Affirmed and Opinion Filed January 25, 2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-20-00644-CV

ALBERT G. HILL, III, Appellant

V.

MARGARET KELIHER, IN HER CAPACITY AS PERSONAL 

REPRESENTATIVE AND SUCCESSOR INDEPENDENT EXECUTOR OF 

THE ESTATE OF ALBERT G. HILL, JR., AND CAROL E. IRWIN, IN 

HER CAPACITY AS PERSONAL REPRESENTATIVE AND 

INDEPENDENT EXECUTOR OF THE ESTATE OF IVAN IRWIN, JR., 

Appellees

On Appeal from the Probate Court No. 2

Dallas County, Texas

Trial Court Cause No. PR-19-02706-2

MEMORANDUM OPINION

Before Justices Myers, Partida-Kipness, and Garcia

Opinion by Justice Myers

This is an appeal from an order and judgment granting the Texas Citizens 

Participation Act (TCPA) motions to dismiss filed by appellees Margaret Keliher, in 

her capacity as the personal representative and successor independent executor of 

the estate of Albert G. Hill, Jr., and Carol E. Irwin, in her capacity as personal 

representative and independent executor of the estate of Ivan Irwin, Jr. Appellant 

Albert G. Hill, III, brings three issues attacking the trial court’s ruling. We affirm

the trial court’s order and final judgment. 
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BACKGROUND AND PROCEDURAL HISTORY

I. Introduction

This appeal traces its distant origins to a real estate transaction that occurred

in July 2004. Ivan Irwin, Jr., as trustee of the Albert Hill Trust (the Trust), a trust 

established for the benefit of Hill III’s father, Albert G. Hill, Jr (Hill Jr.), purchased

from appellant Albert G. Hill, III (Hill III), an undivided 80 percent interest in a 

residence located on Bordeaux Avenue in Dallas, Texas (the Bordeaux property or 

residence). On July 1, 2004, the parties—Hill III and his wife as sellers, and Irwin, 

on behalf of the Trust, as buyer—signed a real estate sales contract. The following 

day, on July 2, the Trust paid Hill III and his wife $3.1 million for an undivided 80

percent interest in the Bordeaux property (the Bordeaux transaction). Hill III and 

his wife retained the remaining 20 percent interest in the property. 

II. The Indictments

Seven years later, in 2011, Hill III and his wife were indicted by a Dallas 

County grand jury on March 31, 2011, for allegedly making false and misleading 

written statements to OmniAmerican Bank. The charges related to a $500,000 home 

equity loan Hill III obtained from OmniAmerican in May of 2009, secured by the 

Bordeaux property. The case was brought to the attention of Dallas County District 

Attorney Craig Watkins’s office (the D.A.) on February 22, 2010, by a memorandum 

submitted by Hill Jr.’s lawyer, Michael Lynn, that claimed Hill III and his wife made 

criminally false statements in their home equity loan documentation to obtain credit. 
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The following month, on March 12, 2010, Lynn arranged a meeting between 

Stephanie Martin, an assistant D.A. assigned to review the criminal complaint, and 

Hill Jr. According to Hill III’s first amended complaint, during this meeting Hill Jr. 

and Lynn repeated and adopted false allegations that had been made against Hill III 

in the memorandum, and they pressured Martin to pursue a criminal prosecution of 

Hill III. One month later, on April 14, 2010, David Pickett, who had replaced Irwin 

as trustee of the Trust four days earlier, submitted a written memorandum like

Lynn’s to the Dallas D.A., which the D.A.’s office has lost and is not part of this 

record. 

III. “Spider Web of Litigation”

At the time of these events, Hill III and Hill Jr. were on opposing sides of 

protracted and highly contentious litigation in federal court. Hill III had been 

involved in litigation against his family—primarily Hill Jr., who died in 2017—since 

2007. The lawsuits, collectively referred to as a “spider web of litigation,” consisted 

of over twenty lawsuits and appeals involving Hill III, Hill Jr., other family 

members, lawyers, and others.

1

One of those suits was brought in the U.S. District Court for the Northern 

District of Texas (the federal court), and it involved the management and 

beneficiaries of two trusts H.L. Hunt established in the names of his two eldest 

1

See, e.g., Hill, Jr. v. Shamoun & Norman, LLP, 544 S.W.3d 724, 728 (Tex. 2018). 
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children, Margaret Hunt Hill and Haroldson Lafayette Hunt (the trust action). 

Margaret Hunt Hill, in turn, had three children, including Hill Jr.2 

On February 18, 2010, four days before Lynn’s memorandum, the federal 

court in the trust action—dealing with one thread of this massive litigation—entered 

an order finding Hill Jr. had submitted affidavits in opposition to a motion for partial 

summary judgment “in bad faith and with the intent of misleading the Court.”3 The 

court’s order also stated that arguments advanced by Hill Jr. “far exceeded the 

bounds of advocacy, permissible or otherwise.”4 

On May 13, 2010, Hill III and numerous other parties entered into a global 

settlement and mutual release agreement (GSA), which the federal court 

incorporated into a November 2010 final judgment. The GSA and final judgment 

contain language disposing of the trust action and other specified litigation as well 

as “any and all past, present, or future claims, actions, causes of action, counts, 

counter-claims, cross-claims, and appeals . . . that were, or could have been, asserted 

in the Litigation . . . which any Agreeing Party has or may have, known or unknown, 

now existing or that might arise hereafter. . . .” As consideration, Hill III received 

2

See Hill, III v. Schilling, 593 F. App’x 330, 332 (5th Cir. 2014); Hill, III v. Hunt, et al., No. 3:07-CV2020-O, 2010 WL 11537520, at *3 (N.D. Tex. Feb. 18, 2010).

3 Hill, III v. Hunt, et al., 2010 WL 11537520, at *11. 

4

Id. at *15.
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over $100 million.5 As the Court of Criminal Appeals stated in its opinion in the 

criminal case against Hill III, this “settlement represented a substantial financial 

victory for Hill [III].” State v. Hill, III, 499 S.W.3d 853, 856 (Tex. Crim. App. 2016).

IV. The Lynn Memorandum

It was against a backdrop of highly contentious and protracted litigation 

between father and son that Lynn’s February 22, 2010, memorandum was submitted 

to the chief of the specialized crime division of the Dallas County D.A.’s office. The 

essence of Lynn’s memorandum was that Hill III and his wife made false and 

misleading statements in their home equity loan documentation, mispresenting their 

ownership interest in the Bordeaux property to be 100 percent when they had a 20

percent interest—the other 80 percent being owned by the Trust. OmniAmerican

Bank did not complain of Hill’s conduct. The loan was fully collateralized, and it is 

undisputed that the loan was repaid prior to the March 2011 indictments of Hill III 

and his wife for the offenses of making a false statement to obtain property or credit 

and securing execution of a document by deception.

6

 The indictments against Hill

5 The case continued to be litigated even after entry of final judgment. For example, the Fifth Circuit 

affirmed the federal district court’s order denying Hill III’s motion to vacate the judgment in light of new 

evidence, terming the litigation “protracted, complicated, and, most importantly, settled with a Global 

Settlement and Mutual Release Agreement.” Hill, III v. Schilling, 593 F. App’x at 331. And more recently, 

in December of 2018, the federal district court held Hill III in contempt for violating the court’s orders, 

sanctioned him, and it described Hill III’s continued legal filings as “frivolous and vexatious.” Hill, III v. 

Schilling, Civil Action No. 3:07-CV-02020-L, 2018 WL 6492508, at *9–11 (N.D. Tex. Dec. 10, 2018) 

(specifically threatening to impose sanctions against the offending attorney or party if they filed any further 

motions to “reconsider, amend or alter the [November 2010 final] judgment, or any similar motion seeking 

to vacate the November 2010 final judgment” that the court found to be “baseless, frivolous, or without 

merit.”). 

6

See TEX. PENAL CODE §§ 32.32(b), 32.46(a). 
–6–

III’s wife were dismissed within six months after they were returned.

V. The Motion to Quash and Dismiss

This is not the first time Hill III has been in our Court. As our prior opinions 

in the criminal case against him recount, he challenged the State’s allegations by 

filing a pretrial motion to quash and dismiss the indictments based on prosecutorial 

misconduct. In this motion, Hill III alleged he was deprived of his due process right 

to a disinterested prosecutor. Hill III asserted that both his father and Lisa Blue 

Baron (“Blue”), a friend of Watkins and a political patron, were responsible for large 

campaign donations to Watkins. First, Hill III claimed Watkins was acting under 

the influence of Hill’s father, who had a motive to retaliate against Hill III because 

of the outcome of the federal trust litigation, and under the influence of Blue, who 

had a pending suit against Hill III seeking millions of dollars in attorneys’ fees.7 

Second, Hill III claimed the prosecution against him was vindictive, and therefore

violated his due process rights, because it was retaliation against him for exercising 

his legal right to engage in the trust and fee dispute litigation. Third, Hill III asserted 

his right to equal protection was violated because the D.A.’s office chose to 

7 Blue had been part of a team of lawyers who were representing Hill III in connection with, inter alia, 

the federal trust litigation between Hill III and his father. Blue represented Hill III from approximately 

November 2009 until July 2010, when a fee dispute arose between Hill III and his former attorneys. In July 

2010, Hill’s team of attorneys (including Blue) filed a motion to withdraw as Hill III’s counsel in the federal 

trust litigation, and in October of that year they filed a federal complaint against the Hills seeking $50 

million in attorneys’ fees. On December 31, 2011, a federal judge issued a memorandum opinion and order 

holding that Hill III and his wife breached the attorneys’ fee agreement, and judgment was entered against 

Hill III and his wife for $21.9 million. See Campbell Harrison & Dagley L.L.P. v. Lisa Blue/Baron & Blue, 

843 F. Supp. 2d 673, 698–99 (N.D. Tex. 2011). 
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selectively prosecute him and his wife for conduct that does not normally lead to a 

criminal prosecution. 

VI. The Evidentiary Hearing

Our prior opinions also examined the testimony heard at the evidentiary 

hearing held in the criminal case, at which Watkins, Blue, and assistant district 

attorneys Terri Moore, Donna Strittmatter, and Stephanie Martin testified. When 

Blue, the first witness called by the defense, took the stand, she invoked her Fifth 

Amendment right on all questions. Watkins also refused to answer questions, citing 

his “right as an attorney to have the privilege and to protect my work-product.” The 

trial court ordered Watkins to testify and answer questions. He refused, telling the 

court he would “continue to assert the privilege,” at which point the court held him 

in contempt. The assistant district attorneys testified that Watkins attended an office

“pitch session” during which a decision was made to indict Hill III. This was his

only involvement in preparing the case for a grand jury shown in their testimony. It

did not reveal any specific questions Watkins may have asked during the session, 

nor whether he personally directed an investigation of Hill III or influenced the 

timing of the presentation of the case to the grand jury. The evidence also showed 

Watkins had approximately 37 telephone calls with Blue, 14 of which occurred in 

March 2011—the month the Hills were indicted. Regarding the State’s case against 

Hill III, Martin initially testified that from the moment she got the complaint, she 

thought she had a good case and was “always presenting it to the Grand Jury.” But 
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handwritten notes she made about her conversations with David Pickett reflected

that she told Pickett that after doing research, she did not see how she could prove a

criminal case at that time. The trial court asked Martin, “The bank is not interested 

in prosecuting, and your client is not a victim; that’s what you told Mr. Pickett?” 

Martin responded, “Yes.” In addition, Martin later went back and added to her notes 

that she had talked to Pickett multiple times since her original note and that he was 

okay with not indicting “for the trust as a victim” and going forward with indictments 

listing the bank as the victim. Martin acknowledged she “probably” added that note 

sometime after Hill III filed his motion to dismiss. 

VII. The Trial Court’s Ruling

The trial court in the criminal case expressed frustration that Watkins was “in 

the thick of it” and “the guy” where the case against Hill III was concerned, yet he 

did not testify. The court observed that “if the evidence supporting the Defendant’s 

case is admitted . . . before this Court, the evidence that I felt supported the need for 

a hearing, why shouldn’t I dismiss it if the State is blocking him from having his 

hearing, so to speak.” After listening to the attorneys’ arguments, the court stated

that, “because of the failure of Mr. Watkins to testify in this hearing, the Defendant 

has been denied his right to have a meaningful hearing on his Motion to Dismiss. 

And on that basis, I’m dismissing the cases [emphasis added].” 

We initially held that the trial court erred in conducting the pretrial evidentiary 

hearing because Hill did not establish a prima facie case of alleged constitutional 
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violations. We vacated the dismissal order and remanded with instructions to 

reinstate the indictments. See State v. Hill, III, Nos. 05-13-00421, 00423, 00424, & 

00425-CR, 2014 WL 7497992 (Tex. App.—Dallas Dec. 29, 2014) (mem. op., not 

designated for publication), rev’d, 499 S.W.3d 853. But the Court of Criminal 

Appeals disagreed and held the trial court did not abuse its discretion in conducting 

an evidentiary hearing. State v. Hill, III, 499 S.W.3d at 871. The court’s opinion

specifically noted that, in its ruling, the trial court did not address the merits of Hill 

III’s motion:

The trial court judge did not address the merits of Hill’s motion nor 

state on the record that she was dismissing the indictments because Hill 

met his burden to prove that he was being vindictively or selectively 

prosecuted. Rather, she dismissed the indictments “because of the 

failure of Mr. Watkins to testify in this hearing.”

Id. at 869 (emphasis added). The Court of Criminal Appeals remanded the case to 

us to address the State’s two remaining issues challenging the trial court’s dismissal 

of the indictments with prejudice. After doing so, we affirmed the trial court’s order, 

holding the trial court did not abuse its discretion in determining that Hill III’s due 

process rights were violated, and in dismissing the case with prejudice. State v. Hill, 

III, 558 S.W.3d 280, 287 (Tex. App.—Dallas 2018, no pet.). 

VIII. Procedural History

Hill III initiated the underlying suit on August 15, 2019, by filing his original 

petition in Probate Court No. 2 of Dallas County, Texas, asserting causes of action 

against appellees for malicious prosecution, conspiracy, and aiding and abetting. 
–10–

Appellees each filed motions to dismiss pursuant to the TCPA on the 21st and 22nd 

of October 2019.8 

Hill III filed a first amended petition, his live pleading, on December 13, 2019, 

asserting the same causes of action. He also filed an “omnibus opposition” to 

appellees’ motions to dismiss and a “submission of evidence” in opposition to 

appellees’ motions to dismiss that ultimately included four declarations and 

approximately 121 exhibits—totaling nearly 4,000 pages of clerk’s record. 

Appellees also filed a joint supplement to their motions to dismiss. Hill III filed a

motion to strike this supplement as untimely or improper on December 16, 2019. 

Two days later, on December 18, appellees filed their joint reply in support of their 

motions and objected to Hill III’s declarations and evidence on numerous grounds, 

including that the testimony in the declarations was conclusory and lacked personal 

knowledge. 

The probate court held a hearing on appellees’ motions to dismiss on January 

10, 2020. On February 6, 2020, the court signed an order granting the motions to 

dismiss, in which it granted appellees’ motions and sustained their objections to Hill 

III’s evidence. The court’s order does not specify the basis for its blanket evidentiary 

ruling. Following additional briefing and a hearing on appellees’ requests for 

attorneys’ fees and sanctions, the probate court signed its order and final judgment 

8 The two motions to dismiss are substantially similar, and in many respects identical. 
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relating to appellees’ motions to dismiss on May 29, 2020, which awarded appellees 

attorneys’ fees and sanctions under Chapter 27 of the Texas Civil Practice & 

Remedies Code. It is from the orders and final judgment that Hill III brings this 

interlocutory appeal.9

DISCUSSION

I. Appellant’s Issues

Hill III brings the following three issues: 

Issue 1: Did each Appellee establish, by a preponderance of the 

evidence, that each of Appellant’s claims was based on, related to, or 

in response to each Appellee’s exercise of their constitutional right of 

free speech, right to petition, or right of association? 

Issue 2: If either Appellee did establish that the TCPA applied to the 

claims asserted against them, did Appellant establish by clear and 

specific evidence a prima facie case for any of his claims against that 

Appellee? 

Issue 3: Did either Appellee prove each essential element of any valid 

defenses?

II. Standard of Review

The TCPA “protects citizens who petition or speak on matters of public 

concern from retaliatory lawsuits that seek to intimidate or silence them.” In re 

9 Hill III filed two other related lawsuits in Harris County, Texas, against various defendants in June of 

2019, approximately two months before this case was brought. One, referred to in appellees’ brief as the 

“lawyers’ petition,” was a suit brought by Hill III against Lisa Blue and ten other defendants. The other, 

referred to as the “Watkins petition,” was a suit filed by Hill III against Craig Watkins and fourteen other

defendants. Both suits involve, as here, claims for malicious prosecution, conspiracy, and aiding and 

abetting, and concern allegations relating to the instant mortgage fraud indictments. The trial court granted 

the defendants’ TCPA motions to dismiss, and Hill III’s appeals are, at present, pending before the Houston 

First Court of Appeals (cause numbers 01-20-00418-CV & 00419-CV).
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Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). At the time Hill III’s 

suit was filed, section 27.005(b) of the TCPA provided:

Except as provided by Subsection (c), on the motion of a party under 

Section 27.003, a court shall dismiss a legal action against the moving 

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

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

party’s exercise of (1) the right of free speech; (2) the right to petition; 

or (3) the right of association.

TEX. CIV. PRAC. & REM. CODE § 27.005(b).10 Thus, the TCPA permits a defendant 

to move for dismissal of a legal action that is “based on, relates to, or is in response 

to a party’s exercise of the right of free speech, right to petition, or right of 

association.” Id. § 27.003(a).

In deciding whether a legal action should be dismissed under the TCPA, the 

trial court “shall consider the pleadings and supporting and opposing affidavits 

stating the facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM.

CODE § 27.006(a); Goldberg v. EMR (USA Holdings) Inc., 594 S.W.3d 818, 824 

(Tex. App.—Dallas 2020, pet. denied). We review de novo the trial court’s ruling 

on a TCPA motion to dismiss. See Creative Oil & Gas, LLC v. Lona Hills Ranch, 

LLC, 591 S.W.3d 127, 132 (Tex. 2019); Goldberg, 594 S.W.3d at 833 (citing 

Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018)). In conducting that review, 

10 In 2019, the legislature deleted the phrase “relates to” from the statute, which now permits a party to 

file a motion to dismiss a legal action if it is “based on or is in response to” the party’s exercise of a TCPAprotected right. See Act of June 2, 2019, 86th Leg., R.S., Ch. 378, §§ 2, 12 (effective September 1, 2019); 

TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), 27.005(b). This suit was filed on August 15, 2019, before 

the amendments took effect, and neither party disputes that the pre-amendments version of the statute 

applies. Thus, references and citations to the TCPA in this opinion are to the version of the statute existing 

before the 2019 amendments took effect. 
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we consider, in the light most favorable to the nonmovant, the pleadings and any 

supporting and opposing affidavits stating the facts on which the claim or defense is 

based. Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 

2019, pet. denied). 

Our review of a TCPA ruling generally involves a three-step analysis. 

Creative Oil, 591 S.W.3d at 132; Youngkin, 546 S.W.3d at 679–80; Goldberg, 594 

S.W.3d at 824. At step one, the TCPA movant has the burden to show by a 

preponderance of the evidence that the legal action is based on, relates to, or is in 

response to the party’s exercise of the right of association, right of free speech, or 

the right to petition. See Creative Oil, 591 S.W.3d at 132 (citing TEX. CIV. PRAC. &

REM. CODE § 27.005(b)); Youngkin, 546 S.W.3d at 679; Goldberg, 594 S.W.3d at 

824.

If the movant does so, the analysis proceeds to step two, where the burden of 

proof shifts to the nonmovant to establish by clear and specific evidence a prima 

facie case for each essential element of the claim asserted. See Creative Oil, 591 

S.W.3d at 132 (citing TEX. CIV. PRAC. & REM. CODE § 27.005(c)); Youngkin, 546 

S.W.3d at 679; Goldberg, 594 S.W.3d at 824. A “prima face case” refers to “the 

‘minimum quantum of evidence necessary to support a rational inference that the 

allegation of fact is true.’” Lipsky, 460 S.W.3d at 590 (quoting In re E.I. DuPont de 

Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (per curiam) (orig. proceeding)). 

“Clear and specific” evidence is “unambiguous,” “sure,” or “free from doubt,” and, 
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for the latter, “explicit” or “referring to a particular named thing.” Id. (quoting KTRK 

Television v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013, 

pet. denied)). 

In Lipsky, the Texas Supreme Court explained how this evidentiary standard 

should be applied, stating that “[b]ecause the Act requires more, mere notice 

pleading—that is, general allegations that merely recite the elements of a cause of 

action—will not suffice. Instead, a plaintiff must provide enough detail to show the 

factual basis for its claim.” Lipsky, 460 S.W.3d at 590–91. The TCPA nonmovant 

may rely on circumstantial evidence, i.e., “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.’” Dallas Morning News, Inc. v. Hall, 

579 S.W.3d 370, 377 (Tex. 2019) (quoting Lipsky, 460 S.W.3d at 589); see also 

Lipsky, 460 S.W.3d at 591 (TCPA “does not impose a higher burden of proof than 

that required of the plaintiff at trial,” and does not “require direct evidence of each 

essential element of the underlying claim to avoid dismissal.”).

If the movant meets the first step, but the nonmovant does not make the 

required showing of a prima facie case under step two, the trial court must dismiss 

the nonmovant’s claim. See TEX. CIV. PRAC. & REM. CODE § 27.005(b), (c).

If, however, the nonmovant satisfies its burden at step two, the analysis 

proceeds to step three, where the burden of proof shifts back to the movant to 

establish by a preponderance of the evidence each essential element of a valid 
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defense to the nonmovant’s claim, resulting in dismissal under the statute if the 

movant does so. Creative Oil, 591 S.W.3d at 132 (citing TEX. CIV. PRAC. & REM.

CODE § 27.005(d)); Youngkin, 546 S.W.3d at 679–80; Goldberg, 594 S.W.3d at 824.

III. Step One: Did Appellees Show the TCPA Applied?

A. Hill III’s Allegations

Step one of the TCPA focuses on whether appellees proved by a 

preponderance of the evidence that Hill III’s claims were based on, related to, or in 

response to appellees’ exercise of a protected right. E.g., Creative Oil, 591 S.W.3d 

at 132. The Texas Supreme Court has said the plaintiff’s petition is the “best and 

all-sufficient evidence of the nature of the action,” and the applicability of the TCPA. 

Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (internal quotations and citation 

omitted). “When it is clear from the plaintiff’s pleadings that the action is covered 

by the Act, the defendant need show no more.” Id.; see Watson v. Hardman, 497 

S.W.3d 601, 607 (Tex. App.—Dallas 2016, no pet.) (“[A] plaintiff’s own live 

pleading can satisfy a movant’s 27.005(b) burden.”); see also MacFarland v. Le-Vel 

Brands LLC, No. 05-16-00672-CV, 2017 WL 1089684, at *7 (Tex. App.—Dallas 

Mar. 23, 2017, no pet.) (mem. op.). 

Turning, therefore, to Hill III’s live pleading, his first amended petition, he 

alleges that years before his death in 2017, Hill Jr. “developed a deep-seated animus 

towards” Hill III, his only son. With the assistance of other family members and the 

help of advisors, Hill Jr. initiated or procured Hill III’s criminal indictment by 
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influencing the Dallas D.A., Watkins, to seek the indictments. Hill III alleges the

indictments were based on false information and were factually inaccurate. 

Hill III claims he made no misrepresentations about the ownership of the 

Bordeaux property, stating that when he applied for the loan in 2009, he and his wife 

“owned 100% of the property in fee simple, as evidenced by a deed that was filed of

public record.” He also states that OmniAmerican Bank was aware, before issuing 

the loan, of the potential claim to an 80 percent interest in the property, “and 

apparently satisfied itself that this alleged interest was no impediment to issuing the 

loan.” Hill III points out that the bank and its mortgage broker never accused him 

of fraud or deception, and that the mortgage broker reacted to the indictments by 

stating that “[t]here was nothing fraudulent as we verified tax returns[,] credit and 

title.” 

Even so, according to Hill III, Watkins, “after being improperly influenced by 

[Hill] Jr., Lisa Blue, and others,” filed criminal charges against him. Hill III alleges 

that “[a]ll of this was perpetrated out of spite and malice and for no legitimate 

purpose,” and that none of the parties involved in this process had probable cause to 

believe he committed a crime because they “knew that the lynchpin of the charges—

[Hill] III’s alleged ownership of only 20% of the residence—was false and knew 

that OmniAmerican Bank had not been misled or defrauded.” 

Hill III then sets out the crux of his allegations regarding his malicious 

prosecution claim—i.e., the false reports, both written and oral, that he claims Hill 
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Jr., Mike Lynn, and David Pickett submitted to the Dallas D.A.’s office: 

30. In an attempt to lend legitimacy to his malicious attempts to get Al 

III indicted on false charges, Al Jr. (acting directly and through Mike 

Lynn and David Pickett) touted to DA Watkins the fact that, in 2004, 

Al III and his wife had entered into a Real Estate Sales Contract 

purporting to convey to the “Albert Hill Trust” an 80% undivided 

interest in the property at 4433 Bordeaux Avenue. Al Jr. was at the time 

a beneficiary of that trust (and Al III was a remainder beneficiary), and 

Ivan Irwin, Jr. was its trustee. It is the alleged conveyance of this 80% 

interest that, according to Al Jr., Mike Lynn, and David Pickett (and 

later the indictments), rendered false Al III’s representations in the 

OmniAmerican loan application about the ownership of the property.

When seeking to have Al III indicted, Al Jr., David Pickett, and Mike 

Lynn repeatedly characterized this as a real transaction that had actually 

and legally operated to transfer an 80% interest in the residence to the 

Albert Hill Trust.

31. But, as Al Jr., David Pickett, and Mike Lynn knew, and as Watkins 

and his staff also knew or could have easily learned with only minimal 

investigation, this purported transaction was not a real conveyance, as 

demonstrated in part by the fact that the deed supposedly conveying an 

80% interest to the trust was not recorded at the time in the real property 

records. In fact, the alleged transaction was intended in 2004 as an 

advance to Al III on expected inheritances. As known by Al Jr., David 

Pickett, Mike Lynn, and Ivan Irwin, and as Watkins and his staff also 

knew or could have easily learned with only minimal investigation, it 

was illegal and unenforceable under Texas law to the extent it purported 

to encumber the Bordeaux property. As a matter of Texas law, the 

existence of this purported transaction did not diminish the 100% 

interest in the property owned by Al III and his wife, as was in part 

shown by OmniAmerican’s decision, made with knowledge of the 

alleged transaction, to accept Al III’s loan application and to loan him 

$500,000

32. The indictments against Al III were nevertheless procured in part 

by supplying false information about this alleged transaction—

sometimes directly by Al Jr. and other times through his 

intermediaries—to Watkins and to the District Attorney’s Office. For 

example, Al Jr. directed Mike Lynn to make a written submission to the 

DA’s office dated February 22, 2010. That submission, which 

contained false and misleading information, was made on behalf of Al 
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Jr., and he (along with Mike Lynn) is fully responsible for its contents, 

as demonstrated in part by the introduction to the submission itself, 

which states: “Albert G. Hill, Jr. complains of his son, Albert G. Hill, 

III . . . .” Mike Lynn was more than happy to deliver this referral since, 

at the time, he harbored his own animus and malice towards Al III, 

based on Al Ill’s role in exposing Mike Lynn’s role in suborning 

perjury. Although Mike Lynn is an attorney, delivery of this submission 

to the DA’s office did not require a law license or any legal expertise. 

In fact, submitting a criminal referral to the DA and lobbying the DA 

for an indictment is expressly outside the scope of any appropriate legal 

representation in which Lynn could have permissibly engaged as Al 

Jr.’s lawyer in civil litigation.

33. Just a day or two prior to this submission, when Al III refused one 

of Al Jr.’s demands, Al Jr. told him he would “see him in jail,” which 

serves to highlight the malice and lack of probable cause that motivated 

the criminal referral. The malice motivating Al Jr. in February 2010 is 

further shown by a remarkable pleading that Al Jr. filed against Al III 

in Dallas County on the same day as this submission to the DA in which 

Al Jr. labelled his own son “the apostate”; compared him to Lucifer; 

called him a sociopath; ridiculed him for reading the Bible; and 

viciously insulted Al Ill’s wife and her parents.

34. Motivated by this malicious intent, Al Jr. further directed David 

Pickett, a long-time advisor, to make a similar written submission to the 

DA’s office dated April 14, 2010. That written statement reiterated the 

same false assertions contained in the submission from February 22, 

2010. Although the DA’s office misplaced that written submission for 

a period of time, it was ultimately found or recreated, and the 

information in it (and in the February 2010 submission) formed the 

pretext of the indictments ultimately issued against Al III in March and 

April of 2011. This submission and subsequent efforts by David Pickett 

to bring about Al Ill’s prosecution were not undertaken by Pickett in his 

capacity as an attorney.

35. In addition, Al Jr. and Mike Lynn and David Pickett (at Al Jr.’s 

direction and for their own reasons) personally met with and orally 

conveyed information to representatives of the DA’s office on one or 

more occasions and repeated to prosecutors the false information 

contained in the above-referenced written submissions.

36. The written and oral submissions made to the DA’s office by and 
–19–

on behalf of Al Jr., Mike Lynn, and David Pickett (including the 

February 2010 submission by Lynn and the April 2010 submission by 

Pickett) contained misrepresentations by both commission and by 

omission. They falsely stated that the Albert G. Trust had “been 

defrauded.” They falsely represented that Al III and his wife “only own 

a 20% interest in the home.” They falsely stated that Al III had claimed 

“he had an income of $55,000,” when it was really OmniAmerican 

Bank who had directed Al III on how to represent his income on the 

loan application. They stated that Al III and his wife had signed a deed 

transferring “80% of their residence in favor of the Albert Hill Trust,”

without revealing that the alleged conveyance was wholly 

unenforceable. They made the false statement that Al III and his wife 

“only owned a 20% interest in the residence,” despite Al Jr., Lynn, and

Pickett knowing that the alleged transaction transferring an 80% 

interest was illegal and void under Texas law. The submissions also 

failed to disclose that an alleged deed transferring 80% of the property 

was not filed in the real estate records until 2009, after the loan was 

made by OmniAmerican Bank and as a part of the plan to falsely accuse 

Al III of criminal activity. They also failed to disclose that a notice 

purporting to describe (but not to effectuate) the unenforceable 80-20 

deal was a matter of public record available for OmniAmerican Bank 

to review as part of its underwriting of the loan, thus refuting any 

suggestion that OmniAmerican Bank had been defrauded. The 

submissions also concealed the fact that, by July 2009, Al Jr., Mike 

Lynn, David Pickett, and other representatives of the Albert Hill Trust 

had already been in contact with OmniAmerican Bank and knew full 

well from those contacts that OmniAmerican Bank had not been 

defrauded or deceived and had been apprised of all material facts. 

Finally, the submissions failed to reveal that, by February 22, 2010, the 

loan had been repaid in full, OmniAmerican’s lien on the residence had 

been released, and the Albert G. Hill Trust had acknowledged that it 

had no further claims related to the allegedly improper loan.

Regarding pressure on the D.A.’s office to prosecute, Hill III alleges his father

was not content to rely on false reports alone to ensure Hill’s indictment. He claims 

Hill Jr. “exerted nearly continuous pressure on Watkins and his staff to get 

indictments against [Hill] III on file,” and that the pressure tactics included having 

Pickett “bombard” the D.A.’s office with written and oral demands for indictments. 
–20–

Hill III also claims Hill Jr. caused his lawyers and family members to make 

“substantial (and for them unprecedented) campaign contributions” to Watkins, and 

that they made charitable contributions to fund programs at the D.A.’s office (or that 

were supported by the D.A.) that the D.A. then used to “burnish his public image.” 

Hill III’s petition alleges, for example, that Lisa Blue and one of Lynn’s former law 

partners, Jeff Tillotson, contributed money to Watkins’s election campaign in 2010 

and 2011, and that Blue made charitable donations in honor of Watkins. In addition, 

Hill III alleges that Hill Jr. facilitated “the hiring of one of [Hill] Jr.’s own private 

lawyers . . . as a special prosecutor at the D.A.’s office to help spearhead the criminal 

case against [Hill] III.” Hill III alleges that all “this additional activity was part of 

the process through which these indictments were initiated and procured and through 

which Watkins was influenced and essentially bribed.”

Hill III’s civil conspiracy claim alleges that Hill Jr., Lisa Blue, Mike Lynn, 

Jeff Tillotson, Craig Watkins, David Pickett, Ivan Irwin, and fourteen other 

individuals “formed by agreement a combination to injure and harm [Hill] III.” Hill 

III claims their objective was the accomplishment of an unlawful purpose—i.e., the 

initiation, procurement, and continuation of his illegal and unconstitutional 

prosecution on “bogus charges.” He alleges the members of the “combination” had 

a meeting of the minds regarding his prosecution, and on the course of action—i.e., 

“supplying knowingly false information to prosecutors, exerting undue influence 

over prosecutors, and providing financial benefits to [the D.A.].” Hill III further 
–21–

alleges that several members of this combination committed unlawful, overt acts in 

furtherance of the combination’s agreed objective and course of action, and that he 

suffered actual damages as a proximate result. 

Hill III’s claim for aiding and abetting alleges that each of the individuals 

named in his petition had knowledge of the torts being committed against him by 

Craig Watkins, Hill Jr., Lisa Blue, Mike Lynn, David Pickett, and Jeff Tillotson. He 

alleges that each defendant had the intent to assist the other parties in the commission 

of these torts, and they “provided assistance or encouragement that was a substantial 

factor” in their commission. 

Hill III’s petition attempts to connect Irwin to the purported conspiracy by 

claiming (1) Irwin was one of Hill Jr.’s “closest confidants” for approximately 50 

years; (2) Irwin served as a lawyer for Hill Jr. and various entities Hill Jr. controlled; 

(3) Irwin served as a trustee of various trusts which benefitted Hill Jr. and other 

members of the Hunt/Hill family; (4) Irwin served as an officer, director, and/or 

business advisor for various entities owned by Hill Jr.; (5) in July 2004, six years 

before the Lynn memorandum, Irwin, as trustee of the Trust, entered into the 

Bordeaux transaction, described by Hill III as a “sham transaction” that Irwin “knew 

full well” did not “convey any interest in the [Bordeaux] residence to the . . . Trust”; 

and (6) in 2016, five years after Hill III’s indictment, Irwin was an “Advisory Board 

Member” of certain irrevocable trusts of which Hill III was a beneficiary (none of 

them, insofar as the petition alleges, related to the criminal proceedings in this case), 
–22–

trusts that Hill III claims were improperly terminated. In addition, Hill III alleges 

that “Irwin also participated in efforts to shower the DA with campaign 

contributions.” 

B. The Underlying Tort and Derivative or Dependent Claims

In his first issue, Hill III argues appellees did not establish by a preponderance 

of the evidence that each of his claims was based on, related to, or in response to 

each appellee’s exercise of their constitutional right of free speech, right to petition, 

or right of association. Appellees contend the TCPA applies to Hill III’s malicious 

prosecution claim because the TCPA covers the filing of criminal complaints and 

participation in criminal proceedings. Appellees also argue the TCPA applies to Hill 

III’s claims for conspiracy and aiding and abetting because they are derivative or 

dependent in nature. Appellees argue that if the malicious prosecution allegations 

are subject to the TCPA, so, too, are Hill III’s derivative or dependent claims for 

conspiracy and aiding and abetting. 

Civil conspiracy is a derivative tort. E.g., Tilton v. Marshall, 925 S.W.2d 672, 

681 (Tex. 1996); W. Fork Advisors, LLC v. SunGard Consulting Servs., LLC, 437 

S.W.3d 917, 920 (Tex. App.—Dallas 2014, pet. denied) (quoting Tilton); Four Bros. 

Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 668 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied) (citing Tilton). It “is a theory of vicarious 

liability and not an independent tort.” Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 

580 S.W.3d 136, 142 (Tex. 2019). “That is, a defendant’s liability for conspiracy 
–23–

depends on participation in some underlying tort for which the plaintiff seeks to hold 

at least one of the named defendants liable.” Tilton, 925 S.W.2d at 681. 

As for aiding and abetting, the Texas Supreme Court “has not expressly 

decided whether Texas recognizes a cause of action for aiding and abetting,” First 

United PenteCostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224 (Tex. 

2017), and the Fifth Circuit has stated that “no such claim exists in Texas.” In Re 

Deputy Orthopaedics, Inc., 888 F.3d 753, 782 (5th Cir. 2018). But to the extent such 

a claim exists under Texas law, aiding and abetting, like civil conspiracy, is also a 

“dependent” or derivative claim that is “premised on” an underlying tort. W. Fork 

Advisors, LLC, 437 S.W.3d at 921. 

If the underlying tort fails, “there can be neither a conspiracy nor an aiding 

and abetting claim related to that failed tort.” Id.; see Renate Nixdorf GmbH & Co. 

KG v. TRA Midland Properties, LLC, No. 05-17-00577-CV, 2019 WL 92038, at *5 

(Tex. App.—Dallas Jan. 3, 2019, pet. denied) (mem. op.) (“Aiding and abetting is a 

dependent claim premised on an underlying tort; there can be no aiding and abetting 

claim related to an underlying tort claim that fails.”); Siltek Grp. Texas, LLC v. A&A 

Landscape & Irrigation LP, No. 05-17-00042-CV, 2018 WL 3342691, at *4 (Tex. 

App.—Dallas July 9, 2018, no pet.) (mem. op.) (“Without an underlying tort, there 

can be no independent liability for civil conspiracy.”); see also Mogged v. 

Lindamood, No. 02-18-00126-CV, 2020 WL 7074390, at *10 n.17 (Tex. App.—Fort 

Worth Dec. 3, 2020, pet. denied) (mem. op.); Castille v. Port Arthur Parolmen’s 
–24–

Hunting Club, No. 09-18-00395-CV, 2020 WL 1879475, at *6 (Tex. App.—

Beaumont April 16, 2020, pet. denied) (mem. op.); Vertex Servs. LLC v. Oceanwide 

Houston, Inc., 583 S.W.3d 841, 857 (Tex. App.—Houston [1st Dist.] 2019, no pet.) 

(citing Agar, 580 S.W.3d at 141); Arcturus Corp. v. Espada Operating, LLC, No. 

13-13-00713-CV, 2016 WL 4272381, at *11 (Tex. App.—Corpus Christi Edinburg 

Aug. 11, 2016, no pet.) (mem. op.). As the court stated in Castille, “Liability for a 

conspiracy comes from the act done to further the conspiracy, not the conspiracy 

itself. The elements of a claim for civil conspiracy require the participation in an 

underlying intentional tort, and malicious prosecution is an intentional tort.” 

Castille, 2020 WL 1879475, at *6 (citation omitted). Therefore, because the civil 

conspiracy and aiding and abetting claims are derivative or dependent in nature, they 

are “connected” to the underlying tort of malicious prosecution, and they “survive[

] or fail[ ] alongside it.” Agar, 580 S.W.3d at 141. We must, then, analyze whether 

the TCPA applies to Hill III’s conspiracy and aiding and abetting claims by 

examining the alleged underlying tort—malicious prosecution. Clayton Mountain, 

LLC, et al. v. Susann Ruff, No. 11-20-00034-CV, 2021 WL 3414754, at *6 (Tex. 

App.—Eastland Aug. 5, 2021, no pet.) (mem. op.) (noting that because civil 

conspiracy claim was derivative, it was connected to the underlying tort and survived 

or failed alongside it, and the court had to thus “analyze whether the TCPA applies 

to [plaintiff’s] conspiracy claim in connection with the alleged underlying tort”)

(citing Agar, 580 S.W.3d at 141); e.g., W. Fork Advisors, LLC, 437 S.W.3d at 921;
–25–

Mogged, 2020 WL 7074390, at *10 n.17; Castille, 2020 WL 1879475, *6. 

C. Exercise of the Right to Petition

Turning to that question, the TCPA applies if the movant “shows by a 

preponderance of the evidence that the legal action is based on, relates to, or is in 

response to” the defendant’s exercise of (1) the right of free speech, (2) the right to 

petition, or (3) the right of association, as those rights are defined in the TCPA. TEX.

CIV. PRAC. & REM. CODE § 27.005(b). The TCPA defines the exercise of the right 

to petition as including “a communication in or pertaining to . . . a judicial 

proceeding [or] an official proceeding, other than a judicial proceeding, to 

administer the law[.]” Id. § 27.001(4)(A)(i), (ii). “‘Official proceeding’ means any 

type of administrative, executive, legislative, or judicial proceeding that may be 

conducted before a public servant.” Id. § 27.001(8). A “‘[c]ommunication’ includes 

the making or submitting of a statement or document in any form or medium, 

including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). The right 

to petition also includes “a communication that is reasonably likely to encourage 

consideration or review of an issue by a governmental body or in another 

governmental or official proceeding.” Id. § 27.001(4)(C). Finally, the TCPA’s 

definition of the right to petition includes “any other communication that falls within 

the protection of the right to petition government under the Constitution of the 

United States or the constitution of this state.” Id. § 27.001(4)(E).

Reporting crimes and making statements to police regarding incidences of 
–26–

perceived wrongdoing implicates the right to petition. E.g., Cal. Commercial Inv. 

Group, Inc. v. Herrington, No. 05-19-00805-CV, 2020 WL 3820907, at *3 (Tex. 

App.—Dallas July 8, 2020, no pet.) (mem. op.); Ford v. Bland, 2016 WL 7323309, 

at *1 (Tex. App.—Houston [14th Dist.] Dec. 15, 2016, no pet.) (mem. op.). As one

court stated, “[w]hen a person interacts with the police to report perceived 

wrongdoing, that person is exercising their right to petition, as that right is defined 

in the TCPA.” Buckingham Senior Living Cmty., Inc. v. Washington, 605 S.W.3d 

800, 807 (Tex. App.—Houston [1st Dist.] 2020, no pet.). In addition, filing a police 

report, whether true or false, implicates a person’s right to petition the government. 

E.g., Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 609 (Tex. App.—San 

Antonio 2018, pet. denied) (statements to police, even if false, were an exercise of 

right of petition under the TCPA); Herrington, 2020 WL 3820907, at *4 (rejecting 

argument that TCPA did not apply to claim based on allegedly defective criminal 

complaint and indictment); Murphy USA, Inc. v. Rose, No. 12-15-00197-CV, 2016 

WL 5800263, at *3 (Tex. App.—Tyler Oct. 5, 2016, no pet.) (mem. op.) (“Filing a 

police report, whether true or false, implicates a person’s right to petition the 

government, and this right must be considered when determining whether a person 

filed a false report.”). And statements made to members of a district attorney’s office 

in connection with a criminal prosecution of someone else implicate the speakers’ 

rights to petition. Castille, 2020 WL 1879475, at *5. 

The TCPA’s “exercise of the right to petition” also includes a communication 
–27–

in or pertaining to “a judicial proceeding” as well as “any other communication that 

falls within the protection of the right to petition government under the Constitution 

of the United States or the constitution of this state.” TEX. CIV. PRAC. & REM. CODE

Ann. § 27.001(4)(A)(i), (E). In addition, the “broad definition” of “communication” 

under TCPA “encompasses a petition in a lawsuit, which is a ‘judicial proceeding.’” 

See Hawxhurst v. Austin’s Boat Tours, 550 S.W.3d 220, 227 (Tex. App.—Austin 

2018, no pet.). A “judicial proceeding,” as used in the TCPA, involves an “actual, 

pending, judicial proceeding,” not an anticipated or potential judicial proceeding. 

Levatino v. Apple Tree Café Touring, Inc., 486 S.W.3d 724, 728–29 (Tex. App.—

Dallas 2016, pet. denied); see Mattress Firm, Inc. v. Deitch, 612 S.W.3d 467, 486 

(Tex. App.—Houston [1st Dist.] 2020, pet. denied); see also Dyer, 573 S.W.3d at

429.

D. Exercise of the Right of Free Speech

Separately, a claim based on a report of a crime implicates the right of free

speech under the TCPA. Herrington, 2020 WL 3820907, at *3; see Keel Recovery, 

Inc. v. Tri County Adjusters, Inc., 05-19-00686-CV, 2020 WL 5269603, at *4 (Tex. 

App.—Dallas Sept. 4, 2020, no pet.) (mem. op.). The TCPA defines the exercise of 

the right of free speech as “a communication made in connection with a matter of 

public concern.” TEX. CIV. PRAC. & REM. CODE § 27.001(3). A matter of public 

concern includes, among other things, “an issue related to . . . health or safety,” 

“environmental, economic, or community well-being,” “the government,” or “a 
–28–

public official or public figure.” Id. § 27.001(7)(A)-(D). 

The TCPA “does not require communication in public form,” and it “does not 

require that the statements specifically ‘mention’ health, safety, environmental, or 

economic concerns, nor does it require more than a ‘tangential relationship’ to the 

same.” ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017). 

Public matters include the “commission of crime, prosecutions resulting from it, and 

judicial proceedings arising from the prosecutions,” which “are without question 

events of legitimate concern to the public and consequently fall within the 

responsibility of the press to report the operations of government.” Cox Broad. 

Corp. v. Cohn, 420 U.S. 469, 492 (1975); Brady v. Klentzman, 515 S.W.3d 878, 884 

(Tex. 2017); Deaver v. Desai, 483 S.W.3d 668, 673 (Tex. App.—Houston [14th 

Dist.] 2015, no pet.); see Montano v. Cronan, No. 09-20-00232-CV, 2021 WL 

2963801, at *4 (Tex. App.—Beaumont July 15, 2021, no pet.) (mem. op.) (internal 

quotations and citations omitted) (“Public matters include, among other things, 

commission of a crime, prosecutions resulting from it, and judicial proceedings 

arising from the prosecutions.”); Castille, 2020 WL 1879475, at *5 (“Reporting a 

crime to law enforcement and related judicial proceedings arising from prosecutions 

are matters of public concern.”).

E. Appellees Met Their Burden of Showing the TCPA Applies

Hill III maintains that the TCPA does not apply to his claims against appellees 

because the TCPA only applies to a “proper” exercise of First Amendment rights. 
–29–

In other words, the complaints at issue were not “legitimate” because they were not

lawful or constitutionally protected activities. Hill III argues “[a]ppellees have been 

named as defendants for initiating and conspiring with Watkins in a malicious 

prosecution of [Hill] III and for violating [Hill] III’s constitutional rights,” and that 

“a number of Texas courts, including this Court, already have passed judgment on 

the wrongful nature of Watkins’s underlying conduct.” 

Hill III cites and discusses mainly two cases as support. See Gaskamp v. WSP 

USA, Inc., 596 S.W.3d 457, 481 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d)

(en banc); Bandin v. Free & Sovereign State of Veracruz, 590 S.W.3d 647, 653 (Tex. 

App.—Houston [14th Dist.] 2019, pet filed). In Bandin, the court of appeals quoted 

language from Justice Keyes’ concurrence in Universal Plant Services, Inc. v. 

Dresser-Rand Group, Inc., advocating that “‘[t]o read out of the TCPA the 

requirement that movants must prove that the activities in which they . . . engaged 

[were] at least arguably lawful constitutionally protected activities contradicts the 

statute’s purpose and its plain language.’” Bandin, 590 S.W.3d at 653 (emphasis 

added) (quoting 571 S.W.3d 346, 371 (Tex. App.—Houston [1st Dist.] 2018, no 

pet.) (Keyes, J., concurring)). Bandin involved an alleged conspiracy to commit 

theft or conversion, and in Universal Plant the allegations centered on 

misappropriation or conversion of trade secrets and other protected information. 

Bandin, 590 S.W.3d at 652; Universal Plant, 571 S.W.3d at 350, 371. Neither case, 

though, involved any identified acts of speech or association on the part of the parties 
–30–

that could be given a non-tortious interpretation. Universal Plant, 571 S.W.3d at 

371 (Keyes, J., concurring); see Bandin, 590 S.W.3d at 651, 653–54. The court in 

Bandin ultimately held that the TCPA did not apply “to claims of conspiracy to 

convert or unlawfully appropriate property belonging to others.” Id. at 654. 

Gaskamp similarly involved allegations that the defendants “act[ed] in 

collusion” to misappropriate trade secrets, fraudulently transfer assets, tortiously 

interfere with contracts and business relations, and engage in unfair competition. 

Gaskamp, 596 S.W.3d at 464. The court explained that the concept of “common 

interests,” as that phrase was used in the TCPA’s definition of “exercise of the right 

of association,” necessarily included a “public component.” Id. at 473–74. But in 

Gaskamp, contrary to this case, there were “no allegations that the tortfeasors 

‘join[ed] together to collectively express, promote, pursue, or defend’ any public or 

community interests.” Id. at 476.

The situation in the present case is quite different. Hill III’s petition 

establishes on its face that his claims against appellees relate to the exercise of the 

right to petition and/or implicate the exercise of the right of free speech. He alleges 

Hill Jr. filed a criminal complaint and submitted false information to the D.A. 

through the February 2010 Lynn memorandum, the March 2010 meeting, and the 

April 2010 Pickett submission. Hill III also alleges Hill Jr.’s malice towards him 

was supported by statements he made in a February 2010 pleading Hill Jr. filed in 

Dallas County—part of the “spider web of litigation” we mentioned earlier. Hill III 
–31–

further alleges that Hill Jr. stated, just a day or two before Lynn’s memorandum was 

submitted, that he would “see [Hill III] in jail.” In addition, Hill III alleges appellees 

and numerous other individuals, including Ivan Irwin, Mike Lynn, and Lisa Blue, 

conspired and/or “aided and abetted” in bringing about his criminal prosecution. 

As shown by the allegations in Hill III’s own pleadings, the communications 

he complains of concern the initiation or procurement of criminal charges against 

him—altogether different from the situation in Bandin or Gaskamp. Neither of those 

cases involved recognized constitutional activities such as “[w]hen a person interacts 

with the police to report perceived wrongdoing,” which is the exercise of “their right 

to petition, as that right is defined in the TCPA.” Buckingham Senior Living, 605 

S.W.3d at 807. Furthermore, while this Court has not adopted the Bandin court’s 

interpretation of the TCPA, the claims asserted here involve at least arguably lawful 

constitutionally protected activities. Bandin, 590 S.W.3d at 653. And, finally, Hill 

III’s argument goes even further than Bandin, effectively requiring us to conduct a 

review of the actual behavior and motivations behind appellees’ communications at 

step one of the TCPA analysis, before reaching the elements of Hill III’s malicious 

prosecution claim at step two. Hill III cites no authority for the proposition that the 

TCPA requires a threshold merits determination of his malicious prosecution claim 

to trigger coverage.

Hill III’s accusation that appellees acted in their own pecuniary interest does 

not remove TCPA protections. In considering whether claims involve matters of 
–32–

public concern, a matter of public concern for purposes of the TCPA must involve 

more than private pecuniary interests, and “[t]he phrase ‘matter of public concern’ 

commonly refers to matters ‘of political, social, or other concern to the community,’

as opposed to purely private matters.” Creative Oil, 591 S.W.3d at 135 (quoting 

Brady v. Klentzman, 515 S.W.3d at 884). For example, the internal communications 

in Gaskamp “had no public relevance beyond the pecuniary interest of the private 

parties.” Gaskamp, 596 S.W.3d at 477 (appellants did not meet their burden of 

showing internal communications were “made in connection with a matter of public 

concern”). The situation in this case is, again, very different: The “public relevance” 

is shown by the allegations in Hill III’s pleadings, which concern the public’s interest 

in reporting a suspected crime or filing a criminal complaint. See Gaskamp, 596 

S.W.3d at 480 (“The nature of the legal action is revealed by the factual allegations 

in the pleadings.”). An alleged conspiracy to engage in such activities likewise falls 

under the TCPA, for reasons we have already noted.

At step one we concern ourselves only with whether Hill III’s lawsuit against 

appellees is based on, related to, or in response to appellees’ exercise of the right of 

free speech or the right to petition. TEX. CIV. PRAC. & REM. CODE § 27.005(b). We 

reject Hill III’s attempt to alter the parties’ burdens of proof, and, as the TCPA 

requires, confine our inquiry to appellees’ initial burden—i.e., showing the statute 

applies to Hill III’s claims against them. We conclude appellees have satisfied that

burden at step one by showing the TCPA applies, and we therefore overrule Hill
–33–

III’s first issue.11

IV. Step Two: Did Hill III Establish a Prima Facie Case?

A. Trial Court’s Evidentiary Ruling

Because the TCPA applies to Hill III’s allegations, he had the burden, at step 

two, of presenting clear and specific evidence of a prima facie case for each essential 

element of his claims. TEX. CIV. PRAC. & REM. CODE § 27.005(c). In his second 

issue, Hill III argues that if appellees established that the TCPA applies to his claims 

against them at step one, he established by clear and specific evidence a prima facie 

case for his claims. Before addressing this issue, however, we must examine some 

other matters raised by the parties.

The first question concerns the trial court’s evidentiary ruling. We noted 

before that, as support for his omnibus opposition to appellees’ TCPA motions to 

dismiss, Hill III attached or submitted approximately 121 exhibits and four 

declarations, three of them (an original declaration and two supplements) executed 

by Hill III—totaling nearly 4,000 pages of clerk’s record. Appellees made numerous 

evidentiary objections to the declarations, including hearsay, relevance, conclusory

statements, lack of personal knowledge, and best evidence. Altogether, more than 

270 separate objections were lodged by appellees, most of them on multiple grounds. 

11 Because we conclude Hill III’s allegations relating to the filing of a criminal complaint and/or

participation in criminal proceedings are sufficient to invoke the TCPA, we do not address appellees’ 

arguments regarding alleged political and/or charitable contributions made by appellees or individuals 

acting on their behalf. 
–34–

Appellees also brought hearsay, relevance, or lack of authentication objections to 

some of Hill III’s exhibits. The trial court granted appellees’ evidentiary objections 

without specifying the basis for its ruling. 

In his opening brief on appeal, Hill III argues the trial court erred in sustaining 

appellees’ “voluminous objections to virtually all of [Hill] III’s evidence.” He 

asserts that “[t]he probate court’s blanket evidentiary ruling against [Hill] III was in 

error,” he cites to some cases discussing the TCPA’s evidentiary standards, and he 

concludes that “the probate court’s one-sentence, blanket evidentiary ruling must be 

reversed.” But Hill III’s brief fails to identify or even cite to any evidence he claims 

was improperly excluded by the trial court, nor does he make a specific argument 

for why appellees’ objection or objections to any evidence should have been 

overruled. 

Responding to appellees’ contention that his argument is inadequately briefed 

and, thus, waived, Hill III asserts that he “properly raised the impropriety of the trial 

court’s blanket evidentiary ruling such that [we] may review those rulings as they 

apply to [Hill III’s]” original and supplemental declaration. Hill III also argues he 

was “not required to challenge each specific objection raised by [a]ppellees on the 

presumption that each was independently granted by the trial court’s blanket 

evidentiary ruling.” Once again, however, Hill III does not identify or cite to any 

evidence that was allegedly improperly excluded by the trial court, nor does he make 

a specific argument regarding why appellees’ objection or objections should have 
–35–

been overruled. 

Section 27.006 of the TCPA states the rule on permissible evidence in a TCPA 

action, and the pre-amendments TCPA provided that, in considering whether a legal 

action should be dismissed under Chapter 27, the trial court “shall consider the 

pleadings and supporting and opposing affidavits.” TEX. CIV. PRAC. & REM. CODE

§ 27.006(a). This Court has declined to “apply wholesale” the summary judgment 

affidavit cases in a TCPA context, but, like the El Paso Court of Appeals when it

addressed the pre-amendment TCPA, we have said “the ‘clear and specific’ standard 

in the TCPA at least requires us to reject conclusory claims made by an affiant.” 

Equine Holdings, LLC v. Jacoby, No. 05-19-00758-CV, 2020 WL 2079183, at *4 

(Tex. App.—Dallas Apr. 30, 2020, pet. denied) (mem. op.); see MVS Int’l Corp. v. 

Int’l Advert. Sols., LLC, 545 S.W.3d 180, 192 (Tex. App.—El Paso 2017, no pet.)

(“While we are not inclined to apply wholesale the summary judgment affidavit 

cases here, we are confident that the ‘clear and specific’ standard in the TCPA at 

least requires us to reject conclusory claims made by an affiant.”). 

Hill III cites Equine Holdings and MVS, and he argues “the probate court’s 

evidentiary rulings based on objections other than being conclusory or lack of 

personal knowledge were improper and prejudicial.” But no such statement of law

can be found in either case, and, moreover, many of appellees’ objections to Hill 

III’s evidence asserted the challenged statements were conclusory or lacked personal 

knowledge. Hill III leaves us to speculate which evidence he believes should have 
–36–

been admitted; to determine which evidence, if any, was not objected to by appellees 

and/or excluded by the court; and whether any unspecified errors in excluding that 

unspecified evidence caused an improper judgment requiring reversal. 

This deficiency becomes more obvious when one considers the lengthy 

record, which includes thousands of pages of evidence and hundreds of evidentiary 

objections. The trial court, as we noted before, granted appellees’ objections to Hill 

III’s evidence without specifying the basis for its ruling. Instead of specifically 

addressing appellees’ objections and the trial court’s ruling, Hill III leaves it to us to

sift through hundreds of evidentiary objections and thousands of pages of clerk’s

record and determine where, precisely, in nearly 4,000 pages of clerk’s record we 

will find the requisite clear and specific evidence. In effect, he presents a massive

record and argues clear and specific evidence is in there somewhere. The TCPA, 

however, does not require us to sift through the record looking for evidence to 

support the nonmovant’s prima facie case. See TEX. CIV. PRAC. & REM. CODE §

27.005(c); Cavin v. Abbott, 545 S.W.3d 47, 72 (Tex. App.—Austin 2017, no pet.). 

As the Austin Court of Appeals stated in Cavin: 

In this case, the TCPA “evidence” presented by the Abbotts includes, 

as previously noted, the numerous documents that they attached and 

incorporated into their petition, effectively comprising a petition of 

over 200 pages in length. These documents are potentially a fertile 

source of “clear and specific” evidence to meet the Abbotts’ burden—

indeed, one cannot fathom evidence of an allegedly actionable written 

communication that could be more “clear and specific” than a copy of 

the communication itself. However, in neither the district court nor on 

appeal have the Abbotts undertaken to link particular facts reflected in 
–37–

the documents to each of the essential elements for which they must 

present a prima-facie case with respect to each claim. Instead, the 

Abbotts have merely recited what they view as the essential elements 

of each claim; cited en masse to pages of the record they deem relevant 

to some unspecified element or elements of that claim; but provided no 

argument, analysis, or explanation as to which record reference 

supports which elements or (perhaps more critically) why that evidence 

would satisfy the specific element under the governing law. This is 

akin to the summary-judgment non-movant who, while having the 

burden, merely points to a voluminous record, assures the court that a 

fact issue is in there somewhere, and leaves it to the court to figure out 

why or how—a practice long deemed insufficient to defeat summary 

judgment.

Id. (footnotes omitted); see Roels v. Valkenaar, No. 03-19-00502-CV, 2020 WL 

4930041, at *3 (Tex. App.—Austin Aug. 20, 2020, no pet.) (mem. op.); Weber v. 

Fernandez, No. 02-18-00275-CV, 2019 WL 1395796, at *19 (Tex. App.—Fort 

Worth Mar. 28, 2019, no pet.) (mem. op.); Hawxhurst v. Austin’s Boat Tours, 550 

S.W.3d 220, 230 (Tex. App.—Austin 2018, no pet.); Collins v. Collins, No. 01-17-

00817-CV, 2018 WL 1320841, at *5 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, 

pet. denied) (mem. op.); see also Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 776 

(Tex. App.—Dallas 2013, pet. denied).

The TCPA puts the burden on the party bringing the legal action to establish 

by clear and specific evidence a prima facie case for each essential element of his

claim. See TEX. CIV. PRAC. & REM. CODE § 27.005(c). The burden does not shift to 

the movants to refute their own motion or to this Court to search the record for 

responsive evidence. See id.; e.g., Collins, 2018 WL 1320841, at *5. This does not 

necessarily mean Hill III was required to challenge every objection raised by 
–38–

appellees,12 but absent any argument specifically addressing disputed evidence, Hill 

III presents nothing for this Court to review. See TEX. R. APP. P. 38.1(i); e.g., Stover 

v. ADM Milling Co., No. 05-17-00778, 2018 WL 6818561, at *9 (Tex. App.—Dallas 

Dec. 28, 2018, pet. denied) (mem. op.); Odam v. Texans Credit Union, No. 05-16-

00077-CV, 2017 WL 3634274, at *3 (Tex. App.—Dallas Aug. 24, 2017, no pet.)

(mem. op.). To put it simply, we are not willing, much less required, “to rummage 

through and rule on the voluminous body of objections made below that are not 

specifically addressed in the parties’ appellate briefs.” MVS Int’l, 545 S.W.3d at 

191; see CHW-Lattas Creek, L.P. by GP Alice Lattas Creek, L.L.C. v. City of Alice, 

565 S.W.3d 779, 792 (Tex. App.—San Antonio 2018, pet. denied). Therefore, we 

conclude Hill III’s general complaints are insufficient to preserve any challenge to 

the trial court’s evidentiary ruling granting appellees’ objections to Hill III’s 

evidence. See TEX. R. APP. P. 38.1(i). 

B. Appellees’ Motion to Strike

The other question we must address concerns a post-submission “letter” filed 

by Hill III, and appellees’ motion to strike it. 

Oral argument in this case was held on May 4, 2021, at which point the case 

12 In addition to maintaining that Hill III’s argument is inadequately briefed, appellees also argue that 

many of their objections were on multiple grounds, and Hill III does not address each ground. See, e.g., 

Buttler v. Sutcliffe, No. 02-15-00319-CV, 2016 WL 4491224, at *7 (Tex. App.—Fort Worth Aug. 26, 2016, 

no pet.) (mem. op.) (“When a trial court issues an adverse ruling without specifying grounds for doing so, 

the appellant must challenge each independent ground asserted by the appellee supporting the adverse 

ruling because it is presumed that the trial court considered all of the asserted grounds.”). Because we agree 

with appellees’ first contention that Hill III’s argument is inadequately briefed and, thus, waived, we do not 

address this issue.
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was briefed and submitted. During oral argument, we asked counsel for Hill III what

evidence not excluded by the trial court’s order sustaining appellees’ evidentiary 

objections supported Hill III’s claim that he proved a prima facie case. Hill III’s 

counsel pointed to the petition, the trial court’s findings of fact from the criminal 

prosecution, the prior opinions of this Court, and the warranty deed and the real 

estate sales contract from the Bordeaux transaction. At no point did we ask counsel 

for any additional briefing or a follow-up response, nor did either side seek leave of 

court to file a post-submission brief.

But on June 7, 2021, without seeking leave of court or, according to the filing,

conferring with opposing counsel, Hill III filed a 152-page post-submission “letter.” 

This June 7 filing is a two-page letter followed by three attachments totaling 28 

pages, and then 124 pages of untabbed and unindexed documents that Hill identifies, 

collectively, as Record Excepts. The three attachments are charts, each purporting 

to identify, in considerable detail, evidence in the record that satisfies Hill III’s

TCPA burden and that, he argues, was not excluded by the trial court’s ruling

granting appellees’ objections—something he failed to do in his opening brief. They 

include arguments, record citations, and numerous, detailed notes and observations 

regarding each piece of evidence—explanatory material, again, not found in Hill 

III’s brief. For example, an “Attachment A” (totaling 21 pages) claims to list 

“Specific Evidence in the Clerk’s Record for every element of Appellant’s claims,” 

beginning with the malicious prosecution claim. It is a chart purporting to identify, 
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in detail, unexcluded evidence in the clerk’s record supporting each element of Hill 

III’s malicious prosecution claim.

13

 Two additional charts in attachment A address 

the claims for conspiracy and aiding and abetting, and they, too, purport to list 

unexcluded evidence in the record supporting each claim. 

The other two attachments, B and C, continue in this vein. Attachment B 

(totaling three pages) purports to list “Evidence in the Clerk’s Record Regarding the 

True Nature of the Bordeaux Property Advance.” Attachment C (four pages) 

purports to list “Specific Evidence in the Clerk’s Record Supporting Appellant’s 

Claims That Submission to the District Attorney’s Office Contained Knowingly 

False and Misleading Statements.” 

On June 16, 2021, appellees moved to strike Hill III’s June 7 filing. Hill III 

responded and then, on July 7, 2021, filed an amended response. Hill III’s amended 

response argues, among other things, that he has not raised any new arguments or 

submitted new evidence in his June 7 filing, and that appellees’ position “that no 

evidence cited in the June 7th Letter be considered by this Court ‘for any purpose in 

determining the merits of the issues in this appeal’” is “unwarranted given that none 

of the evidence is new and it is indisputable that certain evidence (submitted by 

Appellees) was never stricken by the probate court.” 

13 This attachment identifies the alleged evidence by categories of element 1—commencement; 

element 2—initiation or procurement; element 3—termination in appellant’s favor; element 4—innocence; 

element 5—absence of probable cause; element 6—malice; and element 7—damages. 
–41–

Texas law, however, is clear that any argument not raised in a pre-submission 

brief is waived, and that post-submission briefing raising new arguments should be 

excluded. See, e.g., Tex. Med. Ass’n v. Tex. Workers Comp. Comm’n, 137 S.W.3d 

342, 351–52 (Tex. App.—Austin 2004, no pet.); City of Houston v. Precast 

Structures, Inc., 60 S.W.3d 331, 340 n.4 (Tex. App.—Houston [14th Dist.] 2001, 

pet. denied). In Precast, the Fourteenth Court of Appeals said:

In a letter brief filed over a month after oral argument, purportedly in 

response to a submission of supplemental authority, the City argues, for 

the first time, that evidence of Precast’s costs to restore its property to 

its pre-taking condition cannot be used to measure the decrease in 

market value of Precast’s remainder unless Precast first proves that the 

‘cost of cure’ is less than the decrease in market value as established by 

some other means. Because the City failed to raise this argument in 

either of its pre-submission briefs, the argument is waived. 

Precast, 60 S.W.3d at 340 n.4; see also, Romero v. State, 927 S.W.2d 632, 634 n.2 

(Tex. 1996); Smith v. DASS, Inc., 283 S.W.3d 537 n.4 (Tex. App.—Dallas 2009, 

app. dismd.). 

Hill III’s reliance on rule 9.4 of the rules of appellate procedure as support for 

his argument is unpersuasive because that rule addresses the form of appellate 

briefing, including the number of words allowed in an appellate brief. See TEX. R.

APP. P. 9.4(i)(2). Hill III suggests his June 7 filing contains “appendix materials” 

that should not be counted in calculating a brief’s maximum length. Id. 9.4(i)(1) 

(“In calculating the length of a document, every word and every part of the document 

. . . must be counted except the following: caption, identity of parties and counsel 

. . . certificate of compliance, and appendix.”). But, as we have seen, it is more than 
–42–

that—Hill III’s June 7 filing contains additional analysis and argument not found in 

his briefs on the merits. Rule 9.4 does not authorize an appellant to re-brief his 

argument after the case has been submitted, particularly without seeking leave of 

court, and Hill III cites no relevant authority supporting such an interpretation of the 

rule. 

Hill III’s reliance on Coleman v. Prospere, 510 S.W.3d 516 (Tex. App.—

Dallas 2014, no pet.), Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 

(Tex. 2018), and Marino v. King, 355 S.W.3d 629 (Tex. 2011), is equally 

unpersuasive. In Coleman, for example, we declared improper the attachment to the 

appellant’s opening brief of an appendix of almost sixty pages containing arguments 

not found in the body of the brief. 510 S.W.3d at 519 n.4. As we stated in the 

opinion: 

We count almost sixty pages of additional argument in the appendices 

not including copies of various materials filed in the trial court, statutes, 

and cases. The brief alone is near the maximum word count, see TEX.

R. APP. P. 9.4(i)(2)(B), although it lacks a compliant certification. See 

id. at 9.4(i)(3). We do not look outside appellant’s brief for his 

arguments and ignore devices such as appellant has used to circumvent 

the briefing rules.

Id. In Adams, the Texas Supreme Court determined that arguments made by the 

appellant in the trial court were sufficiently stated to preserve them for appeal. 547 

S.W.3d at 897 n.3. The court concluded the appellant had not failed to preserve a 

point for appeal regarding community or environmental well-being under the TCPA

because the appellant’s argument, “[w]hile lacking in specificity, . . . did mention 
–43–

environmental and community well-being.” Id. Finally, the Marino case, which is 

cited in Adams, addressed a trial court’s ruling that allowed an appellant to amend 

requests for admissions that were deemed admitted by her failure to timely respond 

at a time when she appeared pro se in the case. 355 S.W.3d at 630, 634. The Texas 

Supreme Court concluded the trial court did not abuse its discretion when it granted 

leave to amend the responses, noting in part that “Constitutional imperatives favor 

the determination of cases on their merits rather than on harmless procedural 

defaults.” Id. at 634. 

Hill III cites this principle in his amended response. Yet there are obvious 

differences between a case such as this, where deemed admissions are not at issue 

and, moreover, both parties have been ably represented by counsel, and a situation 

involving a pro se litigant who mistakenly failed to respond to requests for 

admissions. See id. The equitable concerns evident in Marino and like cases are not 

present here. 

The inconsistency in Hill III’s argument is apparent when one compares his 

position in the underlying briefing to the argument in his amended response. In his 

amended response, Hill III claims he is “maintain[ing] his position that it is 

unnecessary to challenge each specific objection at the appellate level and does not 

attempt to do so in the June 7th Letter or in any of the attachments thereto.” And, in 

his opening brief, Hill III did not attempt to address how, precisely, he met his 

burden to present a prima facie case based on evidence not excluded by the trial 
–44–

court’s ruling granting appellees’ objections. Now, however, after oral argument 

has been held and the case submitted, he files a 152-page post-submission “letter” 

concerning that very subject, one not previously addressed in his extensive briefing. 

Hill III claims this lengthy post-submission filing is provided “in direct response to 

a question asked during oral arguments in this matter, held on May 4, 2021.” In fact, 

however, the “letter” is a post-submission re-brief of Hill III’s argument, and we 

again note that we did not ask for any additional briefing or a follow-up response, 

nor did either party seek leave of court to file a post-submission brief. We conclude, 

therefore, that appellees’ motion to strike should be granted, and we strike Hill III’s 

filing of June 7, 2021, and its attachments.14 

C. Malicious Prosecution Claim

1. Elements of Malicious Prosecution

Turning to our step-two analysis, we begin by noting that to prevail on a claim 

for malicious prosecution, the plaintiff must prove (1) a criminal prosecution was 

commenced; (2) the defendant initiated or procured the prosecution; (3) the 

prosecution was terminated in the plaintiff’s favor; (4) the plaintiff was innocent of 

the charge; (5) the defendant lacked probable cause to initiate or procure the 

prosecution; (6) the defendant acted with malice; and (7) the plaintiff suffered 

14 We additionally note that were we to consider Hill III’s June 7 filing it would not, for the reasons 

specifically set forth below, alter our conclusion that Hill III failed to satisfy his burden of establishing a 

prima facie case for his claims against appellees.
–45–

damages. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792 (Tex. 2006). 

The tort of malicious prosecution creates a unique tension between important 

competing societal concerns. See Browning-Ferris Indus. v. Lieck, 881 S.W.2d at 

288, 290 (Tex. Crim. App. 1994). More specifically, a plaintiff’s right to recover 

damages for being subjected to unjustified criminal proceedings “must sometimes 

yield to society’s greater interest in encouraging citizens to report crimes, real or 

perceived.” Suberu, 216 S.W.3d at 792. Thus, a plaintiff must prove not only the 

defendant commenced criminal proceedings against him and that he is innocent of 

the crime charged, but also that the defendant lacked probable cause and harbored 

malice toward him. Id. The elements concerning probable cause and malice “guard 

against” the inclination “to punish those who, through error but not malevolence, 

commence criminal proceedings against a person who is ultimately exonerated.” Id. 

“It is frequently said that actions for malicious prosecution are not favored in 

the law.” Lieck, 881 S.W.2d at 291. “A party seeking to recover on a malicious 

prosecution claim must strictly adhere to the elements of the cause of action.” Luce 

v. Interstate Adjusters, Inc., 26 S.W.3d 561, 566 (Tex. App.—Dallas 2000, no pet.). 

“Even a small departure from the exact prerequisites for liability may threaten the 

delicate balance between protecting against wrongful prosecution and encouraging 

reporting of criminal conduct.” Lieck, 881 S.W.2d at 291.

To prove causation, a plaintiff must show the defendant “initiated or 

procured” the criminal prosecution. See Lieck, 881 S.W.2d at 292–93; Dangerfield 
–46–

v. Ormsby, 264 S.W.3d 904, 909–10 (Tex. App.—Fort Worth 2008, no pet.). 

Generally, a person cannot be held liable for malicious prosecution if the decision 

whether to prosecute is left to the discretion of another person, including a law 

enforcement official or a grand jury. King v. Graham, 126 S.W.3d 75, 76 (Tex. 

2003) (per curiam); Lieck, 884 S.W.2d at 294; Dangerfield, 264 S.W.3d at 910. An 

exception exists if the person provides information which he knows is false. King, 

126 S.W.3d at 76. But while “proof a complainant has knowingly furnished false 

information is necessary for liability when the decision to prosecute is within 

another’s discretion,” “such proof is not sufficient.” Id. (citing Lieck). There must 

also be proof the false information caused the criminal prosecution—i.e., proof “the 

prosecutor acted based on the false information and that but for such false 

information, the decision to prosecute would not have been made.” Id. (emphasis 

added) (citing Lieck). 

The probable cause element asks whether a reasonable person would believe 

a crime had been committed given the facts as the complainant honestly and 

reasonably believed them to be before the criminal proceedings were initiated. 

Suberu, 216 S.W.3d at 792. Want of probable cause can never be inferred from 

proof of malice. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 521 (Tex. 

1997); Parker v. Dallas Hunting & Fishing Club, 463 S.W.2d 496, 500 (Tex. Civ. 

App.—Dallas 1971, no writ). The question is “whether the complainant reasonably 

believed that the elements of a crime had been committed based on the information 
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available to the complainant before criminal proceedings began.” Richey, 952 

S.W.2d at 519. 

2. Hill III Did Not Establish a Prima Facie Case for Malicious Prosecution

Hill III alleges in his petition that his criminal prosecution was based on the 

February 2010 Lynn memorandum and the April 2010 Pickett submission, and the 

accompanying pressure Hill Jr., Lynn, and Pickett brought to bear on the D.A.’s 

office. Hill III’s first amended petition states that “the submission of these false 

reports to the D.A.’s office constituted the ‘initiation’ of a criminal prosecution 

against [Hill] III,” or “[a]lternatively, by submitting these false reports, [Hill Jr.], 

Mike Lynn, and David Pickett ‘procured’ criminal charges against [Hill III]. . . .” 

Hill III’s petition labels his “alleged ownership of only a 20% interest in the 

residence” as “the lynchpin of the charges” against him. According to Hill III, the 

defendants knew this cornerstone of the charges against him “was false.” Hill III 

claims that statements made by Hill Jr., Lynn, and Pickett to the D.A. that Hill III

and his wife owned only a 20 percent interest were false because they knew “the

alleged transaction transferring an 80% interest [to the Trust] was illegal and void 

under Texas law” and “wholly unenforceable.” Hill III also argues that Hill Jr. and 

Irwin (and Lynn and Pickett) knew the Bordeaux property advance was not intended 

to be a true sale of the Bordeaux property; knew the Trust had not been defrauded; 

and knew OmniAmerican had not been misled or defrauded. Hill III further alleges 

that, despite this knowledge, Hill Jr. met with an assistant D.A. and pressured her to 
–48–

pursue a criminal prosecution of his son, and that Lynn and Pickett also pushed the 

D.A.’s office for indictments. 

Under section 27.006, “pleadings are to be considered as evidence, regardless 

of whether they are offered as such.” Breakaway Practice, LLC v. Lowther, No. 05-

18-00229-CV, 2018 WL 6695544, at *2 (Tex. App.—Dallas Dec. 20, 2018, pet. 

denied) (mem. op.). “The TCPA allows a claimant to rely on their pleadings as 

‘evidence’ in response to a motion to dismiss.” MFG Fin., Inc. v. Hamlin, No. 03-

19-00716-CV, 2021 WL 2231256, at *5 (Tex. App.—Austin June 3, 2021, pet. 

denied) (mem. op.) (quoting In re Lipsky, 460 S.W.3d at 590–91). But conclusory 

statements and bare, baseless opinions are not probative and do not meet the 

requirement of clear and specific evidence of a prima facie case. In re Lipsky, 460 

S.W.3d at 592–93; MFG Fin.,2021 WL 2231256, at *5; Buckingham Senior Living, 

605 S.W.3d at 809 & n.5.15 Hill III has not satisfied his burden. 

According to Hill III’s petition, his alleged ownership of a 20 percent interest 

in the Bordeaux residence was “the lynchpin of the charges” against him. But the

July 1, 2004, general warranty deed shows Hill and his wife granted to the Trust an 

“eighty percent undivided interest” in the Bordeaux Avenue property. This deed 

15 Appellees cite a recent case from the Fourteenth Court of Appeals holding that a nonmovant cannot 

rely solely on his pleadings at step two. See Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 19 

(Tex. App.—Houston [14th Dist.] 2020, no pet.) (“We hold that, to effectuate the Act’s purpose of screening 

unmeritorious claims, the non-movant may not rely solely on the factual allegations in his pleading but 

must present evidence that is sufficient as a matter of law to support a rational inference that an allegation 

of fact is true.”). Because Hill III is not relying solely upon his pleadings here, we do not address this issue. 
–49–

was signed by Hill III and his wife, and it was notarized. Moreover, litigation 

involving the Hills that occurred prior to the filing of this lawsuit supports appellees’ 

interpretation of the Bordeaux transaction as having transferred an 80 percent 

undivided interest. The litigation had its origins in 2016 when David Pickett, as 

trustee,16 filed suit against Hill III and his wife to partition and sell the Bordeaux 

residence through a receiver because Hill III and his wife refused to sell their interest. 

The district court’s order of August 22, 2016, granted Pickett’s motion to determine 

the parties’ interests in the property. It stated, among other things, that the Trust had 

owned an undivided 80 percent interest in the Bordeaux property since July 1, 2004 

(five years before Hill III obtained the home equity loan), and Hill III and his wife 

owned the remaining 20 percent interest. 

Hill III insists the warranty deed was “wholly unenforceable;” the transaction 

transferring an 80 percent interest was illegal and void under Texas law; and that the 

Trust did not file the deed covering the 80 percent conveyance until July 2009, after 

the OmniAmerican Bank loan had been made. But Hill III does not identify any 

specific portion of the Lynn memorandum or the Pickett submission (which is not 

in this record) that is factually or legally incorrect. Nor does Hill III explain his basis 

for asserting the conveyance was unenforceable, or the transaction illegal and void. 

16 In 2010, Irwin resigned as the trustee and Pickett replaced him. The year before, in 2009, Irwin had 

sued Hill III and OmniAmerican Bank in a Dallas County district court, seeking to have the bank’s lien on 

the Bordeaux property declared void. Although non-suited, this action was part of the litigation settled in 

the federal court trust action with the GSA and final judgement
–50–

Hill III’s argument that the transfer of 80 percent of the Bordeaux residence was not 

a “real conveyance” does not show the Lynn memorandum was false. The same can 

be said of the Pickett submission, which, again, is not in this record. Hill III’s 

conclusory assertions do not constitute clear and specific evidence that appellees 

knowingly furnished false information to the D.A.’s office. 

Hill III argues, in part, that he established causation by comparing this case to 

Bennett v. Grant, 460 S.W.3d 220 (Tex. App.—Austin 2015), aff’d in part, rev’d in 

part, 525 S.W.3d 642 (Tex. 2017). Bennett, however, involved facts far different 

than those at issue here. In Bennett, defendant Thomas O. Bennett traveled “many 

miles” and met with officials in four different counties to try to get Larry Wayne 

Grant prosecuted. Id. at 240. When that effort failed, he was instrumental in 

obtaining the appointment of a special prosecutor, and the special prosecutor 

testified that he relied on the false information supplied by the defendant, which 

provided some evidence for the false information exception described in Lieck. Id. 

at 234–37, 240.17 

This is a crucial distinction because proof that knowingly false information 

was provided to the Dallas D.A. alone is insufficient. King, 126 S.W.3d at 76. To 

recover for malicious prosecution when, as here, the decision to prosecute was 

17 The Texas Supreme Court reversed the exemplary damages portion of the court of appeals’ judgment

and remanded to that court for remittitur, but otherwise affirmed the court of appeals. 525 S.W.3d at 655. 
–51–

within another’s discretion, Hill III had to show that “but for” the allegedly false 

information supplied by the defendants, the decision to prosecute would not have 

been made. See id. Merely reporting a crime or aiding or cooperating with the 

authorities cannot “cause” a criminal prosecution. See Lieck, 881 S.W.2d at 292; 

Dangerfield, 264 S.W.3d at 911. Also, the Texas Supreme Court has rejected the 

notion that causation can be inferred from the falsity of statements, though such an 

inference could be drawn if the only information the official relied on in deciding to 

prosecute was false. King, 126 S.W.3d at 79; see Gonzalez v. Grimm, 479 S.W.3d 

929, 937 (Tex. App.—El Paso 2015, no pet.); Reed v. Cleveland, No. 09-19-00136-

CV, 2020 WL 6600968, at *6 (Tex. App.—Beaumont Nov. 12, 2020, no pet.) (mem. 

op.). To put it simply, “[c]ausation is an indispensable element of [a] malicious 

prosecution case” against a private party. In re Bexar Co. Crim. Dist. Attorney’s 

Office, 224 S.W.3d 182, 185 (Tex. 2007) (former criminal defendant brought 

malicious prosecution action against complainants/accusers, following county’s 

dismissal of terroristic threat charges). Furthermore, while this may be proven by a 

district attorney’s testimony, direct evidence of causation is not required. See id. at 

185–86. In In re Bexar County, the court suggested a malicious prosecution plaintiff 

might prove their case through alternative means, including circumstantial evidence, 

testimony from the defendant, or expert testimony. Id. at 189. Even, so, however, 

the court never suggested the decision-making process of the district attorney was 

not a necessary component of the plaintiff’s case. Gonzalez, 479 S.W.3d at 936. 
–52–

Hill III pleads that the D.A.’s office presented the case to the grand jury only 

after succumbing to pressure brought by others acting on Hill Jr.’s behalf, including 

Lynn and Pickett. Yet, it is undisputed that the ultimate decision to indict was made 

by a Dallas County grand jury. According to the timeline in Hill’s petition, the case 

was presented to the grand jury on March 29, 2011—thirteen months after Lynn 

submitted his memorandum and eleven months after Pickett made his written 

submission. We do not know what information was or was not presented to the 

grand jury, nor why it decided to indict Hill III. And, during those intervening

months, we know little about Watkins’s decision-making process regarding the Hill 

III case. We know he attended an office “pitch session” where the decision to indict 

was made, but we do not know what was specifically discussed or what questions 

Watkins may have asked. We do not know if he personally directed an investigation 

of Hill III or if he influenced the timing of the presentation of the case to the grand 

jury. Nor do we know the extent to which Watkins relied on the Lynn and/or Pickett 

submissionsin deciding to pursue an indictment; when he reviewed them; or whether 

Pickett’s follow-up conversations with the D.A.’s office caused or influenced the 

D.A. to indict the Hills months later. Hill III’s assertions regarding the timing of 

certain telephone calls and text messages, or campaign donations and charitable 

contributions and fundraisers, does not constitute clear and specific evidence that 

“but for” the false information appellees allegedly supplied, the decision to prosecute 

Hill III would not have been made.
–53–

As for Irwin, he resigned as trustee of the Trust in April 2010, less than two 

months after Lynn’s memorandum was submitted to the D.A.’s office. Hill III does 

not allege, much less provide clear and specific evidence, that Irwin had any 

connection to the Trust after he resigned as trustee, or that Irwin even knew about—

much less participated in—the criminal proceedings against Hill III. There is also 

no clear and specific evidence he knowingly provided false information to the D.A.’s 

office. Nor is there clear and specific evidence Irwin submitted false information to 

the Dallas D.A. that was the determining factor in the D.A.’s decision to seek 

indictments. Hill III’s vague and conclusory allegations lumping Irwin together with 

numerous other individuals identified in his petition are insufficient to satisfy the 

standard required under the TCPA. 

Regarding the trial court’s findings in the criminal case, in his postsubmission filing of June 7, 2021, in the portion of attachment A addressing 

procurement and purportedly listing “[e]vidence false statements submitted to the 

DA’s office were relied on,” Hill III cites the trial court’s finding of fact that “the 

State relied extensively on materials submitted by Mr. Hill, Jr. and his attorney.” He 

next cites a statement in the State’s response to his motion to quash and dismiss that 

“the complaint Mike Lynn presented to the Dallas County District Attorney’s Office 

provided probable cause to believe that both Erin and Albert Hill have broken the 

law.” In that same June 7 filing, under “[e]vidence of absence of probable cause,”

Hill III points to a statement from the trial court’s conclusions of law that “[t]he 
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Court concludes that the State has failed to provide a credible, neutral explanation 

for the State’s decision to prosecute that is untainted by Mr. Watkins’s 

involvement[.]” He also refers to our majority opinion on remand in the criminal 

case, specifically the part where we discuss Martin’s inconsistent testimony about 

whether she thought she had a provable criminal case against Hill III.18

Hill III, however, cannot satisfy his burden by citing the trial court’s findings

in the criminal case. In our opinion on remand in the criminal case, we specifically 

noted that the trial court’s August 2, 2013 “Findings of Facts and Conclusions of 

Law on Albert G. Hill’s Motion to Quash and Dismiss the Indictments” were “null 

and void.” State v. Hill, III, 558 S.W.3d at 288 n.1. Because they were made after 

the trial court’s jurisdiction had expired, they could not be considered. Id.; see Berry 

v. State, 995 S.W.2d 699, 700 (Tex. Crim. App. 1999); see also Green v. State, 906 

S.W.2d 937, 939 (Tex. Crim. App. 1995) (it is axiomatic that where there is no 

jurisdiction “the power of the court to act is as absent as if it [the court] did not 

exist.”). Moreover, none of the appellees were parties to the criminal proceedings. 

See Owen v. De Los Santos, No. 04-06-00899-CV, 2008 WL 726165, at *3 (Tex. 

App.—San Antonio Mar. 19, 2008, no pet.) (mem. op.) (findings of fact and 

18 Hill III’s other basis for clear and specific evidence is his declarations. In his brief, he cites to 

paragraphs from his declaration that contain allegations regarding the Lynn and Pickett submissions that 

are like the allegations found in his petition. His declaration states, inter alia, that in deciding to prosecute 

him, the D.A.’s office relied on the Lynn and Pickett submissions; that these submissions falsely stated the 

Trust had been defrauded; and that they falsely stated Hill III and his wife only owned a 20 percent interest 

in the residence. However, as we noted before, the trial court granted appellees’ objections to these and 

many other paragraphs in Hill III’s declarations, and Hill III inadequately briefed the issue on appeal; thus, 

we do not consider Hill III’s declarations. See TEX. R. APP. P. 38.1(i).
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conclusions of law, standing alone, were “suppositions” that could not bind nonparties to judgment in case to which they were not parties). 

Additionally, Hill III’s argument incorrectly assumes this Court and the Texas 

Court of Criminal Appeals “passed judgment” on the wrongful nature of the conduct 

alleged in the petition. But neither this Court nor the Court of Criminal Appeals 

addressed, for example, whether Hill III was innocent or guilty of the underlying 

charges; whether those charges were false or without factual or legal merit; whether 

the Lynn memorandum or the Pickett submission was true or false; nor whether there 

was any wrongdoing or “wrongful” conduct by Lynn or Pickett. The issue was 

whether the trial court abused its discretion in dismissing the criminal complaint

against Hill III with prejudice—more specifically, because of the refusal of D.A. 

Watkins to testify at the hearing. As we stated in our opinion on remand: 

At the conclusion of the hearing, the court granted Hill’s motion and 

dismissed the cases with prejudice. The court’s order recites that Hill 

had been denied his right to a full and fair hearing on his motion due to 

Watkins’s refusal to testify at the hearing. The court determined the 

district attorney’s office denied Hill his due process rights under the 

United States and Texas constitutions.

See State v. Hill, III, 558 S.W.3d at 283; see also 499 S.W.3d at 869. The dismissal 

of the charges against Hill III on procedural grounds is not evidence he was 

unjustifiably subjected to criminal proceedings. See, e.g., Kroger Tex. Ltd. P’ship 

v. Suberu, 216 S.W.3d 788, 794–95 (Tex. 2006) (“Her acquittal is not evidence, then, 

that she was unjustifiably subjected to criminal proceedings; it shows only that the 

government did not prove her guilt beyond a reasonable doubt.”); Buckingham 
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Senior Living, 605 S.W.3d at 811 (“The dismissal of criminal charges is no evidence 

that George lacked probable cause at the time she assisted in reporting the offense.”); 

Metzger v. Sebek, 892 S.W.2d 20, 42 (Tex. App.—Houston [1st Dist.] 1994, writ 

denied) (“[e]ven an acquittal is not evidence of a lack of probable cause”). 

Nor can Hill III satisfy his burden by citing a statement in the State’s response 

to his motion to quash and dismiss that the complaint Lynn presented provided 

probable cause to believe the Hills had broken the law. Hill III cites the statement 

as evidence that false statements submitted to the D.A.’s office “were relied on.” 

However, it, too, falls far short of even showing appellees knowingly supplied false 

information to the D.A.’s office, much less that “but for” the false information they 

allegedly supplied, the decision to prosecute Hill III would not have been made.

In addition to proving appellees initiated or procured the prosecution, Hill III 

also had to prove, among other things, that the defendants lacked probable cause. 

See Suberu, 216 S.W.3d at 792. A presumption exists that a “defendant acted 

reasonably and had probable cause to initiate criminal proceedings.” Id. at 793. To 

rebut this presumption, Hill III had to produce prima facie evidence appellees 

initiated or procured his prosecution based on information or motives that do not 

support a reasonable belief Hill was guilty of the charged offense. Id. at 792. Hill 

III, however, also fails to produce clear and specific evidence to show a prima facie 

case for this element. The dismissal of the criminal charges against him does not 

prove appellees lacked probable cause, just as Hill III’s indictment did not prove his
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guilt. See Suberu, 216 S.W.3d at 794. As we noted before, the probable cause 

element cannot be met by evidence of a subsequent resolution of the criminal charges

in Hill III’s favor. E.g., Suberu, 216 S.W.3d at 794–95; Buckingham Senior Living, 

605 S.W.3d at 811; Metzger, 892 S.W.2d at 42. 

We therefore conclude Hill III failed to meet his burden of establishing a 

prima facie case for each essential element of his malicious prosecution claim. There 

is no clear and specific evidence appellees knowingly furnished false information to 

the D.A.’s office, and even if we assume appellees knowingly supplied false 

information, there is no clear and specific evidence that “but for” the false 

information allegedly supplied by appellees, the decision to prosecute Hill III would 

not have been made. We further conclude there is no clear and specific evidence to 

support the probable cause element of a malicious prosecution claim. 

D. Conspiracy and Aiding and Abetting Claims 

Turning to Hill III’s dependent or derivative claims for civil conspiracy and 

aiding and abetting, Hill III failed to present prima facie evidence on these claims as 

well because he did not present prima facie proof to establish that appellees 

participated in an underlying, intentional tort. E.g., Castille, 2020 WL 1879475, at 

*6; W. Fork Advisors, LLC, 437 S.W.3d at 921. Accordingly, the trial court did not 

err when it dismissed Hill III’s claims for civil conspiracy and aiding and abetting. 

Furthermore, because Hill failed to establish a prima facie case for each essential 

element of his claims, we do not address his third issue, in which he argues appellees 
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failed to meet their burden to establish each essential element of any valid defenses. 

See TEX. CIV. PRAC. & REM. CODE § 27.005(c); TEX. R. APP. P. 47.1; Castille, 2020 

WL 1879475, at *7. We overrule Hill III’s second issue. 

V. Conclusion

We overrule Hill III’s first two issues and conclude the trial court did not err 

in granting appellees’ TCPA motions to dismiss. We grant appellees’ motion to 

strike Hill III’s post-submission filing of June 7, 2021.

19

 We do not address Hill 

III’s third issue. The trial court’s order and final judgment is affirmed. 

200644f.p05

19 On October 26, 2020, less than two months after Hill III filed his opening brief in this case, he and 

his wife filed a complaint in federal court against Craig Watkins, the Hill Jr. estate, and various other 

defendants. The complaint was filed in the Northern District of Texas and alleged various federal claims, 

and, according to appellees, it contained the same factual allegations as the instant case. The Hill Jr. estate 

filed a rule 12(b)(6) motion to dismiss, and Hill III and his wife subsequently filed a notice of voluntary 

dismissal. Appellees filed a motion asking us to take judicial notice of the complaint filed in this federal 

suit, the rule 12(b)(6) motion, and the notice of voluntary dismissal—to which Hill III responded in 

opposition. Because we conclude, based on the record before us, that the trial court did not err in granting 

the TCPA motions to dismiss, we do not address this issue. We therefore deny the motion for judicial 

notice. 

/Lana Myers//

LANA MYERS

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ALBERT G. HILL, III, Appellant

No. 05-20-00644-CV V.

MARGARET KELIHER, IN HER 

CAPACITY AS PERSONAL 

REPRESENTATIVE AND 

SUCCESSOR INDEPENDENT 

EXECUTOR OF THE ESTATE OF 

ALBERT G. HILL, JR., AND 

CAROL E. IRWIN, IN HER 

CAPACITY AS PERSONAL 

REPRESENTATIVE OF THE 

ESTATE OF IVAN IRWIN.JR., 

Appellees

On Appeal from the Probate Court 

No. 2, Dallas County, Texas

Trial Court Cause No. PR-19-02706-

2.

Opinion delivered by Justice Myers. 

Justices Partida-Kipness and Garcia 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. It is ORDERED that appellee MARGARET KELIHER, IN 

HER CAPACITY AS PERSONAL REPRESENTATIVE AND SUCCESSOR 

INDEPENDENT EXECUTOR OF THE ESTATE OF ALBERT G. HILL, JR., 

AND CAROL E. IRWIN, IN HER CAPACITY AS PERSONAL 

REPRESENTATIVE AND INDEPENDENT EXECUTOR OF THE ESTATE OF 
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IVAN IRWIN, JR., recover their costs of this appeal from appellant ALBERT G. 

HILL, III.

Judgment entered this 25th day of January, 2022.