1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-18-00395-CV

__________________

TIMOTHY CASTILLE AND LESLIE CASTILLE, Appellants

V.

PORT ARTHUR PATROLMEN’S HUNTING CLUB, REAGAN BRAY, 

TROY BROUSSARD, CRAIG SHERLOCK, AND LABELLE PROPERTIES 

GENERAL LLC, Appellees

__________________________________________________________________

On Appeal from the 60th District Court

Jefferson County, Texas

Trial Cause No. B-198,318-A

__________________________________________________________________

MEMORANDUM OPINION

Appellants Timothy and Leslie Castille (collectively referred to as “the 

Castilles”) appeal the trial court’s order dismissing their claims against the appellees, 

Port Arthur Patrolmen’s Hunting Club (“PAPHC”), Reagan Bray, Troy Broussard, 

Craig Sherlock, and LaBelle Properties General LLC (“LaBelle”), and granting the 
2

appellees’ motion to dismiss under the Texas Citizens Participation Act (“TCPA”).1

We affirm the trial court’s order granting the appellees’ motion to dismiss under the 

TCPA.2

Background

In March 2016, PAPHC filed suit against Timothy Castille seeking damages 

and a temporary injunction and alleging that Timothy’s acts of accessing and 

building a structure upon PAPHC’s land constitutes a trespass as well as criminal 

trespass, having received notice that entry is forbidden.3 PAPHC alleged that Castille 

was trespassing on land that it had leased from LaBelle for hunting, and PAPHC 

requested a temporary restraining order and damages. PAPHC included a copy of its 

hunting lease and the affidavit of Reagan Bray (“Bray”), a member of the hunting 

club, with its petition. On May 20, 2016, the State brought criminal charges against 

Timothy based on accounts the appellees gave law enforcement officials concerning 

1

We will collectively refer to Port Arthur Patrolmen’s Hunting Club, Reagan 

Bray, Troy Broussard, Craig Sherlock, and LaBelle Properties General LLC as 

“appellees.” 

2

The Legislature amended the TCPA, effective September 1, 2019. See Act of 

May 17, 2019, 86th Leg., R.S., ch. 378, §§ 11, 12, 2019 Tex. Gen. Laws 684, 687. 

The amendment only applies to suits filed after its effective date. See id. Therefore, 

because the Castilles’ original suit in intervention was filed before September 1, 

2019, the version of the TCPA that was in effect immediately prior to the 2019 

amendment applies to this appeal. See id. 

3

PAPHC’s original petition included another defendant who is not a party to 

this appeal. 
3

the trespass they were claiming occurred. In June 2016, the trial court entered an 

agreed order granting a temporary injunction which, among other things, restrained, 

enjoined, and prohibited Castille from using the cabin-structure “to any degree or 

amount that exceeds any prior use that preceded this pending controversy, namely 

use as camp for outdoor recreation.” In September 2017, PAPHC dismissed Timothy 

from its cause of action without prejudice. In April 2018, a jury found Timothy not 

guilty of trespass in the criminal case.

On May 22, 2018, the Castilles filed an original suit in intervention against 

PAPHC, Bray, Troy Broussard (“Broussard”), Craig Sherlock (“Sherlock”), and 

LaBelle, alleging causes of action for malicious criminal prosecution, civil 

conspiracy, defamation, and loss of consortium. The Castilles alleged that on 

January 3, 2016, Timothy was driving his airboat across Blind Lake when Broussard 

confronted Timothy and accused him of trespassing. The Castilles stated that 

Timothy told Broussard that he should contact the game warden, and that Broussard 

called Sherlock and the game warden, Stephen Satchfield, and reported that he had 

caught Timothy trespassing. According to the Castilles, instead of filming the 

location of the alleged trespass when it occurred, Broussard waited about a week and 

filmed his stepson on dry ground standing where Broussard claimed the incident had 
4

occurred.4 The Castilles stated that at Satchfield’s request, Timothy made a video of 

the route he had taken when Broussard stopped him, and the Castilles claimed that 

Satchfield told Timothy that he did not trespass on private property. 

The Castilles alleged Broussard and Sherlock gave false testimony claiming 

they encountered Timothy on non-navigable waters within PAPHC’s lease. The 

Castilles alleged the jury in Timothy’s criminal case found him not guilty of trespass, 

and they alleged the PAPHC, Bray, Broussard, and the LaBelle defendants defamed

Timothy and maliciously prosecuted him on a claim based on his alleged trespass.

On August 3, 2018, Sherlock and LaBelle (collectively referred to as the 

“LaBelle defendants”) moved to dismiss the Castilles’ intervention relying on 

provisions that control prompt dismissals under the TCPA. The LaBelle defendants 

argued that the Castilles’ allegations are based on, relate to, or are in response to 

their respective rights to free speech, to petition, and to associate freely. The LaBelle 

defendants argued their motion to dismiss should be granted because Timothy could 

not establish the elements needed to prove his claims by clear and specific evidence. 

They also argued Leslie’s claim for lost consortium should be dismissed since it is 

4

The record shows that the ‘dry land’ where Timothy was accused of trespass 

is often under water, depending on recent rainfall. It is undisputed that the lake is 

public property, and anyone can travel across the lake.
5

derivative of Timothy’s claims. The LaBelle defendants requested attorney’s fees, 

expenses, and court costs, as allowed by the TCPA.

On August 13, 2018, Broussard filed a joinder in the LaBelle defendants’ 

motion to dismiss the Castilles’ petition in intervention. They incorporated the 

LaBelle defendants’ motion and evidence, and they also asked the court to dismiss 

Timothy’s defamation claim because the statements he had relied on in his petition 

for that claim were absolutely privileged as judicial communications.5 Broussard 

further argued the privilege extends to his alleged defamatory statements he claims 

were made in the criminal proceedings. On August 21, 2018, PAPHC and Bray 

joined the LaBelle defendants’ motion to dismiss. The LaBelle defendants joined in 

PAPHC’s, Bray’s, and Broussard’s joinders. The LaBelle defendants argued that any 

statements Sherlock made during Timothy’s criminal trial were absolutely 

privileged and as such, not statements a civil litigant could rely on to sue for 

defamation. The LaBelle defendants further argued the statements the Castilles 

relied on to claim civil conspiracy, malicious prosecution, and loss of consortium 

were all subject to the judicial communications privilege because those statements

were also all made during Timothy’s trial. 

5

“Communications made during the course of judicial proceedings are 

privileged.” Bird v. W.C.W., 868 S.W.2d 767, 771 (Tex. 1994).
6

In response, the Castilles argued their claims were not based on statements 

made in judicial proceedings, but on the statements in the videotape in which 

Broussard can be heard accusing Timothy of criminal trespass together with 

subsequent statements made by Bray, Sherlock and Broussard incorrectly describing

the land PAPHC leased. According to the Castilles, the jury in Timothy’s criminal 

case found Timothy not guilty because the alleged trespass did not occur on private 

land leased to the PAPHC. The Castilles also argued the LaBelle defendants had not 

shown the Castilles’ claims are based on, relate to, or in response to the LaBelle 

defendants’ exercise of free speech, right to petition, or right of association or that

an alleged private trespass on private land constitutes a matter of public concern. 

According to the Castilles, the statements captured in the video are not protected free 

speech under the TCPA and they had produced prima facie proof to support each 

element of their claims. 

The Castilles filed a motion to strike PAPHC’s, Bray’s, and Broussard’s 

motions joining the LaBelle’s motion to dismiss. They argued the motions to join 

were untimely. In August 2018, the trial court heard the various parties’ motion to 

join. During the hearing, Timothy argued the motions were untimely because they 

were not filed within sixty days of the dates the parties were served. Broussard’s 

counsel argued the evidence was not clear when Broussard was served, that he filed 
7

his motion to join on August 13, and the Castilles filed the return of service on 

August 21. According to Broussard, good cause allowed the trial court to extend the 

deadline based on the date the Castilles filed the return. Counsel for PAPHC and 

Bray argued that the trial court could allow them to join the Labelle defendants’ 

request to dismiss since the joinders did not raise substantive arguments any different 

from those in the Labelle defendants’ motion to dismiss. During the hearing, the trial 

court noted it had discretion and allowed the various parties to join the Labelle 

defendants’ motion. 

In support of their motion to dismiss, the LaBelle defendants argued that an 

allegation regarding a trespass on private property is a matter of public concern that 

allows the defendants to fully exercise the rights to associate, to petition, and to 

engage in free speech. The LaBelle defendants argued the District Attorney decided 

to prosecute Timothy for trespass and determined if probable cause existed to file a 

criminal case. According to the LaBelle defendants, they did nothing more than 

comply with the District Attorney’s request to assist in the criminal case, suggesting 

any statements they made in the criminal proceedings were absolutely privileged and 

could not be considered in ruling on the merits of their motion to dismiss.

The Castilles argued the claims the LaBelle defendants filed against them did 

not involve a matter of public concern, and that the video, in which Broussard 
8

accused Timothy of criminal trespass in front of his family, was not filmed on 

PAPHC’s lease. The Castilles also claim that Sherlock represented PAPHC’s lease 

included 640 acres when the lease covers only 125 acres. Based on these claims, the 

Castilles argued Timothy did not trespass on PAPHC’s lease and no one could claim 

otherwise given what was shown in the video. The Castilles also argued they 

presented prima facie proof to support each element of their claims.

At the conclusion of the hearing, the trial court denied the Castilles’ motion 

to strike the various requests to join the Labelle defendants’ motion to dismiss, 

granted the LaBelle defendants’ motion to dismiss as well as the motions joining the 

motion filed by PAPHC, Bray, and Broussard. The trial court also found the LaBelle 

defendants’ statements were protected by the judicial communications privilege. The 

trial court signed an order dismissing the Castilles’ claims and ordering the Castilles 

to pay the LaBelle defendants attorney’s fees and expenses. 

Subsequently, the Castilles filed a notice of appeal, a motion for new trial, and 

a motion to strike Broussard’s request for fees. Broussard asked the trial court to 

modify its award of attorney’s fees and costs. After conducting a hearing, the trial 

court denied the motion for new trial and awarded attorney’s fees and expenses to 

Broussard. 
9

Standard of Review and Applicable Law

We review de novo a trial court’s ruling on a motion to dismiss under the 

TCPA. Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 

2019, pet. denied). The 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 

demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002;6 ExxonMobil 

Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017). The TCPA permits a 

litigant to seek dismissal of a “legal action” that is “based on, relates to, or is in 

response to a party’s exercise of the right of free speech, right to petition, or right of 

association[.]” Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, sec. 27.003(a), 

2011 Tex. Gen. Laws 960, 962. The party moving to dismiss under the TCPA bears 

the initial burden of demonstrating that he has been sued for exercising his First 

Amendment rights. Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, sec. 

27.005(b), 2011 Tex. Gen. Laws 960, 962. Once the moving party establishes that 

the suit implicates First Amendment rights, the burden shifts to the party bringing 

6

We cite to the current version of section 27.002 because it was not affected 

by the 2019 amendments. 
10

the action, who must then adduce “clear and specific evidence” of a prima facie case 

as to each element of the claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c);7 In 

re Lipsky, 411 S.W.3d 530, 539-43 (Tex. App.—Fort Worth 2013, orig. proceeding), 

mand. denied, 460 S.W.3d 579 (Tex. 2015). In determining whether the claim should 

be dismissed, “the court shall consider the pleadings and supporting and opposing 

affidavits stating the facts on which the liability or defense is based.” Act of May 

21, 2011, 82nd Leg., R.S., ch. 341, § 2, sec. 27.006(a), 2011 Tex. Gen. Laws 960, 

962. “Under [s]ection 27.006 of the Act, the trial court may consider pleadings as 

evidence.” Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.—Austin 2015, no 

pet.). The Supreme Court has noted that “[c]lear and specific evidence is not a 

recognized evidentiary standard[]” and “[a]lthough it sounds similar to clear and 

convincing evidence, the phrases are not legally synonymous.” In re Lipsky, 460 

S.W.3d at 589. In addition, the Supreme Court noted that the term “prima facie case” 

means “evidence sufficient as a matter of law to establish a given fact if it is not 

rebutted or contradicted.” Id. at 590. 

The Supreme Court explained that under the TCPA, general allegations that 

merely recite the elements of a cause of action will not suffice; rather, “a plaintiff 

7

We cite to the current version of section 27.005(c) because the 2019 

amendments do not affect this appeal. 
11

must provide enough detail to show the factual basis for its claim.” Id. at 590-91. 

Although the TCPA “initially demands more information about the underlying 

claim, the Act does not impose an elevated evidentiary standard or categorically 

reject circumstantial evidence.” Id. at 591. If the non-movant meets his burden, the 

movant may still obtain a dismissal by establishing each essential element of a valid 

defense to the claims. Act of May 24, 2013, 83rd Leg., R.S., ch. 1042, § 2, sec. 

27.005(d), 2013 Tex. Gen. Laws 2501, 2501. 

Analysis 

In issue one, the Castilles complain that Broussard and PAPHC failed to 

timely file their motions to dismiss and failed to show good cause, and that Bray 

failed to file a motion to dismiss. According to the Castilles, the trial court erred by 

allowing Broussard, PAPHC, and Bray to join in the LaBelle defendants’ motion to 

dismiss. 

Section 27.003(b) provides that the trial court may extend the time to file a 

motion to dismiss after the sixty-day deadline upon a showing of good cause. Act of 

May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, sec. 27.003(b), 2011 Tex. Gen. Laws 

960, 962. Accordingly, the trial court has discretion to grant a party leave to file a 

joint motion to dismiss even though a party has been served more than sixty days 

before requesting permission from the court to extend the deadline. See James v. 
12

Calkins, 446 S.W.3d 135, 142 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); 

Schimmel v. McGregor, 438 S.W.3d 847, 856 (Tex. App.—Houston [1st Dist.] 2014, 

pet. denied). 

The record shows that during the August 2018 hearing, the trial court 

considered the joinder motions and the Castilles’ argument that the motions were 

untimely. The trial court heard arguments from Broussard’s counsel that there was 

good cause to extend the deadline, and counsel for PAPHC and Bray argued that the 

trial court had the discretion to allow the joinders and that the joinder did not include 

any substantive change with respect to the LaBelle defendants’ motion to dismiss. 

In exercising its statutory discretion to extend the deadline, the trial court granted 

the joinders, thereby implicitly ruling that PAPHC, Bray, and Broussard had good 

cause for any alleged delays. See Schimmel, 438 S.W.3d at 856. We conclude the 

trial court did not err by allowing Broussard, PAPHC, and Bray to join in the LaBelle 

defendants’ motion to dismiss. See James, 446 S.W.3d at 142. We overrule issue 

one. 

In issue two, the Castilles argue that the appellees failed to meet their burden 

to show that the TCPA applies to the Castilles’ claims. According to the Castilles, 

the lawsuit arises from the statements in the video, which show Broussard accused 

Timothy of a trespass. The Castilles conclude that the statements captured in the 
13

video do not involve a matter of public concern. Despite the argument the Castilles 

present in their brief, however, their petition in intervention relied on the statements 

Broussard, Bray, and Sherlock made during the trial when they asserted the factual 

basis for the claim of defamation.

The issue of whether the appellees met their burden of establishing that the 

Castilles’ claims related to the exercise of their First Amendment rights is a legal 

question that we review de novo on appeal. See Rehak Creative Servs., Inc. v. Witt, 

404 S.W.3d 716, 725 (Tex. App.––Houston [14th Dist.] 2013, pet. denied), 

disapproved on other grounds, In re Lipsky, 460 S.W.3d at 587, 591. Under the 

TCPA, the exercise of the right of free speech is defined as “a communication made 

in connection with a matter of public concern.” Tex. Civ. Prac. & Rem. Code § 

27.001(3).8 A communication “includes the making or submitting of a statement or 

document in any form or medium, including oral, visual, written, audiovisual, or 

electronic.” Id. § 27.001(1).9 A matter of public concern includes, among other 

things, an issue related to health or safety, or environmental, economic, or 

community well-being. Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, sec. 

8

We cite to the current version of section 27.001(3) because it was not affected 

by the 2019 amendments. 

9

We cite to the current version of section 27.001(1) because it was not affected 

by the 2019 amendments. 
14

27.001(7), 2011 Tex. Gen. Laws 960, 961. The TCPA does not require the 

statements to specifically mention health, safety, environmental, economic, or 

community concerns, and it does not require more than a tangential relationship to 

the same. ExxonMobil Pipeline Co., 512 S.W.3d at 900. The TCPA only requires 

that the statements are in connection with the matters of public concern chosen by 

the Legislature. Id. Because the statute does not require that the form of the 

communication be public, it includes both public and private communications. 

Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). 

Reporting a crime to law enforcement and related judicial proceedings arising 

from prosecutions are matters of public concern. Brady v. Klentzman, 515 S.W.3d 

878, 884 (Tex. 2017). Accordingly, we conclude that the statements the Castilles 

alleged were actionable were all statements made in connection with a matter of 

public concern. We further conclude that any statements the appellees made to law 

enforcement officials or members of the District Attorney’s Office while they 

participated in the case the State filed against Broussard for criminal trespass 

implicated their respective rights to petition. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 27.001(4)(A)(i)10 (providing that a communication made in or pertaining to a 

10We cite to the current version of section 27.001(4) because it was not 

affected by the 2019 amendments.
15

judicial proceeding constitutes the exercise of the right to petition); Beving v. 

Beadles, 563 S.W.3d 399, 406 (Tex. App.—Fort Worth 2018, pet. denied); see also 

Spencer v. Overpeck, No. 04-16-00565-CV, 2017 WL 993093, at *4 (Tex. App.—

San Antonio Mar. 15, 2017, pet. denied) (mem. op.). Based upon the allegations in 

the Castilles’ petition and the appellees’ responses in the motion to dismiss, we 

conclude the appellees established that the Castilles’ claims related to their exercise 

of First Amendment rights, and that the Castilles’ claims fall within the purview of 

the TCPA. We overrule issue two. 

In issue three, the Castilles maintain that they established by clear and specific 

evidence each essential element of Timothy’s claims of malicious prosecution, 

defamation, and civil conspiracy. We must next determine whether the Castilles did 

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

In their pleadings, the Castilles alleged that Broussard, Sherlock, Bray, and 

LaBelle defamed Timothy during his criminal trial, and the Castilles alleged that 

Broussard, Sherlock and Bray knowingly provided false testimony about where the 

alleged trespass occurred. The Castilles alleged that Broussard falsely accused 

Timothy of trespassing and then called Sherlock and Satchfield to report the trespass. 

In his affidavit, Timothy averred that Broussard stopped him while he was boating 

on Blind Lake and accused him of trespassing on Broussard’s property. According 
16

to Timothy, the public has the right to be on Blind Lake, and he was not trespassing 

because he was on navigable public waters when Broussard stopped him. 

To prove a civil claim for malicious prosecution, a plaintiff must establish: (1) 

the commencement of a criminal prosecution against him; (2) initiation or 

procurement of the action by the defendant; (3) termination of the prosecution in his 

favor; (4) the plaintiff’s innocence; (5) the absence of probable cause; (6) malice in 

filing the charge; and (7) damages. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 

788, 792 n.3 (Tex. 2006). The elements concerning probable cause and malice guard 

against the inclination to punish those who, through error but not malevolence, 

initiate criminal proceedings against a person who is exonerated. Id. at 792. The 

probable cause element asks whether a reasonable person would believe that a crime 

had been committed given the facts as the complainant honestly and reasonably 

believed them to be before the criminal proceedings were initiated. Richey v. 

Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). In a malicious 

prosecution action, there is an initial presumption that the defendant acted 

reasonably and in good faith and had probable cause to initiate the proceedings. Id.

If the plaintiff produces evidence that the motives, grounds, beliefs, and other 

evidence upon which the defendant acted did not constitute probable cause, the 

presumption disappears, and the burden shifts to the defendant to offer proof of 
17

probable cause. Id. at 518. Here, while it is undisputed that the public has the right 

to be on the lake, the dry ground at issue was owned by the Labelle Properties 

General LLC and at least arguably, subject to a private lease. Even the Castille’s 

petition states the videotape Broussard made after the event to demonstrate where 

Broussard claimed trespass had occurred shows Broussard appeared to be claiming 

Timothy was on dry ground when the trespass occurred. While Broussard may have 

been mistaken about the exact location and failed to take a photograph or videotape 

of the trespass the day it occurred, the evidence the Castilles produced fails to show 

that Broussard did not reasonably believe Timothy’s airboat came onto property 

owned by LaBelle Properties LLC.

Probable cause is measured when the defendant reports the case to the 

authorities, not later when the case is investigated, tried, or dismissed. Pettit v. 

Maxwell, 509 S.W.3d 542, 547 (Tex. App.—El Paso 2016, no pet.). Because we 

evaluate probable cause from the perspective of the person who made the report to 

law enforcement and at the time the report was made, subsequent events that may 

tend to show whether the act of reporting was correct or incorrect are immaterial to 

the probable cause evaluation. See Pettit, 509 S.W.3d at 548. Because Timothy’s 

criminal prosecution is an event subsequent to Broussard’s report, it is immaterial to 

Broussard’s beliefs and motives when he made the report. See Suberu, 216 S.W.3d 
18

at 795; see also Pettit, 509 S.W.3d at 547. Importantly, Timothy’s acquittal is not 

evidence of a lack of probable cause, but only shows that the state did not prove 

Timothy’s guilt beyond a reasonable doubt. See Suberu, 216 S.W.3d at 794-95.

Based on our review of the record, we conclude that the Castilles have failed 

to produce evidence overcoming the presumption that the appellees acted reasonably 

and in good faith and had probable cause to initiate the criminal trespass charge 

against Timothy. See id., 216 S.W.3d at 794-95; Pettit, 509 S.W.3d at 547. 

Accordingly, the trial court did not err by concluding that the Castilles failed to 

establish a prima facie case of malicious prosecution. See Tex. Civ. Prac. & Rem. 

Code Ann. § 27.005(c); In re Lipsky, 460 S.W.3d at 590. 

Defamation is a false statement made about a plaintiff that is published to a 

third person without legal excuse and which damages the plaintiff’s reputation. 

Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex. App.—Waco 2005, no pet.). “Slander 

is orally communicated defamation.” Id. The elements of a defamation cause of 

action include (1) the publication of a false statement of fact to a third party; (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; and (4) damages, in 

some cases. In re Lipsky, 460 S.W.3d at 593; WFAA-TV, Inc. v. McLemore, 978 
19

S.W.2d 568, 571 (Tex. 1998). Since the judicial communications privilege covered 

the statements the Castilles relied on in their pleadings, the statements at issue simply 

cannot form the basis of a prima facie claim based on a theory of defamation. See 

James v. Brown, 637 S.W.2d 914, 916 (“Communications in the due course of a 

judicial proceeding will not serve as the basis of a civil action for libel or slander, 

regardless of the negligence or malice with which they are made.”)

The elements of civil conspiracy are: (1) a combination of two or more people; 

(2) to accomplish an unlawful purpose or a lawful purpose by unlawful means; (3) a 

meeting of the minds on the object or course of action; (4) one or more unlawful, 

overt acts; and (5) the plaintiff suffered injury as a proximate result of the wrongful 

act. Walker v. Hartman, 516 S.W.3d 71, 81 (Tex. App.—Beaumont 2017, pet. 

denied). Liability for a conspiracy comes from the act done to further the conspiracy, 

not the conspiracy itself. Id. The elements of a claim for civil conspiracy require the 

participation in an underlying intentional tort, and malicious prosecution is an 

intentional tort. Id. The Castilles argue that Sherlock, LaBelle, Broussard, and Bray 

all participated in the plan to have unlawful criminal trespass charges brought against 

Timothy. According to the Castilles, Broussard falsely accused Timothy of criminal 

trespass, reported the trespass to Sherlock, and provided Satchfield with the location 

of the alleged trespass, and Sherlock represented that the property location belonged 
20

to LaBelle and was leased to PAPHC. We conclude the Castilles failed to present 

prima facie evidence on their claim alleging civil conspiracy because they did not 

present prima facie proof to establish the appellees participated in an underlying 

intentional tort. See id. Accordingly, the trial court did not err when it dismissed the 

Castilles claims for civil conspiracy. See Tex. Civ. Prac. & Rem. Code Ann. § 

27.005(c); In re Lipsky, 460 S.W.3d at 590. We overrule issue three. 

In issue five, the Castilles complain that the appellees waived their affirmative 

defense of judicial communications privilege because they failed to plead it in the 

court below. Our examination of the record reveals that this defense was both 

pleaded and argued without objection in the trial court. We overrule issue five.

Because the Castilles failed to establish a prima facie case for each essential 

element of their claims for malicious prosecution, defamation, and civil conspiracy, 

we need not address issues four and six, in which the Castilles argue that appellees 

failed to meet their burden to establish each essential element of any valid defense

and maintain that the appellees waived the right to assert any affirmative defenses. 

See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Tex. R. App. P. 47.1.

We conclude that because the appellees established by a preponderance of the 

evidence that the Castilles’ claims are based on, relate to, or are in response to their 

exercise of their First Amendment rights, and because the Castilles failed to establish 
21

a prima facie case for each essential element of their claims, the trial court properly 

granted the appellees’ motions to dismiss the Castilles’ claims under the TCPA. 

Accordingly, we affirm the trial court’s order granting the appellees’ motion to 

dismiss under the TCPA and granting the LaBelle defendants and Broussard 

attorney’s fees and expenses. See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 

2, sec. 27.009(a), 2011 Tex. Gen. Laws 960, 962-63 (providing that if the trial court 

orders dismissal of a legal action, the trial court shall award costs and attorney’s fees 

to the movant).

AFFIRMED. 

______________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on November 5, 2019 

Opinion Delivered April 16, 2020

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