1 

In The 

Court of Appeals 

Ninth District of Texas at Beaumont 

____________________ 

NO. 09-13-00234-CV 

____________________ 

KBMT OPERATING COMPANY, LLC, KBMT LICENSE COMPANY, 

LLC, BRIAN BURNS, JACKIE SIMIEN AND TRACY KENNICK, 

Appellants 

V. 

MINDA LAO TOLEDO, Appellee 

_______________________________________________________ ______________ 

On Appeal from the 128th District Court 

Orange County, Texas 

Trial Cause No. A-130025-C

________________________________________________________ _____________ 

OPINION 

In this accelerated interlocutory appeal we must determine whether the trial 

court erred in failing to dismiss a physician’s defamation claim and award 

attorneys’ fees to the media defendants under the Texas Citizens Participation Act 

(“TCPA”). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West Supp. 

2013); see also id. § 27.008(b). We affirm the trial court’s order. 
2 

BACKGROUND 

Dr. Minda Lao Toledo alleged that over a two-day period, KBMT Operating 

Company, LLC, KBMT License Company, LLC, Brian Burns, Jackie Simien, and 

Tracy Kennick defamed her in three news broadcasts, which stated as follows: 

A Port Arthur pediatrician has been punished by the Texas Medical 

Board after the Board found she engaged in sexual contact with a 

patient and became financially involved with a patient in an 

inappropriate manner. Dr. Minda Lao Toledo will have to complete 

sixteen hours of continuing medical education, including eight hours 

of ethics and eight hours of risk management, and pay an 

administrative penalty of three thousand dollars. Toledo is a native of 

the Philippines and has been practicing medicine in Texas for five 

years. 

 

The statements in the broadcasts derive from public records, which include a 

September 7, 2012 press release issued by the Texas Medical Board (“TMB”) and 

the TMB’s physician profile webpage for Dr. Toledo. The press release 

announced that the TMB disciplined fifty-five physicians at its August 2012 

meeting. Under the heading “UNPROFESSIONAL CONDUCT[,]” the press 

release listed Dr. Toledo’s name, medical license number, and location, and stated: 

On August 31, 2012, the Board and Minda Lao Toledo, M.D., entered 

into an Agreed Order requiring Dr. Toledo to complete 16 hours of 

CME including eight hours in ethics and eight hours in risk 

management, pass within one year and within three attempts the 

Medical Jurisprudence Exam, complete the professional boundaries 

course offered by the Vanderbilt Medical Center for Professional 

Health or a similar course offered by the University of California San 

Diego Physician Assessment and Clinical Education (PACE) 

program, and pay an administrative penalty of $3,000 within 90 days. 
3 

The Board found Dr. Toledo behaved unprofessionally when she 

engaged in sexual contact with a patient and became financially or 

personally involved with a patient in an inappropriate manner. 

Dr. Toledo’s physician profile lists “PHILIPPINES” as her place of birth, states 

she “has actively practiced in the State of Texas for 5 year(s)[,]” and lists both her 

primary specialty and her secondary specialty as “PEDIATRICS.” In addition, 

under the heading “TMB Filings, Actions and License Restrictions[,]” the 

physician’s profile contains a link to a downloadable copy of an August 31, 2012 

agreed disciplinary order entered by the TMB against Dr. Toledo (the “Agreed 

Order”). 

The Agreed Order purports to resolve the TMB’s investigation of certain 

allegations of Dr. Toledo’s “unprofessional sexual misconduct,” which the Agreed 

Order more specifically describes as allegations “that while engaged in an intimate 

relationship with JC[,] [Dr. Toledo] injected JC with testosterone and human 

growth hormone without prescriptions and documentation in a medical record.” 

The Agreed Order includes findings that (1) “Respondent is primarily engaged in 

the practice of pediatric medicine[]”; (2) “Respondent entered into a relationship 

with JC, who was not her patient at the time, and who was being prescribed 

testosterone to self-administer by another physician”; (3) “JC related that his 

diagnosis was an autoimmune disease, for which testosterone is non-therapeutic”;

(4) “Respondent used her medical license to obtain testosterone and human growth 
4 

hormone for JC while she was in an intimate relationship with him, and 

administered these substances to him”; (5) “Respondent did not make or keep 

medical records on her treatment of JC, nor of her obtaining and using the 

testosterone and human growth hormone”; and (6) “Respondent accepted gifts 

from JC during the time she was treating him.” The Agreed Order neither mentions 

the patient’s age nor states that he was an adult when Dr. Toledo was treating him. 

After the news broadcasts were aired, Dr. Toledo brought a defamation suit 

against the media defendants. Dr. Toledo alleged the broadcasts were defamatory 

per se in that they attributed a criminal activity and moral turpitude to her, tended 

to injure her business, and suggested professional incompetence. The media 

defendants contended that their broadcasts accurately reported information 

published by the TMB and moved to dismiss the defamation suit under the TCPA 

because it was based on the exercise of the right to free speech and the right to 

petition. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001(3)-(4), 27.003(a). Dr. 

Toledo responded that the broadcasts implied that she had had sex with a pediatric 

patient when the truth was that the patient in question was her adult boyfriend. 

Specifically, Dr. Toledo asserted that the “real story” was that she had been 

involved in a long term dating relationship with an older adult male, 

who had been taking testosterone (to self-administer) and growth 

hormone injections from another physician. At some point, for the 

convenience of her dating partner, and at his request, Dr. Toledo 

purchased the hormone and testosterone and gave the injections. 
5 

That’s it. She was taken to task because this 60 year old adult male, 

soured by the recent breakup, made a report to the Texas Medical 

Board. 

Following a hearing, the trial court denied the media defendants’ motion to dismiss 

without stating a basis and was not asked to make findings of fact or conclusions of 

law. The media defendants timely filed this accelerated appeal. See Combined 

Law Enforcement Ass’ns of Tex. v. Sheffield, No. 03-13-00105-CV, 2014 WL 

411672, at *4 (Tex. App.—Austin Jan. 31, 2014, no pet. h.) (mem. op.) 

(determining that the Texas Civil Practice and Remedies Code, as amended in 

2013, confers jurisdiction over appeals filed pursuant to section 27.008 that are 

perfected before and active on the effective date of the amendment); Better Bus. 

Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., No. 01-12-00990-CV,

2013 WL 3716693, at *2 (Tex. App.—Houston [1st Dist.] July 16, 2013, pet. 

denied) (holding an interlocutory appeal is allowed from the trial court’s written 

order denying a motion to dismiss under the TCPA). 

ANALYSIS 

A. Procedure for Dismissal Under the TCPA 

The stated purpose of the TCPA “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 
6 

demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002. The TCPA is 

basically a gatekeeping function of the trial court, as section 27.003(b) provides 

that a motion to dismiss under the act is to be filed not later than the 60th day after 

the date of service of the legal action. Id. § 27.003(b). Dismissal is required under 

the TCPA “if the moving party shows by a preponderance of the evidence that the 

legal action is based on, relates to, or is in response to the party’s exercise of: (1) 

the right of free speech; (2) the right to petition; or (3) the right of association.” Id. 

§ 27.005(b). The TCPA defines the “‘[e]xercise of the right of free speech’” as “a 

communication made in connection with a matter of public concern.” Id. § 

27.001(3). The TCPA defines the “‘[e]xercise of the right to petition’” as, among 

other things, a communication pertaining to “(iii) an executive or other proceeding 

before a department of the state or federal government or a subdivision of the state 

or federal government;” and “(viii) a report of or debate and statements made in a 

proceeding described by Subparagraph (iii)[.]” Id. § 27.001(4)(A)(iii), (viii). 

Whether a party satisfies its burden under section 27.005(b) is a legal question we 

review de novo. Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. 

App.—Houston [14th Dist.] 2013, pet. denied). 

If the moving party satisfies its burden under section 27.005(b), the trial 

court must dismiss the legal action unless the party bringing the action “establishes 

by clear and specific evidence a prima facie case for each essential element of the 
7 

claim in question.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). “‘Prima facie 

evidence is evidence that, until its effect is overcome by other evidence, will 

suffice as proof of a fact in issue.’” Rehak, 404 S.W.3d at 726 (quoting Duncan v. 

Butterowe, Inc., 474 S.W.2d 619, 621 (Tex. Civ. App.—Houston [14th Dist.] 

1971, no writ)). “‘In other words, a prima facie case is one that will entitle a party 

to recover if no evidence to the contrary is offered by the opposite party.’” Id. 

(quoting Duncan, 474 S.W.2d at 624). “‘Clear and specific evidence has been 

described as evidence that is ‘unaided by presumptions, inferences, or 

intendments.’” Id. (quoting McDonald v. Clemens, 464 S.W.2d 450, 456 (Tex. Civ. 

App.—Tyler 1971, no writ)). “On appeal from an order decided under section 

27.005(c), we determine de novo whether the record contains a minimum quantum 

of clear and specific evidence that, unaided by inferences, would establish each 

essential element of the claim in question if no contrary evidence is offered.” Id. at 

727. 

B. Exercise of the Right of Free Speech and the Right to Petition 

The media defendants contend that they satisfied their burden under section 

27.005(b) to prove by a preponderance of the evidence that Dr. Toledo’s legal 

action is based on the exercise of the right to free speech and the right to petition. 

We agree. In support of their motion to dismiss, the media defendants attached an 

affidavit from the news director for Channel 12 News. The affidavit stated that 
8 

after receiving an anonymous tip regarding recent disciplinary action by the TMB, 

Channel 12 News reviewed the TMB’s website and discovered the September 7, 

2012 press release and then reviewed Dr. Toledo’s publicly available physician 

profile on the TMB website. The news director stated that “Channel 12 News 

found the [TMB’s] disciplinary action against a local physician newsworthy and of 

concern to the public.” He further stated that the information contained in the 

broadcasts was gathered solely from the press release and the physician profile 

available on the TMB’s website. In addition, the media defendants attached 

affidavits from each of the three defendants who read the news report on the air. 

Each swore that he or she read the news report on the air from information 

prepared by Channel 12 News as part of its normal business and that he or she 

believed the information contained in the report “is true and correct, as well as 

newsworthy and of concern to the public.” 

The broadcasts pertained to the TMB’s public discipline of a physician, 

which is a matter of public concern because it relates to health or safety, to the 

government, and to a service in the marketplace. See Tex. Civ. Prac. & Rem. Code 

Ann. § 27.001(7)(A), (C), (E). The exercise of the right to petition includes a 

communication pertaining to proceedings before a department of the state, or a 

report of statements made during such proceedings. Id. § 27.001(4)(A)(iii), (viii). 

Because the broadcasts were communications pertaining to a proceeding before a 
9 

department or subdivision of the state government, they constitute an exercise of 

the right to petition. Therefore, to avoid mandatory dismissal under the statute, Dr. 

Toledo was required to establish in the record a minimum quantum of clear and 

specific evidence, unaided by inferences, of each essential element of her claim. 

Id. § 27.005(c). 

C. Prima Facie Case of Defamation 

To maintain a cause of action for defamation, Dr. Toledo must prove that the 

media defendants: “(1) published a statement; (2) that was defamatory concerning 

the plaintiff; (3) while acting with either actual malice, if the plaintiff was a public 

official or public figure, or negligence, if the plaintiff was a private individual, 

regarding the truth of the statement.” WFAA-TV v. McLemore, 978 S.W.2d 568, 

571 (Tex. 1998). Therefore, to overcome the motion to dismiss, Dr. Toledo must 

establish a prima facie case by presenting clear and specific evidence for each 

essential element of her defamation claim. The parties do not dispute that the 

media defendants published the broadcasts in question. Therefore, we turn to the 

second element of defamation and determine whether Dr. Toledo met her burden 

of proof to present clear and specific evidence that the broadcasts were defamatory 

concerning Dr. Toledo. 
10 

1. Defamatory Statement 

A defamatory statement “tends to injure a living person’s reputation and 

thereby expose the person to public hatred, contempt or ridicule, or financial injury 

or to impeach any person’s honesty, integrity, virtue, or reputation or to publish the 

natural defects of anyone and thereby expose the person to public hatred, ridicule, 

or financial injury.” Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2011) 

(describing elements of libel)1

. Because a “‘chilling effect’ would be antithetical 

to the First Amendment’s protection of true speech on matters of public concern, 

. . . a private-figure plaintiff must bear the burden of showing that the speech at 

issue is false before recovering damages for defamation from a media defendant.” 

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986). 

Some statements are so obviously injurious to a plaintiff’s reputation that 

they require no proof of injury to make them actionable. See Hancock v. Variyam, 

400 S.W.3d 59, 63-64 (Tex. 2013); Tex. Disposal Sys. Landfill, Inc. v. Waste 

Mgmt. Holdings, Inc., 219 S.W.3d 563, 580-81 (Tex. App.—Austin 2007, pet. 

denied). Such statements are considered defamatory per se. Id. A false statement 

will typically be classified as defamatory per se if it: (1) “injures a person in his 

office, profession, or occupation[;]” (2) “charges a person with the commission of 

                                                             1

 “Defamatory statements read from a script and broadcast constitute libel 

rather than slander.” Dolcefino v. Randolph, 19 S.W.3d 906, 917 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied) (citing Christy v. Stauffer Publ’ns, Inc., 

437 S.W.2d 814, 815 (Tex. 1969)). 
11 

a crime[;]” (3) “imputes sexual misconduct[;]” or (4) “accuses one of having a 

loathsome disease[.]” Tex. Disposal Sys. Landfill, 219 S.W.3d at 581. If the 

alleged statement is determined to be defamatory per se, general damages are 

presumed without requiring specific evidence of harm to the plaintiff’s reputation, 

thereby entitling the plaintiff to recover, at a minimum, nominal damages. Id. 

A showing of the substantial truth of a broadcast will defeat a defamation 

claim. See McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990). “The test used in 

deciding whether the broadcast is substantially true involves consideration of 

whether the alleged defamatory statement was more damaging to [the plaintiff’s] 

reputation, in the mind of the average listener, than a truthful statement would have 

been.” Id. (citing 53 C.J.S. Libel and Slander § 109(a) (1987)). “This evaluation 

involves looking to the ‘gist’ of the broadcast.” Id. (citing W. PROSSER & P.

KEETON, PROSSER AND KEETON ON TORTS § 116 (1984)). “Gist” means: “1. The 

ground or essence (of a legal action) <the gist of the crime>. 2. The main point 

<she skimmed the brief to get the gist of it>.” See BLACK’S LAW DICTIONARY 759 

(9th ed. 2009). If the publication correctly conveys a story’s gist, although erring 

in the details, the publication is substantially true and is not actionable. See Neely 

v. Wilson, 418 S.W.3d 52, 63-64 (Tex. 2013). “If the underlying facts as to the gist 

of the defamatory charge are undisputed, then we can disregard any variance with 
12 

respect to items of secondary importance and determine substantial truth as a 

matter of law.” McIlvain, 794 S.W.2d at 16. 

This case concerns “the converse of the substantial truth doctrine.” Turner 

v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000). “Because a 

publication’s meaning depends on its effect on an ordinary person’s perception, 

courts have held that under Texas law a publication can convey a false and 

defamatory meaning by omitting or juxtaposing facts, even though all the story’s 

individual statements considered in isolation were literally true or nondefamatory.” Id. at 114. This theory “permit[s] liability for the publication that 

gets the details right but fails to put them in the proper context and thereby gets the 

story’s ‘gist’ wrong.” Id. at 115. “[T]he meaning of a publication, and thus 

whether it is false and defamatory, depends on a reasonable person’s perception of 

the entirety of a publication and not merely on individual statements.” Id. Dr. 

Toledo, therefore, bore the burden of presenting the requisite minimum quantity of 

evidence that the “gist” of the broadcast in question was false as a part of her prima 

facie case of defamation. 

The media defendants assert that the broadcasts were not defamatory 

because all of the statements in the broadcasts were literally true and because they 

accurately reported the statements contained in the TMB’s official publications. 

They argue their newscasts, like the TMB’s press release and Agreed Order, did 
13 

not identify the age or identity of the patient with whom Dr. Toledo had “sexual 

contact” and became “financially or personally involved . . . in an inappropriate 

manner.” They claim they added no descriptive terms to describe the TMB’s 

sanctions of Dr. Toledo. In short, they contend that Dr. Toledo brought forth no 

clear and specific evidence that they falsely reported the TMB’s recitation of its 

disciplinary action against Dr. Toledo. We disagree. 

Dr. Toledo attached video clips and copies of the transcripts of the three 

allegedly defamatory broadcasts to her response to the media defendants’ motion 

to dismiss. Each of the broadcasts begins by stating that “[a] Port Arthur 

pediatrician has been punished by the Texas Medical Board after the Board found 

she engaged in sexual contact with a patient and became financially involved with 

a patient in an inappropriate manner.” Although much of the information in this 

statement has been quoted, nearly verbatim, from the press release, the broadcasts, 

unlike the press release, begin with the assertion that the subject of the broadcasts 

is a “pediatrician.” A person of ordinary intelligence viewing the broadcasts would 

know that a pediatrician is a doctor that specializes in the medical treatment of 

children. Therefore, the average viewer could, and in most cases would, 

reasonably conclude that the “patient” of a “pediatrician” is a child. While it is a 

true statement, as the media defendants contend, that Dr. Toledo is a pediatrician 

and that the TMB did discipline her for having improper sexual contact with a 
14 

patient, the media defendants’ decision to place these two facts together in the 

same sentence, particularly with the word “pediatrician” being used, in essence, as 

the subject of the phrase “engaged in sexual contact with a patient,” resulted in a 

statement that was reasonably capable of being interpreted by the average listener 

as stating that Dr. Toledo was punished for having improper sexual contact with a 

child. 

Further, the remaining content of the newscasts does not effectively negate 

the impression that the patient referenced in the broadcast was a child. In addition 

to stating that Dr. Toledo was found to have engaged in “sexual contact with a 

patient,” the broadcasts state that Dr. Toledo was found to have become 

“financially involved with a patient in an inappropriate manner.” The broadcasts 

do not define or otherwise explain what is meant by the phrase “financially 

involved.” Depending on the context, the term could reasonably be construed to 

have different meanings, including the simple act of gift-giving, which is equally 

likely to involve an adult or a child. Viewing the broadcast as a whole, a viewer of 

ordinary intelligence could reasonably conclude that a pediatrician who has 

engaged in sexual contact with a minor patient might also engage in other 

inappropriate conduct with that patient, including giving money or gifts to, or 

accepting money or gifts from, that patient. 
15 

We also disagree with the media defendants’ argument that the broadcasts’ 

listing of “administrative—not criminal—sanctions imposed by the TMB” 

removes any implication that Dr. Toledo engaged in sexual contact with a minor 

patient. The scope of the broadcast is limited to a report of findings and 

conclusions made in a proceeding before the Texas Medical Board. The Texas 

Medical Board is an administrative agency with no authority to criminally 

prosecute a physician. Therefore, the mention of only administrative sanctions in a 

report that is limited to coverage of an administrative proceeding would not 

necessarily alert the average viewer that the sanctioned offense was not a crime. 

Further, we disagree with the media defendants’ argument that the fact that the 

administrative sanctions referenced in the broadcasts were not more severe negated 

the impression created by the first sentence that Dr. Toledo had engaged in sexual 

contact with a child. While it is possible that a careful viewer might have realized 

that the administrative sanctions referenced in the broadcasts were not the most 

severe administrative sanctions available to the TMB and might have deduced 

from this fact that the patient in question was not a child, we must analyze the 

broadcasts in the context of how the average viewer, not a “careful viewer,” would 

have perceived the broadcasts. See Turner, 38 S.W.3d at 119 (concluding that a 

statement’s defamatory meaning must be viewed from the standpoint of an 

“ordinary” listener, not a “careful” listener, and noting that “‘courts must refrain 
16 

from a ‘hair splitting analysis’ of what is said . . . to find an innocent meaning[.]’” 

(quoting Forsher v. Bugliosi, 608 P.2d 716, 722 (Cal. 1980))). In this respect, we 

do not believe that an average viewer is sufficiently familiar with the scope of the 

TMB’s disciplinary authority—including the administrative rules and regulations 

governing the range of disciplinary sanctions and penalties available to the TMB, 

the mitigating factors that the TMB is authorized to consider in imposing a 

sanction or penalty, or the effect of such factors on any particular sanction or 

penalty—such that the statements in the broadcast would clarify in the mind of the 

average viewer that the patient referenced in the broadcast is not a child. See id. at 

114 (noting that a “publication should be viewed ‘not so much by its effect when 

subjected to the critical analysis of a mind trained in the law, but by the natural 

probable effect on the mind of the average reader’” (quoting Kapellas v. Kofman, 

459 P.2d 912, 920 (Cal. 1969))). We conclude, therefore, that Dr. Toledo has 

presented evidence that when viewing the broadcasts as a whole in light of the 

surrounding circumstances, a person of ordinary intelligence would reasonably but 

erroneously conclude that the “gist” of the broadcast was that Dr. Toledo was 

punished for engaging in inappropriate conduct, including sexual contact, with a 

child. 

We also find that Dr. Toledo presented evidence that the gist of the 

broadcast was false. Dr. Toledo attached her own affidavit as an exhibit to her 
17 

response to the media defendants’ motion to dismiss. In the affidavit, Dr. Toledo 

stated that the patient in question was not a child, but was “a sixty year old man 

who[m] [she] had been dating for a considerable time.” This affidavit testimony 

constitutes clear and specific evidence that the “gist” of the broadcasts—i.e., that 

Dr. Toledo was punished by the TMB for engaging in inappropriate conduct, 

including sexual contact, with a child—was not substantially true because it was 

not actually true and was considerably more damaging to Dr. Toledo’s reputation, 

in the mind of an average listener, than a truthful statement would have been.2

 See 

                                                             2 The media defendants argue that the broadcasts are not defamatory because 

they accurately reported the TMB’s recitation of its disciplinary action against Dr. 

Toledo. In support of this argument, the media defendants appear to rely, at least 

in part, on the rule adopted by several Texas courts of appeals, which, interpreting 

the Texas Supreme Court’s decision in McIlvain v. Jacobs, have concluded that 

when determining whether a report of third-party allegations under investigation is 

substantially true, a media defendant need not prove that the allegations are true, 

but must only demonstrate that the allegations were, in fact, made and accurately 

reported. See, e.g., Avila v. Larrea, 394 S.W.3d 646, 657, 659 (Tex. App.—Dallas 

2012, pet. denied); UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 612 

(Tex. App.—San Antonio 2002, no pet.); Dolcefino v. Randolph, 19 S.W.3d 906, 

918 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see also Neely, 418 

S.W.3d at 64. 

McIlvain concerned a broadcast regarding an investigation by the City of 

Houston into alleged misconduct by employees in its water maintenance division. 

794 S.W.2d at 15. The allegedly defamatory broadcast was made during the city’s 

investigation and indicated that the public integrity section was investigating 

allegations that: (1) employees cared for the elderly father of the water 

maintenance manager on city time; (2) the employees were putting in for overtime 

to complete their city duties; (3) authorities were looking for a gun at a water 

treatment facility; and (4) employees had been drinking on the job. Id. Two of the 

water maintenance division employees sued the broadcasters for defamation. Id. 
18 

Neely, 418 S.W.3d at 63; McIlvain, 794 S.W.2d at 16. Further, it implies conduct 

that tends to injure a living person’s reputation and thereby expose the person to 

public hatred, contempt or ridicule, or financial injury. See Tex. Civ. Prac. & Rem. 

Code Ann. § 73.001. It also constitutes clear and specific evidence that the 

broadcasts contained language that was reasonably capable of injuring Dr. Toledo 

in her office, profession, or occupation; (2) charging Dr. Toledo with the 

commission of a crime; and (3) imputing sexual misconduct. See Tex. Disposal 

                                                                                                                                                                                               

Thereafter, the city’s investigation found all of the allegations to be true. Id. at 16. 

The court granted summary judgment in favor of the media defendants. Id. at 15. 

The Texas Supreme Court affirmed the trial court’s ruling because the “broadcast 

statements are factually consistent with [the government’s] investigation and its 

findings[]” and were therefore “substantially correct, accurate and not misleading.” 

Id. at 16. 

 

Later, in Neely, the Texas Supreme Court clarified that it “did not establish a 

third-party allegation rule in McIlvain.” Neely, 418 S.W.3d at 65. Instead, the 

Court stated that it only “measured the truth of the allegations in McIlvain against 

the government investigation that found them to be true.” Id. Nevertheless, Neely

expressly left open the question of whether accurate reporting by the media is one 

way of establishing the substantial truth of the gist of a broadcast that repeats thirdparty allegations under investigation. Id. at 57 n.3, 64-65. We need not address 

this question, however, because the broadcasts in the present case do not report 

third-party allegations that were “under investigation” at the time the broadcasts 

were published. See UTV, 82 S.W.3d at 612 (concluding that the defendant must 

prove that the “third[-]party allegations reported in [the] broadcast were, in fact, 

made and under investigation”); KTRK Television v. Felder, 950 S.W.2d 100, 106 

(Tex. App.—Houston [14th Dist.] 1997, no writ) (concluding that when “the report 

is merely that allegations were made and they were under investigation, [a media 

defendant must prove] that [the] allegations were in fact made and under 

investigation in order to prove substantial truth.”). Instead, the broadcasts report 

findings and sanctions made by the TMB against Dr. Toledo after the TMB’s 

investigation of Dr. Toledo had already concluded. 
19 

Sys. Landfill, 219 S.W.3d at 581. When an ambiguity exists about the meaning and 

effect of the words or when a predicate fact question remains about whether the 

statements were published or were false, a jury should determine the statement’s 

meaning. Klentzman v. Brady, No. 01-11-00765-CV, 2013 WL 5655845, at **14-

15 (Tex. App.—Houston [1st Dist.] Oct. 17, 2013, no pet. h.); Tex. Disposal Sys. 

Landfill, 219 S.W.3d at 581-83 (noting that defamation per se is generally a legal 

question, a jury question is presented where the defamatory character of a 

statement arises not from the defendants’ blatant statements but from the 

impressions the defendants created and the inferences they encouraged). We hold 

that Dr. Toledo presented the requisite minimum quantum of clear and specific 

evidence, unaided by inferences, that the broadcasts in question were defamatory 

concerning her. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). 

2. Negligence 

 In a defamation action, a private plaintiff must prove that a media defendant 

acted with negligence concerning the truth of the statement in question. See Neely, 

418 S.W.3d at 61. The media defendants argue Dr. Toledo cannot satisfy her 

burden to present clear and specific evidence that they acted with negligence 

because the evidence shows they accurately represented the contents of the Agreed 

Order and press release. The media defendants contend, therefore, that they are 

protected from liability under the “fair report privilege,” which relieved them of 
20 

any duty to independently investigate and report additional information not 

provided by the TMB, including the patient’s age and identity.3

 

In Texas, the Legislature has codified the fair report privilege to the extent it 

applies to cases of libel.4

 See Neely, 418 S.W.3d at 68. Specifically, section 

73.002(b)(1) of the Texas Civil Practice and Remedies Code provides that 

publications are privileged as long as they constitute “a fair, true, and impartial 

account of” a judicial proceeding or other official proceedings to administer the 

law.5

 See Tex. Civ. Prac. & Rem. Code Ann. § 73.002(b)(1)(A), (B) (West 2011); 

                                                             3

This is an appeal from the denial of a motion to dismiss under the TCPA, 

not an appeal from the denial of a motion for summary judgment based on a First 

Amendment defense by a media defendant. Compare Tex. Civ. Prac. & Rem. 

Code Ann. § 27.008 with Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6) (West 

Supp. 2013). This appeal was perfected before the effective date of the most 

recent amendment to section 51.014. See id. § 51.014(a)(12) (authorizing 

accelerated appeal of the denial of a motion to dismiss under the TCPA). We 

address the parties’ arguments regarding the “fair report privilege” as it is 

presented by the appellants in their brief to this Court; that is, as the privilege 

relates to whether Dr. Toledo met her burden to establish a prima facie case of the 

media defendants’ malice or negligence as an element of her defamation claim. 

See id. § 27.005(c). 

4

The fair report privilege has also been referred to as the “official 

proceedings privilege” and the “judicial proceedings privilege,” as applicable. See 

Neely, 418 S.W.3d at 68-69. 

5 Texas courts have repeatedly found that press releases issued by 

governmental agencies can trigger application of the fair report privilege. See Goss 

v. Houston Cmty. Newspapers, 252 S.W.3d 652, 655 (Tex. App.—Houston [14th 

Dist.] 2008, no pet.); Williams v. Cox Newspapers, Inc., No. 06-09-00041-CV, 

2009 WL 2340672, at *4 (Tex. App.—Texarkana July 31, 2009, no pet.) (mem. 
21 

see also Neely, 418 S.W.3d at 68. The fair report privilege assesses whether the 

reporter’s account of the proceedings was fair, true, and impartial, even if the 

underlying facts being reported are untrue or defamatory. See Neely, 418 S.W.3d 

at 68. In other words, the accuracy of the publication is determined not by 

comparing it to the actual facts, but to the statements made in the official 

proceeding or report on which the publication is based. See id.; Denton Publ’g Co. 

v. Boyd, 460 S.W.2d 881, 883 (Tex. 1970) (“The publication would be within the 

privilege provided by statute as long as it purported to be, and was, only a fair, true 

and impartial report of what was stated at the meeting, regardless of whether the 

facts under discussion at such meeting were in fact true[.]”). The privilege “only 

extends to statements that: (1) are substantially true and impartial reports of the 

proceedings, and (2) are identifiable by the ordinary reader as statements that were 

made in the proceeding.” Neely, 418 S.W.3d at 68. The privilege, however, “does 

not extend to the republication of a matter if it is proved that the matter was 

republished with actual malice after it had ceased to be of public concern.” Tex. 

Civ. Prac. & Rem. Code Ann. § 73.002(a); see also Neely, 418 S.W.3d at 69. 

 The media defendants contend that the fair report privilege applies because 

“[t]he press release and [Agreed Order] identified [Dr.] Toledo as a pediatrician 

and stated that she ‘behaved unprofessionally when she engaged in sexual contact 

                                                                                                                                                                                               

op.); Freedom Commc’ns, Inc. v. Sotelo, No. 11-05-00336-CV, 2006 WL 1644602, 

at *4 (Tex. App.—Eastland June 15, 2006, no pet) (mem. op.).
22 

with a patient and became financially or personally involved with a patient in an 

inappropriate manner’” and because the media defendants “accurately reported and 

represented the contents of the TMB’s official publications” in the broadcasts. We 

disagree. While both the broadcasts and the press release state that Dr. Toledo 

“engaged in sexual contact with a patient” and became financially involved with a 

patient in an inappropriate manner, the broadcasts, unlike the press release, begin 

with the assertion that the person who engaged in such conduct was a 

“pediatrician.” As stated above, this editorial addition to the broadcasts by the 

media defendants created an impression that could reasonably be interpreted by the 

average viewer as stating that Dr. Toledo was punished for engaging in 

inappropriate conduct, including sexual contact, with a child. The press release, by 

contrast, does not mention Dr. Toledo’s medical specialty and contains no 

information to suggest that the patient in question was a child. The broadcasts, 

therefore, were potentially more damaging to Dr. Toledo’s reputation than an 

account consistent with the press release would have been. As a result, the 

broadcasts were not a fair, true, and impartial account of the TMB’s press release. 

We also find that the broadcasts were not “a fair, true, and impartial account 

of” the Agreed Order. First, we note that although the media defendants allege that 

they relied on the Agreed Order in preparing the broadcasts, the media defendants 

did not present evidence showing that they actually reviewed the Agreed Order 
23 

before airing the broadcasts. The affidavit of the Channel 12 news director, 

attached to the media defendants’ motion to dismiss, states only that “[t]he 

information contained in [the] news report was gathered solely from [the] Texas 

Medical Board’s press release and its physician profile [of] Dr. Toledo.” Because 

the Agreed Order was accessible through a link on the physician profile webpage, 

it is unclear from the affidavit whether the media defendants reviewed only the 

content of the physician profile webpage or if they also reviewed the downloadable 

Agreed Order as part of that webpage. However, even if we assume that the media 

defendants reviewed the Agreed Order, the evidence does not conclusively 

establish that the broadcasts accurately reported the contents of that document. 

While it is true, as the media defendants assert, that the Agreed Order states that 

Dr. Toledo is a pediatrician, the nine-page Agreed Order references that fact in 

only one paragraph (under the “General Findings” section) and only as background 

information about Dr. Toledo, not as a relevant factor in the charges or findings 

against her. Unlike the broadcasts, the Agreed Order does not include the fact that 

Dr. Toledo is a pediatrician in the same sentence with a description of the conduct 

in which Dr. Toledo was found to have engaged. Further, the Agreed Order 

describes the “Board Charges” against Dr. Toledo, in their entirety, as follows: 

At issue in this investigation are allegations of the Respondent’s 

unprofessional sexual misconduct. Specifically, it was alleged that 

while engaged in an intimate relationship with JC the Respondent 
24 

injected JC with testosterone and human growth hormone without 

prescriptions and documentation in a medical record. 

Nothing in this description suggests that “JC” is a child or that Dr. Toledo was 

charged by the TMB with sexually abusing a child. Indeed, nothing in this 

description draws any focus whatsoever on the age of the patient. Instead, the 

description suggests only that Dr. Toledo was accused of administering 

medications to a person with whom she was intimately involved without a 

prescription or proper medical documentation. Similarly, the findings of fact and 

conclusions of law set forth in the Agreed Order suggest only that the TMB found 

that Dr. Toledo administered medications to a person with whom she was 

intimately involved without a prescription or proper medical documentation and 

sanctioned her for such conduct. The Agreed Order contains no findings or 

conclusions identifying the patient as a child or suggesting that Dr. Toledo had 

sexual contact with a child. Because the broadcasts, by contrast, can reasonably be 

interpreted to suggest to the average viewer that the patient in question was a child, 

the broadcasts were more damaging to Dr. Toledo’s reputation than a report 

consistent with the Agreed Order would have been. Accordingly, it has not been 

shown that the broadcasts were “a fair, true, and impartial account of” the Agreed 

Order. The media defendants, therefore, have not established by a preponderance 

of the evidence at this stage of the litigation that the “fair report privilege” applies. 
25 

Having concluded the privilege has not been shown to apply, we now 

examine whether Dr. Toledo presented clear and specific evidence that the media 

defendants acted with negligence with respect to the truth of the broadcasts in 

question. In the context of a defamation case, “a broadcaster is negligent if she 

knew or should have known a defamatory statement was false.” Neely, 418 S.W.3d 

at 72. “Negligent conduct is determined by asking ‘whether the defendant acted 

reasonably in checking the truth or falsity or defamatory character of the 

communication before publishing it.’” Scripps Tex. Newspapers, L.P. v. 

Belalcazar, 99 S.W.3d 829, 837 (Tex. App.—Corpus Christi 2003, pet. denied) 

(quoting RESTATEMENT (SECOND) OF TORTS § 580B cmt. g (1977)). Defamation 

liability, however, “may not be predicated on ‘a factual misstatement whose 

content [would] not warn a reasonable prudent editor or broadcaster of its 

defamatory potential.’” Neely, 418 S.W.3d at 72 (quoting Foster v. Laredo 

Newspapers, Inc., 541 S.W.2d 809, 820 (Tex. 1976)). 

Dr. Toledo attached copies of the TMB press release, the TMB physician 

profile of Dr. Toledo, and the Agreed Order to her response to the media 

defendants’ motion to dismiss. Significantly, the press release, physician profile, 

and Agreed Order do not state the age of the patient in question. They also do not 

contain any information to suggest that the patient was a child. These, however, 

are the very documents on which the media defendants claim they relied in 
26 

preparing the broadcasts in question.6 As set forth above on the evidence presented 

to the trial court, a reasonable view of the “gist” of the broadcasts was that Dr. 

Toledo was punished for engaging in inappropriate conduct, including sexual 

contact, with a child. Accordingly, we conclude that Dr. Toledo presented a 

sufficient minimum quantity of clear and specific evidence that the media 

defendants acted negligently by broadcasting a report, the “gist” of which was that 

Dr. Toledo was punished for having sexual contact with a child, when the 

documents on which the media defendants admittedly relied to prepare the 

broadcast do not contain any information stating the age of the patient or 

suggesting that the patient was a child. Further, the gist of the broadcasts would 

warn a reasonably prudent broadcaster of the broadcasts’ defamatory potential. 

The media defendants have not shown that the trial court erred in denying 

their motion to dismiss Dr. Toledo’s suit at this early stage of the litigation. 

Because Dr. Toledo presented a prima facie case to the trial court, we overrule the 

sole issue raised in this accelerated appeal, and affirm the trial court’s order 

denying the appellants’ motion to dismiss the case.

                                                             6 As set forth above, the media defendants contend that they reviewed the 

Agreed Order in preparing the broadcasts in question. They did not, however, 

present evidence supporting this contention. Even assuming that the media 

defendants did review the Agreed Order in preparing the broadcasts, our 

conclusion would remain the same because, as set forth above, the Agreed Order 

does not state the age of the patient in question and does not contain any 

information suggesting that the patient is a child. 
27 

AFFIRMED. 

 

 ________________________________ 

 CHARLES KREGER 

 Justice 

Submitted on October 24, 2013 

Opinion Delivered May 8, 2014 

Before McKeithen, C.J., Kreger and Horton, JJ.