Opinion issued June 23, 2026
In The
Court of Appeals For The
First District of Texas ——————————— NO. 01-25-00048-CV ——————————— RACHEL WANG, Appellant V. TEST MASTERS EDUCATIONAL SERVICES, INC., Appellee
On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 24-DCV-317300
MEMORANDUM OPINION
Test Masters Educational Services, Inc. sued Rachel Wang for libel per se
based on her online review accusing the test preparation service provider of failing
to honor a bonus program it used to incentivize its students to refer new students. Rachel moved to dismiss Test Masters’ suit under the Texas Citizens Participation
Act (TCPA), and the trial court denied the motion.
In her sole issue, Rachel contends that the trial court erred in denying her
motion.
We affirm.
Background
Test Masters is a company that offers various academic test preparation
services. It operates in Fort Bend County. It has a referral bonus program that gives
a student who has completed one of its courses $25 for each new student referred to
Test Masters. For every 20 new students referred in a calendar year, the referring
student is entitled to an additional $1,000 bonus.
In 2012, Rachel’s brother, Michael, enrolled in a course with Test Masters
and began referring new students when he completed the course. He made a total of
26 referrals between 2013 and 2019. Rachel, who took a course in 2015, was one of
those referrals. Michael and Test Masters became embroiled in a conflict over
whether he had referred enough students within the calendar year to be entitled to
the $1,000 bonus. Test Masters maintained he had not and refused to pay a bonus.
In 2020, Michael and Rachel’s mother, Terri Wang, posted a Google online
review for Test Masters stating that her children thought Test Masters’ course “was
helpful,” but cautioned: “do NOT believe their promotion of receiving a $1000
2 check for 20 or more referrals! I referred MORE than 20 students over one year ago
and have yet to receive a bonus check.” Terri posted a similar review in the summer
of 2021.
In April 2022, Terri filed suit against Test Masters in Fort Bend County justice
court seeking $1,000.00 in damages. Test Masters established that Terri had never
taken a class with Test Masters and thus was not qualified to receive a referral bonus.
The justice court dismissed the lawsuit and ordered Terri to pay Test Masters’
attorney’s fees.
While the justice court case was pending, Rachel posted:
Owner is still being a shady coward and is being taken to small claims court – laughing at the situation because we have hard proof that we are due $1000 and the owner refuses to pay because we've written “bad reviews.” Someone educate this guy that an honest review is not synonymous with a bad review.
In June 2023, after the justice court case’s dismissal, Rachel posted a one-star
Google review for Test Masters, stating:
Generic test prep that doesn't cater to each student's individual needs. I took this course when I was in high school and personally saw very little improvement, even though I did the homework. They refused to grant a $1000 referral reward to my family (who referred them 23 people). I am aggravated by their poor display of customer service and ethics. They have likely received thousands of dollars from our referrals, yet chose not to honor their referral program. Shame.
Test Masters sued Wang for her June 2023 online statement that Test Masters
failed to honor its referral bonus program, asserting a claim of libel per se.
3 In her TCPA motion to dismiss, Wang argued that Test Masters’ legal action
concerned her exercise of free speech on a matter of public concern and that
dismissal was required because her statement was nonactionable opinion or
substantially true. She also contended that Test Masters was a public figure and
could not prove actual malice with respect to her online Google review.
In response, Test Masters asserted that the TCPA did not apply to its legal
action, it was not a public figure, and it had a prima facie case of libel.
Rachel replied, denying Test Masters’ assertions. In particular, she maintained
that Test Masters did not have a prima facie case because the calendar-year
requirement of the referral bonus program appeared nowhere on Test Masters’
website and Test Masters never informed her or her family of that requirement.
The trial court denied the motion and this appeal followed.
Dismissal Under the TCPA
A. Applicable Law and Standard of Review
Trial courts use a multi-step analysis to review TCPA motions to dismiss.
McLane Champions, LLC v. Houston Baseball Partners LLC, 671 S.W.3d 907, 914
(Tex. 2023); HouReal Corp. v. Rescue Concepts Inc., 722 S.W.3d 145, 150 (Tex.
App.—Houston [1st Dist.] 2025, no pet.). First, the movant must show by a
preponderance of the evidence that the TCPA applies to the legal action against it—
that is, the legal action is based on or is in response to the movant’s exercise of a
4 right listed in the statute. McLane Champions, 671 S.W.3d at 914; HouReal Corp.,
722 S.W.3d at 151; TEX. CIV. PRAC. & REM. CODE §§ 27.003, .005(b).
If the movant satisfies its initial burden, the burden shifts to the nonmovant to
show by clear and specific evidence a prima facie case for each essential element of
his claims. See TEX. CIV. PRAC. & REM. CODE § 27.005(c). If the nonmovant does
not satisfy this burden, the trial court must dismiss the suit. See id.; McLane
Champions, 671 S.W.3d at 914. But even if the nonmovant satisfies this second step,
the third step requires dismissal of the legal action “if the moving party establishes
an affirmative defense or other grounds on which the moving party is entitled to
judgment as a matter of law.” TEX. CIV. PRAC. & REM. CODE § 27.005(d); HouReal
Corp., 722 S.W.3d at 151.
We apply a de novo standard to review a trial court’s ruling on a TCPA motion
to dismiss. Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 45–46 (Tex.
2021). Whether the TCPA applies to a legal action is a question of law we also
review de novo. See Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). In
reviewing whether a legal action is subject to or should be dismissed under the
TCPA, we consider the pleadings, evidence a court could consider under Texas Rule
of Civil Procedure 166a, and any competing affidavits stating the facts on which the
liability or defense is based. TEX. CIV. PRAC. & REM. CODE § 27.006(a). We view
5 the pleadings and evidence in the light most favorable to the nonmovant. Kassab v.
Pohl, 612 S.W.3d 571, 577 (Tex. App.—Houston [1st Dist.] 2020, pet. denied).
B. Analysis
1. The TCPA applies to Test Masters’ legal action.
The TCPA protects the communication of consumer opinions about business
practices, like the online review posted by Rachel. TEX. CIV. PRAC. & REM. CODE
§ 27.010(b)(2). The TCPA applies to Test Masters’ libel claim because it is “related
to the communication, gathering, receiving, posting, or processing of consumer
opinions or commentary, evaluations of consumer complaints, or reviews or ratings
of businesses.” Id.; see Wheeler v. J.M. Martin Custom Homes, Inc., 728 S.W.3d
326, 330–31 (Tex. App.—Amarillo 2025, no pet.).
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Opinion issued June 23, 2026
In The
Court of Appeals For The
First District of Texas ——————————— NO. 01-25-00048-CV ——————————— RACHEL WANG, Appellant V. TEST MASTERS EDUCATIONAL SERVICES, INC., Appellee
On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 24-DCV-317300
MEMORANDUM OPINION
Test Masters Educational Services, Inc. sued Rachel Wang for libel per se
based on her online review accusing the test preparation service provider of failing
to honor a bonus program it used to incentivize its students to refer new students. Rachel moved to dismiss Test Masters’ suit under the Texas Citizens Participation
Act (TCPA), and the trial court denied the motion.
In her sole issue, Rachel contends that the trial court erred in denying her
motion.
We affirm.
Background
Test Masters is a company that offers various academic test preparation
services. It operates in Fort Bend County. It has a referral bonus program that gives
a student who has completed one of its courses $25 for each new student referred to
Test Masters. For every 20 new students referred in a calendar year, the referring
student is entitled to an additional $1,000 bonus.
In 2012, Rachel’s brother, Michael, enrolled in a course with Test Masters
and began referring new students when he completed the course. He made a total of
26 referrals between 2013 and 2019. Rachel, who took a course in 2015, was one of
those referrals. Michael and Test Masters became embroiled in a conflict over
whether he had referred enough students within the calendar year to be entitled to
the $1,000 bonus. Test Masters maintained he had not and refused to pay a bonus.
In 2020, Michael and Rachel’s mother, Terri Wang, posted a Google online
review for Test Masters stating that her children thought Test Masters’ course “was
helpful,” but cautioned: “do NOT believe their promotion of receiving a $1000
2 check for 20 or more referrals! I referred MORE than 20 students over one year ago
and have yet to receive a bonus check.” Terri posted a similar review in the summer
of 2021.
In April 2022, Terri filed suit against Test Masters in Fort Bend County justice
court seeking $1,000.00 in damages. Test Masters established that Terri had never
taken a class with Test Masters and thus was not qualified to receive a referral bonus.
The justice court dismissed the lawsuit and ordered Terri to pay Test Masters’
attorney’s fees.
While the justice court case was pending, Rachel posted:
Owner is still being a shady coward and is being taken to small claims court – laughing at the situation because we have hard proof that we are due $1000 and the owner refuses to pay because we've written “bad reviews.” Someone educate this guy that an honest review is not synonymous with a bad review.
In June 2023, after the justice court case’s dismissal, Rachel posted a one-star
Google review for Test Masters, stating:
Generic test prep that doesn't cater to each student's individual needs. I took this course when I was in high school and personally saw very little improvement, even though I did the homework. They refused to grant a $1000 referral reward to my family (who referred them 23 people). I am aggravated by their poor display of customer service and ethics. They have likely received thousands of dollars from our referrals, yet chose not to honor their referral program. Shame.
Test Masters sued Wang for her June 2023 online statement that Test Masters
failed to honor its referral bonus program, asserting a claim of libel per se.
3 In her TCPA motion to dismiss, Wang argued that Test Masters’ legal action
concerned her exercise of free speech on a matter of public concern and that
dismissal was required because her statement was nonactionable opinion or
substantially true. She also contended that Test Masters was a public figure and
could not prove actual malice with respect to her online Google review.
In response, Test Masters asserted that the TCPA did not apply to its legal
action, it was not a public figure, and it had a prima facie case of libel.
Rachel replied, denying Test Masters’ assertions. In particular, she maintained
that Test Masters did not have a prima facie case because the calendar-year
requirement of the referral bonus program appeared nowhere on Test Masters’
website and Test Masters never informed her or her family of that requirement.
The trial court denied the motion and this appeal followed.
Dismissal Under the TCPA
A. Applicable Law and Standard of Review
Trial courts use a multi-step analysis to review TCPA motions to dismiss.
McLane Champions, LLC v. Houston Baseball Partners LLC, 671 S.W.3d 907, 914
(Tex. 2023); HouReal Corp. v. Rescue Concepts Inc., 722 S.W.3d 145, 150 (Tex.
App.—Houston [1st Dist.] 2025, no pet.). First, the movant must show by a
preponderance of the evidence that the TCPA applies to the legal action against it—
that is, the legal action is based on or is in response to the movant’s exercise of a
4 right listed in the statute. McLane Champions, 671 S.W.3d at 914; HouReal Corp.,
722 S.W.3d at 151; TEX. CIV. PRAC. & REM. CODE §§ 27.003, .005(b).
If the movant satisfies its initial burden, the burden shifts to the nonmovant to
show by clear and specific evidence a prima facie case for each essential element of
his claims. See TEX. CIV. PRAC. & REM. CODE § 27.005(c). If the nonmovant does
not satisfy this burden, the trial court must dismiss the suit. See id.; McLane
Champions, 671 S.W.3d at 914. But even if the nonmovant satisfies this second step,
the third step requires dismissal of the legal action “if the moving party establishes
an affirmative defense or other grounds on which the moving party is entitled to
judgment as a matter of law.” TEX. CIV. PRAC. & REM. CODE § 27.005(d); HouReal
Corp., 722 S.W.3d at 151.
We apply a de novo standard to review a trial court’s ruling on a TCPA motion
to dismiss. Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 45–46 (Tex.
2021). Whether the TCPA applies to a legal action is a question of law we also
review de novo. See Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). In
reviewing whether a legal action is subject to or should be dismissed under the
TCPA, we consider the pleadings, evidence a court could consider under Texas Rule
of Civil Procedure 166a, and any competing affidavits stating the facts on which the
liability or defense is based. TEX. CIV. PRAC. & REM. CODE § 27.006(a). We view
5 the pleadings and evidence in the light most favorable to the nonmovant. Kassab v.
Pohl, 612 S.W.3d 571, 577 (Tex. App.—Houston [1st Dist.] 2020, pet. denied).
B. Analysis
1. The TCPA applies to Test Masters’ legal action.
The TCPA protects the communication of consumer opinions about business
practices, like the online review posted by Rachel. TEX. CIV. PRAC. & REM. CODE
§ 27.010(b)(2). The TCPA applies to Test Masters’ libel claim because it is “related
to the communication, gathering, receiving, posting, or processing of consumer
opinions or commentary, evaluations of consumer complaints, or reviews or ratings
of businesses.” Id.; see Wheeler v. J.M. Martin Custom Homes, Inc., 728 S.W.3d
326, 330–31 (Tex. App.—Amarillo 2025, no pet.).
2. Test Masters Made a Prima Facie Case of Libel.
A libel is a defamation expressed in written or other graphic form . . . .” TEX.
CIV. PRAC. & REM. CODE § 73.001. A prima facie case for libel requires the plaintiff
to show: (1) the defendant published a false statement; (2) that defamed the plaintiff;
(3) with actual malice, if the plaintiff was a public figure, or negligence, if the
plaintiff was a private individual, regarding the truth of the statement; and
(4) damages, unless the statement constitutes defamation per se. Bedford v. Spassoff,
520 S.W.3d 901, 904 (Tex. 2017)); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d
716, 727 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
6 “Prima facie case” refers to “evidence that is legally sufficient to establish a
claim as factually true if it is not countered.” S & S Emergency Training Sols., Inc.
v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). It consists of the “minimum quantum
of evidence necessary to support a rational inference that the allegation of fact is
true.” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). “Direct evidence of damages
is not required, but the evidence must be sufficient to allow a rational inference that
some damages naturally flowed from the defendant’s conduct.” S & S Emergency
Training Sols., 564 S.W.3d at 847; ADB Interest, LLC v. Wallace, 606 S.W.3d 413,
430 (Tex. App.—Houston [1st Dist.] 2020, pet. denied).
A nonmovant has prima facie evidence of a statement’s falsity if its
defamation claim is premised on a dispute about whether something occurred. See
Benson v. Guerrero, 702 S.W.3d 775, 787 (Tex. App.—Houston [1st Dist.] 2024,
no pet.). Here, the dispute involves whether Rachel’s family was entitled to the
$1000 referral bonus. In support of its response to Rachel’s TCPA motion, Test
Masters attached as Exhibit A-2 a document entitled “Testmasters Referral Program
Rules,” which provides that a former student would receive $25 for each newly
referred student and would be entitled to a $1000 bonus for “every 20 students
referred in a given calendar year (January through December).” Rachel casts doubt
on the calendar-year requirement and suggests that Test Masters prepared the
document solely for this lawsuit. But Test Masters’ exhibits are accompanied by a
7 business records affidavit, and Rachel did not object to Exhibit A-2’s authenticity or
seek to have it excluded in the trial court. Thus, Rachel has waived her authentication
objection to Exhibit A-2. See TEX. R. APP. P. 33.1(a); Mock v. Nat’l Collegiate
Student Loan Tr. 2007 4, No. 01-17-00216-CV, 2018 WL 3352913, at *3 (Tex.
App.—Houston [1st Dist.] July 10, 2018, no pet.) (mem. op.).
The truth of the published statement is a defense to a libel claim. TEX. CIV.
PRAC. & REM. CODE § 73.005(a). Rachel asserts that Test Masters is a public figure
which, if true, would place the burden on Test Masters to show Rachel’s June 2023
Google review was false. See Vice v. Kasprzak, 318 S.W.3d 1, 16 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). We need not address this assertion. First,
Test Masters provided clear and specific evidence that it did not receive 20 referrals
from Michael within a calendar year, meaning he was not entitled to a referral bonus
under the terms of its Referral Program Rules. In addition to the Rules, Test Masters
attached to its response its business records documenting Michael’s referrals,
showing the dates the referrals were received and the payouts that Test Masters
made. This is clear and specific evidence showing the falsity of Rachel’s statement
that Test Masters did not honor its referral program with respect to her family. See
S & S Emergency Training Sols., 564 S.W.3d at 847. Second, the record contains
circumstantial evidence that Rachel was not merely negligent in making her
statement. See WFAA-TV Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)
8 (“actual malice” means statement was made with knowledge it was false or with
reckless disregard of whether it was false or not). Rachel did not participate in the
referral bonus program herself, several years had passed between the date she took
a course from Test Masters and her posting, and her mother had just had a lawsuit
dismissed based on the same issue. Finally, Test Masters provided an affidavit from
its owner identifying damages that it incurred fielding questions from the public in
response to Rachel’s June 2023 review.
We conclude that Test Masters satisfied its burden of establishing a prima
facie case of libel. As a result, we hold that the trial court did not err in denying
Rachel’s TCPA motion to dismiss.
We overrule Rachel’s sole issue.
Conclusion
We affirm the trial court’s order.
Clint Morgan Justice
Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.