Flatt v. Tornow, 01-24-00901-CV, June 18, 2026.
On appeal from 80th District Court, Harris County, Texas
Synopsis
The First Court of Appeals held that the TCPA did not apply because the claims at issue were not based on or in response to protected petitioning activity or speech on a matter of public concern. Where the pleaded claims arise from the alleged disclosure of intimate photos and private information in a private dispute, denial of the TCPA motion to dismiss is proper.
Relevance to Family Law
For family-law litigators, this opinion is a useful boundary case on attempted TCPA use in litigation orbiting a divorce. The opinion indicates that not every act occurring during, around, or because of a divorce proceeding becomes protected petitioning activity, and not every communication about a marriage or affair qualifies as free speech under the TCPA. In divorce, custody, and property cases, practitioners should expect courts to look closely at the actual gravamen of the pleaded claims—especially when privacy-based tort claims are tied to alleged disclosure of intimate images or private communications—rather than accepting a generalized assertion that the conduct relates to ongoing litigation.
Case Summary
Fact Summary
The opinion states that the Wife and her Husband entered divorce proceedings sometime in 2023. During that divorce, the Wife sought and eventually secured the deposition of the third party involved in the case. Before the deposition but after receiving a subpoena, the third party sued the Wife on June 3, 2024.
The petition alleged public disclosure of private facts, intrusion on seclusion, and unlawful disclosure of intimate visual material. According to the opinion, the third party alleged that the Wife accessed her “private personal communications,” disclosed intimate visual material depicting her to several persons, publicized information about her private life, and viewed and disclosed her intimate relationship and intimate visual material to persons within the community.
The Wife later filed a TCPA motion to dismiss. The trial court did not rule, so the motion was denied by operation of law. The Wife then pursued an interlocutory appeal.
Issues Decided
The court addressed these issues:
- Whether the TCPA applied because the suit was based on or in response to the Wife’s exercise of the right to petition.
- Whether the TCPA applied because the suit was based on or in response to the Wife’s exercise of the right of free speech.
- Whether, if the TCPA did not apply at the first step, the court needed to reach prima facie proof or affirmative-defense arguments under the later TCPA steps.
Rules Applied
The court relied on the TCPA’s threshold requirement that the movant must show the legal action “is based on or is in response to” the movant’s exercise of a protected right. The opinion specifically cites:
- TEX. CIV. PRAC. & REM. CODE § 27.002, stating the TCPA’s purpose.
- TEX. CIV. PRAC. & REM. CODE § 27.005(b), setting out the movant’s initial burden.
- TEX. CIV. PRAC. & REM. CODE §§ 27.005(a), 27.008(a), concerning denial by operation of law.
- McLane Champions, LLC v. Houston Baseball Partners LLC, 671 S.W.3d 907, 913–14, 920 (Tex. 2023), for the proposition that the movant must first establish TCPA applicability and that the analysis ends if the movant fails at that step.
- Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 470 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d), for de novo review.
- Wayne Dolcefino & Dolcefino Commc’ns, LLC v. Cypress Creek EMS, 540 S.W.3d 194, 202 (Tex. App.—Houston [1st Dist.] 2017, no pet.), as another example that failure on TCPA applicability ends the analysis.
The court also included a footnote addressing timeliness and amended pleadings, citing:
- TEX. CIV. PRAC. & REM. CODE § 27.003(b).
- Montelongo v. Abrea, 622 S.W.3d 290, 296–98 (Tex. 2021).
- Buckingham Senior Living Cmty., Inc. v. Washington, 605 S.W.3d 800, 807 n.4 (Tex. App.—Houston [1st Dist.] 2020, no pet.).
Application
The court framed the appeal through the TCPA’s first step only. The Wife argued that the suit responded to her issuance of subpoenas in the divorce and also to her ability to speak about her marriage, her Husband’s affair, and proof of that affair. The third party’s position in the trial court, as recounted by the opinion, was that her suit was not based on or in response to subpoena issuance and that the alleged disclosure of nude photos was a private dispute with no connection to a matter of public concern.
The court accepted neither of the Wife’s threshold TCPA theories. Its central conclusion, stated near the outset of the opinion, was that the pleaded privacy-based claims were not based on or in response to any right protected by the TCPA. The court therefore treated the suit according to its pleaded substance: claims arising from alleged access to private communications and alleged disclosure of intimate visual material and private information to third parties. In that posture, the court concluded the claims did not implicate the TCPA’s protection for petitioning or free speech.
That mattered because under McLane Champions, if the movant cannot establish TCPA applicability at step one, the court does not proceed to the prima facie-case inquiry or to any attempt to negate essential elements as a matter of law. So the Wife’s appellate arguments on those later steps did not drive the outcome.
Holding
The court held that the TCPA did not apply because the claims were not based on or in response to the Wife’s exercise of a right protected by the statute. As the opinion states, the claims arose from the alleged disclosure of intimate photos and private information in a private dispute, and those allegations did not implicate the right to petition or the right of free speech.
Because the Wife did not satisfy her initial burden under TEX. CIV. PRAC. & REM. CODE § 27.005(b), the court affirmed the denial of the TCPA motion to dismiss. The court’s reasoning follows McLane Champions: once TCPA applicability fails at the first step, the analysis ends.
Practical Application
Texas family-law practitioners should read this case as a reminder to separate litigation conduct from non-protected underlying conduct. A subpoena, deposition setting, or pending divorce does not automatically convert every related dispute into one “based on or in response to” petitioning activity. If the pleaded injury is the alleged disclosure of intimate images, private communications, or private-life information, courts may focus on that conduct itself rather than on the surrounding litigation backdrop.
This is especially important in cases involving affairs, device access, screenshots, family-device message syncing, forwarded photos, or circulation of sensitive material to relatives, friends, or community members. If you represent the movant, you will need a tight causal and statutory fit between the plaintiff’s actual claims and a TCPA-protected right. Generalized references to the divorce case, or to the client’s wish to discuss the marriage and related misconduct, may not be enough.
If you represent the claimant, this opinion supports a strategy of pleading the case around the actual privacy invasion and actual disclosure conduct. The more clearly the petition identifies private communications, intimate visual material, and private dissemination to third parties, the stronger the argument that the suit concerns a private dispute outside the TCPA’s threshold reach.
In custody or conservatorship-adjacent disputes, the same lesson applies. If a party claims disclosure of sensitive personal material, do not assume the TCPA provides an early-exit mechanism merely because there is ongoing SAPCR or divorce litigation. Analyze whether the claim truly arises from protected petitioning or from speech on a matter of public concern, as opposed to alleged conduct within a private interpersonal conflict.
Checklists
Evaluating a TCPA Motion in a Family-Law-Adjacent Privacy Case
- Identify the plaintiff’s actual pleaded injuries and the conduct alleged to have caused them.
- Ask whether the claims are truly “based on or in response to” petitioning activity, rather than merely factually connected to pending litigation.
- Distinguish subpoena practice, discovery activity, or deposition preparation from separate alleged disclosure conduct.
- Evaluate whether the alleged communications concern a matter of public concern, or instead remain part of a private dispute.
- If TCPA applicability is weak at step one, reassess whether filing the motion advances the client’s overall strategy.
Drafting Petitions to Resist Threshold TCPA Applicability
- Plead the privacy-based conduct precisely: access to private communications, disclosure of intimate visual material, and disclosure to third parties.
- Tie each cause of action to the alleged private disclosure conduct rather than to the existence of a divorce or related proceeding.
- Avoid unnecessary pleading choices that could make the case appear directed at subpoena issuance or other litigation activity.
- Make clear, where supported by the facts, that the dispute is private rather than one involving a matter of public concern.
- Preserve the record on the nature of the alleged dissemination and the persons to whom disclosure was made.
Defending Against Privacy-Tort Exposure During Divorce Litigation
- Advise clients that ongoing divorce litigation does not necessarily insulate related communications under the TCPA.
- Warn clients about forwarding, sharing, or displaying intimate images or private communications to third parties.
- Review how images and messages were obtained, stored, and disseminated before asserting TCPA protection.
- Consider whether non-TCPA defenses are more appropriate if the alleged conduct is private disclosure rather than petitioning activity.
- Build appellate positions that match the plaintiff’s pleaded claims, not just the broader factual setting.
Preserving Procedure and Deadlines
- Confirm the date of service for TCPA timing under TEX. CIV. PRAC. & REM. CODE § 27.003(b).
- Track whether an amended petition asserts the same legal claims based on the same essential factual allegations.
- Do not assume an amended petition restarts the TCPA deadline.
- Calendar the submission date and the date a motion may be denied by operation of law.
- Preserve interlocutory appellate deadlines if the motion is denied by operation of law.
Citation
Flatt v. Tornow, No. 01-24-00901-CV (Tex. App.—Houston [1st Dist.] June 18, 2026, no pet. h.).
Full Opinion
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