TCPA Does Not Protect Abuse-of-Process or False Police Report Claims: Wilcox v. Duran (2025)

Wilcox v. Duran, 02-25-00643-CV, August 13, 2026.

On appeal from 141st District Court, Tarrant County, Texas

Synopsis

The Fort Worth Court of Appeals held that a TCPA movant must first show that the challenged claims are actually based on, related to, or in response to protected activity under Chapter 27. Where the counterclaims alleged abuse of process and knowingly false police reporting, the movant did not establish TCPA applicability merely by labeling the conduct as litigation activity or communications on matters of public concern.

Relevance to Family Law

This decision matters in high-conflict divorce and SAPCR litigation because family-law cases routinely generate collateral tort allegations tied to pleadings, discovery tactics, protective-order filings, and police reports. Wilcox v. Duran is a useful reminder that not every communication arising out of domestic litigation is TCPA-protected; when the gravamen of the claim is misuse of legal process or knowingly false resort to law enforcement, Chapter 27 may never be triggered. For family-law litigators, that means two things: do not assume a TCPA motion is the automatic answer to tort counterclaims arising from litigation conduct, and do not assume police-report allegations can be immunized simply because they were framed as speech on a public concern.

Case Summary

Fact Summary

The appeal arose out of satellite litigation connected to an acrimonious custody dispute between former spouses. Wilcox, proceeding pro se, sued Duran and another defendant on a wide range of tort theories, broadly alleging domestic violence, infidelity, and related misconduct. Duran responded with counterclaims, and after the pleadings evolved through several amendments, he added two new claims in a third amended counterclaim: an abuse-of-process claim tied to Wilcox’s litigation conduct, and a claim characterized as negligence per se/intentional tort based on allegations that Wilcox had made false police reports accusing him of assault.

Wilcox answered those new claims with a TCPA motion to dismiss. She argued that the abuse-of-process claim attacked her litigation conduct and that both new claims arose from her exercise of free speech. Duran resisted on procedural and evidentiary grounds and argued that he had sufficient proof to proceed. The trial court denied the TCPA motion, but the court of appeals took up the interlocutory appeal.

The opinion contains substantial discussion of timeliness and evidentiary objections. The court held the motion was timely as to the newly added causes of action because amended pleadings asserting new claims with different elements create a new 60-day TCPA deadline. But the dispositive issue remained whether the new counterclaims were the kind of “legal action” covered by the TCPA in the first place.

Issues Decided

• Whether Wilcox’s TCPA motion was timely as to the newly added abuse-of-process and false-reporting claims.
• Whether the trial court properly considered Wilcox’s original and amended TCPA motions.
• Whether the trial court properly sustained objections to Wilcox’s summary evidence.
• Whether Wilcox met her threshold burden under the TCPA to show that Duran’s abuse-of-process and false-reporting counterclaims were based on, related to, or in response to her exercise of free speech, petition, or association.
• Whether claims premised on alleged misuse of legal process and knowingly false police reports fall within Chapter 27 merely because they involve litigation conduct or communications to law enforcement.

Rules Applied

The court applied the TCPA’s burden-shifting framework, beginning with the movant’s threshold burden under Tex. Civ. Prac. & Rem. Code §§ 27.003 and 27.005. A movant seeking dismissal must establish that the challenged legal action is based on, related to, or in response to the movant’s exercise of a protected right as defined by Chapter 27.

The court also applied the timing rule recognized in Montelongo v. Abrea, 622 S.W.3d 290, 301 (Tex. 2021): when an amended pleading asserts a new claim involving different elements, it asserts a new legal action that triggers a fresh 60-day period for a TCPA motion.

On procedure and evidence, the court relied on ordinary principles governing review of the trial court’s evidentiary rulings in TCPA practice and rejected the notion that objections to entire exhibits are categorically improper. The excerpt also cites In re Lipsky, 460 S.W.3d 579 (Tex. 2015), among other authorities, in discussing the quality of proof and conclusory affidavit content.

Substantively, the decisive rule was narrower: allegations of abuse of process and knowingly false criminal accusations do not become protected TCPA activity simply because they arose in the context of litigation or were conveyed to law enforcement. The movant must tie the complained-of conduct to a statutory definition of protected petitioning, speech, or association, and cannot satisfy that burden through general characterization alone.

Application

The court first disposed of the timing argument in Wilcox’s favor. Because Duran’s third amended counterclaim introduced new causes of action with different elements from his earlier defamation and tortious-interference claims, the amendment created a new legal action under Montelongo. That gave Wilcox a fresh TCPA filing window, and her motion was timely as to those newly pleaded theories.

But timeliness did not carry the day. The central failure was Wilcox’s inability to satisfy the TCPA’s opening step. As to abuse of process, the court treated Duran’s claim as one attacking alleged misuse of judicial mechanisms, not protected petitioning activity in the abstract. In other words, the claim’s gravamen was not that Wilcox filed or said something in court; it was that she allegedly used legal process for an improper purpose. That distinction matters under Chapter 27. The TCPA protects certain categories of activity, but it does not convert every complaint about litigation conduct into a dismissible SLAPP claim.

The same analytical problem existed with the false-reporting claim. Wilcox argued that police complaints concern matters of public concern and therefore implicate free speech. The court rejected the shortcut. A claim premised on knowingly false police reports is not automatically brought within the TCPA merely because the communication was made to law enforcement. The focus remains on whether the movant has shown that the nonmovant’s legal action is actually based on protected activity as Chapter 27 defines it. Here, the court concluded that the allegations, as framed, did not qualify simply by virtue of involving reports to police.

The opinion is especially useful because it highlights a recurring error in TCPA practice: conflating “communication” with “protected communication.” In family-law adjacent tort litigation, parties often assume that if a pleading, affidavit, report, email, or complaint exists, the TCPA must apply. Wilcox v. Duran pushes back on that overreading and insists on a more disciplined, claim-by-claim analysis of the statutory definitions.

Holding

The court held that Wilcox’s TCPA motion was timely as to the abuse-of-process and false-reporting claims because those claims were newly added in Duran’s third amended counterclaim and involved different elements from the previously asserted causes of action.

The court further concluded, however, that the abuse-of-process and false-reporting claims were not subject to TCPA dismissal on the showing made. Wilcox failed to establish that those claims were based on, related to, or in response to protected activity under Chapter 27. Allegations of misuse of legal process and knowingly false police reporting do not receive TCPA protection merely because they arise out of litigation conduct or communications with law enforcement.

Accordingly, the operative lesson from the opinion is that the TCPA never reaches the second-stage evidentiary inquiry unless the movant first carries the threshold burden of showing statutory coverage. On these claims, that threshold showing failed.

Practical Application

For family-law litigators, this case has immediate tactical significance in cases involving retaliatory tort pleadings between spouses, former spouses, co-parents, or romantic partners. The TCPA remains potent in the right case, especially where a party is sued over affidavits, pleadings, reports, or advocacy concerning conservatorship, safety, abuse allegations, or financial misconduct. But Wilcox v. Duran shows that the statute is not a reflexive solution whenever the challenged conduct occurred during litigation.

In divorce and custody disputes, abuse-of-process allegations often appear when one side claims the other weaponized discovery, subpoenas, enforcement filings, emergency motions, or procedural devices for harassment rather than adjudication. This case suggests that a bare assertion that those acts are “petitioning activity” may not be enough. Counsel should analyze the gravamen of the pleaded tort. If the complaint is about the improper use of process itself, TCPA applicability may be doubtful.

The same caution applies to police-report scenarios, which are common in contested possession disputes, family-violence allegations, and post-separation conflict. Some reports to law enforcement may implicate TCPA concepts, but an opposing claim framed as knowingly false reporting is not automatically dismissible under Chapter 27. The movant must do more than point to the existence of speech or a public-safety topic; counsel must show that the plaintiff’s claim, as pleaded, falls within the statute’s protected-activity definitions.

Strategically, this also means practitioners should be precise in pleading both offensive and defensive tort theories. If you represent the claimant, plead the wrongful use of process or falsity-based misconduct with enough specificity that the gravamen is unmistakable. If you represent the TCPA movant, build the threshold argument carefully and do not skip directly to prima facie-proof disputes. Wilcox v. Duran is a reminder that many TCPA motions fail at step one, not step two.

Checklists

Evaluating a TCPA Motion in a Family-Law Tort Dispute

• Identify the exact claim being challenged, not just the general controversy.
• Determine whether the amended pleading asserts a genuinely new cause of action with different elements.
• Calendar the 60-day deadline from service of the new legal action under Montelongo.
• Analyze the claim’s gravamen before filing: is the complaint about protected advocacy, or about misuse of process or falsity-based misconduct?
• Match the challenged conduct to a specific Chapter 27 definition of free speech, petition, or association.
• Avoid generic arguments that all litigation conduct or all police communications are protected.

Drafting Around an Expected TCPA Motion

• Plead the improper use of legal process with factual detail tied to the elements of abuse of process.
• Distinguish between filing suit and misusing procedural tools after issuance of process.
• If the claim involves police complaints, plead the alleged falsity and resulting damages clearly.
• Frame the case around wrongful conduct, not merely the existence of communications.
• Avoid drafting that makes the case appear to target protected advocacy rather than independently tortious misuse.

Building a Better TCPA Threshold Argument

• Start with statutory text, not broad policy language.
• Explain why the specific claim is based on, related to, or in response to a protected exercise.
• Address the pleaded theory as written, not as you would prefer to characterize it.
• Use the petition and any incorporated documents to show the nexus to protected activity.
• Anticipate the response that the gravamen is abuse of process or knowingly false reporting.
• Do not assume “matter of public concern” resolves the issue.

Preserving Procedure and Evidence

• Request the TCPA hearing clearly and in writing.
• If you amend the motion, confirm that the hearing request still applies or renew it expressly.
• Support the motion with admissible evidence tailored to TCPA applicability.
• Expect authentication, hearsay, best-evidence, and conclusory-affidavit objections.
• Preserve complaints about adverse evidentiary rulings with specificity on the record.
• Do not rely on unsupported affidavit characterizations of the opposing party’s conduct.

Avoiding the Nonmovant’s Pitfalls

• Do not over-plead unrelated tort theories in a family-law-adjacent case without a coherent theory of damages and causation.
• If adding claims by amendment, ensure the new causes of action are genuinely distinct and factually supported.
• When resisting a TCPA motion, attack step one aggressively if the movant has not shown protected activity.
• Use the pleadings themselves to demonstrate that the gravamen is misuse of process or falsity, not protected petitioning.
• Raise evidentiary objections specifically and claim by claim.
• Preserve procedural objections, but do not depend on them if the merits favor affirmance.

Citation

Wilcox v. Duran, No. 02-25-00643-CV, memorandum opinion (Tex. App.—Fort Worth Aug. 13, 2026, no pet. h.).

Full Opinion

Read the full opinion here

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