### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00597
- CV

Crystal Elizabeth De La Torre, Appellant

v. Armando De La Torre, Jr., Appellee

FROM THE COUNTY COURT AT LAW NO. 3 OF WILLIAMSON COUNTY NO. 18
- 3333
- FC3, THE HONORABLE DOUG ARNOLD, JUDGE PRESIDING

O P I N I O N
Crystal Elizabeth de la Torre appeals from the denial of her motion to dismiss a counterclaim and related allegations raised by her est ranged husband Armando de la Torre , Jr

. Se e genera lly Tex. Civ. Prac. & Rem. Code § § 2 7 .001

– . 0 1 1 ( “ Texas Citizens Participation Act ” (TCPA ) )

. 1 We will reverse the denia l and remand for further proceedings.

1 The TCPA w a s am ended in the 2019 legislative s ession, b ut those amen dments do n ot app ly to this lawsu i t, which was file d befor e the am en dm ent s ’ e ffective date. See Act o f May 17, 2019, 8 6th Leg., R.S., ch. 378, §§ 11, 12, 201 9 Tex. Ge n. La ws 6 84, 687 ( amendme nts t o TCPA apply “ only to an action filed on or af ter ” Septembe r 1, 2019). All citation s are to the version of the statu t e as it r ead before those amendments

.2 BACKGROUND Crystal filed a petition for divorce from Arm ando in 2018. 2 In 2019, Armando filed a counterpetition for divorce and then a first amended counter petition . Arma n do ’ s first amended counterpetition alleged, in ter alia, that Crystal had “ knowingly made a false and/or frivolous report [of child abuse] to Child Protective Services. ” Armando asked the court to order the Atto rney Ge n eral to “ access [s i c] a civil penal ty of $ 1 000

. 00 ” against Crystal pursuant to Chapter 261 of the Family Code , se e Tex. F a m. Code § 261.107 ( “ False R eport; Crim inal Penalty; Civil Penalty ” ) , and as ked for an award of attorney ’ s fees , s ee id . § 261. 107(d) ( allowing awa rd of attorney ’ s fees t o pe r son falsely accused ). He also asked the trial court to consider Crystal ’ s “ false allegations of criminal assault that the Williamson County Attorney’s Office declined to prosecute ” when deciding the questions of pos session of and access to the ir children. Crystal filed a TCP A motion to dismiss the Section 261.107 claim and the allegations of a false police report

. A r mando did not file a response but filed a s econd a mended counterp etition redacting the claim and al le gations challenged in C rys t al ’ s TCPA motion. The trial court held a hearing on August 8, 2019, but did not issue an order disposing of the motion , explaining , “ I ’ m not ruling on the merits of the motio n ” because “ I just don ’ t think [the T CPA] applies in t he context of a divorce ca s e . ” T he court continued , “ If you want to really appeal this one issue right before our [final ] hearing, that ’ s up to you . ” C ryst al filed notice of appeal o n August 28, 20 19 , and argues that her motion was wr ong fully denied eith er orally at the hearing

o r otherwise by operation of law

. Armando has not filed a brief in response to Crystal ’ s arguments

.

2 Because th e parties share a surname , we will refer to th em using given names.3 DISCUSSION Crystal contends the trial court erre d by declining to grant her mot i on to dismiss the Section 261.1 07 cl aim raised i n A r mando ’ s first amended cou nterpetitio n . “The [TC P A] protects citizen s who [associate,] petition [,] or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky , 46 0 S.W.3d 579, 584 (Tex. 2015) ( o rig. proceedin g)

. That prot ect ion c o mes in the for m of a motion to d is m iss, subject to expedited review, for “any [claim] that appears to stifle the defendant ’ s” exercis e of those rig hts. See i d

. Reviewing a TCPA motion t o dismiss require s a three

- ste p analysis

. As a threshold m atte r, the m ovant must s ho w by a prepon deran c e of t he evid ence that the TCPA properly applies to the claim or claims challenged in the motion to dismiss

. Tex. Civ . Prac. & Rem. Code § 27.005(b)

. If the movant meets that bur de n, the nonmovant must establi s h by clear and specif

ic evidenc e a pr im a facie case fo r each e ssen t ial e lement of each challenged claim. Id

. § 27.005(c). If the nonmovant satisfies that require ment, the bur den shifts back to the movant to prove each essent ial elemen t of any applicab le d efense by a preponde rance of the evidence. Id . § 27. 00 5( d). If the nonmovant fai l s to carry h er burden

— or if the movant establishes the

essen tial elem ents of a defense under section 27.005(d)

— the trial court must dismiss th e claim

. Id. § 27.005(b)

– ( d). We review whether ea ch l itigant has satis fied his or her burd en de novo. Serafin e v. Blunt , 466 S.W.3d 352, 357 (Tex. App

. — Austin 2015, no pet.)

. Crystal ’ s Notice of Appeal

As a n initial inquiry, we must verify our jurisdic tion over this dispute. Ours is a
court of limited jur isdiction. See T ex. Const. art

. V , § 6 ( a ) ; Branc h Law Fi r m L.L.P. v. Osborn , 532 S.W.3d 1, 10 (Te x. App.

— Houston [14th Dist.] 2016, pet. denied)

. O ur juri sdiction is4

invoked by a timely fi led notice of appea l o f an appealable judgment or o r der

. See T ex. R. App.
P . 25 .1. Interlocutory order s are appealable onl y if made appeala ble by stat ute and only to the
ext ent jurisdiction is confer red by statute. See Osborn , 532 S.W.3d at 10 (citing J a ck B. Angl in Co. v . Tipps , 842 S .W.2d 266, 272 (Te x . 1992) (or ig. proceedin g)).

A s relevant to this a ppeal , Section 27.00 8 (a ) of the Civ il Practice and Remedies Code provides, “ If a court doe s not r u l e o n a m o tion to dismiss [under the TC P A] in the time prescribed b y Section 2 7.005, the motio n is considered t o have bee n denied by op era t ion of law and the moving party may app e al. ” Se e Tex. Civ. Prac. & Rem. Code § 27.00 8(a). S ection 27.005 requires t h e c o urt t o rule on the motion to dismiss “ not later than the 30t h da y followi ng the date of t h e hearing on th e motion

. ” See id . § 27. 005

. Regardless of whe ther the motion is d e nied by the trial court or by operatio n of law, a party desiring to appeal m u s t d o so w ithin twenty days of the denial

. See id . § 51.014(a)(1 2)

– (b) ( designati ng appeal from T CPA denial as

“ a c celerated ” ) ; Tex. R. Ap p . P. 26.1(b) (requi ring not ice of accel e rated app eal to be filed within twenty days)

. In this case, Crystal filed her notice of appeal on August 2 9 , 2019 . O u r review of the record rev eals that the mot ion had not been disposed of by t hat date

. Her noti ce wa s th erefore pre mature. Nevertheles s , “ [i] n a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, t he event t ha t begins the p erio d for perfecting the a ppeal. ” Tex. R. App. P. 27 .1 (a). To determine “ the eve nt that beg [a n] the period for
p e rfecting the appeal , ” w e asked the trial court to provide a supplemental reco rd ind icating what transpire d af

ter Cr y stal filed her notice of appe al. T hat record reveals that the trial court never issued an order di sposi ng o f the motio n and that Cryst al ’ s motion w as therefore denied by operation of law thirty days after the hea ring

. See T ex. Civ. Prac. & Rem. Code § 27.008.5

Pur suant to R ule 2 7.1 , we will deem Crys t a l ’ s appeal as timely filed on the date the motion was denied by operation of law . Because Crystal t i mel y perfected her appeal , we may exercise jurisdiction over the dispute.

A rmando ’ s Abando nment of the Claim and Allegations

We nex t co nsider the effec t of Armando ’ s d e cision to abandon the claim and allegations that served as the basis for Cryst al ’ s motion

. Th e non suit of claims challenged in a TCPA motion to di smiss does not “entire l y moot” the TCPA mot ion because the movant may “c ont i nue to pur sue [her] requests for attorney ’ s fees incurred in defending those claims prior t o thei r volun tary di s missal, as well as f or the sanctions the Act would prescribe.” C rai g v. Tejas Promotions, LLC , 550 S.W.3d 287, 29 3 (Tex. App.

— Austin 2018, pet

. denied)

. But w hether Crysta l is entitled to the attorney ’ s fees and sanctions depends on the ou tco me of th e T CPA ’ s burden

- shifting process . See Tex. Civ. Prac. & Rem. Co de § § 27.005 ( descri bing burden

sh ifting process ), .009(a) (requ iring aw ard of a ttor ne y ’ s fee s , co urt costs, and other expen ses if leg al action is sub

ject to dismissal under T CPA ) ; Amini v. Spice wood Springs Animal H osp . , LLC , No. 03

- 18

- 00272

- CV, 2 019 W L 5793115 , at *5

– 6 (Tex. App.

— Au stin Nov. 7, 2019, no pet.) (mem. op. ) ( ap plying bu rden

- shi fting proc ess to aband oned claims after holdin g that

non movant ’ s abandonment of claims did no t bar mov ant f rom seeking TCPA r eme dies as to those claims )

. In this ca se, Cry stal e xpressly sought fees and sanctions under the TCP A, and we will ther efo re p roc eed to the statutory analysis o f Arman do ’ s Section 261.107 claim

. 3

3 Beca use we ulti m a tely conclude that Crystal is entit led to TCPA remedie s on the basis of Armando ’ s Section 261.107 clai m, we do not undertake a TCPA burden

- shifting analysis of the allegati ons of a false po lice repor t. See Tex. R. App. P. 47.1.6

Applicabili ty
We now turn to Cr ystal ’ s threshold bur den to demonstrate t hat the TCPA appl ies to Armando ’ s clai m. The TCP A appli es if the nonmovan t ’ s claim constitutes a “ legal acti o n ”

a nd “ is based on, relates to, or is in resp onse to the [moving ] party ’ s exe rcise of : (1) t he ri g ht of fr ee speech ; (2) the ri ght to petition ; o r (3) the right of association , ” as those phrases ar e defined in the TCPA

. Tex. Civ. Prac. & Rem. Code § 27.0 0 5. Crys tal contends that Armando ’ s legal

a ction is based on her exercise of the ri ght to free speech and her exercise of the right to petiti o n. We wi ll begin with the exercise of the right to free s peech.

T h e TCPA def

ine s “ e xerc ise of the right of free spe ech ” as “ a communication made in connection with a matter of public concern. ” Id

. § 27.001(3 ). A “comm unication” is “the making or submit t ing of a statement or document i n a ny form or mediu m , ” i d

. § 27.001(1) , and “ m atter s of publ ic concern” include i ssu es related t o “health or safety ” and “community

w ell

- being , ” i d . § 27.001(3). I n t his c ase, the commun ication in question in vol ves the we l fare of

a child and allegations of child abuse. Th ese are matters of health, safety, and co mmunity well

- being

. S ee, e.g. , War ner Bros. Entm’t

, Inc. v. Jones , 538 S .W.3d 781, 797 (Tex. App.

— Austin 20 17, pet. granted) ( i ndividual safety) , aff ’ d , ___ S.W.3 d ____, __ __, No. 18

- 0068, 2020 WL 2315280 (Tex. May 8, 202 0) ; Pickens v. Cordia , 433 S.W.3d 179, 181

– 82 (Tex. App.

— Da llas 2014, no pet.) (child abuse) , disapproved o f on other grounds by Hersh v. T atu m , 526 S.W.3d 462, 4 67 (Tex. 2017) ; Cavin v. Abbott , 54 5 S.W.3d 4 7, 64 (Tex. App.

— Austin 2017, no pet.) ( domestic assault); Fishman v. C.O.D. Cap

. C orp ., No. 05

- 16

- 00581

- CV, 2017 WL 3 033314, at * 6 (Tex. App.

— Dallas July 18, 2017, no pet.) (mem. op.) ( crimi nal acti vity ). A cco rdingly, Crystal has satisfied her burden to s how the s tatute applicable to7

Armando ’ s clai m , and we need not consider whether th at clai m is based on h er exer cise of the right to petition.

Prima Facie Case

Havin g determined that C rystal s atisf ied her burde n to show that the TC PA
app lies to the Sectio n 261.107 claim , we must consid er whether Armando satisfied his burden to

“ establ is h by clear and specif ic evidence a prima f

acie case for each essen t ial element of ” that claim

. See Tex. Civ . Prac. & Rem. Code § 27.005(c). “ The elements of [a Section 26 1.107 vio lation ] are: (1) a person; (2) with intent to de c eive; (3) knowingly makes a Chapter 261 report ; ( 4) that i s false. ” Riley v. State , No. 14

- 12

- 007 29

- CR, 2014 WL 1481317 , at *2 (Tex. App.

— Houston [14th Dist.] Apr. 15 , 2 014, pet

. ref ’ d) (mem. op. ) (citi ng Tex. Fam. Code § 261 .107)

. Armando ’ s Section 261.107 claim read s :

On or ab out February 7, 2019, Co unterrespond e nt CRYSTAL E LIZABETH DE LA TORR E, with the intent to deceive and influence this case, k nowingly made a false and/or fri volous report to Child Protectiv e Ser vice s. Accordingly, und er Chapter 261 of the Texas F a mily Code , Counterpetitioner A RMA NDO DE LA TORRE, JR. requ ests attorney fees and that the Attorney General access a civi l penalty of $1,000.00 against Counterrespond ent.

In this case w e need not consider the presence or a bse nce of the statutory elements of the cl aim in question becau se Ar mando ’ s c laim lacks an equally fundamental component of a prima facie

case : standing

. See Holcomb v. Waller C ounty , 546 S.W.3d 83 3, 840 (Tex. App.

— Houston [1 st D ist.] 201 8 , pet. denied ) (rev ersing den ial of TCPA motion t o dismiss after holding that

n onmov ant could not make out prima facie case in a bsence o f standing to p ursue claim)

. As our sister co urt explained , “ [S] ec tions 2 61.101 and 261

. 107 of the Texas Fami ly Code

. . . do not

c reate p rivate causes of action; rath e r, their enforcement is the re spons ibility of the ‘ app ropriate8

county prosecuting attorney. ’ ” C olt v. Hamner , No. 05

- 04

- 00294

- CV, 200 5 WL 834098, at *2 (Tex. App

. — Dallas Apr. 12, 2005 , no pet. ) (me m. op.) ( quoting Tex. Fam. Co de § § 261

. 101, 107 (c) , .109 )

. Armando has identified no aut hori t y a llowing hi m to bring an action under Section 261.1 07 of the F a mily Code . Nor have we fou nd an y. Thus, because Arman do cannot establish stan ding, he cannot satisfy his burden to make o ut a prima facie case for ea c h element

o f his claim. As a cons equen ce, the tr ial court should have granted Crystal ’ s motion

. S ee T e x. Civ. Prac. & Rem. Code § 2 7.005. We t herefore need not consider whether Crysta l establish e d
any def ense to A r mando ’ s cl ai m , and we susta i n Cry stal ’ s issue on appeal , reverse the deni al of her motion , and remand for consideration of her request for fees and sanctions.
Crystal ’ s Ent itlement to Fees and Sanctions

The dissent would affirm the d enial of Crystal ’ s motion to dismis s , rea soning t hat be cause the trial court lack ed jurisdicti on ov er the object of that motion , the trial court also lack ed jurisdiction to award fees or sanctions under the relevant provisions of the TCPA

. See post at ___ ( “ T he trial court lacked subject m atter jurisdiction over Armando’s nonsuited section 261.107 clai m , and therefore Crystal would not have been entitled to dismissal of that cl aim under the TCPA

. ” ). In support, the dissent offers recent opinion s from three of our sist er

c ourts

— the first, f

ourth , and fifth

— that hav e drawn similar conclusions

. Se e Jo hns o n v. J ohnson , No. 04

- 19

- 00500

- CV , 2020 WL 214762, at *4 (Tex. App.

— San Antonio Jan. 15, 2020, no pet.) (mem. op.) ; H ouston F orensic Sci. Ctr. , Inc. v. Barette , No. 01

- 19

- 00 1 29

- CV, 2019 WL 5792194, at *3 (Tex. App.

— Ho uston [1st Dist.] Nov. 7, 2019, no p et. ) (mem. op.) ; Shankles v. Gordon , No. 05

- 16

- 00863

- CV, 2018 WL 4100030, at *14 (Tex. App.

— Dallas9

Aug. 27, 2018, no pet.) (mem. op.)

. We respectfully disagree with the diss ent and with our sister courts, as the statute provides no support for the constru cti o n .

We begin with the statutory text , striving to give effect to the Legislature ’s intent by looking to the language used as the truest indicator of that intent. City of Houston v. Bates , 406 S.W.3d 539, 543 (Tex. 20 13)

. T h e TCPA provides that a ny “ pa rty m ay file a motion to dismiss [a] legal action ” if that action “ is based on, relates to, or is in response to a party ’ s

exerc ise of the right of free speech, right to peti tion, or right of association

. ” S ee Tex. Civ. Prac. & Rem. Code § 27.003(a). A “ leg a l action ” is defined as any “judicial pleading or filing tha t request s legal or equitable relief , ” including “ a lawsuit, cau se of action, petition, complaint,

cross - claim , or coun terclaim

. ” See id. § 27.001(6). The Supreme Court has recognized the

sw eep i n g breadth of this definition , describing it as encompassing “ any ‘ procedural vehicle for the vindication of a legal claim. ’ ” See State ex rel. Best v. Harper , 562 S.W.3 d 1, 9 (Tex. 2018) (quoting Paulsen v. Yarrell , 537 S.W.3d 224, 233 (Tex. App.

— Hou sto n [1st Dist.] 2017, pet. denie d) ).
I n his first amended counterpetition for di vorce , Armando sought relief under Section 261.107 of the F amily Code , alleg ing that Crystal had made a f al se report of child abuse
to ce rtain authorities. To red res s that alleg e d wrong, Armando asked the trial court to afford him the remedies available unde r the statute , inc luding fees and sanctions

. See Tex. F am. Code § 261. 107(d) , (e)

. T hus, because hi s counterclaim includes what is u ndeniably a “ request for legal or eq uitab l e relief , ” it is ther efore a “ legal action ” in the sense that the Legislature contemplate d

. See Harper , 562 S.W.3d at 9 (holding that “ legal action ” includes requests for remedies afforded by statute). T h a t being the case, the statute imbues Crysta l wit h an opportunity to demonstrate that Armando ’ s counterclaim “ is based on or is in response to a10

party ’ s exercise of the right of free sp eech, right to petition, or right of associati on , ” and t hereby seek dismissal o f the counterclaim. S ee Tex. Civ. P rac. & Rem. Code § 27.003(a)

. Moreover, the statute requires t he court to awar d fees and sanctions should Crystal succeed and obtain that di smissal

. See id . § 27 .009(a)

. And a lthough we need not look outside the text already considered to draw this conc lusio n , we note that our construction facilitate s the TCPA ’ s purpose,

“ to encourage and safeguard the c onstitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by l aw an d , at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury. ” See id . § 27.00 2.

By construing “ legal action ” as reaching only tho se filings and pleadings over which the court has jurisdiction , the dissent and o u r sister courts introduce a predicate inquiry that does not appe ar anywhere in the statutory text. We have no authority to engr aft such an exception into the otherwise strai ghtforward lang uage of the statute

. See Gifford

- Hill & Co.

v. Wise Cty. App raisa l Dist. , 827 S.W.2d 811, 823 (Tex. 1991) (op. on reh ’ g). Moreover, such

an exception is inconsistent with decades of authority a llowing sanctions as a remedy for an
oppo sing litigant ’s frivolous pursuit of j urisdic tionally defective claims. See Unif und C C R Partners v. Villa , 299 S.W.3d 92, 94 (Tex. 2009) (holding that trial court could have timely awarded sanctions to defendant, n otwithstanding its lack of jurisdiction over b ankruptcy issues , becaus e request for sa nctions was governed by state statut e

— not b y any statute whose jurisdiction is ve sted exclusively in federal court ) ; Blackburne & Brown Mortg. Fund I

v. Atmos Energy Corp ., No. 2

- 06

- 393

- CV, 2007 WL 3408653, at *8 (Te x. App.

— Fort Worth
Nov. 15, 2007 , pet. d enied ) (mem. op.) ( holding sanctions for f r ivolous pleadings “ appropriate ” because, inter alia, plaintiff “ lack [ed] standing to sue and recover for the alleged damage to the11

property ” ) ; In re L.K.(W.)G ., No. 06

- 06

- 00 073

- CV, 2007 WL 286530, at *3 (Tex. App.

— Texarkana Feb. 2, 2007 , no pet. ) (m em. o p )

. ( affirming award of sanctions “ for [plaintiff ’ s] frivolous filing of a lawsuit in which he clearly had no standing ” ) ; Cranber g v. Wilson , No. 03

- 03

- 00389

- CV, 2004 WL 10179 4, at *3 (Tex. App.

— Austin Jan. 23, 2004 , no pet. ) (mem. op.) ( proceeding to Rule 4 5 sanctions analysis where plaintiff “ admitted ”

— and both trial and appellate court agreed

— “ that he lacked standing ” to bring su it and therefore could not prevail on appeal ) ; Bradt v. Seb ek , 14 S.W.3d 756, 769 (Tex . App.

— Houston [1st Dist.] 2000 , pet . den i e d ) (affirming sanctions award against litigant and his attorneys where trial court ha d “ found the RICO claim was groundless bec ause [litigant] lacked standing ” to p ursue it) , cert. denied , 532 U.S. 905

. We h old t hat the TCPA, like the statutes and rules g overning the awards at issue in th ose cases, authorizes an award of fees and sanctions where a litigant successfully challe n g es a legal action on jurisdictional grou nds. Fo r that reason, we will remand the matter so that C rystal may pursue that awa rd.

C O N C LUSION

We revers e the denial of Crystal ’ s motion and rema nd for further proceedings consistent with this opinio n .

___________ _______________________________ Edwar d Smith , Justice Before Justices Goodwin, Triana, and Smit h Dissenting Opinion b y Justice Goodwin Reversed and Remanded Filed: October 9, 2020