AFFIRM in part; REVERSE and RENDER in part; REMAND and Opinion 

filed December 19th, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00289-CV 

ERICA ROSE, Appellant 

V. 

CHRIS WASH, Appellee 

On Appeal from the County Court at Law No. 2 

Kaufman County, Texas 

Trial Court Cause No. 109502-CC2 

MEMORANDUM OPINION 

Before Justices Nowell, Goldstein,1

 and Smith 

Opinion by Justice Smith 

 This is an interlocutory appeal from the trial court’s denial of a Texas 

Citizen’s Participation Act (TCPA) motion to dismiss. See TEX. CIV. PRAC. & REM.

CODE ANN. §27.003(a). Appellee Chris Wash,2 asserting claims of defamation and 

tortious interference, alleged that appellant Erica Rose made misrepresentations 

regarding Wash’s conduct that harmed him and his relationship with his children. 

1

 The Honorable Leslie Osborne participated in the submission of this case; however, she did not 

participate in issuance of this memorandum opinion due to her resignation on October 24, 2022. The 

Honorable Bonnie Goldstein has substituted for Justice Osborne in this case. See TEX. R. APP. P. 41.1 

(a), (b)(1). Justice Goldstein has reviewed the briefs and the record before the Court. 

2

 Wash has not filed a brief in this appeal. 
 –2– 

In a single issue, Rose contends the trial court erred in denying her motion to dismiss 

because the motion was timely filed; Wash’s claims are based on or in response to 

Rose’s exercise of her right to petition; Wash failed to establish a prima facie case 

for each element of his claims or a TCPA exemption; and the judicial-proceedings 

privilege bars Wash’s claims. We affirm the trial court’s order in part, reverse the 

order in part, and render a partial dismissal of Wash’s claims. 

Background 

 In support of his claims for defamation and tortious interference, Wash 

alleged the following in his petition. He and Rose had a dating relationship and were 

cohabitating until June 2021, when he requested that she move from their residence. 

Thereafter, Rose “made false, willful and intentional material misrepresentations to 

the two mothers of [Wash’s] children, regarding [Wash’s] conduct involving his 

children. As a result of such false and willful misrepresentations, both mothers . . . 

separately filed modification lawsuits against [Wash], including requesting 

Temporary Restraining Orders.” In those lawsuits, the mothers relied “almost 

exclusively” on an affidavit provided by Rose that “contain[ed] false and misleading 

statements” for which Rose “had no personal knowledge.” Rose provided the false 

statements to “retaliate against and try to punish” Wash for ending their relationship. 

Wash “is in possession of texts and emails from [Rose] that clearly show [she] has 

made false and misleading statements against [Wash].” 
 –3– 

 Rose filed a TCPA motion to dismiss Wash’s claims. In the motion, Rose 

asserted that all of Wash’s claims are based on, relate to, or are in response to 

communications she made (1) in connection with a matter of public concern (i.e., 

the right of free speech); (2) between the mothers of Wash’s children who jointly 

express a common interest (i.e., the right of association); and/or (3) in judicial 

proceedings. Rose further contended that Wash cannot establish by clear and 

specific evidence a prima facie case for each element of his claims and, therefore, 

the claims must be dismissed. 

Wash responded that the TCPA does not apply to his claims against Rose 

because her TCPA motion was untimely and his claims are exempt from the TCPA 

because the underlying custody modification proceedings described in his petition 

are legal actions filed under Title 1, 2, 4, or 5 of the Family Code. Wash further 

asserted that Rose’s “involvement in the two custody proceedings” were “just the tip 

of the iceberg” and he intended to amend his petition in “the next few weeks” to 

provide more information. Wash did not amend his petition. 

Following a hearing,3

 the trial court denied Rose’s motion to dismiss. This 

interlocutory appeal followed. 

3

 A reporter’s record of the hearing has not been filed in this appeal, but the trial court’s order denying 

Rose’s motion to dismiss recites that the trial court “hear[d] from the respective attorneys” at the hearing 

and, thus, indicates the hearing was non-evidentiary. 
 –4– 

TCPA Framework and Standard of Review

“The TCPA’s purpose is to identify and summarily dispose of lawsuits 

designed only to chill First Amendment rights.” In re Lipsky, 460 S.W.3d 579, 589 

(Tex. 2015) (orig. proceeding). To that end, it provides a burden-shifting procedure 

for early dismissal of groundless legal actions that impinge on the right of free 

speech, the right to petition, and the right of association. CIV. PRAC. & REM. §§ 

27.001(2)–(4), 27.003, 27.005; Greer v. Abraham, 489 S.W.3d 440, 442 (Tex. 

2016). A TCPA movant bears an initial burden of demonstrating that the legal action 

is based on or in response to the movant’s exercise of the right of free speech, the 

right to petition, or the right of association. CIV. PRAC. & REM. § 27.005(b). If the 

movant carries its burden, the nonmovant then must either (1) establish that the legal 

action is exempt from the TCPA, or (2) establish by “clear and specific evidence a 

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

27.005(c), 27.010. If the nonmovant establishes a prima facie case, the movant still 

may prevail by establishing an affirmative defense or other grounds entitling the 

movant to judgment as a matter of law. Id. at § 27.005(d). 

We review de novo a trial court’s ruling on a TCPA motion, considering the 

pleadings, evidence that a court could consider under Texas Rule of Civil Procedure 

166a, and supporting and opposing affidavits stating the facts on which the liability 

or defense is based. See id. § 27.006(a); Dallas Morning News, Inc. v. Hall, 579 

S.W.3d 370, 377 (Tex. 2019). A plaintiff’s pleadings are “the best and all-sufficient 
 –5– 

evidence of the nature of the action.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 

2017) (citation omitted). We consider the pleadings, evidence, and supporting and 

opposing affidavits in the light most favorable to the nonmovant. QBE Americas, 

Inc. v. Walker, No. 05-20-00439-CV, 2021 WL 1976459, at *2 (Tex. App.—Dallas 

May 18, 2021, no pet.) (mem. op.); Stallion Oilfield Servs., Ltd. v. Gravity Oilfield 

Servs., LLC, 592 S.W.3d 205, 214 (Tex. App.—Eastland 2019, pet. denied). “When 

a legal action is in response to actions both protected and unprotected under the 

TCPA, the entire suit is not subject to dismissal; only that part relating or responding 

to the protected action is.” W. Mktg., Inc. v. AEG Petroleum, LLC, 616 S.W.3d 903, 

911 (Tex. App.—Amarillo 2021), modified on reh’g on other grounds, 621 S.W.3d 

88 (Tex. App.—Amarillo 2021, pet. denied). 

Timeliness of TCPA Motion 

In response to Rose’s TCPA motion, Wash first argued that the motion was 

untimely. A motion to dismiss under the TCPA must be filed not later than the 60th 

day after the date of service of a legal action. See CIV. PRAC. & REM. § 27.003(b); 

Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021). Wash asserted the motion 

was filed sixty-two days after Rose was served with the petition. The record, 

however, shows that Wash’s petition was served on Rose on Thursday, November 

18, 2021, and Rose’s TCPA motion was file-stamped January 18, 2022, sixty-one 

(and not sixty-two) days after she was served. January 17, 2022, was a legal holiday, 

Martin Luther King, Jr. Day, and, therefore, was not included in computing the 
 –6– 

deadline for filing the motion. See TEX. R. CIV. P. 4 (“The last day of the period so 

computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which 

event the period runs until the end of the next day which is not a Saturday, Sunday, 

or legal holiday.”). Accordingly, Rose’s deadline for filing the motion to dismiss 

was extended to January 18, 2022, and the motion was timely. 

Right to Petition 

Rose asserts that, as movant, she satisfied her initial burden to demonstrate 

that Wash’s legal action against her is based on or in response to her exercising her 

right to petition because his claims are factually predicated on communications made 

in judicial proceedings. See CIV. PRAC. & REM. § 27.005(b). We agree in part. 

The “exercise of the right to petition” includes a communication “in or 

pertaining to” a judicial proceeding. Id. § 27.001(4)(A)(i); see Porter-Garcia v. 

Travis Law Firm, P.C., 564 S.W.3d 75, 84 (Tex. App.—Houston [1st Dist.] 2018, 

pet. denied) (“The TCPA broadly defines ‘[e]xercise of the right to petition’ to 

include a communication pertaining to a judicial, official, or governmental 

department proceeding”). A “communication” is defined as “the making or 

submitting of a statement or document in any form or medium, including oral, visual, 

written, audiovisual, or electronic.” CIV. PRAC. & REM. § 27.001(1). The ordinary 

meaning of the phrase “pertaining to” is “relating directly to or concerning or having 

to do with.” Jetall Cos., Inc. v. Johanson, No. 01-19-00305-CV, 2020 WL 6435778, 

at *3 (Tex. App.—Houston [1st Dist.] Nov. 3, 2020, no pet.) (mem. op.). A “judicial 
 –7– 

proceeding” is “any proceeding initiated to procure an order or decree, whether in 

law or in equity.” See Levatino v. Apple Tree Cafe Touring, Inc., 486 S.W.3d 724, 

729 (Tex. App.—Dallas 2016, pet. denied) (citation omitted). 

Wash explicitly alleged that Rose provided an affidavit containing false and 

misleading representations in two custody modification lawsuits that mothers of 

Wash’s children filed against him. The record shows that Rose actually provided an 

affidavit in one proceeding and a personal statement by email in the second 

proceeding.4 

Considering Wash’s pleading and the relevant statutory definitions, we 

conclude Rose was exercising her right to petition by providing the affidavit and 

personal statement in judicial proceedings. See Beving v. Beadles, 563 S.W.3d 399, 

406 (Tex. App.—Fort Worth 2018, pet. denied) (deposition and affidavit testimony 

provided in underlying lawsuit constitute communication made in judicial 

proceeding, an exercise of right to petition protected by TCPA). We further 

conclude that she established a nexus between Wash’s claims against her and the 

affidavit and personal statement; indeed, Wash pleaded in his petition that the 

mothers relied almost exclusively on an affidavit in the custody modification 

proceedings and Rose provided it with the intent to harm Wash and his relationship 

4

 The affidavit was an attachment to an Original Petition to Modify Parent-Child Relationship and 

Application for Temporary Restraining Orders filed in Cause No. 100459-422, styled In the Interest of 

B.J.W. and pending in the 422nd Judicial District Court of Kaufman County, Texas. The email personal 

statement was an attachment to a Petition to Modify Parent-Child Relationship (with Ex Parte Request for 

Emergency Temporary Restraining Order and Request for Temporary Orders) filed in Cause No. 380-

50527-2012, styled In the Interest of G.C.W. and pending in the 380th Judicial District Court of Collin 

County, Texas. 
 –8– 

with his children. See, e.g., Collins v. Collins, No. 01-17-00817-CV, 2018 WL 

1320841, at *3–4 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. denied) 

(mem. op.). Accordingly, Rose met her initial burden of demonstrating that Wash’s 

legal action, to the extent he seeks to recover for Rose’s communications in the 

affidavit and personal statement, is based on or in response to Rose’s exercising her 

right to petition. CIV. PRAC. & REM. § 27.005(b). 

However, Wash also alleged that, before submitting the affidavit, Rose made 

false, willful, and intentional material misrepresentations to the mothers regarding 

his conduct involving his children and, as a result of those misrepresentations, the 

mothers filed the custody modification lawsuits. As to these communications, there 

is no evidence to demonstrate that they were made in or pertaining to a pending 

judicial proceeding. See Levatino, 486 S.W.3d at 728–29 (ordinary meaning of “a 

judicial proceeding” is “an actual, pending judicial proceeding” and does not include 

anticipated or potential future judicial proceedings). Accordingly, we conclude that 

Rose has not established that the TCPA applies to these communications, and the 

trial court, as to these communications, properly denied Rose’s motion to dismiss. 

On appeal, Rose has limited her argument to the right to petition and, 

therefore, we only consider the TCPA’s applicability to her communications on that 

basis. See TEX. R. APP. P. 47.1. 
 –9– 

Section 27.010(a)(6) Exemption 

 To the extent Rose demonstrated that the TCPA applies to Wash’s claims, the 

burden shifted to Wash to establish either (1) that his legal action is exempt from the 

TCPA, or (2) a prima facie case for each essential element of his claims. CIV. PRAC.

& REM. §§ 27.005(c), 27.010. Wash, in his response, did not set out a prima facie 

case for each element of his claims. Instead, he asserted that his claims are exempt 

from the TCPA under section 27.010(a)(6), citing to the “the underlying [custody 

modification proceedings] set out” in his petition and his “[p]leadings.” 

Under section 27.010(a)(6), legal actions filed under Title 1, 2, 4, or 5, of the 

Family Code are exempt from the TCPA.5

 CIV. PRAC. & REM. § 27.010(a)(6). 

Wash’s legal action, however, seeks damages for defamation and tortious 

interference. Although the facts underlying his claims involve custody modification 

proceedings and related temporary restraining orders, his legal action against Rose 

is not an action filed under the Texas Family Code. Accordingly, Wash did not 

establish that his legal action is exempt from the TCPA. 

Judicial-Proceedings Privilege 

Rose next asserts that, even had Wash established a prima facie case for each 

essential element of his claims, the communications in her affidavit and personal 

5

 Title 1 of the Texas Family Code governs suits involving the marriage relationship. TEX. FAM. CODE 

ANN. §§ 1.001–9.302. Title 2 governs suits involving a child in relation to the family. Id. §§ 31.001–

47.003. Title 4 governs suits for protective orders involving family violence. Id. §§ 71.001–93.004. Title 

5 governs suits involving the parent-child relationship. Id. §§ 101.001–266.013. None of these statutes 

apply to Wash’s legal action against Rose. 
 –10– 

statement are protected pursuant to the judicial-proceedings privilege and cannot 

serve as the basis for Wash’s claims.6

 We agree. 

“Communications in the due course of a judicial proceeding will not serve as 

the basis of a civil action for libel or slander, regardless of the negligence or malice 

with which they are made.” Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 

40, 46 (Tex. 2021) (quoting James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982) (per 

curiam)). The judicial-proceedings privilege is an absolute privilege covering “any 

statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all 

aspects of the proceedings, including statements made in open court, pre-trial 

hearings, depositions, affidavits and any of the pleadings or other papers in the 

case.” Id. It is “‘more properly thought of as an immunity’ from a claim that 

contains allegations of reputational harm from a communication in a judicial 

proceeding.” Rossa v. Mahaffey, 594 S.W.3d 618, 628 (Tex. App.—Eastland 2019, 

no pet.) (quoting Shell Oil Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015)). The 

privilege applies not only to libel and slander claims; it also can extend to other torts, 

6

 Generally, a party is required to plead the judicial-proceedings privilege because it is a defense meant 

to avoid or affirmatively defend against certain claims. See TEX. R. CIV. P. 94; see also Marble Ridge 

Capital LP v. Neiman Marcus Grp. Inc., 611 S.W.3d 113, 129 (Tex. App.—Dallas 2020, pet. dism’d). The 

requirement that an affirmative defense be pleaded is not absolute. See Shoemake v. Fogel, Ltd., 826 

S.W.2d 933, 937 (Tex. 1992) (parental immunity not waived when defense was apparent on face of 

claimant’s pleading and established as a matter of law). Rose did not plead the judicial-proceedings 

privilege in her answer. However, because Wash’s petition specifically pleaded that the affidavit was used 

in the custody modification proceedings, we determine that Rose has not waived the defense. Id.; see also

Marble Ridge Capital LP, 611 S.W.3d at 130 (when parties did not raise the pleading issue, this Court 

assumed, without deciding, that trial court could have granted TCPA motion based on judicial-proceedings 

privilege raised only in motion to dismiss). 
 –11– 

including tortious-interference claims, when the claims are based on an allegedly 

defamatory communication in a judicial proceeding. Howard v. Matterhorn Energy, 

LLC, 628 S.W.3d 319, 333–34 (Tex. App.—Texarkana 2021, no pet.); 5-State 

Helicopters, Inc. v. Cox, 146 S.W.3d 254, 259 (Tex. App.—Fort Worth 2004, pet. 

denied) (judicial-proceedings privilege applied to tortious interference with contract 

claim when plaintiff sought “defamation-type damages based on the allegedly 

libelous communications”). 

Whether an allegedly defamatory communication is related to a judicial 

proceeding is a question of law, and we must resolve all doubt in favor of the 

privilege. Rossa, 594 S.W.3d at 628. We consider the entire communication in its 

context and extend the privilege to statements bearing some relation to the judicial 

proceeding. Id. 

Here, Wash seeks to recover for harm to his reputation based on 

communications Rose made in the affidavit and personal statement in the custody 

modification proceedings. Because the communications were made in judicial 

proceedings, they are absolutely privileged and cannot serve as the basis for Wash’s 

defamation and tortious interference claims against Rose. See id. 

In sum, Wash failed to establish a prima facie case for each essential element 

of his claims or that his legal action is exempt from the TCPA. See CIV. PRAC. &

REM. § 27.005(c). Even had Wash met his burden to establish a prima facie case, 

Rose established that the judicial-proceedings privilege applies to bar Wash’s claims 
 –12– 

in part. See CIV. PRAC. & REM. § 27.005(d). Accordingly, we sustain Rose’s sole 

issue as to the allegations in the petition regarding the affidavit and personal 

statement Rose provided in the custody modification proceedings. Otherwise, we 

overrule the issue. See W. Mktg., Inc., 616 S.W.3d at 911 (only that part of suit 

relating or responding to protected action is subject to dismissal under TCPA). 

Conclusion 

We reverse the trial court’s denial of Rose’s TCPA motion to dismiss as to 

the allegations in Wash’s petition regarding communications Rose made in the 

affidavit or personal statement provided in the custody modification proceedings and 

render a partial judgment of dismissal of Wash’s claims. In all other respect, we 

affirm the trial court’s order denying Rose’s TCPA motion to dismiss. We remand 

this cause to the trial court for further proceedings consistent with this opinion. 

220289F.P05 

/Craig Smith/

CRAIG SMITH 

JUSTICE 
 –13– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

ERICA ROSE, Appellant 

No. 05-22-00289-CV V. 

CHRIS WASH, Appellee 

 On Appeal from the County Court at 

Law No. 2, Kaufman County, Texas 

Trial Court Cause No. 109502-CC2. 

Opinion delivered by Justice Smith. 

Justices Nowell and Goldstein 

participating. 

 In accordance with this Court’s opinion of this date, we REVERSE the denial 

of the motion to dismiss as to the allegations in the petition regarding statements 

Rose made in the affidavit and personal statement provided in the custody 

modification proceedings and RENDER a partial judgment of dismissal of those 

causes of actions. In all other respects, we AFFIRM the trial court’s order denying 

Rose’s motion to dismiss pursuant to the Texas Citizen Participation Act. We 

REMAND this cause to the trial court for further proceedings consistent with this 

opinion. 

 It is ORDERED that each party bear its own costs of this appeal. 

Judgment entered this 19th day of December 2022.