Opinion issued July 23, 2024

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-23-00026-CV

———————————

CARL JOINER, Appellant

V.

MATT WIGGINS, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Case No. 21-CV-2082

MEMORANDUM OPINION

Appellant Carl Joiner sued appellee Matt Wiggins for defamation. Wiggins 

subsequently moved for no-evidence summary judgment on the ground that there 

was no evidence of falsity or malice, and the trial court granted the motion. On 

appeal, Joiner argues that the trial court erred by granting the no-evidence motion 
2

for summary judgment because he raised genuine issues of material fact regarding 

both (1) the falsity of the statement at issue and (2) whether Wiggins acted with 

actual malice. Because we conclude that Joiner raised a genuine issue of material 

fact on both challenged elements, we reverse and remand for further proceedings.

Background

Joiner, the mayor of Kemah, Texas, was the incumbent re-elected to office 

in May 2021. Wiggins was also a candidate in the 2021 mayoral election. During 

the election, Wiggins created a billboard that stated, “Carl Joiner pleaded guilty to 

spending public funds for political advertising” and referenced Texas Ethics 

Commission (TEC) case number SC-31605137. He used an identical statement on 

other signs. 

The TEC case number identified in the billboard involved an ethics 

complaint against Joiner that arose while he was mayor of Kemah in connection 

with a ballot measure pertaining to the City of Kemah. The TEC issued an “Order 

and Agreed Resolution” resolving the ethics complaint (the TEC Order). The TEC 

Order recounted the allegations that Joiner “spent or authorized the spending of 

public funds for political advertising,” and affirmatively stated that Joiner denied 

the allegations. The TEC Order described the ballot measure as determining

“whether to change the city from [its] current Mayor-Council form of government 

to a Council-Manager form of government.” The TEC identified the 
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“communication at issue” as a newsletter titled “From the Desk of the Mayor” that 

the TEC believed “oppose[d] the measure and therefore constitute[d] political 

advertising.”

The TEC Order stated that “the [Ethics] Commission determined that there 

is credible evidence of a violation of section 255.003(a)1 of the Election Code, a 

law administered and enforced by the Commission.” The Order further recognized 

that Joiner “acknowledged that the city newsletter at issue involved the use of 

public resources such as paper, staff time, city equipment, and postage,” but he 

“denied the allegations [of use of public funds for political advertising] and stated 

that the communications did not advocate the passage or defeat of the measure.” 

The TEC Order further stated, “To resolve and settle this complaint without further 

proceedings, the Commission proposed this resolution to [Joiner].” Joiner agreed 

to comply with ethics requirements, and the TEC further imposed “a $500 civil 

penalty.” However, the TEC Order also contained the following “representation” 

by Joiner: “The respondent neither admits nor denies the facts described [in the 

order] or the Commission’s findings and conclusions of law described [above], and 

consents to the entry of this order and agreed resolution solely for the purpose of 

resolving this sworn complaint.” 

1 See TEX. ELEC. CODE § 255.003(a) (providing that officer or employee of political 

subdivision may not knowingly spend or authorize spending of public funds for 

political advertising).
4

Joiner sued Wiggins for defamation in connection with the billboard

statement that he “pleaded guilty” to spending public funds for political 

advertising. In his petition, Joiner referenced the TEC Order and asserted that the 

billboard statement’s “reference to the TEC finding and how [Joiner] ‘pleaded 

guilty’ when compared with the actual TEC finding [is] completely false and 

probably untrue.” Joiner asserted that the TEC Order stated that he had denied the 

allegations of spending public funds for political advertising. Furthermore, the 

TEC Order contained the statement that Joiner “neither admits nor denies the facts 

. . . or the Commission’s findings and conclusions of law . . . and consents to entry 

of this order and agreed resolutions solely for the purpose of resolving this sworn 

complaint.” Joiner thus alleged that Wiggins’s statement that Joiner “pleaded 

guilty” to using public funds on political advertising was false because he never 

pled guilty and because the language of “pleaded guilty” inferred theft or criminal 

liability that did not accurately reflect the TEC Order. Joiner further alleged that 

Wiggins made the statements with knowledge of their falsity or with reckless 

disregard of the truth, referencing the fact that the billboard and sign recited the 

TEC cause number, indicating that Wiggins was aware of the proceedings that had 

actually occurred, and the related TEC Order was public information that 

contradicted Wiggins’s statement.
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Wiggins moved for no-evidence summary judgment on this claim. Wiggins 

asserted that “Joiner cannot prove that the complained of statement [was] false for 

purposes of a defamation lawsuit.” Wiggins argued that the gist of the 

communication was substantially true. Wiggins further asserted that Joiner could 

not prove that Wiggins made the statement with actual malice. Thus, he asserted, 

Joiner “has not and cannot produce evidence to satisfy the essential element of 

actual malice in this case.” 

Joiner responded that there were genuine issues of material fact precluding 

summary judgment as to both the falsity of the billboard statement and to Wiggin’s 

actual malice. Joiner cited the TEC Order from the case that Wiggins referenced on 

the billboard, arguing that the Order expressly stated that he neither admitted nor 

denied any of the allegations and only accepted a civil fine as settlement under 

agreement. Joiner further asserted that the language of the TEC Order raised some 

evidence indicating that Wiggins had actual knowledge that the representation in 

the billboard was false, and, thus, “the reckless disregard as to the truth was 

intentional and done for political purposes.” Joiner argued that Wiggins 

“improperly seeks to escape maliciousness by claiming he had no ‘serious doubts 

as to the truth’ about the [billboard statements] and/or [the statements] are an 

‘understandable misrepresentation.’” Joiner argues that “there are fact issues about 

these claims because Wiggins has stated under oath that he researched the [TEC 
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Order] and still claims that the Signs were meant to mean something that they 

simply did not say.” 

As summary judgment evidence, Joiner included the TEC Order and pictures 

of the billboard and other signs printed with the same statement. He also presented 

the declaration of Luanna Lathrop, a resident of Kemah who saw the sign and “was 

taken aback from seeing this billboard, as [she] was not aware that Carl Joiner had 

committed any crimes.” She declared that she researched and “found out that no 

crime was committed” and no guilty plea was entered, and she “found this to be 

completely different and have a totally different meaning tha[n] what the billboard 

said.” She also stated that the billboard had a negative impact on Joiner’s 

reputation in the community. 

Joiner presented his own affidavit relating his knowledge of the events, 

including that he “did not admit any wrong doing, and did not admit the 

allegations.” Joiner further averred that Wiggins had refused to remove the 

billboard even after Joiner won the mayoral election, and Wiggins also had 

“portable signs circulated” at events Joiner attended as mayor, leaving attendees 

“to read these signs and believe [he is] a criminal.” 

Finally, Joiner also provided the transcript from Wiggins’s deposition. This

included Wiggins’s testimony that he had not read the TEC report “really good” 

but he had access to it online and read through it before he put the signs up. When 
7

asked to identify where the report indicated that Joiner had pled guilty, Wiggins—

who testified that he was an attorney—stated that “Mr. Joiner agreed to pay $500,” 

later testifying that the payment of the fine meant Joiner “effectively pleaded 

guilty.”

The trial court signed an order granting Wiggins’s no-evidence motion for 

summary judgment and dismissing Joiner’s defamation claim with prejudice.2 This 

appeal followed.

Summary Judgment on Defamation Claim

In two issues, Joiner argues that the trial court erred in granting summary 

judgment because he presented evidence raising a genuine issue of material fact 

precluding summary judgment on both the issues of falsity and actual malice.

A. Standard of Review

We review a trial court’s summary judgment ruling de novo. Helena Chem. 

Co. v. Cox, 664 S.W.3d 66, 72 (Tex. 2023). After an adequate time for discovery, a 

party may move for summary judgment on the ground that there is no evidence of 

one or more essential elements of a claim on which an adverse party would bear 

the burden of proof at trial. TEX. R. CIV. P. 166a(i). The trial court must grant the 

motion unless the nonmovant produces summary judgment evidence raising a 

2 The order contained a handwritten notation that “Defendant is precluded from 

erecting any future billboards in regards to ‘attack ads’ on Plaintiff.” 
8

genuine issue of material fact on the challenged elements. Id.; Lightning Oil Co. v. 

Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).

A fact issue exists if more than a scintilla of evidence establishes the 

existence of the challenged element. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 

600 (Tex. 2004). More than a scintilla of evidence exists when “the evidence rises 

to a level that would enable reasonable and fair-minded people to differ in their 

conclusions.” Id. at 601 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 

S.W.2d 706, 711 (Tex. 1997)). In reviewing a summary judgment ruling, “we 

examine the evidence in the light most favorable to the non-moving party, 

indulging reasonable inferences and resolving doubts against the party seeking 

summary judgment.” Helena Chem. Co., 664 S.W.3d at 73. 

B. Defamation Law

The elements of defamation “include (1) the publication of a false statement 

of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with 

the requisite degree of fault, and (4) damages, in some cases.” In re Lipsky, 460 

S.W.3d 579, 593 (Tex. 2015); see Anderson v. Durant, 550 SW.3d 605, 617–18 

(Tex. 2018).

The first element of defamation is the publication of a false statement of fact 

to a third party. Lipsky, 460 S.W.3d at 593. “Establishing the falsity of an allegedly 

defamatory article is not as simple as showing that the article contains a statement 
9

that falls short of literal truth.” Polk Cnty. Publ’g Co. v. Coleman, 685 S.W.3d 71, 

76 (Tex. 2024). “A statement need not be perfectly true; as long as it is 

substantially true, it is not false.” Id. (quoting KBMT Operating Co. v. Toledo, 492 

S.W.3d 710, 714 (Tex. 2016)). Courts do not assess the substantial truth of a 

statement by “merely asking whether one statement plucked from a lengthy article 

is true or false”; instead, “the 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. (quoting Turner v. KTRK 

Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000)). A statement is substantially true 

if its “gist” is correct, regardless of whether it “err[s] in the details.” Id. (citing

Dall. Morning News v. Tatum, 554 S.W.3d 614, 629 (Tex. 2018), and Neely v. 

Wilson, 418 S.W.3d 52, 63–64 (Tex. 2013)); see Toledo, 492 S.W.3d at 714 

(holding that substantial truth may be measured by whether report “taken as a 

whole is more damaging to the plaintiff’s reputation than a truthful [report] would 

have been”).

“Identifying the gist of an allegedly defamatory publication is a question of 

law for the court.” Coleman, 695 S.W.3d at 76–77; see Turner, 38 S.W.3d at 114 

(“Whether a publication is capable of a defamatory meaning is initially a question 

for the court.”). We determine a statement’s “gist or meaning by examining how a 

person of ordinary intelligence would view it.” Coleman, 695 S.W.3d at 77 
10

(quoting Neely, 418 S.W.3d at 64). “This inquiry is objective and asks how a 

‘hypothetical reasonable reader’ would understand the article, not how any 

particular reader actually understood it.” Id. (quoting New Times, Inc. v. Isaacks, 

146 S.W.3d 144, 157 (Tex. 2004)).

Regarding the third element, we determine the requisite degree of fault 

based on the status of the person allegedly defamed: “A private individual need 

only prove negligence, whereas a public figure or official must prove actual 

malice.” Lipsky, 460 S.W.3d at 593 (citing WFAA–TV, Inc. v. McLemore, 978 

S.W.2d 568, 571 (Tex. 1998)). “Actual malice” in this context means that the 

statement was made with knowledge of its falsity or with reckless disregard for its 

truth. Lipsky, 460 S.W.3d at 593 (citing Huckabee v. Time Warner Entm’t Co., 19 

S.W.3d 413, 420 (Tex.2000)).

“Knowledge of falsehood is a relatively clear standard; reckless disregard is 

much less so.” Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). Reckless 

disregard focuses on the defendant’s state of mind; the plaintiff must show that the 

defendant “entertained serious doubts as to the truth of his [statement].” Id.

(quoting Huckabee, 19 S.W.3d at 420, and St. Amant v. Thompson, 390 U.S. 727, 

731 (1968)). 

“[A] defendant’s state of mind can—indeed, must usually—be proved by 

circumstantial evidence.” McShirley v. Lucas, No. 02-23-00229-CV, 2024 WL 
11

976512, at *8 (Tex. App.—Fort Worth Mar. 7, 2024, no pet.) (mem. op.) (citing 

Miller v. Watkins, No. 02-20-00165-CV, 2021 WL 924843, at *15 (Tex. App.—

Fort Worth Mar. 11, 2021, no pet.) (mem. op.), and quoting Forbes, Inc. v. 

Granada Biosciences, Inc., 124 S.W.3d 167, 171 (Tex. 2003) (internal quotation

marks omitted)). For example, evidence that the defendant purposefully avoided 

the truth is evidence of actual malice. Id. (citing Forbes, 124 S.W.3d at 171). 

Evidence that a story has been fabricated, or discrepancies between the parties’ 

accounts of events, may also be evidence that the defendant acted with actual 

malice. Id. Furthermore, while an injurious motive is not determinative of actual 

malice, it is another factor that may be considered. Id.; see Bentley, 94 S.W.3d at 

597. “The defendant’s self-serving protestation of sincerity in making the 

statement does not negate proof of actual malice.” Bentley, 94 S.W.3d at 596.

C. Analysis

Joiner asserts that he presented sufficient evidence to raise a genuine issue of 

material fact as to the elements of falsity and actual malice. We agree.

1. Evidence of falsity

We begin by construing the “gist” or general meaning conveyed by the 

billboard statement. See Coleman, 695 S.W.3d at 76–77 (holding that identifying 

gist is question of law for court). Considering the billboard statement as a person of 

ordinary intelligence would view it, we conclude that the gist of the statement is 
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relatively straight-forward. See id. at 77. A “hypothetical reasonable reader” would

interpret the statement that Joiner “pleaded guilty to spending public funds for 

political advertising” as meaning the Joiner admitted to misusing public funds for 

political advertising. See id.

Joiner presented evidence that, contrary to the billboard statement that he 

“pleaded guilty to spending public funds for political advertising,” public records 

reflected that he denied the TEC’s allegations against him. The TEC Order further 

stated Joiner “neither admit[ted] nor denie[d] the facts described [in the order] or 

the Commission’s findings and conclusions of law described [in the order], and 

consent[ed] to the entry of this order and agreed resolution solely for the purpose 

of resolving this sworn complaint.” In short, this document states that Joiner 

denied the allegations but settled the complaint by paying the $500 civil fine. Thus, 

Joiner presented evidence that the billboard statement was not literally true.

Wiggins argues that Joiner can present no evidence that the billboard 

statement was not substantially true. While we agree that “a statement need not be 

perfectly true” and that “as long as it is substantially true, it is not false,” id. at 76, 

we conclude that Joiner’s evidence raised a genuine issue of material fact as to 

whether the billboard statement was substantially true. Substantial truth may be 

measured by whether a statement “is more damaging to the plaintiff’s reputation 

than a truthful [statement] would have been.” Toledo, 492 S.W.3d at 714.
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Construing the evidence in the light most favorable to Joiner, the 

nonmovant, as we must in a summary-judgment review, we conclude that 

reasonable minds could differ as to whether the statement that Joiner “pleaded 

guilty to spending public funds for political advertising” is more damaging to his 

reputation than a statement that he settled an ethics complaint by paying a civil 

fine. See id. (holding that substantial truth may be measured by whether report 

“taken as a whole is more damaging to the plaintiff’s reputation than a truthful 

[report] would have been”); see also Bentley, 94 S.W.3d at 587 (“If the evidence is 

disputed, falsity must be determined by the finder of fact.”).

Furthermore, we are mindful that a statement may be considered defamatory 

when facts, whether “literally or substantially true, are published in such a way that 

they create a substantially false and defamatory impression by omitting material 

facts or juxtaposing facts in a misleading way.” Turner, 38 S.W.3d at 115. Again, 

the evidence presented by Joiner in response to Wiggins’s motion for summary 

judgment could permit reasonable minds to differ regarding whether the statement 

that Joiner “pleaded guilty”—implying criminal liability for misuse of public 

funds—created a substantially false and defamatory impression of the actual ethics 

proceedings.

We conclude that Joiner presented sufficient evidence raising a question of 

fact on the issue of falsity. We therefore sustain Joiner’s first issue.
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2. Evidence of actual malice

Because Joiner is a public figure or official, he was required to provide some 

evidence raising a genuine issue of material fact regarding whether Wiggins made 

the billboard statement with actual malice. See Lipsky, 460 S.W.3d at 593 (holding 

that “actual malice” means that defendant made statement with knowledge of its 

falsity or with reckless disregard for its truth). 

Joiner presented deposition transcripts indicating that Wiggins was an 

attorney and that he was aware of and had read the TEC Order prior to publishing 

the billboard statement. We conclude this is some evidence that Wiggins had actual 

knowledge that Joiner did not “plead guilty,” but instead denied the ethics 

allegations and settled with the TEC to resolve the claims without further 

proceedings. See id.

Wiggins argues that Joiner cannot show that Wiggins acted with actual 

malice because Wiggins testified, in his deposition testimony, that he believed 

paying the $500 fee was the equivalent of pleading guilty. However, a defendant’s 

self-serving protestation of sincerity in making the statement does not negate proof 

of actual malice. See Bentley, 94 S.W.3d at 596. We further observe that Wiggins’s 

state of mind can be proved by circumstantial evidence. See McShirley, 2024 WL 

976512, at *8. Thus, Wiggins’s deposition testimony that he did not read the TEC 

Order thoroughly enough to learn that Joiner did not plead guilty but instead 
15

denied the claims, and the discrepancy between what was stated in the TEC Order 

and what was published on the billboard, are some evidence that a fact-finder 

could consider in determining whether Wiggins acted with actual malice or 

reckless disregard for the truth of the statement. See id. (giving as examples of 

circumstantial evidence of reckless disregard evidence that defendant purposefully 

avoided truth or evidence of discrepancies between parties’ accounts of events may 

be evidence with defendant acted with actual malice).

Accordingly, we conclude that Joiner presented sufficient evidence raising a 

question of material fact on the issue of actual malice. We therefore sustain 

Joiner’s second issue. Because Joiner raised a genuine issue of material fact on 

both elements challenged in his no-evidence motion for summary judgment, we 

conclude that the trial court erred in granting the motion. See TEX. R. CIV. P. 

166a(i); Lightning Oil Co., 520 S.W.3d at 45.

Conclusion

We reverse the order of the trial court granting Wiggins’s motion for 

summary judgment and dismissing Joiner’s defamation claim. We remand for 

further proceedings.

Richard Hightower

Justice

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.