COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-15-00369-CV 

CHRISTOPHER HOSKINS APPELLANT

V. 

PERRY FUCHS APPELLEE

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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY 

TRIAL COURT NO. 153-280594-15 

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OPINION 

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In two issues, Appellant Christopher Hoskins appeals an interlocutory 

order denying his motion to dismiss under the Texas Citizens Participation Act 

(TCPA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.11, 51.014(a)(12) 

(West 2015). We affirm. 
2 

I. Background 

 Appellee Perry Fuchs is a tenured professor and Interim Department Chair 

of Psychology at the University of Texas at Arlington (UTA). Hoskins’s girlfriend, 

Michelle White, was a graduate student at UTA and worked for Fuchs. 

 In the early morning hours of May 30, 2015, Hoskins and White had an 

argument during which White told Hoskins that she was having a sexual 

relationship with Fuchs and boasted that she received preferential treatment from 

Fuchs because of their relationship. White also told Hoskins, who is a student at 

the Texas A&M University School of Law, that Fuchs would ruin Hoskins’s career 

if Hoskins told anyone about White and Fuchs’s relationship. Hoskins’s mother, 

stepfather, brother, and grandmother overheard the argument. 

 In July 2015, Hoskins filed a complaint with the Office of Equal Opportunity 

Services (EOS) at UTA alleging that Fuchs violated UTA Procedure 14-11 and 

UTA Policy 5-5112 by having a sexual relationship with White, a student and 

 1According to Hoskins’s complaint, Procedure 14-1 provides, in relevant 

part, “It is the policy of the University of Texas at Arlington that romantic or sexual 

relationships between faculty members and advisor and the students they 

currently teach, supervise[,] or advise and between employees in positions of 

authority and their subordinates are prohibited.” 

2Policy 5-511 states, in pertinent part, 

Consensual relationships in which one party in a position of direct 

authority or indirect authority over another with whom he or she has 

a consensual relationship is considered to be a conflict of interest. 

Therefore, a consensual relationship between an instructor and a 

student or between a supervisor and a supervisee is prohibited 

unless the relationship has been disclosed and any conflict mitigated 
3 

employee over whom Fuchs had direct authority. Hoskins also alleged that 

people who work closely with and in the same environment as Fuchs and White 

had approached Hoskins with concerns and rumors regarding their behavior and 

other behavior going on in psychology offices and labs. 

Hoskins further alleged that White had threatened Hoskins that Fuchs 

would ruin Hoskins’s career if he told anyone about the relationship. Hoskins 

also stated that he had “contacted [his] current school and they are on guard for 

any possible retaliation against me or any other student. Considering I have 

already been threatened and [Fuchs’s] position, power, and influence, I request 

further safeguards to prevent any retaliation.” In support of his complaint, 

 

as described herein. Where mitigation is not possible[,] a 

consensual relationship is prohibited. 

. . . . 

 

All instructors and supervisors should understand that 

consensual relationships are of concern to the University and the UT 

System. It is the instructors and supervisors, who, by virtue of their 

authority and responsibility, will bear the burden of accountability in 

such cases. There are substantial risks in an apparently consensual 

relationship where authority over another exists, even if the conflict 

of interest issues are mitigated, involving potential charges of sexual 

harassment and/or violations of University policy. Such consensual 

relationships have the potential for very serious consequences and 

should be avoided, where possible. 

. . . Any instructor or supervisor who enters into such a 

relationship should be aware that liability protection under Texas 

statutes may not apply in subsequent actions arising out of 

consensual relationship situations, where the instructor or supervisor 

failed to comply with this Policy, and that failure to comply with this 

Policy can lead to disciplinary action up to and including dismissal. 
4 

Hoskins filed affidavits from his four family members who overheard White’s 

statements to Hoskins regarding her relationship with Fuchs. 

 Fuchs denied the allegations in Hoskins’s complaint. As part of its 

investigation, EOS interviewed White. White denied having any relationship with 

Fuchs other than student and mentor. White claimed that she and Hoskins had 

an abusive relationship and that Hoskins often accused her of having a sexual 

relationship with Fuchs despite her continued denials. White would bring up 

Fuchs to “get under . . . Hoskins[’s] skin” or “because she got tired of saying that 

there was nothing going on.” White also claimed that she had been drinking the 

night of the argument and that she did not remember what happened that night. 

White also claimed that Hoskins had continued to harass her after their fight. 

After its investigation, EOS issued a final report. In its findings, EOS 

detailed Fuchs’s and White’s denials and stated that even though Hoskins 

alleged in his complaint that people who work closely with and in the same 

environment as Fuchs and White had approached Hoskins with concerns and 

rumors regarding their behavior and other behavior going on in psychology 

offices and labs, Hoskins failed to name anyone who could confirm his 

allegations. EOS also found that even though Hoskins provided notarized 

statements from family members who overheard White say that she was in a 

sexual relationship with Fuchs and threaten that she and Fuchs would ruin 

Hoskins’s career, none of the witnesses were in the room and none of them 

described what was being said by Hoskins. EOS concluded that there was 
5 

“insufficient evidence to substantiate a violation of the University’s consensual 

relationship policy” and recommended that no action be taken. 

In August 2015, Fuchs sued Hoskins for defamation based upon the 

statements Hoskins made about Fuchs in the EOS complaint. Hoskins timely 

filed a motion to dismiss under chapter 27 of the civil practice and remedies 

code. In addition to asking that Fuchs’s lawsuit be dismissed, Hoskins requested 

sanctions, reasonable attorney’s fees, and costs. After a hearing at which both 

sides presented argument, the trial court signed an order denying Hoskins’s 

motion to dismiss. Hoskins has appealed. 

II. The TCPA 

The TCPA protects citizens from retaliatory lawsuits that seek to intimidate 

or silence them on matters of public concern. In re Lipsky, 460 S.W.3d 579, 586 

(Tex. 2015) (orig. proceeding). The legislature enacted the TCPA “to encourage 

and safeguard the constitutional rights of persons to petition, speak freely, 

associate freely, and otherwise participate in government to the maximum extent 

permitted by law and, at the same time, protect the rights of [persons] to file 

meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. 

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

designed only to chill First Amendment rights, not to dismiss meritorious 

lawsuits.” Lipsky, 460 S.W.3d at 589 (citing Tex. Civ. Prac. & Rem. Code Ann. 

§ 27.002).
6 

When a plaintiff’s claim implicates a defendant’s exercise of First 

Amendment rights, chapter 27 allows the defendant to move for dismissal. See 

Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a); Andrews Cty. v. Sierra Club, 

463 S.W.3d 867, 867 (Tex. 2015). Under the TCPA’s two-step dismissal 

process, the initial burden is on the defendant to show by a preponderance of the 

evidence that the plaintiff’s claim “is based on, relates to, or is in response to the 

[defendant’s] exercise of” the right of free speech, the right to petition, or the right 

of association. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). If the defendant 

satisfies this burden, the burden shifts to the plaintiff to establish “by clear and 

specific evidence a prima facie[3] case for each essential element of the claim in 

question.” Id. § 27.005(c). If the plaintiff meets this burden, the trial court must 

deny the motion to dismiss even though the plaintiff’s claim implicates the 

defendant’s exercise of his First Amendment rights. See id.; Hand v. Hughey, 

No. 02-15-00239-CV, 2016 WL 1470188, at *3 (Tex. App.—Fort Worth Apr. 14, 

2016, no pet.) (mem. op.). 

The clear and specific standard “neither imposes a heightened evidentiary 

burden nor categorically rejects the use of circumstantial evidence when 

determining the plaintiff’s prima-facie-case burden under the Act.” Andrews Cty., 

463 S.W.3d at 867; see Lipsky, 460 S.W.3d at 591 (“In a defamation case that 

implicates [chapter 27], pleadings and evidence that establish[ ] the facts of 

 3“Prima facie case” means 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. 
7 

when, where, and what was said, the defamatory nature of the statements, and 

how they damaged the plaintiff should be sufficient to resist a TCPA motion to 

dismiss.”). In determining whether the clear and specific standard has been met, 

a trial court must consider the pleadings and evidence that explain “the facts on 

which the liability . . . is based.” Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); 

see United Food & Commercial Workers Int’l Union v. Wal–Mart Stores, Inc.,

430 S.W.3d 508, 511–12 (Tex. App.—Fort Worth 2014, no pet.). 

III. Discussion 

In his first issue, Hoskins argues that the trial court erred by denying his 

motion to dismiss because (1) he showed by a preponderance of the evidence 

that Fuchs’s claims are based on, relate to, or were filed in response to Hoskins’s 

exercise of his right of free speech, right to petition, and right of association and 

(2) Fuchs failed to prove each element of his defamation claim by clear and 

specific evidence. In his second issue, Hoskins contends that we should remand 

this case to the trial court for an award of court costs, attorney’s fees, expenses, 

and sanctions. See Tex. Civ. Prac. & Rem. Code Ann § 27.009(a).4

 4If the trial court grants a motion to dismiss under the TCPA, it is required 

to award the moving party: 

(1) court costs, reasonable attorney’s fees, and other expenses 

incurred in defending against the legal action as justice and equity 

may require; and 
8 

We review the trial court’s ruling de novo. See United Food & Commercial 

Workers Int’l Union, 430 S.W.3d at 511. Because it is dispositive of the appeal, 

we will first address the second part of Hoskins’s first issue—whether Fuchs 

proved each element of his defamation claim by clear and specific evidence. 

A. Applicable law 

Defamation expressed in written or graphic form is libel. Tex. Civ. Prac. & 

Rem. Code Ann. § 73.001 (West 2011). To prevail on a defamation claim, the 

plaintiff must prove that the defendant (1) published a false statement of fact to a 

third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite 

degree of fault, and (4) damages, in some cases. Lipsky, 460 S.W.3d at 593. A 

statement is defamatory if the words tend to injure the plaintiff’s reputation, 

exposing him to hatred, contempt, ridicule, or financial injury, or if it tends to 

impeach the person’s honesty, integrity, or virtue. Tex. Civ. Prac. & Rem. Code 

Ann. § 73.001. Whether a publication is false and defamatory depends upon a 

reasonable person’s perception of the entire publication. Turner v. KTRK 

Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000). We construe an alleged 

defamatory statement “as a whole in light of the surrounding circumstances 

based upon how a person of ordinary intelligence would perceive it.” New Times, 

 

(2) sanctions against the party who brought the legal action as the 

court determines sufficient to deter the party who brought the legal 

action from bringing similar actions described in this chapter. 

Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). 
9 

Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex. 2004) (quoting Turner, 38 S.W.3d at 

114). To qualify as defamatory, a statement should be derogatory, degrading, 

somewhat shocking, and contain elements of disgrace. Better Bus. Bureau of 

Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 356 (Tex. 

App.—Houston [1st Dist.] 2013, pet. denied). But a communication that is merely 

unflattering, abusive, annoying, irksome, or embarrassing, or that only hurts the 

plaintiff’s feelings, is not actionable. Id. Moreover, to be actionable, a statement 

must assert an objectively verifiable fact rather than an opinion. Bentley v. 

Bunton, 94 S.W.3d 561, 580–81 (Tex. 2002). “We classify a statement as fact or 

opinion based on the statement’s verifiability and the entire context in which the 

statement was made.” Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 

875 (Tex. App.—Dallas 2014, no pet.). 

B. Evidence of false defamatory statements 

Fuchs produced clear and specific evidence to show a prima facie case 

that Hoskins made false, defamatory statements of fact in his EOS complaint.5 

Specifically, Hoskins stated in the complaint that Fuchs was having a sexual 

relationship with White and that Fuchs would ruin Hoskins’s career if he told 

 5Hoskins asserts that his repetition of the statements made in his EOS 

complaint in this lawsuit is not actionable. See generally, James v. Brown, 

637 S.W.2d 914, 916 (Tex. 1982) (“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.”). However, he 

does not mention judicial-proceedings immunity with regard to his statements in 

the EOS complaint or explain whether that doctrine could apply as a defense in 

this case. 
10 

anyone about the relationship. Not only do these statements assert objectively 

verifiable facts, but Fuchs produced evidence that they were false. In support of 

his response to Hoskins’s motion to dismiss, Fuchs attached EOS’s final report, 

which stated, among other things, that both he and White denied having a sexual 

relationship. Fuchs also attached his affidavit in which he averred that he had 

never engaged in a sexual relationship with White or any other student and that 

he had never met, spoken to, or threatened Hoskins in any manner, either 

directly or indirectly. 

When Hoskins’s statements in his EOS complaint are construed as a 

whole and in light of the surrounding circumstances based upon how a person of 

ordinary intelligence would perceive them, they can be reasonably construed as 

defamatory. See Tex. Civ. Prac. & Rem. Code Ann. § 73.001; Tex. Disposal 

Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex. 

App.—Austin 2007, pets. denied) (op. on reh’g) (“Under Texas law, a statement 

is defamatory if it tends to injure a person’s reputation and thereby expose the 

person to public hatred, contempt, ridicule, or financial injury or to impeach any 

person’s honesty, integrity, virtue, or reputation.”). At the very least, Hoskins’s 

statements tended to injure Fuchs’s reputation, had the potential to inflict 

financial injury on Fuchs, and impeached his integrity and reputation. 

Accordingly, we conclude that Fuchs presented clear and specific evidence to 

make a prima facie case that Hoskins’s statements were false and defamatory. 
11 

C. Fault

 If a plaintiff in a defamation action is a public official or public figure, the 

plaintiff must show the defendant acted with actual malice regarding the truth of 

the statement. Lipsky, 460 S.W.3d at 593. If the plaintiff is a private figure, he 

need only show that the defendant was negligent. Id. 

Hoskins and Fuchs conceded in the trial court and maintain on appeal that 

Fuchs is a public figure or public official. However, whether a plaintiff is a public 

official or a public figure is a question of law. Klentzman v. Brady, 312 S.W.3d 

886, 904 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Rosenblatt v. 

Baer, 383 U.S. 75, 88, 86 S. Ct. 669, 677 (1966)); HBO v. Harrison, 983 S.W.2d 

31, 36–37 (Tex. App.—Houston [14th Dist.] 1998, no. pet.). Parties may not 

judicially admit a question of law. H.E. Butt Grocery Co. v. Pais, 955 S.W.2d 

384, 389 (Tex. App.—San Antonio 1997, no pet.). Nor can they concede a 

question of law necessary to the proper disposition of an appeal. Jackson Hotel 

Corp. v. Wichita Cty. Appraisal Dist., 980 S.W.2d 879, 881 n.3 (Tex. App.—Fort 

Worth 1998, no pet.); Haas v. Voigt, 940 S.W.2d 198, 201 n.1 (Tex. App.—San 

Antonio 1996, writ denied) (citing White v. Moore, 760 S.W.2d 242, 243 (Tex. 

1988)). Thus, in the course of our de novo review we must determine whether 

Fuchs was a public figure or public official. 

Even though Fuchs is employed by UTA, a public university, not all 

governmental employees qualify as public officials, and there is no specific test 

for determining whether an individual is a public official for purposes of a 
12 

defamation action. Cloud v. McKinney, 228 S.W.3d 326, 339 (Tex. App.—Austin 

2007, no pet.) (op. on reh’g) (citing Harrison, 983 S.W.2d at 36). However, public 

official status applies to governmental employees “at the very least . . . who have, 

or appear to the public to have, substantial responsibility for or control over the 

conduct of governmental affairs.” Harrison, 983 S.W.2d at 36 (quoting 

Rosenblatt, 383 U.S. at 85, 86 S. Ct. at 676). An employee holding an office of 

“such apparent importance that the public has an independent interest in the 

qualifications and performance of the person who holds it, beyond the general 

public interest in the qualifications and performance of all government 

employees,” is a public official for defamation purposes. Id. (quoting Rosenblatt, 

383 U.S. at 86, 86 S. Ct. at 676); see Cloud, 228 S.W.3d at 339–40. 

For purposes of defamation liability, there are two classes of public figures: 

(1) general-purpose public figures, who are individuals who “achieve such 

pervasive fame or notoriety that [they] become[ ] . . . public figure[s] for all 

purposes and in all contexts”; and (2) limited-purpose public figures, who are 

persons who “thrust themselves to the forefront of particular public controversies 

in order to influence the resolution of the issues involved . . . invit[ing] attention 

and comment”; who voluntarily “inject[ ] [themselves] or [are] drawn into a 

particular public controversy . . . assum[ing] special prominence in the resolution 

of public questions”; and who “thrust [themselves] into the vortex of [a] public 

issue . . . [or] engage the public’s attention in an attempt to influence its 
13 

outcome.” Klentzman, 312 S.W.3d at 904 (quoting Gertz v. Robert Welch, Inc.,

418 U.S. 323, 345, 351, 352, 94 S. Ct. 2997, 3009, 3012, 3013 (1974)). 

General purpose public figures have assumed so prominent a role in the 

affairs of society that they have become celebrities. See WFAA–TV v. 

McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051 

(1999). Absent clear evidence of general fame or notoriety and pervasive 

involvement in the affairs of society, one should not be characterized as a 

general purpose public figure. Gertz, 418 U.S. at 352, 94 S. Ct. at 3013; 

McLemore, 978 S.W.2d at 571. 

To determine whether a person is a limited-purpose public figure, Texas 

courts apply a three-part test: (1) the controversy at issue must be public both in 

the sense that people are discussing it and in the sense that people other than 

the immediate participants in the controversy are likely to feel the impact of its 

resolution; (2) the plaintiff must have more than a trivial or tangential role in the 

controversy; and (3) the alleged defamation must be germane to the plaintiff’s 

participation in the controversy. McLemore, 978 S.W.2d at 571. To determine if 

the plaintiff’s role in the controversy was more than tangential, a court examines 

whether the plaintiff (1) actually sought controversy, (2) had access to the media, 

and (3) voluntarily engaged in activities that necessarily involved the risk of 

increased exposure and injury to reputation. Klentzman, 312 S.W.3d at 905 

(citing McLemore, 978 S.W.2d at 572–73). 
14 

Both Hoskins and Fuchs rely on El Paso Times, Inc. v. Trexler, 

447 S.W.2d 403 (Tex. 1969), in support of their contention that Fuchs is a public 

official or public figure. In that case, the trial court found as a matter of law that 

Trexler—a professor at the University of Texas at El Paso who led an antiVietnam war demonstration that “aroused a considerable amount of interest and 

comment in the City of El Paso” and resulted in the El Paso Times publishing 

several articles, editorials, and letters to the editor responding to Trexler and his 

views—was a public figure. Id. at 404. The issues on appeal, however, were 

whether the trial court submitted the correct definition of “actual malice” in the 

jury charge and whether there was evidence to support a jury finding of actual 

malice under the correct definition, not the trial court’s finding that Trexler was a 

public figure. Id. at 404–06. Thus, Trexler is not dispositive of the question of 

whether Fuchs is a public figure. 

Moreover, there is no evidence to indicate that Fuchs’s actions—unlike 

Trexler’s—generated any “amount of interest and comment” from the public. The 

evidence in the record only establishes that Fuchs is a tenured professor and the 

Interim Department Chair of Psychology at UTA. Under the law as set out 

above, this evidence is insufficient to show that Fuchs is a public official, a public 

figure, or a limited-purpose public figure. Fuchs is therefore a private figure. 

As a private figure, Fuchs was required to prove that Hoskins was at least 

negligent in making the statements. See Newspaper Holdings, Inc. v. Crazy 

Hotel Assisted Living, Ltd., 416 S.W.3d 71, 82, 85 (Tex. App.—Houston [1st 
15 

Dist.] 2013, pet. denied). “Texas courts have defined negligence in the 

defamation context as the ‘failure to investigate the truth or falsity of a statement 

before publication, and [the] failure to act as a reasonably prudent [person].’” Id.

at 85 (quoting Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 631 (Tex. App.—

Houston [1st Dist.] 1984, writ ref’d n.r.e.)). According to Hoskins, White went on 

a “rant” during their argument and “screamed” that she and Fuchs were having a 

sexual relationship and that Fuchs would ruin Hoskins’s career if Hoskins told 

anyone. There is no evidence that Hoskins investigated the truth or falsity of 

these accusations, even though White—who had so much to drink that night that 

she could not later remember what happened—screamed these statements in 

the heat of an argument at 2:30 a.m. We therefore conclude that Fuchs 

presented clear and specific evidence to make a prima facie case that Hoskins 

was negligent regarding the truth of the statements made in the EOS complaint.6

D. Damages 

Finally, when an offending publication qualifies as defamation per se, a 

plaintiff may recover general damages without proof of any specific loss. Lipsky, 

460 S.W.3d at 596. This is because defamation per se refers to statements that 

 6Hoskins asserts that he was merely repeating White’s statements. “Under 

Texas law, a person who repeats a defamatory statement made initially by 

another can be held responsible for republishing the libelous statement.” Milo v. 

Martin, 311 S.W.3d 210, 214 (Tex. App.—Beaumont 2010, no pet.); see also 

Neely v. Wilson, 418 S.W.3d 52, 61 (Tex. 2013) (“We first observe that it is a 

well-settled legal principle that one is liable for republishing the defamatory 

statement of another.”). 
16 

are so obviously harmful that general damages, such as mental anguish and loss 

of reputation, are presumed. Id. Defamation is actionable per se if it injures a 

person in his office, business, profession, or occupation. Morrill v. Cisek, 

226 S.W.3d 545, 549 (Tex. App.—Houston [1st Dist.] 2006, no pet.). As 

explained above, Hoskins’s statements tended to injure Fuchs’s reputation, had 

the potential to inflict financial injury on Fuchs, and impeached his integrity and 

reputation. Thus, as defamation per se, damages to Fuchs’s reputation are 

presumed, although the presumption alone will support only an award of nominal 

damages. See Lipsky, 460 S.W.3d at 596. 

 Accordingly, we hold that Fuchs met his burden to establish by clear and 

specific evidence a prima facie case for each essential element of his defamation 

claim.7 See Tex. Civ. Prac. Rem. Code § 27.005(c). Because Fuchs satisfied 

his burden, we do not address the first part of Hoskins’s first issue because even 

assuming that he established by a preponderance of the evidence that Fuchs’s 

claims are based on, relate to, or were filed in response to Hoskins’s exercise of 

the right of free speech, the right to petition, and the right of association, denial of 

Hoskins’s motion to dismiss was nonetheless required. See id.; see also Tex. R. 

 7Although Fuchs pled defamation and defamation per se as separate 

claims, they are not separate causes of action. See Levine v. Steve Scharn 

Custom Homes, Inc., 448 S.W.3d 637, 650 (Tex. App.—Houston [1st Dist.] 2014, 

pet. denied) (“Defamation per se and defamation per quod are not separate 

causes of action, however. ‘[T]he distinction between them instead is based on a 

rule of evidence, the difference between them lying in the proof of the resulting 

injury.’” (quoting Downing v. Burns, 348 S.W.3d 415, 425 (Tex. App.—Houston 

[14th Dist.] 2011, no pet.))). 
17 

App. P. 47.1. Thus, the trial court did not err by denying Hoskins’s motion to 

dismiss, and we overrule the dispositive portion of Hoskins’s first issue. Because 

Hoskins’s second issue is contingent upon his first issue being sustained, we do 

not reach his second issue.8 See Tex. R. App. P. 47.1. 

IV. Conclusion 

Having overruled the dispositive portion of Hoskins’s first issue, we affirm 

the trial court’s order denying his motion to dismiss. 

 8Hoskins implies in his reply brief that the trial court should have dismissed 

Fuchs’s defamation claim pursuant to section 27.005(d) because even if his 

statements were defamatory, Hoskins established by a preponderance of the 

evidence that his statements were true or substantially true when he made them. 

See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d) (“Notwithstanding the 

provisions of Subsection (c), the court shall dismiss a legal action against the 

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

each essential element of a valid defense to the nonmovant’s claim.”); 

§ 73.005(a) (West Supp. 2016) (“The truth of a statement in the publication on 

which an action for libel is based is a defense to the action”). In his brief on the 

merits, Hoskins discusses his belief that his statements were true or substantially 

true at the time he filed the EOS complaint in the context of whether he acted 

with actual malice—which, as explained above, is not required to establish a 

defamation claim involving a private figure—but he does not discuss the 

applicability of section 27.005(d) until his reply brief. A reply brief may not be 

utilized to raise issues not asserted in a party’s brief on the merits. See Tex. R. 

App. P. 38.3; Rollins v. Denton Cty., No. 02-14-00312-CV, 2015 WL 7817357, at 

*2 n.6 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.) (mem. op.). Further, 

Hoskins did not raise this argument in the trial court. He pled in his answer that 

he was not liable for defamation because the statements were true and asserted 

in his motion to dismiss that “truth is an absolute defense to a defamation cause 

of action,” but he did not argue that the suit should be dismissed because he 

established this defense by a preponderance of the evidence. See Tex. R. App. 

P. 33.1(a). 
18 

/s/ Anne Gardner 

ANNE GARDNER 

JUSTICE 

PANEL: GARDNER, WALKER, and MEIER, JJ. 

WALKER, J., filed a dissenting opinion. 

DELIVERED: December 22, 2016