Affirmed and Memorandum Opinion filed August 30, 2016.

In The

Fourteenth Court of Appeals

NO. 14-14-00942-CV

ALOYSIUS DUY-HUNG HOANG AKA HOANG DUY HUNG, Appellant

V.

THINH DAT NGUYEN, INDIVIDUALLY, THOI BAO HOUSTON AND

THOI BAO, Appellees

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 2014-59665

M E M O R A N D U M O P I N I O N

This appeal arises from the trial court’s order granting a motion to dismiss

filed pursuant to the Texas Citizens Participation Act (“TCPA”1). Tex. Civ. Prac. 

& Rem. Code Ann. §§ 27.001–.011 (West 2015). The TCPA protects citizens who 

petition or speak on matters of public concern from retaliatory lawsuits that seek to 

 

1

The TCPA is commonly referred to as an “anti-SLAPP” law – “SLAPP” is an acronym 

for “Strategic Lawsuits Against Public Participation.”
2

intimidate or silence them. Fawcett v. Grosu, No. 14-15-00542-CV, 2016 WL 

3635765, at *1 (Tex. App.—Houston [14th Dist.] Apr. 5, 2016, no pet.). That

protection consists of expedited consideration of a motion to dismiss 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. Tex. Civ. Prac. & Rem. Code Ann. 

§ 27.003. The trial court is directed to dismiss such a suit unless the plaintiff 

“establishes by clear and specific evidence a prima facie case for each essential 

element of the claim.” Id. § 27.005(b) and (c). 

I. BACKGROUND

 On October 13, 2014, appellant Al Hoang filed suit against Thinh Dat 

Nguyen, Thoi Bao Houston and Thoi Bao (“appellees”), for libel and “hate 

crime.”2In his petition, appellant made the allegations set forth below.

In 2010, appellant, then a Houston City Councilmember, had dinner at the 

home of Nguyen, the editor of Thoi Bao Houston, a subsidiary of Thoi Bao 

Magazine, a Vietnamese language weekly publication. Appellant disclosed he was 

invited to accompany the Houston Airport System Director to Vietnam and was 

considering the pros and cons of the trip. According to appellant, Nguyen became 

upset and ordered him not to go, threatening to mobilize his newspaper to 

“destroy” appellant. That night, someone sent an e-mail to Vietnamese groups

alleging appellant was going to Vietnam to “bow down” to Ho Chi Minh and the 

Vietnamese Communists.

In 2012, the Vice Minister of Vietnam visited Houston and appellant 

welcomed the delegation. Three protests were organized in front of appellant’s 

 

2 Because there is no civil cause of action in Texas for “hate crime,” we will focus on 

libel as appellant’s sole cause of action.
3

home and a bomb was placed there. In early 2013, appellant toured Asian 

countries, including Vietnam, “to enhance the business relationship of those 

countries with Houston and the Port of Houston.” Later that year, appellant lost his 

bid for re-election to the City Council. 

In 2014, appellant won the Republican primary for State Representative 

District 149. Nguyen continued to label appellant a Vietnamese Communist. In 

October of that year, Nguyen reported that appellant’s father committed suicide in 

2007 because appellant was a Communist.3 Nguyen also stated that appellant made 

the bomb with which he was threatened in 2012 to gain attention. 

From 2010 to the time suit was filed in October 2014, articles published in 

Thoi Bao called appellant “a Vietnamese Communist, an agent of Vietnamese 

Communist, or a spy of the Vietnamese Communist [sic].” These articles were also 

disseminated to Vietnamese groups and over the internet. 

Appellant repeatedly asked Nguyen to cease, offered to participate in a 

public interview or forum, and informed Nguyen that under FCC rules he is 

required to provide appellant equal space to correct the facts. Nguyen never 

responded. Appellant filed an affidavit averring the statements of facts in his 

petition were true and within his personal knowledge. Appellant further swore the 

false statements were factors leading to his failed re-election bid in 2013 and “it 

could be the same for 2014 election.”

Appellees moved to dismiss pursuant to the TCPA. An affidavit from 

Nguyen was filed in which he denied appellant’s allegation that he ordered 

appellant not to go to Vietnam and threatened to mobilize Thoi Bao to destroy 

appellant or take his council seat. Further, Nguyen swore he has not spoken to 

 

3 According to appellant, his father was killed in a pedestrian-automobile collision.
4

appellant since prior to appellant’s trip to Vietnam, appellant has never challenged 

him to a debate, nor has appellant ever requested a correction, clarification, or 

retraction from him or Thoi Bao Houston. 

Following a hearing, the trial court granted appellees’ motion. From that 

order, appellant brings this appeal.

II. ANALYSIS

To dismiss a claim under the TCPA, the movant must show by a 

preponderance of the evidence that the claim is based on, relates to, or is in 

response to the movant’s exercise of the right of free speech, the right to petition, 

or the right of association. Id. § 27.005(b). If this initial showing is made, the 

burden then shifts to the non-movant to establish by clear and specific evidence a 

prima facie case for each essential element of the claim in question. Id. § 

27.005(c). “Clear and specific evidence” requires a plaintiff to provide enough 

detail to show the factual basis for his claim. In re Lipsky, 460 S.W. 3d 579, 591

(Tex. 2015) (orig. proceeding). “Prima facie evidence” is that “minimum quantum 

of evidence necessary to support a rational inference that the allegation of fact is 

true.” Id. at 590 (quotations and citations omitted). A prima facie case of 

defamation may be established through circumstantial evidence. Id. at 591. 

Dismissal of the claim is mandatory if the non-movant fails to satisfy this 

burden. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). In determining whether 

the non-movant has met his burden, courts consider “the pleadings and supporting 

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

Id. § 27.006(a). In our review of the trial court’s determination, we apply a de novo 

standard. Deaver v. Desai, 483 S.W. 3d 668, 672 (Tex. App.—Houston [14th 

Dist.] 2015, pet. denied).
5

In this case, appellant does not dispute that his pleadings implicated the 

TCPA or that he was a public official.

4 Appellant does not contest the initial 

showing was made and that it was then his burden under the TCPA to establish a 

prima facie case for each essential element of his libel claim. Rather, appellant

argues he satisfied his burden.

Defamation occurs when a false statement about a plaintiff is published to a 

third person without legal excuse, causing damages to the plaintiff’s reputation.

Pisharodi v. Barrash, 116 S.W.3d 858, 861 (Tex. App.—Corpus Christi 2003, pet. 

denied). Libel is defamation in written or other graphic form that tends to injure a 

person’s reputation, exposing the person to public hatred, contempt, or ridicule. 

See Tex. Civ. Prac. & Rem.Code Ann. § 73.001 (Vernon 2003); Doe v. Mobile 

Video Tapes, Inc., 43 S.W.3d 40, 48 (Tex. App.—Corpus Christi 2001, no pet.). To 

recover for libel, the plaintiff must prove that the defendant: (1) published a 

statement; (2) that was defamatory concerning the plaintiff; (3) while acting with 

actual malice, if the plaintiff was a public official, regarding the truth of the 

statement. WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). In his 

first issue on appeal, appellant contends he established a prima facie case. 

Assuming, without deciding, that appellees published statements that were

defamatory concerning appellant, a public official, we address the requisite 

element of actual malice regarding the truth of the statements. 

“Actual malice in this context does not mean bad motive or ill will but rather 

knowledge of, or reckless disregard for, the falsity of a statement.” Greer v. 

Abraham, 489 S.W.3d 440, 443 (Tex. 2016). To establish reckless disregard, 

appellant must establish that appellees entertained serious doubts as to the truth of 

 

4

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). A “matter of public 

concern” includes an issue related to a public official. Id. § 27.001(7)(d).
6

the publication. See Hotze v. Miller, 361 S.W. 3d 707, 713 (Tex. App.—Tyler 

2012, pet. denied).

In his brief, appellant points to the following facts as evidence of actual 

malice:

 He asked Nguyen for a public debate;

 He asked Nguyen to stop making offensive statements against Hoang 

and offered to participate in a public interview;

 He told Nguyen that he was entitled to equal space to correct the facts 

under FCC rules but Nguyen ignored him; and

 He notified the owner of Thoi Bao by e-mail and phone messages to 

take appropriate steps but his communications were not returned.

Appellant cites no authority in his brief in support of his contention that facts 

such as these constitute evidence of actual malice.5To the contrary, in Hearst 

Corp. v. Skeen, 159 S.W. 3d 633, 639 (Tex. 2005), the Supreme Court of Texas 

concluded the fact that the public-official plaintiff informed the defendant that he 

denied the paper’s allegations and wanted the opportunity to correct the record was 

not evidence of actual malice. “The mere fact that a defamation defendant knows 

that a public official has denied harmful allegations or offered an alternative 

explanation of events is not evidence that the defendant doubted the allegations.”

Hotze, 361 S.W.3d at 718 (citing Skeen, 159 S.W.3d at 639).

 

5

The appellate rules require a brief to contain a clear and concise argument for the 

contentions made with appropriate citations to authorities. See Tex. R. App. P. 38.1(i). 

“Appellant has the burden to present and discuss his assertions of error in compliance with the 

appellate briefing rules. We have no duty, or even right, to perform an independent review of the 

record and applicable law to determine whether there was error.” Cruz v. Van Sickle, 452 S.W.3d 

503, 511 (Tex. App.—Dallas 2014, pet. struck).
7

As noted above, appellant was required to present “clear and specific” 

evidence that appellees published the statements knowing they were false or with 

reckless disregard for their truth. Hearst Corp., 159 S.W. 3d at 637. Appellant 

presented no such evidence. 

Because appellant has not provided clear and specific evidence that the 

statements of which he complains were published with actual malice, he did not 

meet his burden under section 27.005(c) of establishing a prima facie case of libel.

6

We overrule appellant’s first issue.

III. CONCLUSION

We conclude appellant failed to establish an essential element of a prima 

facie case for libel, namely that appellees acted with actual malice. Accordingly, 

the trial court did not err in granting appellees’ motion to dismiss pursuant to the 

TCPA. We affirm the trial court’s order. 

/s/ John Donovan

Justice

Panel consists of Justices Jamison, Donovan, and Brown.

 

6 Our conclusion makes it unnecessary to address appellants remaining arguments.