Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 191st Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-01794-J
Justices Fillmore, Whitehill, and Schenck.
J. SCHENCK JUSTICE.
interlocutory appeal, Kirkstall Road Enterprises, Inc.
("Kirkstall") appeals from an order denying its
motion to dismiss the negligence claim brought against it by
appellee Arking Jones. Kirkstall argues the trial court erred
because Mr. Jones's claim implicates Kirkstall's
exercise of First Amendment rights as defined by the Texas
Citizens' Participation Act ("TCPA") and Mr.
Jones failed to meet his burdens of proving his claim is
exempt from the TCPA or of proffering clear and specific
evidence on each element of his claim. Because the trial
court did not err in denying Kirkstall's motion, we
affirm the trial court's order.
and Procedural Background
produces a television series, The First 48, which
features homicide detectives from various police departments
investigating particular murders. One episode of The
First 48, "Safe House, " documents a Dallas
Police Department investigation into the murder of a
suspected drug dealer. "Safe House" depicts Mr.
Jones with his appearance blurred and voice altered and a
voice-over referring to him as "the witness."
Following the airing of "Safe House" and over the
next fourteen months, Mr. Jones and his family received death
threats and other threats to harm him because he was a
witness in a criminal case. On August 17, 2015, Mr. Jones was
shot four times.
February 16, 2016, Mr. Jones filed a claim for negligence
against Kirkstall, arguing Kirkstall owed a duty to exercise
reasonable care in the editing, production, and release of
Mr. Jones's image, likeness, or voice on national
television in such a way that his identity was not
discernible, and breached that duty by failing to do so and
by portraying him as a voluntary informant. Kirkstall filed a
motion to dismiss Mr. Jones's claim pursuant to the TCPA.
Mr. Jones responded that an exemption to the TCPA applied to
his claim, that Kirkstall was not exercising First Amendment
rights as defined by the TCPA, and alternatively, he provided
clear and specific evidence to establish each essential
element of his negligence claim. After a hearing on
Kirkstall's motion to dismiss, the trial court denied the
motion without stating the basis for its ruling.
TCPA and Standard of Review
TCPA, Chapter 27 of the civil practice and remedies code,
protects citizens from retaliatory lawsuits that seek to
silence or intimidate them on matters of public concern.
In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig.
proceeding); see generally Tex. Civ. Prac. &
Rem. Code Ann. §§ 27.001-.011 (West 2016). The
TCPA's purpose is to identify and summarily dispose of
lawsuits designed only to chill First Amendment rights, not
to dismiss meritorious lawsuits. In re Lipsky, 460
S.W.3d at 589; see also Civ. Prac. & Rem. §
27.002. To accomplish its purpose, the TCPA endorses a
summary process, requiring judicial review of the pleadings
and limited evidence. See In re Lipsky, 460 S.W.3d
defendant-movant has the initial burden to show by a
preponderance of the evidence that the case is based on,
relates to, or is in response to the party's exercise of
the right of free speech, to petition, or of association.
Civ. Prac. & Rem. §§ 27.003, 27.005(b). If the
movant satisfies this burden, then the burden shifts to the
plaintiff to establish "by clear and specific evidence a
prima facie case for each essential element of the claim in
question." Id. §§ 27.005(b), (c).
27.010(c) exempts "a legal action seeking recovery for
bodily injury" from the application of the TCPA.
Id. § 27.010(c). The non-movant bears the
burden of proving a statutory exemption. Tervita, LLC v.
Sutterfield, 482 S.W.3d 280, 282 (Tex. App.-Dallas 2015,
review de novo the trial court's determinations that the
parties met or failed to meet their burdens of proof under
section 27.005. Id. We also review issues of
statutory construction de novo. Id.
broadly asserts that The First 48 broadcast is a
valid exercise of its right to free speech, arguing the
program was speech made in connection with a matter of public
concern, specifically law enforcement and the criminal
justice system. Kirkstall also argues the episode "Safe
House" is a communication pertaining to a judicial,
governmental, or official proceeding by law enforcement
officials within the meaning of "right to petition"
as defined by the TCPA. Kirkstall contends Mr. Jones failed
to prove his claim was exempt from the TCPA and that he
failed to proffer clear and specific evidence on each element
of his claim. Finally, Kirkstall argues that even if ...