal.Ct. 15, Cal.App.3d Cal.Rptr. 164 magazine Chicago newspaper and Tribune let Williams, (Barbara App.1980) who received referring notorious case of fraud. to a welfare ‘ $200,000 Queen, government more than benefits to https://en.wildpedia. Wikipedia, Welfare org/wiki/Welfare_queen (last by using which not she was entitled aliases Aug. visited claiming 2015) ("Wikipedia”). and false birth certificates more than about The articles were who, Tribune, children, Queen”); "the according 70 Welfare Lois Taylor, Linda was Timnick, Queen’ names, cards, New Security Arrested on used three Social Welfare Angeles addresses, (May Charges, Los telephone Fraud and 25 numbers Times, 1987), $150,000 http://articles.latimes.com/1987-05-22/ obtain in illicit welfare cash. See news/mn-1219_l_welfare-fraud (" Levin, ‘Welfare see also Josh Wikipedia; Welfare indicate it A pleadings person can would reasonable conclude former, only appellee mean from the appellee article- that committed committing Appellee welfare fraud. had by submitting fraud false information to child, only presented one she evidence.she to continue to. receive SNAP bene- gone through been married and had fits to which she otherwise would .have protracted lengthy divorce and child-custo- agree entitled. We appellee with been dy proceedings savings that exhausted her the.gist of the article included-the income, states, as the assertion had committed wel- engaged to to an apparent- be married fare fraud. ly wealthy publica- man at time of Thus, tion of the article. Falsity does Truth Gist fit the definition of queen” “welfare as a Appellee testified her affidavit person legally qualified who remains after published, article was by having benefits out of children wedlock *13 HHSC, responsible SNAP, which is for avoiding relationships. and marital There- investigated whether appellee had commit fore, title, the “Park Cities Welfare See ted fraud. Hum. Res. Code Ann. Queen,” means a in Park woman Cities (West 2013) (HHSC § 33.0006 “operates
who is committing govern- fraud to receive supplemental nutrition pro assistance ment-assistance -illegally. Placing benefits gram]’). Appellee’s evidence in re her the word “[Crime]” over the headline “The sponse to the motion to dismiss included a Park Queen” Cities on Welfare the cover Deputy letter from a Inspector General of and the article would to a indicate reason- stating Commission investi person able that the article concerned a gated the facts in asserted the article and person, a queen, welfare who was commit- related information and “found no evidence crime, ting a namely, welfare fraud.9 The anyone has fraudulently obtained or other that, in statement the article appellee wise abused state benefits.” “must have been than forthcoming less when she application implied renewed her appellee article that online com- by October 2012” falsely stating would to a reason- mitted fraud indicate her address person forms, able that appellee false submitted SNAP benefits failing-to renewal information to application HHSC in her report for income or support prop- renewal of (or benefits. daughter’s living erties her trust Queen’ Provisions, Dorothy Woods” convicted clusion Rev. L. & N.Y.U. Soc. stealing $377,000 payments "by posing in welfare (1997) as a Change . impoverished dozen women with a total of-49 dependent children, actually while she was Appellants argue heading that the "[Crime]” splendor Pasadena —in mansion was not to indicate had committed housekeeper,
with a live-in luxury- several the crime of welfare fraud but because the cars, mink swimming pool”). coats and propriety article was about of the law Subsequently, phrase part became allowing persons history with a of theft (cid:127) political reform discourse welfare and charges qualify for welfare benefits. This meaning involving evolved its second itself, may gist be the of the fifth' column gender most odious of stereotypes racial and gist it .is not the as a but the article whole. woman, prejudices usually mean Furthermore, heading "[Grime]”-for minority, exploiting public-assistance sys- persons article with about criminal back- by having tem multiple avoiding children and grounds receiving lawfully SNAP benefits relationships eligibili- marital her continue would not sense make because Kaufman, ty for E. benefits. Risa would not be crime. about Meaning Queen": Cultural Us- “Welfare ing Challenge State Constitutions to Child Bx- pleadings considering appellee’s After properties by plac- hiding she was trust), report pre- failing affidavits, conclude in the we ing them from her fiancé. evi- subsidies sented sufficient clear financial case that to establish a- dence in her affidavit stated 'Appellee gist, that she had part article’s application out filled she when fraud, not true. committed welfare all benefits, questions answered she SNAP al- that she had truthfully. testified She La parents’ address on
ways used her Defamatory Nature mailing She her address. Drive as Cabeza of the Article Gist address on the put that SNAP stated she Next, the ar consider whether we form and on the affida- application benefits appellee committed ticle’s assertion that forms form because those indigency vit defamatory. An article welfare fraud was mailing Appellee address.. askéd for her 'defamatory if it petition in her stated financially supported her fiancé. memory of the dead tends blacken injure living person’s or ... tends to up set Appellee stated brother reputation thereby expose per- daughter, prop- living trust and the land, public hatred,. contempt son to ridi- living' trust were vacant erties cule, injury or to impeach as the' article stated. financial not “households” virtue, properties any person’s honesty, integrity, none of testified She *14 $9,000 that reputation publish more than and she natural worth or- or to were any daughter never received thereby h‘er had of anyone expose and defects and Appellee’s ridicule, or value from trust. hatred, income person or public pur- he an affidavit that brother stated financial injury. at properties “distressed chased & Rem. Code 73.001. Ann.§ Tex. Civ. Prac. into a at the put them trust
prices” and
crime
Falsely accusing
person
a
of a
lawyer.”
and
of his “trust
estate
suggestion
per
Lip
considered defamation
se.
appellee
not
or
did
tell
He also testified-he
sky,
485 Whether the Publication SNAP; or criticism it is privileged. Privileged However, to the it extent states falsely
W.as committed fraud Section 73.002 the Texas by making false statements in applying for provides Civil Practice and Remedies Code (cid:127) benefits, SNAP it is privileged. privileged that certain- are communications periodical publishers. We appellee presented conclude (a) by facie case publication by clear newspaper or periodical of a by defamatory matter .article’s covered statements privileged this section is and is not a had committed welfare fraud were ground for not privileged. a libel action......
(b) applies This to: section
Fault
reasonable and fair comment on
Appellee also
had to make prima
or criticism of
act of pub-
an official
appellants
facie case that
acted with the
lic
public
official
other matter
requisite degree
private
of fault.10 “A
in
concern published
general
infor-
dividual
only prove negligence.”
need
mation;
Lipsky, 460 S.W.3d at
“Negligent
conduct is
asking
§
determined
Tex. Civ. Prac. & Rem.
‘whether
73.002
Code Ann.
(West 2011).
the defendant
reasonably
checking
This
acted
privilege extends to
falsity
the truth or
defamatory
“reasonable
fair
comment on or criti
charac
ter of
cism” of a
public
concern.
communication before publishing
matter
How
ever,
L.P.,
it.’” Scripps
false
of fact
concerning
Newspapers,
statements
99
person
defamatory
pro
(quoting
that are
S.W.3d
837
are
(Sec
Restatement
tected
privilege.
g).
Golden Bear Dis
580B cmt.
The follow
ond)
ToRts
Tex.,
Revel, Inc.,
Sys.
ing
trib.
may
Inc. Chase
factors
be
determin
considered
(5th
Cir.1983);
708 F.2d
ing
thoroughness
Davila v.
of the check that a
Co.,
S.W.2d 945,
Caller Times
person
Pub.
pub
reasonable
would make before
*15
1958, writ).
(1)
(Tex.Civ.App.-San
lishing
Antonio
element;
no
a statement:
the time
(2)
To the extent that the
the
article
comment
nature
the interests the defen-
Lipsky
appears
internally
determining
in
analysis
to be
inconsistent
its
the
court did
negligence
on whether
is an element
the
by
not
denying
abuse its discretion
the defen
plaintiff must establish to avoid dismissal un
to
dant's motion
See
at
dismiss.
id.
593-96.
point,
suprémé
der the TCPA. At one
the
court
However,
appear
it does ndt
that the movant
states,
implicates
"In a defamation case that
plaintiff
in
dismissal
that case asserted the
TCPA,
the
pleadings and evidence that estab
failed to
negli
establish a
facie case of
when, where,
lishes the facts of
and
was
what
id.;
gence.
Lipsky,
see also In re
said,
statements,
defamatory
the
the
nature of
2013,
(Tex.App.-Fort
S.W.3d 530
orig.
Worth
they damaged
and how
plaintiff
the
should be
denied,
proceeding), mand.
lance author her interview of prima established a facie case the ele- two officers HHSC cited'in article and ment of negligence by specific clear and n confirming that the substance the inter- evidence. accurately views was This state- stated.” ment, appellee’s testimony combined with Damages telephone about the calls HHSC from Appellee pleaded appel pretending appellee, her harasser to be per lants committed falsely libel se may indicates the freelance author have stating she committed a Lip crime. See appellee’s been harasser.15 sky, 596 (accusing 460 S.W.3d at someone This did indicates appellants evidence se). of a crime is defamation per “When act reasonably checking not the truth or offending publication qualifies as defa falsity of defamatory character se, per plaintiff may mation gen recover publishing before communication the arti- damages proof without any specific eral support cle. The of appellee’s evidence above, loss.” Id. As discussed a reason libel claim shows the did not tell editor person able could read the article and con specific in the statements arti- accused appellee clude of com , seeking cle story. when of the her side fraud, mitting welfare which a crime' His he affidavit indicates commu- under federal and state law. Because nity engagement manager nothing to did se, per defamation was defamation “actual credibility check the anonymous au- damage is not an essential element of the may thor who appellee’s have been haras- claim to which the TCPA’s burden of clear ser. The they evidence also indicates did specific might apply.” Id. not confirm truth of the interviews of anonymous author with presented the HHSC em- We conclude appellee prima ployees by contacting them. A facie reasonable case evidence of transcripts telephone department’s programs.” calls do assistance not (West contain information the date of 2013). about 12.003 Res. Code Hum. Ann. appellee’s application renewal-of-benefits application checking $135 "lists in a 15. The editor testified that the au freelance expenses $35 account ... and for the Su- ñame was not thor’s the same as the woman' zuki.” The article this information states as her identified harasser. We do eligibility'depart- obtained from "the stage this evidence at this consider ment officer.” record does disclose litigation question ap- .because is whether the circumstances under which informa- pellee established a case *17 eligibility depart- tion was obtained the negligence by element of ment officer. All the of information in the evidence, appellants presented not whether appellee’s article about SNAP benefits1 ac- tending rebut confidential, count was it is and a criminal case. See Tex. Prac. & Civ. Rem. Code Ann. offense to solicit" such information from an ) . 27.005(c §. employee purposes than “for directly connected with the administration of civil indigency on of filed of action for an of her cause affidavit each element first the- near Uni- court case and not address appellants’ issue. libel. We overrule actually living Park was versity where she DEFENSES AFFIRMATIVE time. issue, contend appellants In their second However, evi no record contains by their mo denying the trial court erred allegation truth support dence “estab appellants tion dismiss because on the that made false statements appellee elements one lished the essential for application renewal of the benefits. by preponder more affirmative defenses allege Appellants did in their pleading making ance evidence.” appel- or set in their forth affidavits what determination, all court considers Ap actually application. stated in the lee is, evidence, pleadings sup and that a blank pellants provided the court affidavits. See porting opposing and application of an for SNAP benefits. copy 27.005(d), §§ Prac. & Code Ann. Civ. Rem. it is of the form indicates substance .006(a). they proved assert two Appellants bene application the form for an initial truth, and the fair affirmative defenses: it application fits. But does not state qualified privilege. comment benefits, for renewal of the form used presented no appellants and other evi
Truth for form dence that same was used of the Texas Civil Section 73.005 appellee renewal benefits at the time Code codifies the Practice arid Remedies applied for Because renewal benefits. truth traditional rule “[t]he that. they appellants presented no evidence publication in the which statement knowledge of appellee was re what for is a defense action libel based to the quired' applying when for a tell HHSC & action.” Code Tex. Civ. Prac. Rem. Ann. benefits, pre renewal of SNAP also they (West 2011). Appellants assért 73.005 spoke sented no the article evidence'that establish pleadings and evidence truthfully about the information substantial of the factual truth statements renewing failed to disclose to HHSC when Appellee staying in the article. was- in a for application benefits.16 receiving million house while SNAP $1.15 only a half house was block benefits. The appellants We conclude to estab- failed University city Park outside limits by preponderance lish the evidence Highland Park school was in .dis implications the article trict. Even if convicted appellee presented by false information theft, nolo pleaded guilty con- required failing disclose information charges placed tendere theft on HHSC was true. community supervision Eight for theft. appellee’s daughter’s
properties were Privilege Fair Comment appeilee trust. her par And used mailing Appellants they ents’ for her address on also assert es address application of benefits evi- preponderance renewal tablished states, "[Appellee's] 16. The The record also no evidence October contains checking $135 SNAP renewal lists ac- financially fl- appellee, subsidized .was count, according eligibility to the HHS'C offi- of, any knowledge inter- aneé or that she had cer, expenses [ap- $35 the Suzuki in, any prop- est received -benefit from pellee's automobile].” The record contains daughter’s living erties in her trust. no evidence of the truth this statement.
489 is dence that libel claim barred FEES appellee’s ATTORNEY’S privilege. fair by statutory comment issue, appellants their third contend of Civil Section 73.002 the Texas Practice we should remand the trial cause publi that a provides Code and Remedies court for determination of their and award in a is and not periodical privileged cation attorney’s fees costs. Section 27.009 if it is a “reason ground for a libel action provides, “If TCPA the court orders fair comment on or criticism able and .legal dismissal of action chap under this published public ... concern [a] matter ter, the court shall moving to the award general for information.” Tex. Civ. Prac. & party; costs, court reasonable attor (West (b)(2) 73.002(a), § Rem. Code Ann. fees, ney’s expenses and other incurred 2011). privilege an de affirmative action, defending as legal jus against to an Lucas fense action defamation. may tice equity require....” Co., Publ’g v. Burleson No. 10-01-00228- 27.009(a)(1) § & Rem. Code Civ. Prac. Ann. CV, 1177199, (Tex.App. 2004 at *1 WL “ (West 2015). ‘Legal action’ means a law 2004, 26, May pet.) (mem.op.); no Waco suit, action, cause complaint, petition, Bunton, 561, Bentley see 94 579 S.W.3d cross-claim, or or any other counterclaim (Tex.2002) V. Lorain (quoting Milkovich judicial pleading or that filing requests 1, 13, 110 Co., 2695, Journal 497 S.Ct. U.S. legal 27.001(6), equitable relief.” Id. (1990)). However, 111 L.Ed.2d false 1 person concerning statement that fact Appellants’ motion to prayed dismiss defamatory, even if in a discussion made fees, attorneys’ award “reasonable concern, is privi not public matters expenses.” costs and The trial court’s' or- leged fair Bear Dis as comment. Golden der on the granted motion to dismiss Tex., Revel, Inc., Sys. trib. Inc. v. Chase motion on appellee’s claims under Cir.1983); (5th Davila 708 F.2d v. DTPA, ITEPA, and appellee’s claims Co., Caller Times Pub. S.W.2d brought'on-her daughter’s behalf and’Or- 1958, writ). no (Tex.Civ.App.-San Antonio appellee’take nothing dered that on those order claims. The that also stated Appellants argue they established motion was “in respects denied as all the fair comment because privilege finds Court that Plaintiff has estab- article was comment or criticism about by lished evidence a allowing a woman lived SNAP’s who case defamation.” taxpayer- million' home obtain $1.15 poor. designed funded assistance to aid the Appellants assert the trial court erred article, If extent of the then by denying request their for reasonable as fair com might privileged the article be necessary attorney’s on and costs fees However, ment or criticism. the article appellee’s libel on claim her own behalf identify went on to as the woman by because denying court erred than forth and assert she had been “less the motion to 'on Ap- dismiss that claim. status, coming” with HHSG about pellants to attorney’s were entitled which is an assertion lied on costs on they fees and that claim unless application form for of bene renewal prevailed 'on their motion dismiss fits, appel which is a crime. conclude We § 27.009(a)(1). claim. See id. Appellants qualified privi lants failed to establish the have not shown the trial court erred lege of fair a preponderance comment denying the motion claim. dismiss of the evidence. appellants prevailed Because have claim, motion appellants’ issue. their to dismiss libel We overrule second *19 490 Background by denying not err the
trial court did costs as to attorney’s for fees request libel, plaintiff a must To recover Baldridge, No. Reyna v. See that claim. (1) a publication of false state prove 4273265, 04-14-00740-CV, *7 2015 WL (2) at. that was party, ment fact to a third 15, 2015, no July Antonio (Tex.App.-San (3) defamatory concerning plaintiff, h.) (mem.op.). pet. fault, requisite degree with the cases, In Lipsky, re damages. in most the trial court assert Appellants (Tex.2015). 593 A motion 460 S.W.3d on awarding their fees them erred triggers a two- to dismiss under the TCPA dismissed, trial court legal actions First, step defendant-movant inquiry. legal IETPA actions and the DTPA and to a prepon has the initial burden show legal appellee brought on her actions plaintiffs derance of that the evidence daughter’s Under section behalf. to, on, or claim “is relates is based 51.014(a)(12), have to jurisdiction we re of free response party’s to exercise” a the trial denial of motion to view court’s right or of associ speech, right petition, urider TCPA. Tex. Civ. dismiss filed ation. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12) Prac. & Rem. Code Ann. 2015); 27.005(b)(1)-(3) (West Lipsky, § (West 2015). Appellants’ attor claim case, appellee 460 at 586. In this S.W.3d legal ney’s actions fees these relates dispute implicates does not- that the grant trial motion to court’s appellants’ speech, which exercise free jurisdiction Our under- section dismiss. mean “a com is the statute to defined 51.014 does not claim for extend munication with a mat made connection attorney’s legal fees on these actions. See 27.001(3). § A of public ter concern.” Id. Bally Jackson, Fitness Corp. Total 53 defined, public “matter concern” (Tex.2001) in (legislature S.W.3d 355 turn, (a) include issue related 51.014 strictly tended section be construed environmental, (b) safety; health eco or general.rule as exception,to narrow (c) nomic, well-being; or community only final judgments appealable). are (d) or government; public official public (e) figure; good, product, service appellants’ We third issue. overrule 27.001(7). marketplace. § Id parties agree Given that the the TOPA CONCLUSION applies, inquiry second shifts the statute’s trial court’s order. We affirm the establish, by plaintiff to the burden evidence, specific Brown, J., dissenting case for each essential element 27.005(c); § Lipsky, claim. Id. Brown, Opinion dissenting by Justice determining S.W.3d 587. whether dismissed, plaintiffs be should claims majority affirms the trial court’s the court is the pleadings to consider appellee’s libel claim refusal to dismiss any supporting opposing affidavits. pursuant to the Texas Citizens Partic- Code Civ. Prac. & Rem. Ann. (TCPA). ipation ap- I would conclude Act 27.006(a); Lipsky, S.W.3d at pellee by clear has failed establish majority carefully has set forth gist of this arti- I us. It is Accordingly, reverse substance of the article before cle would false. order, quick introductory para- I respect- one-page piece: and must court’s (cid:127) graph assuring fully the Park Cities reader dissent. qualify too can if stamps only for food appellee, allowed who had been con- follows *20 appellee’s five-step plan; fob victed of theft, to receive benefits [1] columns, short lowed five each headed living while in a home $1.15 million and by the author’s directive those wishing [2] while defrauding by .filing advantage food-stamp take to of sys- the false information with HHSC. despite living wealthy tem in the enclave of Unfortunately, effort at being concilia- the Park Cities. The reader is instructed tory appears produce an internally in- (1) (2) system, know the move in with understanding consistent of the essence of (3) your boyfriend, say you are of head the essence, the article. That according to the household, (4) keep your job, and com- majority, is a of system criticism a mit only minor crimes. is There rio dis- conditions, allows benefits under two one pute as to says. what the article IBut which, of. beneficiary’s is living the lavish agree cannot majority says with what the arrangements, other of which is de- it implies. frauding that system. majori- The same ty’s clearly places statement criticism
The Gist of the Article food-stamp system at the threshold. Supreme Texas Court has And instruct the statement’s first condition—the ed that meaning publication, living and lavish quarters speaks a to that criti- — therefore is whether it false and defamato cism. But the second condition—commis- ry, depends upon person’s a reasonable sion of speak welfare fraud —does perception publication, the entire system. criticism of speaks, a It broken merely instead, individual within statements it. intent, to a person with felonious Television, Inc., Turner v. KTRK 38 someone purposefully violating a well- 103, 115 (Tex.2000). The, S.W.3d A legal system. defamation founded focus of plaintiff prove must publication’s entirely and, that the two is I conditions different “gist” believe, defamatory is false in contradictory. order to Either the article prevail. Thus, Id. starting suggests the critical system could use the point for analysis framing gist our is suggests her advantage or it she set out to’ the article at issue. system. cheat the essence, agree, I appellants’ with states,
As majority parties dis- gist statement of I this article. agree on Appellants this point. assert the tone, structure, believe the and the gist of the article is that appellee, who had substance the article would lead an ordi- theft, a history criminal was receiving nary piece conclude a food-stamp benefits reader living while a $1.15 satirical critique system million Highland home Park Inde- benefits history allows with a criminal (HPISD). woman pendent School District Appel- theft, home, a million-dollar lee gist asserts the article is that she taking advantage highly rated committed welfare fraud applying enclave, system school wealthy of a receiving stamps. food The majority (“a stamps. collect food id at right, concludes that both are parties stat- publication’s meaning depends on its effect ing: ordinary person’s an perception”). We gist conclude that is actually combination of appellants’1 appellee’s Again, article is -only page long. one statement of gist. A per- majority describes, reasonable As the the headline son would opening paragraph conclude article was of the article are criticism of system the SNAP benefits page by balanced on the a graphic showing fact, first system. author’s di- mug shot surrounded appellee’s theft come System.” rective is “Know the We ornate, frame. The col golden five system the kind of instruction, learn the allows umns, by its basic headed each has received: appellee purportedly windfall large numbers —one graphic topped by are thus, is that her point, the author’s reader circles. The through dark five—inside- should use system, not defraud it. an investigative as not structured page on, many obvious And as we -we learn read -Instead, the reader’s article or editorial. shortcomings system. author overall, is of “how-to” impression, visual *21 tells told us we’cannot know-what step-by-step instructions for the with piece Commis- the Health Human Services project <athand. (HHSC) sion about “[i]nformation because its the article underscores The tone of receiving is not publicly individuals aid ordinary person An purpose. satirical available,” repeatedly given but we are openihg paragraph would reading the appellee’s information about aid that the immediately: “hear” the tone employees author of the received spending like some extra Who wouldn’t system, has a apparently, HHSC. The money month? for lit- each Cash those changes of that number leaks. We see at and Tom Whole Foods tle treats beneficiary’s arrange- or. status Well, yours just it cán with be Thumb? investigated, by ments are not the HHSC. All you have is do little effort. that necessary We are told the documents that, stamps. you food apply for What’s qualify necessary for not benefits are Park say? live the Cities and You every six renew those months.1 benefits qualify? Hogwash. Just would never And, article, as climax to the the we learn how 40-year-old have a look Univer- is history pro- that criminal of theft sity Janay mom Bender Rosenthal Park blematic the award benefits because pulls it off. system “only for felony drug the check[s] generous author’s characterization A It that the convictions.” author true tongue-in-cheek; gener- a less invitation is receipt uses and her benefits to might be ous snide. characterization I points. illustrate these But be- various ease, hardly author’s tone is either the ordinary lieve the would finish this reader reporter. And investigative of án the au- harboring article more concerns about the employing ques- thor’s rhetorical food-stamp she system than would about diction— tions, slang, and contrac- appellee. 'conversational chat; like a casual throughout tions —reads Again, premise the of the majority’s virtually winks at the the reader as author gist argu statement of the article — game sys- how to the broken explains ably gist majority’s gist —is tem. a criticism of food-stamp likewise ben article, agreed, substance of the es- Finally, program.' Appellee efits has after all, within its “a structure and that the article implicates viewed matter of pecially tone, primary public me persuades purpose its concern.” Code Civ. Prac. & Tex. 27.001(3).2 § food-stamp majority critique But Rem. Ann. benefits posted majority possible In a article 2. The two of the later version on- includes public line, in its appellants bases concern statement of after point was corrected economic, environmental, the law: or com- from HHSC that it did received information munity well-being government. at renewal. check documents (7)(B), Prac. & Rem. Code Ann. 27.001 Civ. (C). is difficult to how the article It see could The goes majority on to its conclusion that also append appellant’s contends appel- implies gist also welfare fraud on statement of the article does this con- part. explains lee’s The opinion placement magazine’s account for its in the by contending appellants’ clusion But part [Crime] section. of the author’s gist of article does not statement of the argument is rooted in system’s lack of headline, account for the article’s “The applicant’s interest in an criminal back- maga- or the Queen,” Park Cities Welfare ground. majority argues this concern categorization of the article as zine’s only gist of five-step one of the disagree I [Crime]. either these However, majority directives. in- justifies impli- components the article phrase cludes the “who had been convicted criminal cation of fraud. gist theft” in its-own statement of the history— article. Appellee’s criminal .majority’s discussion term and the lack of concern abbut HHSC’s queen” begins unsup- “welfare with such' a history part story. of this It there are two and ported assertion that —is is not unreasonable when only possible placing two the term. definitions *22 magazine, article Within the From that decid- premise that it reasons because editors on is not ed section. appellee [Crime] the evidence “a establishes qualified person legally who' remains for I do not believe it is reasonable to infer out of having benefits wedlock children charge of appellants’ welfare fraud from avoiding relationships',” and marital she use of the term “Park Cities Welfare committing must is be a "woman “who Queen” magazine’s or placement to government-assistance fraud receive this story. gist I would conclude that the footnote, illegally.” benefits In a the ma- of the is critique article a satirical of a slate.com, jority to cites and a Wikipedia, system that benefits allows a with woman University New York law review article to history theft, in living a mil- criminal history summarize the term “wel- home, advantage lion-dollar taking and queen,” nothing fare but in the footnote highly system rated school that justifies opinion’s limitation absolute enclave, wealthy stamps. to receive food possible meanings. on this I term’s do not question queen” that is the term “welfare Falsity or Truth the Article or the author uses it to pejorative appellee The majority concludes that es- However, in this I appellee refer case. tablished clear specific and evidence submit that when we consider the tone and that she not commit did welfare fraud. piece, substance of this a rational reader I agree Because do fraud welfare certainly could conclude term’s mean- gist article, agree was the I cannot ing spelled subheading is out in the found proof that this was to avoid sufficient dis- immediately “Park Cities below the Wel- Instead, I missal. would ask whether ap- Queen” “University fare headline: pellee falsity established the of the article’s Park mom out figured has how to [who] food-stamp criticism of system and get stamps lap while food beneficiary. as its luxury.” reading comports This with ap- may majority consid- states we pellants’ gist statement of the only recipe appellee’s determining er being tongue-in-cheek evidence in for how - you obtain whether she carried her stamps even if live burden. Howev- food er, determining that in expensive Wealthy in a area. the TCPA instructs home food-stamp program. categories emphasis upon the its is fall within either of these unless 494 factual statements claim should be plaintiffs dis establish
whether missed, plead By actionably way the court consider is false. article were any opposing affi ings supporting- of example: & davits. Prac. Rem. Civ. Code.Ann. (cid:127) issue with arti Appellee' takes 27.006(a) (“In determining whether le a “convictions,” of her cle’s mention under gal action should be dismissed because after was arrested the plead the court shall consider chapter, pleaded as an adult and theft twice supporting opposing affida ings and or guilty, she either no contest stating liability on which the vits facts community super fined and received based.”); is Lipsky, see also defense adjudication. vision deferred majority If S.W.3d average under reader would correct, only arewe and. consider stand this information as an issue plaintiffs judging evidence in whether she guilt, appellee ultimately whether has each .ele met her burden establish a conviction her record. avoided claim, only to consider ment conclude the statement that I would in judging whether it defendant’s convicted was arrested and prove has its an affirmative met burden substantially true. defense, statutory theft then the directive Jacobs, “opposing affidavits” would be consider McIlvain S.W.2d in meaningless. (Tex.1990) (“The must' hot rendered We used in test de- a statute a manner that renders terpret ciding ., whether the broadcast sub any part meaningless 'statute stantially true involves consideration *23 superfluous. Las Columbia Med. Ctr. defamatory alleged of of whether 238, Colinas, Hogue, Inc. v. 271 S.W.3d damaging to more statement was (Tex.2008). 256 conclude that the I would plaintiffs] reputation, in the [the plain language of statute intends us listener, average mind than a determining all the when consider evidence statement have truthful would in appellee has whether carried her burden been.”). this case. we review all the And'when (cid:127) Appellee article falsely contends the court, I evidence before the would hiding assets mak- accused her appellee prove by conclude failed clear to her connection ing reference gist specific evidence the article: in households that were fact undevel- did not history she have criminal lots, oped appellee’s for held trust theft, that she not in a did live ’million daughter appellee’s Of brother. boyfriend, dollar house with her that her course, appellee’s daughter, who was attending was daughter not HPISD school, receiving party initially, part that she not to this suit was was food statements, Appellee All of stamps. appellee’s those which household. article, make-up essence of the were no knowledge contends she had , true. properties, and the article does Moreover, say appellee did. she Appellee’s response to the motion to dis argues only eight trust included miss a list statements that included properties, not nine were, false, as article alleged urges and she those “Discrepancies as to stated. details points Again, in this as well. Court is it ,of falsity do not material gist publication, demonstrate that must be Turner, judged falsity. purposes.” for truth or Ruder v. defamation 38 Jordan, 05-14-01265-CV, at 115. S.W.3d But also failed No. , *4 (Tex.App.-Dallas food-stamp system, WL but none of .these h.) 20, 2016, July pet. (mem.op.). no charged appellee statements with welfare (cid:127) fraud. The article does not Similarly, appel- flatter appellee asserts lee, Dallas, and it not kind
boyfriend’s home is toward her. But it is located “A publication not false. University specific Park as" the with statements that err in states. The indicates the the details evidence but correctly convey University the- story home is within block of a essence arid, boundary substantially more impor- Park’s true not actionable.” AOL, tantly, highly Malouf, within the Inc. v. 05-13-01637-CV, acclaimed No. Thus, daughter HPISD. when her at *4 (Tex.App.-Dallas WL attending 2,2015, Park school Cit- Apr. pet.) no (mem.op.). n ies—as the article asserts — I would that appellee conclude failed to taking advantage her home establish' claim’s key her libel element of way. a significant address in falsity by evidence. Ac article’s assertion that the home was cordingly, I would sustain appellants’ first University located Park was sub- -I issue. would reverse the trial court’s stantially true. See id. judgment order and render dismissing ap- (cid:127) Appellee also complains of the arti- pellee’s libel claim. Tex. Civ. & Prac. Rem. cle’s statement that she “must-have' 27.005(c).3 Code Ann. been forthcoming”- less than in the , gave information she the HHSC Attorney’s Fees and Costs renewing when her benefits. She If issue, we sustained appellants’ first truthfully states she identified her we would address their third con .issue mailing application. address TCPA’s cerning mandatory award of However, application benefits attorney’s plaintiffs fees and costs when applicant also asks the for hér home claim is I dismissed. would appel sustain address. establishes lants’ issue third and remand the case that appellee daughter and her were determination these matters in accor boyfriend with her at the time *24 with dance the TCPA. See Tex. Civ. Prac. & renewal, appellee but does not § 27.009(a). Rem. Code Ann. testify that she informed the-HHSC of her home address when re- Conclusion newed, her If benefits. left blank, space the home-address allow- Appellee's pri- burden was to establish ing the HHSC infer that her home ma facie case of each elerhent her libel address was mailing the same as her claim evidence. She address, clearly then she 'was less was unable to establish that gist of forthcoming than dealings any article was or that key false agency, with the I would concludé statements the article were false. Be- prove failed state- carry cause she failed to under burden ment was false as well. 'TCPA, court should have dis- undisputed It is ap- the author used missed her claim. I would reverse the pellee order, against illustrate her case judgment trial court’s render dis- issue, cerning If we did sustain this we would not their affirmative defenses. appellants’ need to address issue second con claims, and the' remand missing appellee’s for determination the trial court cause to n (cid:127) fees, costs, ex- 'attorney’s ’’ by statute.
penses as authorized HUTCHINS,
Reginald Appellant Texas, Appellee STATE
NO. 01-14-00333-CR Texas, Appeals
Court of (1st Dist.).
Houston September
Opinion issued
Discretionary Review Refused 2, 2016
March