COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00332-CV

TIM BILBREY AND CHUCK HALL APPELLANTS

V.

RYAN WILLIAMS APPELLEE

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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. 2013-20561-158

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MEMORANDUM OPINION1

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Introduction

This appeal arises under the Texas Citizens Participation Act (TCPA).

2

 

Appellants Chuck Hall and Tim Bilbrey filed this interlocutory appeal3 from the 

 1

See Tex. R. App. P. 47.4.

2

Act of May 24, 2011, 82nd Leg., R.S., ch. 341, § 1, 2011 Tex. Sess. Law 

Serv. 960, 960 (titling the act the “Citizens Participation Act”) (codified at Tex. 

Civ. Prac. & Rem. Code Ann. §§ 27.001–.011 (West 2015)).

3

Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(12) (West 2015).
2

trial court’s denial of their respective motions to dismiss the claims brought 

against them by Appellee Ryan Williams. The suit arose out of the three parties’

involvement in the Trophy Club Roanoke Baseball Association (TCRBA), which 

organizes baseball teams for children. At the times leading up to this suit, Hall 

was president of TCRBA. Bilbrey was the head coach of a TCRBA team with 

players aged seven or younger, and Williams was the assistant coach for the 

same team. Williams sued Bilbrey and Hall for defamation based on statements 

that Bilbrey made to Hall about Williams’s behavior at a TCRBA game.

Hall and Bilbrey each filed a motion to dismiss under the TCPA. The trial 

court denied both motions, and Bilbrey and Hall then filed this interlocutory 

appeal. In two issues, Bilbrey and Hall each argue that the TCPA applies to 

Williams’s claims and that Williams failed to meet his burden to avoid dismissal. 

We agree, and, accordingly, we reverse the trial court’s order denying the 

motions to dismiss and remand this case for further proceedings.

4

Background

Williams’s version of events

Unsurprisingly, the two sides presented different versions of the events 

leading to this lawsuit. On May 16, 2013, the team coached by Bilbrey and 

Williams played a game against another TCRBA team. According to Williams’s 

petition, Hall called him the next day to talk to him about Williams’s actions at the

game. Hall told Williams that he had received complaints about Williams being 

 4

See Tex. R. App. P. 43.2(d).
3

abusive toward the umpires at the game. Hall said that he had spoken to the 

umpires, who had corroborated the complaints. And because Williams already 

had ‘“two strikes against him,”’ his conduct at the May 16 game jeopardized his 

continued participation as a coach for TCRBA.

Williams called Hall back a few hours later to deny the allegations of bad

conduct and any knowledge of previous ‘“strikes”’ against him. In this second 

call, Hall corrected something he had told Williams earlier: although Hall had 

said then that he had already spoken to the umpires from the game, in fact Hall 

had not yet spoken to them. Hall stated that after that phone call, however, he 

had then spoken to one of the umpires, who told him that the situation ‘“wasn’t 

that bad.”’

Williams alleged that Hall acknowledged that the accusations against 

Williams “were harsh and extreme,” and he therefore assured Williams that he 

and other TCRBA board members would soon hold a meeting with Williams and 

the accusers to determine the validity of the allegations. Williams alleged that he 

never heard back from Hall about such a meeting.

That same evening, Williams attended another baseball game. There, 

Williams spoke to J.R., who had been one of the umpires at the game the day

before. Williams asked J.R. if anyone had spoken to him about the game the day 

before, and J.R. replied that no one had. Williams asked J.R. what he 

remembered about the game, and J.R. told him that a man who appeared to be a 

parent came on the field at one point and yelled at a player, and Williams had
4

asked the umpires and the other team’s coach to control the situation. In his 

petition, Williams identified this player as his team’s shortstop, but later in the 

record, the player is identified as Williams’s son. Williams learned that the man 

who had yelled at his son was Brandon Emerson, a commissioner for TCRBA.

Williams alleged that he had since spoke to “numerous [unspecified] 

parents” who had been at the game, and none witnessed Williams act 

inappropriately. Williams alleged that although Hall had not told him who the 

person was who had made the statements about him, “[o]n information and 

belief,” he identified that person as Bilbrey.

On May 18, Williams sent Hall an email complaining about Emerson. He 

followed the procedure for making complaints that was stated in the bylaws 

posted on TCRBA’s website. The bylaws stated that a commissioner would 

investigate upon receiving a written, signed complaint. Williams alleged that he 

never heard back from Hall about this complaint.

Also on May 18, Williams attended another baseball game and again ran 

into umpire J.R. J.R. told Williams that after the two had spoken the day before, 

J.R. talked to Hall. J.R. told Hall that Williams had not been abusive during the 

game, and Hall responded that J.R.’s stepfather, Jason Burchell, had complained 

to Hall about Williams. J.R. told Williams, however, that after his conversation 

with Hall, he talked to his stepfather, who told him that he had spoken with Hall 

but not to complain about Williams.
5

On May 20, Williams’s attorney sent Hall an email requesting a copy of any 

written complaint that had been made about him, the names of the TCRBA 

members on the committee that had been assigned to review the complaint (if 

one had been appointed), and a copy of the written decision of the committee (if 

any decision had been made). The email concluded by stating, “The lies 

apparently said about [Williams] have and continue to damage his reputation and 

cause him great distress, and he will not stand for such.”

Hall responded the next day with an email stating,

Some concerns regarding Mr. Williams’[s] on[-]field behavior 

were brought to my attention. Like any concern brought to my 

attention, I’m obligated to address, which I did. I did have a 

conversation with [Williams] regarding these concerns, and gave him 

the opportunity to give me his side of the story, which he did. Based 

on his feedback, the decision was made to take no further action. 

[Williams] certainly has the opportunity to apply to be a coach, like 

anyone else, going forward. At this point I consider the matter 

closed.

Williams’s unhappiness with Hall’s and Bilbrey’s actions was not limited to 

the events of the May 16 game. In his petition, Williams also complained about 

the treatment of his son in the selection of players for TCRBA’s All-Star teams

and about statements made in a meeting with parents of the All-Star team 

players. Several days before the May 16 game, TCRBA had held tryouts for the 

All-Star team. There it was announced that there would be two All-Star teams 

and that a second day of tryouts would be held on May 19. Williams alleged that 

Bilbrey, a TCRBA commissioner, ranked Williams’s son the highest of the boys 

who tried out for the team. Bilbrey emailed the parents of the top five ranked 
6

players to tell them that those five players did not need to attend the second day 

of tryouts. On May 19, the teams were announced, and Williams’s son was not 

placed on the top All-Star team and was instead placed on the second All-Star 

team.

Williams alleged that the team selection did not follow TCRBA’s bylaws. 

On May 22, Williams’s attorney sent a second letter to Hall, this time demanding 

an “immediate meeting” with Hall and other board members to discuss the AllStar team selection process. He stated that Williams’s son should have been 

placed on the top team, and “this wrong can be remedied through prompt action 

by the TCRBA in placing” him on the top team.

Williams alleged that the next day, Hall and Bilbrey organized a meeting 

with all the parents of the children on the All-Star teams except for Williams and 

his wife. Williams alleged that at the meeting, he “and his family were blamed 

and made the scapegoats”; the other parents “were told that the rosters of the 

All-Star teams would have to be changed because of actions and threats by 

[Williams] and that [Williams] was filing lawsuits” against TCRBA.

After that meeting, Williams’s attorney sent a third letter to Hall. The letter 

again complained of the “flawed” selection process for the All-Star team, but it 

asserted that Williams had not made any threats to file a lawsuit regarding the 

selection process. The attorney explained that “the Williams[es] are outraged 

with these recent acts and the continued disparagement of them, as well as

greatly saddened by the devastation felt by their seven-year old son . . . resulting 
7

from the TCRBA’s fiasco of the All-Star Team selection process.” The attorney 

remarked that it was “interesting” that the bylaws had been taken off TCRBA’s 

website, and he queried why Hall had not been at the parents meeting “to refute 

such false statements and set the record straight.” He demanded that Hall and 

TCRBA make a written apology and send a copy to all the parents who had 

attended the meeting.

In July 2013, Williams filed this suit, asserting claims against Bilbrey for 

defamation and intentional infliction of emotional distress, against both Hall and 

Bilbrey for conspiracy, and against Hall for aiding and abetting. He sought actual 

damages and exemplary damages.

Hall’s and Bilbrey’s motions to dismiss

Hall and Bilbrey each filed an answer and a motion to dismiss under the 

TCPA.

5

 The motions contained substantially the same assertions and relied on 

the same evidence. In Bilbrey’s motion, he stated that on the evening of May 16, 

Emerson texted him that he was going to file a complaint with Hall about Williams

the next morning. On the morning of May 17—the day after the game in question 

and the day before Williams filed his own complaint against Emerson—Bilbrey 

called Hall and told him that Emerson was going to be filing a complaint. Later

that day, Emerson called Hall and then followed up with an email complaint.

The email, which Hall and Bilbrey attached to their motions, stated that 

Emerson had “observed several situations in which Coach Williams acted in an 

 5

See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a); Tex. R. Civ. P. 91a.
8

unsportsmanlike manner as required by the TCBRA Bylaws and TCRBA 

Coaches Code of Conduct.” He stated specifically that

Coach Williams demonstrated a lack of respect for the umpires . . .

by continu[]ally challenging or requesting clarification on calls that 

were not in favor of his team. . . . This . . . was very disruptive to the 

flow of the game and set a poor example for all of the players and 

fans who were forced to wait to resume play until Coach Williams 

was satisfied with the decision/explanation provided by the umpiring 

crew. Unfortunately, this is not an isolated situation as this type of 

behavior is consistent with my observations of Coach Williams on 

several occasions this spring.

After Hall received the complaint from Emerson, he and Bilbrey spoke, and 

Bilbrey told Hall of his recollection of the incident at the May 16 game. Hall and 

Bilbrey both attached a copy of the email Bilbrey sent to Hall a few days later, 

documenting his memory of what happened:

The incident in question occurred in the middle of the game. 

There was a play in which we were on defense with a runner on 1st 

base. A hard ground ball was hit just to the right of our first 

baseman[.] The first baseman ran over and fielded the ground ball. 

Once the grounder was in possession of the ball he attempted to

make a tag on the runner going to 2nd base, and also running over 

to first for the double play to end the inning. The umpire called both 

players out. I was standing in the 1st base coaches box[.] Ryan 

Williams was standing in the 3rd base coaches box. The opposing 

Head Coach for Bobcat Black made an immediate appeal to the 

umpire while our team was coming off the field to hit, and Mr. 

Williams was running to our dugout from his position at 3rd base[.] 

At about the time Mr. Williams had made it over to our side of the 

field, he was in close proximity to myself, the umpire, and the 

opposing Head Coach next to the 1st base coach’s box. At this 

point, the umpire reversed his call against the runner going to 2nd 

base because our 1st baseman admitted to missing the tag. 

However, Mr. Williams wasn’t within proximity to hear the player 

admit the missed tag. All he had heard was that the umpire 

reversed his call.

At the moment the call was reversed before knowing the 

circumstances, Mr. Williams had approached the umpire further and 
9

was yelling at him for reversing the call. While I can’t quote Mr. 

Williams’ comments, he was arguing with the umpire about how 

many calls he’s missed during this game and that he’s now deciding 

to reverse his calls. Mr. Williams even turned to me and asked why 

wasn’t I joining his argument[.] I explained to Mr. Williams the 

reason that the call was reversed, and that our player admitted to 

missing the tag. I started to tell our players that they need to get 

back onto the field to finish the inning because we needed one more 

out. As Mr. Williams was turning to go back to his position on the 

field at 3rd base coach’s box, he made a comment referring that the 

league needed to get better umpires.

Hall explained that the umpires for the game were thirteen and fourteen year olds 

and that Williams “is a physically large man, standing over 6 feet 5 inches tall and 

weighing likely over 250 pounds.”

Hall stated that after he received the complaint from Emerson, he gathered 

information and feedback from others. He discussed it with other key TCRBA 

board members, and they decided the next step should be to call Williams and 

discuss the incident. During that call, Hall “made it clear to Williams what 

behavior was expected of him as an Assistant Coach on the field with children.”

Hall and Bilbrey asserted that this incident was not the first time that 

Williams’s “loud on-field behavior was noted to be inappropriate for children’s 

baseball games.” As evidence, they attached emails from Faith Muskiet and 

Chad Morrill, a copy of a text message from Jeremy Foster, and the affidavits of 

Becky McClain and Brandon Hennig.

The email from Muskiet, dated April 25, 2011 (that is, almost two years 

before the May 16th game), was to someone named Larry. She wrote to inform 

him of an incident that had occurred two days before at her son’s game. At one 
10

point in the game, she witnessed Williams, who was a coach on the other team, 

“yell very loudly across the field to our coach” that her son’s team’s players were 

disrespecting the players from the other team. “He was talking so loudly that ALL 

the parents, family, and friends in the stands could hear him very clearly.” She 

stated that Williams “could have expressed his concerns to the umpire or

discussed, in private, the issues with our coach. There was no need to scream 

at the top of his lungs his concerns.” Williams’s yelling “made [the parents of the 

children on his team] yell at our coach also,” and the situation “was getting out of 

control way too quickly.” Williams “was, at this point, crossing the ball field to 

stand face to face with” her son’s team’s coach. She stated that “[a]t this point, I 

had seen and heard enough, so I yelled at that point that it was 6 year olds and 

let’s act like role models.”

Muskiet went on to say,

You have to understand that this is not the first time I have had an 

encounter with Ryan Williams. He seems to be a reoccurring 

nightmare. I coached a tee ball team with Karin Mesenbrink last

Spring and Mr. Williams’s son was on my team. Numerous times 

during the season, we had issues with him. . . . On several

occasions, he approached me in a very aggressive manner. Karin 

Mesenbrink and I filed a complaint during that season, but no action 

was taken. . . . I am afraid he will just continue to spiral out of 

control.

Morrill’s email was about the same April 2011 game. He corroborated 

Muskiet’s statement that Williams yelled at him across the field, “very loudly and 

with an extremely hateful tone,” for his players to show Williams’s team respect. 

Williams’s complaint was that Morrill’s team began to leave the field as Williams’s 
11

last batter of the inning was rounding third base. Williams continued to shout at 

Morrill and waive his arms, and Morrill responded that no rules had been broken 

and that if Williams had an issue, he needed to bring that to Williams’s head 

coach and the umpire. Williams walked across the field to Morrill in an 

aggressive way that made Morrill concerned that Williams was “going to start a 

physical altercation.” “With this, I could very quickly see that talking through the 

matter was not an option so I told him to speak with the umpire and tried to quiet 

the situation as quickly as possible.”

In Foster’s text-message, he described Williams as a coach he would not 

want his child to play under. He described Williams as “[j]ust one of those guys 

that everything has to go his way and cause a ruckus to fight for it. Could be a 

nice guy but just is way over the top.” His child’s team had played Williams’s 

team twice during the season, “and both games he caused a scene for some 

reason or another.” Foster concluded, “I think he is just a loud personality, that is 

used to getting his way. So it comes across pretty harsh when you are playing a 

game with 7 year olds.”

In McClain’s affidavit, she stated that she had seen Williams arguing with 

the umpires at the May 16th game. She stated that “Williams is twice the size of 

the umpires who are just kids. [Williams] would not give the umpires a break and 

kept arguing with them.” She heard him say something to the effect that “the 

league should get decent umpires.” She stated that Williams “has a loud voice 

and [is] prone to arguing with the umpires.”
12

In Hennig’s affidavit, he did not talk about the May 16 game specifically, 

but he gave a few examples of Williams being ‘“over the top.’” He stated, “I have 

witnessed Ryan Williams become very emotional and sometimes have heated 

conversations with the umpires he didn’t like or when a wrong call was made. 

The umpires are kids and due to Ryan’s height and large body frame he can be 

intimidating to these young umpires.”

In their motions, Hall and Bilbrey stated that the day of the meeting with 

the All-Star parents, Hall had been served with a petition for a notice to take a 

pre-suit deposition by Williams’s attorney.

6

 They attached to their motions a 

copy of this petition that Williams had filed in the district court for authorization to 

take Hall’s deposition.7

 The petition sought Hall’s deposition “to investigate 

potential claims that Williams has relating to defamatory statements made to 

Hall.” It stated that Williams sought to learn information including who made the 

allegations to Hall, the specifics of the allegations, the investigation of the 

allegations, “the efforts to exclude Williams from” TCRBA, and any other 

allegations of misconduct by Williams.

Hall and Bilbrey asserted that Williams’s claims should be dismissed under 

the TCPA. They asserted that Williams’s claims were “all based on [Williams’s] 

attempts to silence Bilbrey, and other parents including Hall . . . who are looking 

 6

The meeting was held May 23. The file stamp on this petition shows that 

it was filed on May 22, and the certificate of service states that it was emailed to 

Hall that same day.

7

See Tex. R. Civ. P. 202.1.
13

out for the protection of our youth.” Hall asserted that “[t]he safety and 

interaction between adult coaches and children umpires and players is a matter 

of public concern not just within TCR[]BA, but on a global scale,” and “[a]ny 

speech regarding observed behavior or interaction between an adult and an 

adolescent umpire is considered an exercise of free speech which addresses a 

matter of public concern as it deals directly with the well-being and safety of 

children in the community.”

Hall and Bilbrey argued that Bilbrey had a moral duty to report Williams’s 

behavior to Hall, that witnesses had the right to speak up and tell about what they 

had seen, and that Hall had the right to investigate the matter. They asserted 

that any comments made by Bilbrey or anyone else regarding behavior of 

Williams they had witnessed “are precisely the type of speech the Legislature 

intended to encourage and protect” through the TCPA. Accordingly, they 

requested that the trial court dismiss Williams’s claims and award them court 

costs, expenses, reasonable attorney’s fees, and sanctions.

Williams’s response to the motions to dismiss

In Williams’s response to the motions, he argued that the TCPA did not 

apply to “Bilbrey’s actions in calling [Williams] an abuser” and that if the TCPA 

did apply, he had established a prima facie case for the essential elements of his 

claims. Williams attached to his response his own affidavit and the affidavit of 

Misty Engel and Travis Engel, parents who had been at the May 16 game. The 
14

Engels stated that they did not see Williams behave in an inappropriate manner 

and have never seen him act in an aggressive or intimidating manner.

In his affidavit, Williams repeated many of the statements that he had 

included in his petition, including his description of his conversations with Hall. 

Williams stated that after his first conversation with Hall, he concluded that “an 

individual or individuals were trying to get [him] kicked out of the” TCRBA. He 

then told several people involved with TCRBA about the accusation, including the 

coach and assistant coach of the opposing team at the May 16 game. Those 

coaches told him that they had not made a complaint and that no complaint was 

warranted.

Williams also attached an affidavit from his wife Amber Williams. She 

stated that “[u]pon learning that [Williams] was being accused of being abusive to 

the umpires at the game, I sent a text message . . . to Becki McClain as to 

whether she observed [Williams] being abusive.” She attached to her affidavit a 

copy of the text message exchange:

[Amber:] Hey girl . . . Omg we have to talk . . . Do u think 

[Williams] was abusive to any of the refs last night at [the] game??

[McClain:] Abusive???? Like for real abusive or just arguing?

[Amber:] The term abusive is what was said . . .

[McClain:] Ok what was said about ehat [sic] . . . and the only 

testy thing [I] remember is when the other team got mad[] that 

[Williams’s son] tagged that kid

[Amber:] Ya and that kids dad ran out on the field and started 

yelling at [Williams’s son] . . . And Ryan [text missing] get him off the 

field and when he did not he asked the refs to do it!!
15

[Amber:] The guy was yelling at [Williams’s son] to apologize 

and he needs to learn about what a force is . . .

[Amber:] That’s the only time [Williams] said anything all 

night . . . [Ellipses in original.]

Williams further included the affidavit of two City of Roanoke police officers 

stating that they had supervised Williams when he had been an officer for the 

city, that he had never been involved in any internal affairs investigations while 

working there, and that he was eligible for rehire there.

Williams also filed a motion for continuance asking for time to take the 

depositions of Bilbrey, J.R., McClain, and Hennig.

8

 The trial court denied the 

motions to dismiss. Hall and Bilbrey then filed this interlocutory appeal.

Discussion

Hall and Bilbrey each raise two issues on substantially the same grounds. 

They both argue in their first issue that they met their burden to show that the 

TCPA applies to Williams’s claims. They both argue in their second issue that 

Williams did not meet his burden of providing clear and specific evidence

showing a prima facie case for each essential element of his claims. We begin 

with their first issues and consider whether the TCPA applies to Williams’s claims 

against them.

1. Origin of anti-SLAPP laws

George W. Pring and Penelope Canan created the term “Strategic 

Lawsuits Against Public Participation”—SLAPP—to describe civil actions brought 

 8

See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(b).
16

for the purpose of stifling political expression.9

 In their work on the subject, Pring 

and Canan pointed out examples of lawsuits filed against citizens and groups for 

such actions as “going to a public meeting and signing the attendance sheet,”

“[c]irculating a petition for signatures,” “[r]eporting police misconduct,” “[f]iling 

administrative agency appeals,” “[l]obbying for reform legislation,” “[b]eing a 

named party in a non-monetary, public-interest lawsuit,” and “[s]ending a letter to 

public officials.”

10 Their study of these lawsuits found that “[f]ar from unusual, 

SLAPPs are found in every jurisdiction, at every government level, and against 

every type of public issue” that they had investigated.11

As they explained, their study found that SLAPPs were filed by parties on 

one side of a public dispute in order punish or prevent opposing points of view 

and to transform the public dispute “into a private, legal adjudication, shifting both 

forum and issues to the disadvantage of the other side.”

12 They found that this 

tactic works well for SLAPP filers because “[t]he costs immediately imposed on 

the defendants or targets can be substantial.”

13 Pring and Canan found that 

 9

See George W. Pring & Penelope Canan, Strategic Lawsuits Against 

Public Participation (“Slapps”): an Introduction for Bench, Bar and Bystanders

(Introduction to SLAPPs), 12 Bridgeport L. Rev. 937, 938 (1992); see also 

George W. Pring, SLAPPs: Strategic Lawsuits against Public Participation, 7 

Pace Envtl. L. Rev. 3 (1989), available at http://digitalcommons.pace.edu/

pelr/vol7/iss1/11.

10Pring & Canan, Introduction to SLAPPs, at 938.

11Id. at 940.

12Id. at 941.

13Id. at 942.
17

most filers of SLAPPs lose their suits but win at achieving their purpose; although

the “vast majority” of such suits are dismissed, they succeed in chilling public 

discussion.14

To address the same concerns that Pring and Canan raised in their work, 

many states have enacted statutes intended to cut down on detrimental and 

abusive SLAPP actions. Texas is one such state.

2. The TCPA

The TCPA, which was adopted in 2011,

15 is set out in chapter 27 of the 

civil practice and remedies code.16 Section 27.002 sets out the law’s purpose, 

which is “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 a person to file meritorious lawsuits for demonstrable injury.”

17 Section 27.011 

states that the TCPA “shall be construed liberally to effectuate its purpose and 

intent fully.”

18 Thus, we must construe all parts of the TCPA liberally while 

keeping in mind its intent to protect both the constitutional rights of defendants 

and the right of plaintiffs to bring meritorious lawsuits.

 14Id. at 941–44.

15Act of May 24, 2011, 82nd Leg., R.S., ch. 341, § 1, 2011 Tex. Sess. Law 

Serv. 960, 960.

16Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011.

17Id. § 27.002.

18Id. § 27.011(b).
18

Section 27.003 provides a procedure for obtaining a dismissal of the action

and for a suspension of discovery while the trial court considers the motion to 

dismiss.19 Section 27.005 sets out the relative burdens for prevailing on a motion 

to dismiss under section 27.003 and for overcoming such a motion.20 The 

section requires the trial court to dismiss the action if the defendant seeking to 

have the suit dismissed “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.”

21

The section provides, however, that if the plaintiff then “establishes by 

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

claim in question,” the trial court may not dismiss the action.

22 This section of the 

TCPA provides a plaintiff the opportunity to overcome a spurious motion to 

dismiss brought under the TCPA.

23

Section 27.001 defines terms for purposes of the TCPA. That section 

includes the following relevant definitions:

 19Id. § 27.003.

20Id. § 27.005.

21Id. § 27.005(b).

22Id. § 27.005(c).

23Id. § 27.002.
19

(1) “Communication” includes the making or submitting of a 

statement or document in any form or medium, including oral, visual, 

written, audiovisual, or electronic.

(3) “Exercise of the right of free speech” means a communication 

made in connection with a matter of public concern.

(7) “Matter of public concern” includes an issue related to:

(A) health or safety;

(B) environmental, economic, or community well-being;

(C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace.24

3. Standard of Review

In reviewing a trial court’s ruling on a motion to dismiss under the TCPA, 

“we review de novo whether (1) the movant satisfied the initial burden imposed 

by section 27.005(b), (2) the nonmovant satisfied the burden imposed by section 

27.005(c), and (3) the movant satisfied the burden imposed by section 

27.005(d).”

25 In our review, “we consider the pleadings and supporting and 

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

26

4. The TCPA applies to Williams’s claims

Hall contends that the TCPA applies because Bilbrey’s statements about 

Williams’s actions at the May 16 game relate to the health and safety of children 

 24Id. § 27.001.

25United Food & Commercial Workers Internat’l Union v. Wal-Mart Stores, 

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

26Id. at 511–12; see also Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a).
20

in the community. Specifically, he states that “all of Williams’[s] claims arise out 

of reports that were made by concerned parents about Williams’[s] conduct as 

third base coach during a baseball game comprised of 7-year old boys with 13-

14 year old umpires,” and the suit therefore “involves communications relating to 

the mental and physical health and safety of young children who participate in 

organized sports.” Thus, the claims “involve the exercise of the right of free 

speech on a matter of public concern relating to the health and safety of the 

children participating in the game.”

Like Hall, Bilbrey argues that Williams’s suit arises out of free speech on a 

matter of public concern because the statements address the safety of children in 

the community. He also relies on the “community well-being” provision of the 

definition of public concern. He argues that “[i]t is undisputed that youth sports 

are important community activities in raising our children and teaching them 

important life lessons,” and “[t]he safety and interaction between adult coaches 

and children umpires and players, is a matter of public concern as it relates to the 

community’s well-being”; “[a]ny speech regarding observed behavior or 

interaction between an adult and an adolescent umpire would therefore be 

considered an exercise of free speech which addresses a matter of public 

concern as it deals directly with the well-being and safety of children in the 

community.”

We agree that Williams’s suit is based on statements Bilbrey made on a 

matter involving the well-being and safety of children in the community, that the 
21

statements were therefore on matters of public concern, and that the suit 

therefore is based on and arises out of the right of free speech as defined by the 

TCPA.27 Bilbrey and Hall produced evidence suggesting that Williams has a 

history of losing his temper and acting aggressively at TCRBA games, including 

toward the teenage children who umpire the games. It was in that context that 

Bilbrey made the disputed statements to Hall.

Further, Williams alleged that Bilbrey called him “an abuser” and said that 

he abused teenage umpires at a game. Bilbrey’s version of what he had said 

used less-strong language but still described Williams as losing his temper over a 

reversed call at a baseball game played by seven-year-old children, approaching 

the teenage child who was refereeing the game, and yelling at him over the 

reversed call. Bilbrey’s statements relate to the health, safety, and well-being of 

the children of the community who play in TCRBA.

28 Accordingly, these 

statements were statements on a matter of public concern, and Bilbrey made the 

statement in the exercise of his right of free speech under the TCPA.

 27In this opinion, we use the terms “free speech” and “public concern” as 

those terms are used in the TCPA. We do not consider and make no comment 

on whether the statements at issue in this case are matters of “public concern” as 

that term is used in defamation law outside the context of the TCPA.

28Cf. Hecimovich v. Encinal Sch. Parent Teacher Org., 203 Cal. App. 4th 

450, 467, 137 Cal. Rptr. 3d 455, 465–66 (2012) (applying California’s antiSLAPP law, which applies to statements of public interest—construed as any 

issue in which the public is interested—to the statements in the case and holding 

that the safety of children in sports is an issue of public interest).
22

In Williams’s response to the motions to dismiss, he argued that the TCPA 

did not apply because the statements at issue were not related to community 

well-being or health and safety. In his appellee’s brief, he makes an additional,

different argument, asserting that because Bilbrey’s statements “were 

communicated to Hall verbally and privately,” and because they did not constitute 

participation in government, the TCPA does not apply to them.

Williams points to language in the section explaining the TCPA’s purpose, 

which, as we have observed, states that the Act’s purpose is “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 a person to file meritorious 

lawsuits for demonstrable injury.”

29 Williams argues that this “otherwise 

participate” language indicates an intent to limit the TCPA’s application to speech 

that rises to the level of participating in government.

Like the Dallas Court of Appeals, we decline to read this section in 

isolation from the rest of the Act.30 We must consider this section in the context 

of the entire statutory scheme. And like that court, we point out that the 

 29Tex. Civ. Prac. & Rem. Code Ann. § 27.002 (emphasis added).

30See Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, INC., 402 

S.W.3d 299, 308 (Tex. App.—Dallas 2013, pet. denied).
23

definitions of “freedom of speech” and “public concern” do not include only 

speech that would constitute participation in government.31

Further, the statement of intent by the TCPA’s author included these 

observations:

Citizen participation is the heart of our democracy. Whether 

petitioning the government, writing a traditional news article, or 

commenting on the quality of a business, involvement of citizens in 

the exchange of idea[s] benefits our society.

Yet frivolous lawsuits aimed at silencing those involved in 

these activities are becoming more common, and are a threat to the 

growth of our democracy. . . .

. . . The Texas Citizen Participation Act would allow 

defendants—who are sued as a result of exercising their right to free 

speech or their right to petition the government—to file a motion to 

dismiss the suit.32

Thus, the TCPA was intended to provide protection for the involvement of 

citizens in the exchange of ideas, not just in speech related to participating in 

government. And the language of the TCPA, including its definition of “public 

concern,” guides us to the conclusion that the Act does not apply only to 

statements made in participating in government. Accordingly, we hold that the 

 31See id. (pointing out that the legislature had “defined the protected 

activity of ‘exercising the right of free speech’ to encompass much broader 

activity” than participation in government and noting that the ‘“exercise of the 

right of free speech”’ is defined in the TCPA “as a communication made in 

connection with a matter of public concern,” which “is statutorily defined to 

encompass five different subjects including, without any limitation to participation 

in government, an issue related to a good, product, or service in the 

marketplace”).

32Senate Research Ctr., Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S. 

(2011) (emphasis added).
24

“otherwise participate in government” language does not express a limitation of 

the TCPA’s application that would prevent the Act from applying in this case.

On the same argument, Williams also relies on language in the Texarkana 

Court of Appeals’s opinion in Whisenhunt stating that the free speech to which 

the TCPA applies only includes “free speech that rises to such a level that it can 

be considered participation in government.”

33 The TCPA does contain a 

limitation that the speech at issue must be related to a matter of public concern, 

and thus not all speech qualifies as free speech under the TCPA. But the 

speech in this case was on a matter of public concern, and therefore the TCPA 

applies.

Williams further relies on Whisenhunt to argue that the TCPA does not 

apply to statements made in private conversations, and thus, the TCPA does not 

apply to the speech here because Bilbrey made his statements in a private 

conversation to Hall. In deciding Whisenhunt, the Texarkana court reviewed 

case law on the TCPA involving free speech and concluded that in all of the 

cases, “the allegedly actionable statements not only involved matters of public 

concern, they were also readily available to the public.”

34 The court 

 33See Whisenhunt v. Lippincott, 416 S.W.3d 689, 697 (Tex. App.—

Texarkana 2013, pet. filed).

34Id. at 699.
25

consequently held that “if a person is not exercising his right to speak freely in 

public, the TCPA will not apply to suits filed against him.”

35

We agree that the speech to which the TCPA applies has to be “public” in 

the sense that the speech must be on a matter of public concern. But the 

language of the Act contains no limitation that would restrict its application only to 

speech made in a public forum. By its own provisions, the TCPA applies to a 

communication in any form or medium.36 And the definitions of free speech and 

public concern do not include language restricting them only to speech made in a 

public forum. We agree with Whisenhunt’s conclusion that the TCPA does not 

apply to all speech. But we disagree with the limitations drawn by that court.

The question of whether Williams behaved angrily and aggressively toward 

children of the community and whether he should be allowed to continue to be a 

coach on a team on which children from the community play and which 

teenagers umpire are questions related to the well-being of the community. 

Statements about an adult losing his temper over a call in a baseball game 

played by young children and then approaching the teenage child who made the 

call and yelling at him are statements that related to the safety of children in the 

community.

Because Hall and Bilbrey showed by a preponderance of the evidence that 

Williams’s claims against them were based on, related to, or were in response to

 35Id. at 700.

36Tex. Civ. Prac. & Rem. Code Ann. § 27.001.
26

the exercise of the right of free speech, they satisfied section 27.005(b).37 We 

sustain Bilbrey’s and Hall’s first issues. Accordingly, the trial court was required 

to dismiss Williams’s claims unless he showed by clear and specific evidence a 

prima facie case for each essential element of his claims against them.38

5. Williams did not meet his burden under the TCPA

5.1. Defamation

Bilbrey argues in his second issue that Williams did not meet his burden of 

providing clear and specific evidence on each element of his defamation claim. 

Prima facie evidence is “the ‘minimum quantum of evidence necessary to support 

a rational inference that the allegation of fact is true.”’

39 While the TCPA requires 

that the evidence used to meet that minimum quantum be “clear and specific,” it 

does not define “clear and specific.” Other courts have said that “clear and 

specific evidence” is evidence that “is ‘unaided by presumptions, inferences, or 

intendments,’”40 or that is ‘“free from obscurity or ambiguity.’”

41 And the TCPA 

tells us that in deciding whether dismissal is appropriate, courts must consider 

“the pleadings and supporting and opposing affidavits stating the facts on which 

 37See id. § 27.005(b)(1).

38See id. § 27.005(c).

39In re Lipsky, 411 S.W.3d 530, 539 (Tex. App.—Fort Worth 2013, orig. 

proceeding) (citations omitted).

40Rehak Creative Servs Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—

Houston [14th Dist.] 2013, pet. denied) (citation omitted).

41Farias v. Garza, 426 S.W.3d 808, 814 (Tex. App.—San Antonio 2014, 

pet. filed) (citation omitted).
27

the liability or defense is based.”

42 Williams argues that he produced sufficient 

evidence to satisfy section 27.005(c), and he argues alternatively that his motion 

for continuance to take discovery should have been granted.

Generally, to prevail on a defamation claim, a plaintiff must prove that the 

defendant (1) published a statement, (2) that was defamatory concerning the 

plaintiff, (3) while acting with either actual malice, if the plaintiff is a public official 

or a public figure, or negligence, if the plaintiff is a private individual, regarding 

the truth of the statement.43 A defamatory statement is one that ‘“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.”’

44 “To qualify as defamatory, a statement should be derogatory, 

degrading, somewhat shocking, and contain elements of disgrace. But a 

communication that is merely unflattering, abusive, annoying, irksome, or 

embarrassing, or that only hurts the plaintiff’s feelings, is not actionable.”

45

A statement is defamatory per se under the common law if it involves “one 

of the following categories: (1) imputation of a crime; (2) imputation of a 

loathsome disease; (3) injury to a person’s office, business, profession, or calling; 

 42See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a).

43See Lipsky, 411 S.W.3d at 543.

44See id. (citation omitted).

45Farias, 426 S.W.3d at 816 (citing Means v. ABCABCO, Inc., 315 S.W.3d 

209, 214 (Tex. App.—Austin 2010, no pet.)).
28

or (4) imputation of sexual misconduct.”

46 Williams asserted in his response that 

the statements made by Bilbrey were defamatory per se, but he does not explain 

why. Williams stated in his petition and in his affidavit attached to his response 

that “[h]e operates a business located in Roanoke employing more than 65 

people.” But he did not explain what that business is, how Bilbrey’s statements 

injured him in his profession, or how the statements fit any other category of 

defamation per se. Further, he produced evidence indicating that he was eligible 

for rehire with the Roanoke police, so Bilbrey’s statements had not injured him in 

that profession.

The statements do, however, relate to his position as assistant coach of 

his son’s baseball team, and it is his reputation in that role and in the community 

of TCRBA that he is concerned about in this suit. Even in that community, 

however, we cannot say that Bilbrey’s statements to Hall were defamatory per 

se.

That the statements need extrinsic evidence to show their defamatory 

nature is illustrated in Amber Williams’s text exchange with McClain. Amber

asked if McClain had remembered Williams being abusive to one of the umpires, 

and McClain asked in response, “Like for real abusive or just arguing?” 

McClain’s response reflects the fact that the word “abusive” can have a number 

of different meanings encompassing a range of possible accusations, with 

 46Memon v. Shaikh, 401 S.W.3d 407, 421 (Tex. App.—Houston [14th Dist.] 

2013), judgm’t withdrawn, No. 14-12-00015-CV, 2014 WL 6679562 (Tex. App.—

Houston [14th Dist.] Nov. 25, 2014, no pet.) (mem. op.).
29

Bilbrey’s version of events on the mild end and criminal acts on the serious 

end.47

In defamation claims, context matters.

48 We cannot say as a matter of law 

that the word “abusive” is defamatory per se without knowing the context of the 

statement. Williams, however, provided none to the trial court. In neither 

Williams’s petition nor his affidavit did he make clear what the conversation he 

had with Hall encompassed.

49 We expressly do not hold that statements to the 

effect that a person is abusive can never be defamatory per se. But without 

providing the context of the statements, there was no basis in this case for the 

trial court to conclude that the statements were defamatory per se. To the extent 

that Williams concluded from the conversation with Hall that Bilbrey had accused 

 47See, e.g., Tex. Penal Code Ann. § 22.04 (West Supp. 2014) (describing 

the offense of injury to a child fourteen years of age or younger); see also Tex. 

Fam. Code Ann. § 261.001 (West 2014) (defining abuse of child for purposes of 

the chapter relating to investigation of a report of child abuse); cf. Webster’s 

Third New International Dictionary Unabridged 8 (2002) (defining “abuse” and 

including among the definitions “to attack or injure with words: reproach coarsely”

and “language that condemns or vilifies”). See generally Young v. Krantz, 434 

S.W.3d 335, 343 (Tex. App.—Dallas 2014, no pet.) (holding that statements are 

not defamatory merely because they are abusive).

48See Kinney v. Barnes, 443 S.W.3d 87, 97–98 (Tex. 2014) (recognizing 

the “inherently contextual nature of defamatory speech” and stating that “[i]n 

evaluating whether a statement is defamatory, the court construes it ‘as a whole 

in light of surrounding circumstances based upon how a person of ordinary 

intelligence would perceive the entire statement’” (citation omitted)), cert. denied, 

No. 14-642, 2015 WL 231998 (U.S. Jan. 20, 2015).

49See Young, 434 S.W.3d at 343 (stating that an expression of opinion 

cannot form the basis of a defamation claim and that “[w]e classify a statement 

as fact or opinion based upon the statement’s verifiability and the entire context 

in which the statement was made”).
30

him of more than the behavior that Bilbrey described in his email to Hall, Williams 

produced no evidence that Bilbrey made any such accusation.

If the statements were not defamatory per se, then Williams would have to 

prove that the statements caused him injury.50 Williams complained that the 

statements damaged his reputation and caused him mental anguish. But 

Williams produced no evidence that Hall, in investigating the allegations, 

repeated Bilbrey’s statement that Williams had been “abusive.” There is no 

evidence that Bilbrey repeated the statements to anyone else. Williams 

produced evidence that he told several people in TCRBA of the allegations. And 

people who were at the game could draw their own conclusions about the 

allegations.

As for mental anguish, within hours of the initial phone call from Hall, Hall 

reported to Williams that the umpire he had spoken with had said that the events 

were “not that bad,” thus indicating that Hall did not accept Bilbrey’s statements 

unquestionably. In the next few days, Williams spoke to several people who had 

been at the game and agreed with him that he had not been abusive. Hall told 

Williams and his attorney that no action would be taken and that Williams could 

still apply to coach for TCRBA in the future. If Williams suffered loss of 

reputation or mental anguish, there is no evidence that it was due to Bilbrey 

making statements to Hall about Williams’s behavior at the May 16 game.

 50See Lipsky, 411 S.W.3d at 543.
31

Regarding the All-Star parents meeting, Williams produced no evidence 

about what was said at that meeting. By his own admission, he was not at the 

meeting, and he did not explain how he came to know what was said at the 

meeting. Further, even assuming that Williams is correct about statements made 

about him at that meeting, the statements were not defamatory per se, and he 

did not meet his burden to show by clear and specific evidence that the 

statements were false. He was demanding that the roster be changed, and his 

attorney had already sent Hall three demand letters and filed a pre-suit 

deposition petition.

From our reading of Williams’s petition, although he complained about the 

meeting, he did not base any part of his defamation claim against Bilbrey on what 

was said at this meeting. But to the extent that he did so, he failed to provide

clear and specific evidence that Bilbrey made defamatory statements about him 

at the meeting or that any statements Bilbrey made there were false.

We hold that the facts established by Williams as summarized above did 

not provide a ‘“minimum quantum of evidence necessary to support a rational 

inference’” that Williams met his burden with regard to the essential elements of 

his defamation claim against Bilbrey.

51 We sustain Bilbrey’s second issue as to 

the defamation claim.

 51See Lipsky, 411 S.W.3d at 539 (citation omitted).
32

5.2. Intentional infliction of emotional distress

Williams also asserted a claim for intentional infliction of emotional distress

against Bilbrey. A plaintiff asserting a claim for IIED must prove that “(1) the 

defendant acted intentionally or recklessly; (2) the conduct was extreme and 

outrageous; (3) the actions of the defendant caused the plaintiff emotional 

distress; and (4) the resulting emotional distress was severe.”

52 IIED is “a ‘gapfiller’ tort, judicially created for the limited purpose of allowing recovery in those 

rare instances in which a defendant intentionally inflicts severe emotional distress 

in a manner so unusual that the victim has no other recognized theory of 

redress.”

53 Accordingly, “[w]here the gravamen of a plaintiff’s complaint is really 

another tort, [IIED] should not be available.”

54

Williams did not set out either in his petition or in his response to the 

motions to dismiss any basis for his IIED claim other than Bilbrey’s statement, 

and he did not explain how any of his evidence supported an independent IIED 

claim. Because the factual basis of Williams’s IIED claim is the same as his 

defamation claim, the gravamen of Williams’s complaint is defamation. 

Consequently, Williams did not provide a “minimum quantum of evidence 

 52GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999); see also 

Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998).

53Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)

(citation omitted).

54Id.
33

necessary” to support his IIED claim. We sustain Bilbrey’s second issue as to 

this claim.

5.3. Conspiracy

Williams also alleged that Hall and Bilbrey conspired to defame him. The 

essential elements of a civil conspiracy claim are: ‘“(1) two or more persons; (2) 

an object to be accomplished; (3) a meeting of the minds on the object or course 

of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate 

result.”’

55 “A defendant’s liability for conspiracy depends on ‘participation in 

some underlying tort for which the plaintiff seeks to hold at least one of the 

named defendants liable.’”56 “[M]erely proving a joint ‘intent to engage in the 

conduct that resulted in the injury’ is not sufficient to establish a cause of action 

for civil conspiracy. Instead, ‘civil conspiracy requires specific intent’ to agree ‘to 

accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful 

means.’”57

In his response to the motions to dismiss, Williams did not specifically

discuss the elements of conspiracy or what evidence supported his conspiracy 

claim. Because we have held that Williams did not produce clear and specific 

evidence to support his defamation claim, we further hold that Williams did not

provide at least a “minimum quantum of evidence necessary to support a rational 

 55Lipsky, 411 S.W.3d at 549 (citation omitted).

56Id. (citation omitted).

57Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996) (citations omitted).
34

inference” that Hall and Bilbrey had conspired to defame Williams. We sustain 

the remainder of Bilbrey’s issue and Hall’s issue as to the conspiracy claim.

5.4. Aiding and abetting

Williams’s final claim is for aiding and abetting. He alleged that Hall 

“assisted, encouraged, and participated in the actions of Bilbrey and his verbal

attacks” on Williams. Aiding and abetting claims “require the actor, with unlawful 

intent, to give substantial assistance and encouragement to a wrongdoer in a 

tortious act.”

58 Aiding and abetting, like conspiracy, is a dependent claim that is 

“premised on” an underlying tort.59 In Williams’s response to Hall’s and Bilbrey’s 

TCPA motions, he did not particularly discuss the elements or facts of his aiding 

and abetting claim “or argue that the claim could survive independently from the 

civil conspiracy claim.”

60 For the same reason that Williams’s conspiracy claim 

fails, so too does his aiding and abetting claim. We sustain the remainder of 

Hall’s second issue. We therefore consider Williams’s alternative argument that 

the trial court should have granted his motion for a continuance.

 58W. Fork Advisors, LLC v. SunGard Consulting Servs., LLC, 437 S.W.3d 

917, 921 (Tex. App.—Dallas 2014, pet. filed).

59Id.

60See Lipsky, 411 S.W.3d at 552 (observing that there is uncertainty in the 

law about whether Texas recognizes an aiding and abetting cause of action 

separately from a civil conspiracy claim and holding that the trial court abused its 

discretion by denying the TCPA motion to dismiss when the plaintiff did not 

discuss the elements or facts of its aiding and abetting claim or argue that the 

claim could survive the dismissal of the conspiracy claim).
35

6. Williams did not show his entitlement to a continuance

Williams asserts that when the trial court denied Hall’s and Bilbrey’s 

motions to dismiss, it also denied Williams’s motion for a continuance to take 

discovery, that the denial was an abuse of discretion, and that if this court 

sustains Hall’s and Bilbrey’s two issues, then he is entitled to limited discovery.

When a motion to dismiss under the TCPA is filed, discovery is 

suspended.61 The trial court may nevertheless allow “specified and limited 

discovery” on a motion by the court or by a party and on a showing of good 

cause.62

Williams stated in his motion for continuance that he was entitled to take 

the deposition of (1) J.R., (2) McClain, and (3) Hennig. But his reason for taking 

the depositions was to support his claim that he was not abusive toward umpires 

at the May 16 game. Our disposition of this appeal, however, does not depend 

on whether Williams produced evidence to support his version of events at the 

May 16 game. Williams’s reason for taking their depositions is therefore moot, 

and he did not establish the requisite good cause for discovery.

Williams also requested to take Bilbrey’s deposition, but he did not explain 

for what purpose he wanted to do so. Accordingly, he did not show good cause 

 61Tex. Civ. Prac. & Rem. Code Ann. § 27.003.

62Id. § 27.006(b).
36

for the specific and limited discovery allowed under the TCPA.63 We overrule 

Williams’s alternative issue.

Conclusion

Having sustained Hall’s two issues and Bilbrey’s two issues, and having 

overruled Williams’s alternative issue, we reverse the trial court’s order. We 

remand this case for the trial court to dismiss Williams’s claims and to consider 

any other relief to which Bilbrey and Hall may be entitled, including an award of 

costs, attorney’s fees, and sanctions.

64

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DELIVERED: March 12, 2015

 63See id.

64See id. § 27.009.