Petition for Review from the Court of Appeals for the Fifth
District of Texas
Justice Boyd, concurring.
Jeffrey S. Boyd Justice.
I join the Court's judgment, its analysis improperly and
unnecessarily limits the scope and effect of the Texas
Citizens Participation Act. Tex. Civ. Prac. & Rem. Code
§§ 27.001- .011. The Court gets distracted by the
intriguing issue of whether a defendant can "show by the
preponderance of the evidence" that an action is
"based on" her exercise of free speech when she in
fact denies making the statements on which the action is
"based." But here, Julie Hersh indisputably
established that the action "relates to" and
"is in response to" her exercise of free speech
regardless of whether she made the statements on which the
action is "based." The Court focuses solely on the
statute's "based on" language and ignores the
"relates to" and "in response to"
standards. Because the Court thus construes the TCPA more
narrowly than its plain language requires or permits, I
and Mary Tatum sued Hersh for intentional infliction of
emotional distress, alleging that Hersh, a suicide-prevention
advocate, spoke to a reporter and encouraged him to write
about the death of the Tatums' son, Paul. Hersh moved to
dismiss the claim under the TCPA. To prevail on her dismissal
motion, Hersh had to "show by a preponderance of the
evidence" that the Tatums' claim "is based
on, relates to, or is in response to
[her] exercise of . . . the right of free speech, "
meaning her "communication . . . made in connection with
a matter of public concern." Id. §§
27.001(3), .005(b)(1) (emphasis added).
admitted that she spoke to the reporter about
suicide-awareness issues but denied that she ever said
anything about Paul or the Tatums. The Tatums argued, and the
court of appeals held, see - S.W.3d -, -, that the
Act imposes an evidentiary burden on Hersh,
requiring her to show "by a preponderance of the
evidence" that their claim is in fact based on
her communications regarding a matter of public concern. They
do not agree that Paul's death is a matter of public
concern, but even if it were, they contend that Hersh had to
actually submit evidence, or at least submit their pleadings
as evidence under rule 801 of the Rules of Evidence, to
establish that their claim is based on her exercise of free
speech regarding Paul's death. See Tex. R. Evid.
801(e)(2) (excluding from the definition of hearsay an
admission by a party-opponent). Because Hersh did not submit
testimony or their pleadings as evidence that she spoke to
the reporter about Paul's death, the Tatums contend Hersh
did not meet her burden.
solely on the statute's "based on" language,
the Court agrees that Hersh had to show that the Tatums'
action is "based on" her statements about
Paul's death. Ante at .The Court then holds
that Hersh met this burden, even though she "denies
making the communication on which the Tatum's suit is
based, " ante at (emphasis added), simply
by pointing to "the language used in the Tatums'
pleadings." Ante at . In the Court's view,
Hersh showed "by a preponderance of the evidence"
that the Tatums' claim is based on Hersh's exercise
of free speech by showing that the Tatums "alleged"
that she made a communication regarding Paul's death,
even though she denied making any such communication.
Ante at .
with the Court's result, but for different reasons. The
Act did not require Hersh to show by a preponderance of the
evidence that her exercise of free speech is "the basis
of [the Tatums'] action against her." Ante
at . It required her to show that their claim "is based
on, relates to, or is in response to [her] exercise
of . . . the right of free speech." Tex. Civ. Prac.
& Rem. Code § 27.005(b) (emphasis added). Hersh
showed by a preponderance of the evidence that she
communicated with a reporter about suicide awareness,
stigmatization, and prevention. These are matters of public
concern. See id. § 27.001(3), (7) (including in
the definition of "free speech" communications
regarding "a matter of public concern, " such as
health or safety and community well-being). Although the
Tatums' claim may be "based on" communications
she allegedly made about Paul's death, their claim
nevertheless "relates to" and "is in response
to" her communications with the reporter about suicide
awareness and prevention. Regardless of whether Hersh admits
or denies discussing Paul's death during those
communications, she established by a preponderance of the
evidence that the Tatums' claim relates to or is in
response to her exercise of the right of free speech.
outcome might or might not be different if Hersh denied ever
communicating with the reporter. Hersh would be hard-pressed
to "show by a preponderance of the evidence" that
the Tatums' claim is based on her exercise of the right
of free speech if she denied exercising that right at all.
Like the court of appeals in this case, other courts that
have addressed the issue have concluded that "a
defendant who denies making any communication may not obtain
dismissal by also simultaneously claiming that he was
exercising his right of free speech by making a
communication." Rauhauser v. McGibney, 508
S.W.3d 377, 386 (Tex. App.-Fort Worth 2014, no pet.); see
Pickens v. Cordia, 433 S.W.3d 179, 188 (Tex. App.-Dallas
2014, no pet.) ("Given that he has denied sending the
email, we conclude chapter 27 does not apply to this cause of
action."); see also Culbertson v. Lykos, 790
F.3d 608, 632 (5th Cir. 2015) (concluding that
Rauhauser and Pickens "are
Court disagrees with these decisions, concluding that Hersh
showed by a preponderance of the evidence that the
Tatums' claim is based on Hersh's communications with
the reporter about Paul's death-even though Hersh denies
that she ever spoke to the reporter about Paul's
death-because the Tatums' allege that she spoke
to the reporter about Paul's death. Ante at .
According to the Court, "When it is clear from the
plaintiff's pleadings that the action is covered by the
Act, the defendant need show no more." Ante at
. Yet the TCPA expressly requires the defendant to make the
required showing "by a preponderance of the evidence,
" and we have made clear that, generally,
"pleadings are not competent evidence, even if sworn or
verified." Laidlaw Waste Sys. Inc. v. City of
Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). "Pleadings
simply outline the issues; they are not evidence, even for
summary judgment purposes." Hidalgo v. Sur. Sav.
& Loan Ass'n, 462 S.W.2d 540, 535 (Tex. 1971).
opposing party's pleadings can constitute a judicial
admission that may substitute for evidence that has a
"conclusive effect and bars the admitting party from
later disputing the admitted fact." Holy Cross
Church of God in Christ v. Wolf, 44 S.W.3d 562, 568
(Tex. 2001) (citing Gevinson v. Manhattan Constr.
Co., 449 S.W.2d 458, 467 (Tex. 1969)). A party's
judicial admission "relieves his adversary from making
proof of the fact admitted but also bars the party himself
from disputing it." Gevinson, 449 S.W.2d at
466. So it may be that a defendant can rely solely on the
plaintiff's pleaded facts to "show by a
preponderance of the evidence" that a claim is based on,
relates to, or is in response to" the exercise of free
speech. Tex. Civ. Prac. & Rem. Code § 27.005(b)(1).
But to qualify as a judicial admission, a pleaded fact must
be "clear and unequivocal, " Wolf, 44
S.W.3d at 569 (citing Gevinson, 449 S.W.2d at 467),
and "not plead in the alternative." Hous. First
Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983).
Hersh never relied on the Tatums' pleadings as a judicial
need not reach that intriguing issue here. Even if the
Tatums' action is "based on" alleged statements
about Paul's death, Hersh met her burden by proving that
the Tatums' action "relates to" or "is in
response to" her communications with the reporter about
suicide awareness and prevention. She did so by submitting as
evidence deposition excerpts of her testimony regarding her
views on suicide and the reporter's testimony that he
spoke to Hersh about that "topic" while he was
working on the article, entitled "Shrouding suicide in
secrecy leaves its dangers unaddressed, " which she also
submitted as evidence. So we need not-and thus we should
not-decide whether the Act requires evidence-as opposed to
mere allegations-that Hersh communicated about Paul's
death. I would wait and address that question when a
proper case presents it. Focusing on the Act's text
itself, I would simply apply its plain language and hold that
Hersh met her burden.
burden thus shifted to the Tatums to establish by "clear
and specific evidence a prima facie case for each essential
element of" their claim for intentional infliction of
emotional distress. See Tex. Civ. Prac. & Rem.
Code § 27.005(c). For the reasons the Court explains, I
agree that they failed to ...