CROSSOVER: Dallas COA: TCPA and Judicial-Proceedings Privilege Shield Affidavit Statements Filed in Child-Custody TRO Fight

Leonard v. Wooten and Ellison, 05-25-01101-CV, April 15, 2026.

On appeal from 134th Judicial District Court, Dallas County, Texas

Synopsis

The Dallas Court of Appeals held that statements made in an affidavit filed to support a TRO in a child-custody proceeding are communications “in or pertaining to” a judicial proceeding and therefore qualify as an exercise of the right to petition under the TCPA. The court further held that the judicial-proceedings privilege barred the ensuing defamation claim as a matter of law, requiring dismissal and remand.

Relevance to Family Law

This opinion matters immediately to Texas family-law litigators because emergency filings in SAPCRs, modification suits, enforcement actions, and divorce-related custody disputes routinely depend on affidavits alleging abuse, coercion, instability, concealment, interference, or endangerment. Leonard confirms that when those allegations are made in filings submitted to obtain judicial relief, they may trigger TCPA protection as petitioning activity and may also be absolutely privileged under the judicial-proceedings privilege, substantially limiting later defamation exposure. For practitioners, that cuts both ways: it strengthens the defensive toolkit for clients who file aggressive emergency papers, but it also narrows the viability of tort-based counterattacks by the opposing side.

Case Summary

Fact Summary

The defamation suit arose out of a custody-related TRO fight. Henry Leonard, the biological father of the child, had been awarded primary custody in Georgia and later registered that foreign child-custody determination in Dallas County. In the Texas proceeding, he sought a TRO against the child’s mother and her husband, Jamoa Wooten, and filed an affidavit supporting emergency relief.

According to the opinion, the affidavit described alleged conduct by the mother, Wooten, and the mother’s other child, Carmen Ellison, toward the minor child. The affidavit included allegations of intimidation, physical abuse, and efforts to coerce the child into making a false abuse report against Leonard. Wooten then sued Leonard for defamation, contending the affidavit contained false statements; Ellison was later added as a plaintiff based on statements concerning her.

Leonard responded with both the judicial-proceedings privilege and a TCPA motion to dismiss. The trial court conducted a hearing but did not rule within the statutory deadline, so the motion was denied by operation of law. Leonard appealed.

Issues Decided

The court decided, at minimum, the following issues:

• Whether a defamation claim based on statements made in an affidavit filed in support of a TRO in a custody proceeding is “based on or in response to” the movant’s exercise of the right to petition under Texas Civil Practice and Remedies Code section 27.005(b).
• Whether the judicial-proceedings privilege barred the defamation claim as a matter of law under section 27.005(d).
• Whether dismissal was required even without reaching, or before resolving, the nonmovants’ prima facie showing at TCPA step two.

Rules Applied

The court relied on the TCPA’s text and established privilege doctrine.

Under the TCPA:

• A movant must first show that the legal action is based on or in response to the movant’s exercise of a protected right. Tex. Civ. Prac. & Rem. Code § 27.005(b).
• “Exercise of the right to petition” includes a communication “in or pertaining to” a judicial proceeding. Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i).
• “Communication” is defined broadly to include submitting a statement or document in any form or medium. Tex. Civ. Prac. & Rem. Code § 27.001(1).
• Even if the claimant establishes a prima facie case, dismissal is still required if the movant establishes an affirmative defense or other ground as a matter of law. Tex. Civ. Prac. & Rem. Code § 27.005(d).

The court also cited authorities construing those provisions broadly, including:

• Garcia v. Semler, 663 S.W.3d 270 (Tex. App.—Dallas 2022, no pet.)
• Temple v. Cortez Law Firm, PLLC, 657 S.W.3d 337 (Tex. App.—Dallas 2022, no pet.)
• Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017)
• Porter-Garcia v. Travis Law Firm, P.C., 564 S.W.3d 75 (Tex. App.—Houston [1st Dist.] 2018, pet. denied)
• Levatino v. Apple Tree Cafe Touring, Inc., 486 S.W.3d 724 (Tex. App.—Dallas 2016, pet. denied)
• GN Ventures v. Stanley, No. 05-19-01076-CV, 2020 WL 5868282 (Tex. App.—Dallas Oct. 2, 2020, pet. denied) (mem. op.)
• Kute Bar, LLC v. Tran, No. 02-24-00119-CV, 2024 WL 4562500 (Tex. App.—Fort Worth Oct. 24, 2024, no pet.) (mem. op.)

On privilege, the court applied the absolute judicial-proceedings privilege recognized in:

• Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40 (Tex. 2021)
• James v. Brown, 637 S.W.2d 914 (Tex. 1982) (per curiam)
• Rose v. Wash, No. 05-22-00289-CV, 2022 WL 17750750 (Tex. App.—Dallas Dec. 19, 2022, no pet.) (mem. op.)
• Watson v. Hardman, 497 S.W.3d 601 (Tex. App.—Dallas 2016, no pet.)

Those cases establish that statements made by parties, counsel, or witnesses in the due course of judicial proceedings, including affidavits and pleadings, are absolutely privileged if they bear some relation to the proceeding, and doubts are resolved in favor of the privilege.

Application

The Fifth Court treated the plaintiffs’ own pleadings as the clearest evidence of what the defamation case was really about: statements Leonard submitted in an affidavit to obtain a TRO. That framing largely decided the TCPA step-one question. Once the complained-of statements were identified as statements made to a court in support of judicial relief, they fit comfortably within the statute’s definition of petitioning activity—communications “in or pertaining to” a judicial proceeding.

The appellees attempted to resist that conclusion by arguing, in substance, that the statements were not made in a proceeding to which they were parties, were not pertinent, and reflected a private vendetta rather than protected conduct. The court rejected that approach because the dispositive point was simpler: the statements were made through an affidavit filed with the court in support of a TRO. A TRO application is itself part of a judicial proceeding, and an affidavit submitted to secure that relief is a paradigmatic petitioning communication under the TCPA.

The court then moved to the judicial-proceedings privilege and treated it as independently fatal to the defamation claim. Here again, the context mattered more than the plaintiffs’ characterization of the statements as false or malicious. The privilege is absolute; it does not disappear because the plaintiff alleges bad faith, negligence, or malice. The court emphasized that the privilege reaches affidavits and other papers filed in the case and extends broadly to statements bearing some relation to the proceeding. Because the challenged statements appeared in Leonard’s affidavit supporting custody-related emergency relief, they were privileged as a matter of law.

Notably, the court did not need to decide whether the plaintiffs had made a clear-and-specific prima facie showing on every element of defamation. Under section 27.005(d), once Leonard established an affirmative defense as a matter of law, dismissal followed regardless.

Holding

The court held that Leonard satisfied his initial burden under TCPA section 27.005(b). The defamation claim was based on statements contained in an affidavit filed in support of a TRO, and those statements constituted communications “in or pertaining to” a judicial proceeding. Accordingly, the suit was based on Leonard’s exercise of the right to petition.

The court also held that the judicial-proceedings privilege barred the defamation claim as a matter of law. Because the allegedly defamatory statements were made in an affidavit filed with the trial court in support of relief in an ongoing custody matter, they were absolutely privileged and could not serve as the basis for defamation liability.

On that basis, the Dallas Court of Appeals reversed the denial-by-operation-of-law of the TCPA motion and remanded for further proceedings consistent with its opinion.

Practical Application

For family-law litigators, Leonard is most useful in emergency-hearing practice. If your client files an affidavit in support of a TRO, temporary orders, emergency temporary orders, habeas-type child-return relief, or a modification premised on immediate endangerment, the filing itself may qualify as protected petitioning activity under the TCPA. If the opposing side responds with a separate tort suit based on those allegations, Leonard supplies both a TCPA pathway and a privilege defense.

That does not mean counsel should become careless in drafting emergency affidavits. The opinion protects communications because of where and why they were made—in the course of seeking judicial relief—not because anything filed in family court is immune from strategic consequences. Overstated, inflammatory, or poorly supported allegations can still damage credibility, affect fee awards, shape temporary-orders outcomes, and provoke sanctions theories distinct from defamation. The practical lesson is not “say anything”; it is “if you must say it, say it in a sworn filing tied to requested relief, keep it tethered to the proceeding, and understand the defensive protections that attach.”

The case also has significant implications for plaintiffs’ lawyers in family disputes. When a would-be claimant complains that the other side “lied in an affidavit,” the first question should no longer be whether the statement was false, but whether the claim is dead on arrival because the statement was made in a judicial proceeding and bears some relation to the relief sought. In many custody and divorce settings, the better strategy may be to attack credibility within the family case itself—through impeachment, sanctions practice where available, fee shifting, or merits-based rebuttal—rather than by filing a separate defamation action.

Checklists

Drafting Emergency Affidavits in Family Cases

• Tie each factual assertion to the relief requested.
• Make clear the affidavit is submitted in support of a specific judicial action, such as a TRO or emergency temporary orders.
• Use precise, fact-based allegations rather than generalized character attacks.
• Include dates, events, sources of knowledge, and the child-specific nexus where relevant.
• Limit the affidavit to matters that bear some relation to custody, safety, possession, access, or compliance.
• Avoid gratuitous rhetoric that is not necessary to obtain relief.
• Ensure the affidavit is properly sworn and filed in the court record.

Evaluating a TCPA Response to a Defamation Suit

• Identify exactly which statements form the basis of the claim.
• Determine whether each challenged statement was made in or pertaining to a judicial proceeding.
• Confirm the statements were submitted in a pleading, affidavit, declaration, motion, hearing, or related paper.
• Build the TCPA step-one argument around the statutory definition of the right to petition.
• Preserve the judicial-proceedings privilege in the answer and in the TCPA motion.
• Track the TCPA hearing and ruling deadlines carefully to preserve appellate posture.
• Frame the case using the plaintiff’s own pleadings, which often establish the protected nature of the conduct.

Screening a Proposed Family-Law Defamation Claim

• Ask whether the alleged statement was made in a court filing, affidavit, testimony, or other litigation communication.
• Analyze whether the statement bears some relation to the underlying divorce, SAPCR, modification, enforcement, or protective-order dispute.
• Evaluate whether the judicial-proceedings privilege creates an absolute bar.
• Assess TCPA exposure, including fees and sanctions risk if the claim is dismissed.
• Consider whether the client’s real objective is reputational repair, custody leverage, or tactical retaliation.
• Explore in-case remedies first, including evidentiary rebuttal, impeachment, fee requests, sanctions theories, or pleadings challenging unsupported allegations.
• Advise the client candidly if the contemplated tort suit is likely to strengthen the other side’s position.

Preserving Credibility While Using Protected Filings Aggressively

• Corroborate serious allegations with records, messages, witnesses, photos, medical evidence, or third-party reports where possible.
• Distinguish firsthand knowledge from information and belief.
• Avoid adopting every client accusation wholesale.
• Use narrowly tailored allegations focused on the child or issue before the court.
• Anticipate cross-examination on omissions, exaggerations, and timing.
• Remember that privilege may defeat tort liability but will not cure a loss of credibility with the trial judge.
• Consider whether a sealed filing, in camera submission, or narrower requested relief is appropriate in highly sensitive matters.

Citation

Leonard v. Wooten and Ellison, No. 05-25-01101-CV, 2026 WL ___ (Tex. App.—Dallas Apr. 15, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

This is the kind of civil-procedure ruling that can be weaponized effectively in divorce and custody litigation because family cases generate exactly the kind of high-conflict sworn filings that later become the basis of satellite tort claims. A party seeking emergency restrictions, exclusive possession, supervised access, geographic restraints, child return, or anti-harassment relief can now cite Leonard to argue that statements in the supporting affidavit are protected petitioning activity and, if later sued, absolutely privileged. Strategically, that means a family lawyer can press serious allegations through the court-centered mechanism designed to address them, while forcing the opponent to litigate those accusations inside the family case rather than in a parallel defamation action. The caution, of course, is that this sword should be used with discipline: allegations should still be materially connected to the requested relief, because privilege and TCPA protection are strongest when the communication is unmistakably part of a legitimate judicial effort rather than a free-floating smear embedded in family-court paperwork.

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