In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-19-00280-CV
DIOCESE OF LUBBOCK, APPELLANT
V.
JESUS GUERRERO, APPELLEE
On Appeal from the 237th District Court, Lubbock County, Texas Trial Court No. 2019-534,677, Honorable Les Hatch, Presiding
December 6, 2019
OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
This appeal is a companion case to the petition for writ of mandamus filed by the
Diocese of Lubbock. Our opinion in that cause is styled In re Diocese of Lubbock, No.
07-19-00307-CV. We address, now, the appeal perfected by the Diocese of Lubbock
from the order denying its motion to dismiss. The Diocese so moved under § 27.001 of
the Texas Civil Practice and Remedies Code (TCPA).1 TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.001 et seq. (West 2015). We affirm in part and reverse in part.
1 Because Guerrero sued prior to September 1, 2019, the legislative amendments to the TCPA that took effect on September 1, 2019 have no application here. See City of Port Aransas v. Shodrok, No. 13- 18-00011-CV, 2019 Tex. App. LEXIS 10063, at *2 n.2 (Tex. App.—Corpus Christi Nov. 21, 2019, no pet. h.) (mem. op.) (stating that Chapter 27 of the Civil Practice and Remedies Code, as amended by H.B. 2730, apply only to an action filed on or after the effective date of this Act which was September 1, 2019). Our opinion in In re Diocese of Lubbock describes the general background from
which this appeal arose. We see no need to reiterate it and, instead, incorporate the
opinion into this one. Suffice it to say that Guerrero sued the Diocese for defamation and
intentional infliction of emotional distress after the Diocese published a list entitled
“Names of All Clergy with a Credible Allegation of Sexual Abuse of a Minor” (i.e., the
List).2 The list included Guerrero’s name. According to the Diocese, his suit is subject to
dismissal because the underlying claims fell within the scope of § 27.003(a) of the TCPA.
It also contends that the trial court lacked jurisdiction to entertain the cause due to the
ecclesiastical abstention doctrine. We addressed the latter issue via our opinion in Cause
No. 07-19-00307-CV and again reject the jurisdictional claim for the reasons stated in that
opinion. Now we turn to the TCPA and whether it mandated dismissal.
TCPA
The provisions of the TCPA act like a pendulum; they impose burdens on the
parties that swing back and forth. How they swing was described in Batra v. Covenant
Health Sys., 562 S.W.3d 696, 706-08 (Tex. App.—Amarillo 2018, pet. denied), and
Castleman v. Internet Money Ltd., No. 07-16-00320-CV, 2018 Tex. App. LEXIS 8559, at
*5-7 (Tex. App.—Amarillo Oct. 18, 2018, pet. denied) (mem. op.). We apply that
pendulum here. Yet, before doing so, it is appropriate to note that the standard of review
is de novo, and the pleadings, affidavits and other evidence of record are viewed in a light
most favorable to the non-movant. Batra, 562 S.W.3d at 707-08; Castleman, 2018 Tex.
App. LEXIS 8559, at *5-6.
2 This list was first published on January 31, 2019, and is not the retraction and clarification
published in April of 2019. 2 The Diocese’s Burden
The first question is whether the causes of action fall within the ambit of the TCPA.
The net cast by the statute encompasses “a legal action . . . 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.”3 TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). Legal actions within that
scope are subject to dismissal, id. § 27.005(b), unless the complainant tenders “clear and
specific” evidence establishing “a prima facie case” for each element of his claim. Id.
§ 27.005(c). That said, we turn to the pendulum of burdens.
The first burden lies with the movant to show that the action falls within § 27.003(a).
Greer v. Abraham, 489 S.W.3d 440, 442-43 (Tex. 2016); Batra, 562 S.W.3d at 706. That
Guerrero sued because the Diocese publicized the List on the internet and through the
media is undisputed. Similarly undisputed is that the publication purported to reveal the
identity of clergy against whom a “credible” allegation of sexual abuse involving minors
was made. This satisfied a prong of the TCPA’s definition of “free speech,” as we now
explain.
The “right of free speech” encompasses a “communication made in connection
with a matter of public concern.” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3). A
“communication” includes the “making or submitting of a statement or document in any
form or medium.” Id. § 27.001(1). The List is a statement made by the Diocese and,
thus, a communication.
As for the statement involving “a matter of public concern,” we note that our Texas
Supreme Court held the “‘commission of crime’” such a concern. Brady v. Klentzman,
3 “Legal action” is a lawsuit, cause of action, petition, complaint, cross-claim, counterclaim, or any
other judicial pleading or filing that requests relief. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(6) (West 2015). 3 515 S.W.3d 878, 884 (Tex. 2017). Sexually abusing “minors” is a criminal offense.4 See,
e.g., TEX. PENAL CODE ANN. § 21.11(a) (West 2019) (stating that a person commits an
offense by engaging in sexual contact with a child younger than seventeen); id.
§ 22.011(a)(2)(A) (stating that a person commits an offense by intentionally or knowingly
causing the penetration of the anus or sexual organ of a child); id. § 22.011(a)(1)(A),
(b)(4) (stating that a person commits an offense by intentionally or knowingly causing the
penetration of the anus or sexual organ of another person without the person’s consent
and it is without the others consent if the actor knew that the person was incapable either
of resisting or appraising the act due to a mental disease or defect); id. § 22.011(a)(1)(A),
(b)(10) (stating that a person commits an offense by intentionally or knowingly causing
the penetration of the anus or sexual organ of another person without the person’s
consent and it is without the other’s consent if the actor was a clergyman and exploited
the other person’s emotional dependency on the clergyman in the clergyman’s position
as a spiritual adviser). Since the List described potential sexual abuse of minors and that
is a criminal offense, it also involved a matter of public concern. See Crews v. Galvan,
No. 13-19-00110-CV, 2019 Tex. App. LEXIS 8962, at *11 (Tex. App.—Corpus Christi Oct.
10, 2019, no pet.) (mem. op.) (involving statements about a clergyman inducing a
seventeen-year-old to engage in sexual conduct). Thus, the Diocese satisfied its initial
burden, and the pendulum swung in the direction of Guerrero.
Guerrero’s Burden
The next burden lies with the complainant, Guerrero, and required him to present
“clear and specific evidence” establishing a prima facie case of each element of his
claims. Batra, 562 S.W.3d at 706-07; Castleman, 2018 Tex. App. LEXIS 8559, at *6.
4 The purported definition of “minor” used by the Diocese in deriving the List includes children and
adults who “habitually lack the use of reason.” 4 The burden is met through tendering the minimum amount of evidence needed to support
a rational inference that each element of his claims is true. Castleman, 2018 Tex. App.
LEXIS 8559, at *7 (quoting In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015) (orig.
proceeding)).
Defamation
We begin with the claim of defamation. Its elements consist of a false statement
published by the defendant with the requisite degree of fault that defames the plaintiff and
causes him damage. Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017); Castleman,
2018 Tex. App. LEXIS 8559, at *8. Damages need not be proved, though, where the
statement is defamatory per se. Bedford, 520 S.W.3d at 904; Castleman, 2018 Tex. App.
LEXIS 8559, at *8.
Guerrero contended that the Diocese falsely defamed him “by publishing his name
on a list of alleged child molesters” and confirming those representations through its
interviews with the local media. This suggests the presence of a defamation occurring
through a series of events. They include not only what was said in the List but also said
through a press release and ensuing interviews. As for the List, it was entitled “Names
of All Clergy with a Credible Allegation of Sexual Abuse of a Minor.” Therein, the Diocese
1) apologized to “all the victims of abuse, especially minors”; 2) iterated that “this list
includes the names of priests or deacons against whom a credible allegation has been
made since the Diocese . . . was created”; 3) represented that “a priest or deacon’s name
only appears on the list if the diocese possesses in its files evidence of a credible
allegation; and 4) explained that a “‘credible allegation’” was “one that, after review of
reasonably available, relevant information in consultation with the Diocesan Review
5 Board or other professionals, there is reason to believe is true.” As previously mentioned,
the document included Guerrero’s name and assignments with the Diocese as a deacon.
As for the press release issued by the Diocese, local media were told that the
Diocese joined other Texas Catholic Dioceses in “releas[ing] names of clergy who have
been credibly accused of sexually abusing a minor.” So too did it mention that “[t]he
bishops’ decision was made in the context of their ongoing work to protect children from
sexual abuse, and their efforts to promote healing and a restoration of trust in the
Catholic Church.” (Emphasis added). Media interviews and coverage followed. One
broadcast began with the announcement that “four priests . . . and one deacon have
credible allegations against them . . . of sexual abuse against children . . . according to
the Lubbock Diocese.” (Emphasis added). Guerrero was mentioned as one of the group.
Elsewhere in the broadcast the Diocese’s chancellor sought to assure the public that “the
church *is* safe for children.” (Emphasis added).
As we said in In re Diocese of Lubbock, “[w]hether one is defamed depends on
evaluating not only the statement uttered but also its context or surrounding
circumstances based upon how a person of ordinary intelligence would perceive it.” In re
Diocese of Lubbock, No. 07-19-00307-CV, slip op. at 14 (Tex. App.—Amarillo Dec. 6,
2019, orig. proceeding) (citing Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781,
794-95 (Tex. 2019), and D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 439
(Tex. 2017)); accord In re Lipsky, 460 S.W.3d at 594 (stating that whether a publication
is false and defamatory depends on a reasonable person’s perception of the entirety of a
publication and not merely on individual statements). That context or those surrounding
circumstances may include a series of writings or events. See Scripps NP Operating,
LLC, 573 S.W.3d at 791 (holding that “[t]he court of appeals could not make a proper
6 assessment of the alleged defamatory material in this case without looking at the
‘surrounding circumstances’ encapsulated in this series” of articles). So, our review is not
restricted to simply the List but rather encompasses the List, the related press release
from the Diocese, as well as interviews given by church representatives about the List
and why it was developed and published. From that context and those events, we
conclude that a person of ordinary prudence would perceive those named in the List as
clergy who may have sexually abused children or those under the age of consent.
Admittedly, the List used the term “minor,” not “child” or “children.” Yet, neither the
List, press release, nor explanations from those representing the Diocese explained what
it meant by “minor.”5 Moreover, our common parlance tends to assign a definition to
“minor” based upon age, much like the common understanding of the words “child” and
“children.” In reference to human beings, “minors” are commonly understood to be under-
age people or those below the age of majority or legal responsibility. See Minor,
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 791 (11th ed. 2003) (defining minor as “not
having reached majority”); Minor, BLACK’S LAW DICTIONARY (6th ed. 1990) (defining minor
as “[a]n infant or person who is under the age of legal competence”). In the everyday
mind, they are those who are too young to legally vote, buy cigarettes, buy alcohol, or
consent to sex, for instance. That common perception of the term generally does not
include adults older than 17 or 21 depending upon the law involved. As for the words,
“child” or “children,” they not only have a meaning similar to “minor” in our everyday
parlance but often are interpreted as describing those of very young age, such as infants,
toddlers, and pre-teens. See Child, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 214
5 This definition came several months later. 7 (11th ed. 2003) (defining child as “a young person especially between infancy and youth”
and “a person not yet of age”).
We find little difficulty in concluding that one who intermixes all those terms while
speaking can readily and reasonably lead the listener to believe that the subject being
discussed encompasses people under the legal age. Doing such can reasonably lead
others to think the speaker is discussing infants, toddlers, pre-teens and even teenagers,
not adults. So, the entire context of the conversation initiated by the Diocese about sexual
assault upon “minors” by clergy would lead “a person of ordinary intelligence . . . [to]
perceive” that those clergy assaulted not adults but kids, youths, and other people under
the age of majority. And, the Diocese named Guerrero as one of those clergy against
whom there existed a “credible allegation” of abusing “minors.”6
As for whether the publication was reasonably susceptible to a defamatory
meaning, that implicates a question of law. Dallas Morning News, Inc. v. Tatum, 554
S.W.3d 614, 631-32 (Tex. 2018). Its answer depends on the tendency of the statement
to injure a person’s reputation, expose him or her to public hatred, contempt, or ridicule,
or impeach the person’s honesty, integrity, virtue, or reputation. See TEX. CIV. PRAC. &
REM. CODE ANN. § 73.001 (West 2017) (defining libel as “a defamation expressed in
written or other graphic form that tends to blacken the memory of the dead or that tends
6 We are aware of the Diocese’s contention that “the statements made by representatives of the Diocese to the media were not defamatory concerning Guerrero” and “[t]here [was] no indication in any of the evidence concerning the media that either Bishop Coerver or Chancellor Martin specifically discussed Guerrero in any of the interviews.” That neither church representative said his name is inconsequential, though, under the facts at bar. The defamed person need not be expressly mentioned so long as he or she is otherwise identifiable. Scarbrough v. Purser, No. 03-13-00025-CV, 2016 Tex. App. LEXIS 13863, at *13 (Tex. App.—Austin Dec. 30, 2016, pet. denied) (mem. op.). And, whether the identity is ascertainable, per Scripps, D Magazine, and Lipsky, depends upon viewing the entire picture, not simply one corner of it. The entire picture here consists of the List, posting it for public view on the internet, the press release sending the List to the media, conversations about the List and its purpose between church representatives and the media, and the inclusion of Guerrero’s name on the List. Together, they made Guerrero’s identity as one of the clergy in question identifiable. Just as a mime can identify a wall through his actions, the Diocese and its representatives identified Guerrero through theirs. 8 to injure a living person’s reputation and thereby expose the person to public hatred,
contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity,
virtue, or reputation or to publish the natural defects of anyone and thereby expose the
person to public hatred, ridicule, or financial injury”). Accusing one of sexually abusing
children can reasonably be perceived as having the aforementioned effect; thus, the
publication here is reasonably susceptible to a defamatory meaning. And, the purported
falsity of the accusation finds evidentiary support in Guerrero’s sworn denial about having
engaged in such conduct and in the Diocese’s later admission that it had no evidence
that he sexually assaulted someone under 18 years of age.
That leaves us with the two remaining elements of defamation, which elements are
the statement’s utterance with the requisite fault and damages. Regarding the latter,
authority tells us that falsely accusing one of committing a crime is defamatory per se,
Dallas Morning News, Inc., 554 S.W.3d at 638, as is accusing one of engaging in serious
sexual misconduct. See, e.g., Miranda v. Byles, 390 S.W.3d 543, 552 (Tex. App.—
Houston [1st Dist.] 2012, pet. denied) (holding as defamatory per se an accusation about
the sexual molestation of a child). The accusation at bar comes within both categories.
Not only is it a factual statement subject to objective verification but also an accusation
about criminal and serious sexual misconduct. Thus, Guerrero need not prove damages.
As for the requisite fault, the standard is negligence where the plaintiff is a private,
as opposed to public, figure. Bedford, 520 S.W.3d at 904; D Magazine Partners, L.P.,
529 S.W.3d at 440. In what category Guerrero falls is a question of law. Klentzman v.
Brady, 312 S.W.3d 886, 904 (Tex. App.—Houston [1st Dist.] 2009, no pet.). No one
suggests that he was anything other than a private individual when the alleged defamation
occurred. Nor does the record contain evidence placing him into the category of a public
9 figure. See id. (defining the two classes of “public figures”). So, our legal conclusion is
that he was a private figure at the time, and the negligence standard controls.
Under the standard of negligence, a defendant acts unreasonably if he knew or
should have known that the defamatory statement was false. D Magazine Partners, L.P.,
529 S.W.3d at 440. The record before us contains sufficient evidence to make a prima
facie case of the Diocese’s negligence in publishing the purportedly false defamation. We
find that evidence in its own invocation of the meaning of “minor.” The List itself used the
word “minor” when alluding to a credible allegation of sexual abuse. And, in so using the
word, the Diocese allegedly intended to assign it the definition accorded under canon law,
as revealed through the affidavit of the Diocese’s bishop. Again, that definition described
a “minor” as “a person who habitually lacks the use of reason.” Arguably, then, a “minor”
encompasses not only those under the age of majority but also adults who habitually lack
the use of reason. Knowing this definition, the Diocese nonetheless incorporated the
term “children” into its public rhetoric about the List. Again, one media outlet announced
that “according to the Lubbock Diocese,” “four priests . . . and one deacon have credible
allegations against them . . . of sexual abuse against children.” (Emphasis added).
Additionally, a Diocese representative also told the outlet that the church was “safe for
children.” (Emphasis added). So too did the Diocese declare in its January 31st press
release that it was working “to protect children from sexual abuse.” (Emphasis added).
While all “children” may be minors within the canon law’s definition of “minor,” not all
“minors” are children per that same definition.7 Yet, the purported “credible allegation”
against Guerrero involved an adult around 41 years old.
7 The Diocese does not argue that canon law or other religious tenet also defines “child” or
“children” as including certain adults. 10 Given our earlier discussion about the general public perception of the word
“children,” the Diocese’s multiple references to “children” while discussing the List, and
its knowledge that Guerrero’s supposed victim was an adult, there is some evidence of
record from which a fact-finder could reasonably infer that the Diocese was negligent.
There is evidence that the Diocese knew or should have known 1) the difference between
“minors” and “children” while referring to “children” and 2) that by speaking about sexual
abuse of “children” the public could reasonably perceive the discussion to be about clerics
who sexually abuse infants, pre-teens, and those under the age of majority, not adults.
Thus, evidence exists of record from which one could reasonably infer that the Diocese
publicly portrayed Guerrero has having abused “children” or people under the age of
majority.
In short, Guerrero carried his burden imposed by the TCPA. The record contains
clear and specific evidence creating a prima facie case on each element of defamation.
Intentional Infliction of Emotional Distress
Regarding the claim of intentional infliction of emotional distress, we need not dwell
upon it for long. In lieu of our engaging in an extended explanation regarding its
components and whether the record contains evidence of each, we simply focus on one
elemental aspect of the claim. That aspect is the mens rea. It requires proof that the
defendant acted intentionally or recklessly. Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex.
2017). And, to establish it, the plaintiff must proffer evidence illustrating the emotional
distress was the intended or primary consequence of the conduct. Standard Fruit & Veg.
Co. v. Johnson, 985 S.W.2d 62, 67 (Tex. 1998); accord Fishman v. C.O.D. Capital Corp.,
No. 05-16-00581-CV, 2017 Tex. App. LEXIS 6661, at *14 (Tex. App.—Dallas July 18,
2017, no pet.) (mem. op.) (stating the same); Vaughn v. Drennon, 372 S.W.3d 726, 732
11 (Tex. App.—Tyler 2012, no pet.) (stating the same). That is, recovery is available when
the defendant desired or anticipated that the plaintiff would suffer severe emotional
distress. Standard Fruit & Veg. Co., 985 S.W.2d at 67. It is not enough that the emotional
distress emanates from, is derivative of, or “incidental to the intended or most likely
consequence of the” defendant’s conduct. Id.; Vaughn, 372 S.W.3d at 732. In the latter
situations, the distress is the consequence of some conduct, it is not the reason for the
conduct. And, because it is the consequence of, as opposed to the reason for, the
conduct, the claim of intentional infliction of emotional distress is unavailable. As said by
our Supreme Court in Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex.
2004), “[w]here the gravamen of a plaintiff’s complaint is really another tort, intentional
infliction of emotional distress should not be available. Id. at 447-48; see Warner Bros.
Entm’t, Inc. v. Jones, 538 S.W.3d 781, 814 (Tex. App.—Austin 2017, pet. granted)
(holding that Jones did not establish a prima facie case of intentional infliction of emotional
distress because the facts underlying that claim were the same facts upon which he based
his claim of defamation); Bilbrey v. Williams, No. 02-13-00332-CV, 2015 Tex. App. LEXIS
2359, at *39-40 (Tex. App.—Fort Worth Mar. 12, 2015, no pet.) (mem. op.) (holding the
same). Instead, there must be proof that the defendant wanted the plaintiff to suffer or
anticipated that he would suffer severe emotional distress. In that situation, the distress
in not merely derivative from some other tort; it is the tort’s aim.
Here, neither party cited us to any evidence indicating that the Diocese intended
for Guerrero to experience emotional distress or anticipated that such distress would be
the primary consequence of the alleged defamation. Nor did our own search of the record
uncover any. What it did reveal, though, was that the facts underlying the allegation of
severe emotional distress were the very same ones forming the basis of Guerrero’s
12 defamation claim. In other words, his alleged distress derived from being defamed. So,
like Bilbrey and Warner Bros., the record before us lacks prima facie evidence of an
element to Guerrero’s chose in action sounding in the intentional infliction of emotional
distress.
The Diocese’s Defense
Having found that one of Guerrero’s causes of action survives dismissal, we now
determine if the Diocese raised some defense or other basis barring recovery. It
attempted to do so by asserting the doctrine of ecclesiastical abstention. But, as we
explained in our earlier opinion in Cause No. 07-19-00307-CV, the doctrine does not
apply to the circumstances at bar.
Conclusion
In ordering that the motion to dismiss be denied, the trial court did not address
individually the two causes of action Guerrero averred. Nevertheless, we affirm its order
to the extent that it retained the claim of defamation but reverse it to the extent that it
retained the cause sounding in the intentional infliction of emotional distress. We also
dismiss, with prejudice, the latter claim and “remand the case to the trial court for further
proceedings consistent with this opinion, including consideration of the defamation . . .
claim[] and determination of the attorneys’ fees and sanctions that must be awarded
under Section 27.009 in connection with the dismissal of the other claim[].” Warner Bros.
Entm’t., Inc. 538 S.W.3d at 818.
Brian Quinn Chief Justice