Child Safety Allegations as a ‘Matter of Public Concern’: Strengthening the TCPA Shield in Family Law Crossover Defamation Suits
Memorandum Opinion by Justice Barbare, 05-25-00720-CV, January 29, 2026.
On appeal from the 134th Judicial District Court
Synopsis
The Dallas Court of Appeals reversed the denial of a Texas Citizens Participation Act (TCPA) motion to dismiss in a defamation suit arising from communications regarding the failure to conduct background checks on a youth sports official. Because the safety of children in sports is a “matter of public concern,” the defendant successfully invoked the TCPA, shifting the burden to the plaintiff to prove a prima facie case by clear and specific evidence—a threshold the plaintiff failed to meet.
Relevance to Family Law
For family law practitioners, this case serves as a critical reminder that the TCPA is a potent weapon in “crossover” litigation—defamation suits filed in the wake of custody battles or child safety disputes. When a party makes out-of-court statements regarding a parent’s criminal history, sex offender status, or general fitness to be around children (specifically in the context of organized youth activities), those statements may be shielded by the TCPA. Litigators must realize that once the communication is tied to “public concern”—as child safety invariably is—the plaintiff faces a heightened evidentiary burden early in the litigation that can result in a mandatory dismissal and an award of attorney’s fees against their client.
Case Summary
Fact Summary
Ronald Adams, the president of the Dallas Basketball Organization Association (DBOA), sent an email to members explaining that the organization was ineligible for playoff assignments because it had previously assigned games to an official who failed a required background check. Adams further clarified in follow-up communications that the individual in question was a sex offender. When a member inquired who the association’s representative was during the relevant 2013 period, Adams identified Gary Upshaw. Upshaw, asserting he was not the representative at that time and that the statement falsely linked him to the negligence of allowing a sex offender to officiate, sued for libel and slander. Adams moved to dismiss under the TCPA, asserting the communications involved a matter of public concern. The trial court allowed the motion to be overruled by operation of law.
Issues Decided
The Court of Appeals addressed whether the trial court erred in denying the TCPA motion to dismiss. Specifically, the court looked at: (1) whether the communications fell within the TCPA’s protection as an exercise of free speech on a matter of public concern; (2) whether the plaintiff (Upshaw) met his burden to establish a prima facie case for each element of defamation by clear and specific evidence; and (3) whether the defendant was entitled to attorney’s fees.
Rules Applied
The court applied the three-step framework of the Texas Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code § 27.001–.011. Under Step One, the movant must show the legal action is based on the exercise of protected rights. Under Step Two, the burden shifts to the nonmovant to establish a prima facie case by “clear and specific evidence”—a standard requiring more than mere notice pleading. The court also relied on Hersh v. Tatum regarding the use of pleadings to determine the nature of the action and Garcia v. Semler regarding the de novo standard of review for TCPA appeals.
Application
The court’s analysis was streamlined by a strategic concession: the parties agreed that whether a sex offender is permitted to officiate youth games constitutes a matter of public concern. This concession satisfied the defendant’s Step One burden. The legal story then shifted to the plaintiff’s failure to provide the “clear and specific evidence” required by Step Two. The court analyzed the declarations provided by both parties. While Upshaw proved that the statement regarding his tenure in 2013 was likely false, the court looked for “clear and specific” proof of the remaining defamation elements. In TCPA practice, mere conclusory statements in an affidavit are insufficient to survive dismissal. The court determined that the record did not support a prima facie showing of the necessary elements of defamation to overcome the statutory shield.
Holding
The Court of Appeals held that the trial court erred in allowing the TCPA motion to be overruled by operation of law. The court sustained Adams’ issues, finding that the claims fell within the scope of the TCPA and that the burden had shifted to Upshaw.
The court further held that because Upshaw failed to meet the rigorous “clear and specific evidence” standard for his defamation claim, the suit should have been dismissed. The court reversed the trial court’s judgment, rendered judgment dismissing Upshaw’s claims, and remanded the case for a determination of Adams’ court costs, reasonable attorney’s fees, and other expenses as mandated by the TCPA.
Practical Application
This ruling emphasizes that in any litigation involving allegations of child safety or criminal history, the TCPA is the first line of defense. If your client is sued for defamation after warning a school, a coach, or a group of parents about an ex-spouse’s history or the presence of a “bad actor” in a child’s orbit, you must immediately evaluate a TCPA motion. Conversely, if you are representing the plaintiff in a defamation suit, you cannot rely on notice pleading; you must be prepared at the outset with “clear and specific” evidence—likely through detailed affidavits and documentary proof—to establish every element of the claim, including actual malice and special damages where applicable.
Checklists
Defending the “Whistleblower” Parent
- Identify the Public Concern: Does the communication involve the safety of children, a registered sex offender, or a matter of community well-being?
- Timely Filing: Ensure the TCPA motion is filed within 60 days of service of the legal action.
- Establish the Link: Use the plaintiff’s own pleadings to show the suit is “based on or in response to” the protected communication.
- Affirmative Defenses: Prepare evidence of the truth of the statement or the “judicial proceedings” privilege if the statement was made in connection with a family law case.
Overcoming the TCPA Shield (For Plaintiffs)
- Avoid Conclusory Affidavits: Ensure declarations contain specific facts, dates, and direct quotes, not just “the defendant lied.”
- Documentary Evidence: Attach emails, texts, or records that affirmatively disprove the defendant’s statements.
- Focus on Malice: If the matter is of public concern, be prepared to show the defendant knew the statement was false or acted with reckless disregard for the truth.
- Quantify Damages: Unless the statement is defamation per se, provide specific evidence of loss of reputation or economic harm.
Citation
Adams v. Upshaw, No. 05-25-00720-CV, 2026 WL ______ (Tex. App.—Dallas Jan. 29, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
In high-conflict custody litigation, one party may attempt to use a collateral defamation suit to gain leverage or silence a witness. This ruling provides a blueprint for “weaponizing” the TCPA to shut down such tactics. If a parent reports a well-founded concern about a sex offender’s proximity to their child—even if that report contains a technical inaccuracy (like the specific year of a representative’s tenure)—the TCPA offers a robust shield. The Dallas Court of Appeals has signaled that it will not tolerate the use of defamation suits to chill speech regarding child safety. For the family litigator, this means that an aggressive defense against a “crossover” defamation claim can result in the opposing party paying your client’s legal fees, effectively shifting the financial dynamics of the entire family law dispute.
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