Meghan Grant v. Joshua Finecy, Anthony Long, and Kyle Randle

                       In the
                  Court of Appeals
          Second Appellate District of Texas
                   at Fort Worth
               ___________________________
                    No. 02-23-00310-CV
               ___________________________

                MEGHAN GRANT, Appellant

                              V.

JOSHUA FINECY, ANTHONY LONG, AND KYLE RANDLE, Appellees



             On Appeal from the 48th District Court
                    Tarrant County, Texas
                Trial Court No. 048-342682-23


             Before Bassel, Womack, and Wallach, JJ.
            Memorandum Opinion by Justice Womack
                          MEMORANDUM OPINION

                                I. INTRODUCTION

      This is an accelerated interlocutory appeal pursuant to the Texas Citizens

Participation Act (TCPA). See 

.001–.011,

51.014(a)(12) (authorizing interlocutory appeal of order denying motion to dismiss

filed under TCPA Section 27.003). Appellant Meghan Grant contends that the trial

court erred by denying her TCPA motion to dismiss the stalking and civil conspiracy

claims asserted against her by Appellees Joshua Finecy, Anthony Long, and Kyle

Randle. Because we conclude that Appellees’ claims are not subject to dismissal

under the TCPA, we affirm.

                                 II. BACKGROUND

      On April 23, 2023, Fort Brewery and Pizza, a restaurant and entertainment

venue located in Fort Worth, hosted a brunch featuring entertainment by drag

performers. Fort Brewery advertised the event as family-friendly and did not impose

any age requirements.

      On the day of the event, two groups gathered outside the venue. The first

group, which included Grant and members of the Elm Fork chapter of the John

Brown Gun Club (Elm Fork JBGC), supported the event. The second group, which

included Appellees, opposed and protested it.




                                          2
      Appellees allege1 that approximately fifteen members of the Elm Fork JBGC

were present and that nearly all of them were fully masked to conceal their identities.

According to Appellees, the Elm Fork JBGC contingent was heavily armed: five

members were carrying long rifles and others openly carried handguns.

      Appellees claim that within minutes of their arrival, certain Elm Fork JBGC

members “launched a planned and coordinated attack” on them.             According to

Appellees, three Elm Fork JBGC members2 crossed the street to confront them and

their fellow protesters. One of the three—Samuel Fowlkes—pulled back so that his

two comrades, each of whom was armed with a long gun and was carrying an open

umbrella, could shield him from Appellees. When his blockers were in position,

Fowlkes quickly leaned forward between them and doused Appellees’ faces with

pepper spray. He then hid behind his two blockers (and their umbrellas) before

fleeing back across the street and rejoining the larger group of Elm Fork JBGC

members.

      After the incident, Fort Worth police, who had been monitoring the event,

arrested Fowlkes. Grant and Christopher Guillot attempted to help Fowlkes escape



      1
        Our description of the events giving rise to the underlying lawsuit generally
tracks the allegations in Appellees’ petition. Because no trial has yet occurred in this
case, our opinion should not be read to suggest that these allegations are necessarily
true.
      2
       Appellees do not allege that Grant was one of these three individuals.


                                           3
and were also arrested. At the time of Grant’s arrest, she was carrying a “Smith &

Wesson 9 mm handgun with a mounted ‘red dot’ sight and a Streamlight TLR-6

tactical light with red laser”; this weapon was confiscated by law enforcement. Grant

was charged with assaulting police officers, interfering with public duties, and resisting

arrest.

          Appellees, claiming that they were injured in the attack, filed suit against

Fowlkes and his alleged conspirators, including Grant, Guillot, and the Elm Fork

JBGC. In their petition, Appellees assert four causes of action: assault, battery, civil

conspiracy, and stalking. However, only the last two causes of action are directed at

Grant; Appellees’ assault and battery claims are aimed solely at Fowlkes.

          Grant, asserting that Appellees had brought their suit in response to her

exercise of her freedoms of association, petition, and speech, filed a motion to dismiss

Appellees’ claims under the TCPA. Following a hearing, the trial court signed an

order denying Grant’s TCPA motion. This interlocutory appeal followed. See 

§ 51.014(a)(12).

                                     III. DISCUSSION

          In what amounts to a single issue,3 Grant contends that the trial court erred by

denying her motion to dismiss because the TCPA applies to Appellees’ causes of


       Grant’s brief enumerates five issues, but her second through fifth issues are, in
          3

essence, subparts of the argument raised in her first issue—that the trial court erred
by denying her TCPA motion to dismiss. Because all of Grant’s issues pertain to the
overarching question of whether the trial court erred by denying her TCPA motion to

                                              4
action against her and because Appellees failed to establish each essential element of

their claims by clear and specific evidence. We disagree.

A. Standard of Review and Governing Law

      The TCPA—commonly referred to as Texas’s anti-SLAPP4 statute—is

intended to “protect[] citizens who petition or speak on matters of public concern

from retaliatory lawsuits that seek to intimidate or silence them.”         In re Lipsky,

 (Tex. 2015) (orig. proceeding); see 

 (summarizing TCPA’s purpose as “encourag[ing] and safeguard[ing] the

constitutional rights of persons . . . and, at the same time, protect[ing] the rights of a

person to file meritorious lawsuits for demonstrable injury”).

      A party who moves for dismissal under the TCPA invokes a three-step,

burden-shifting process: (1) first, the movant seeking dismissal must demonstrate that

a “legal action” has been brought against her and that the action is “based on or is in

response to” an exercise of a protected constitutional right; (2) then the burden shifts

to the party bringing the legal action to avoid dismissal by establishing, by clear and

dismiss, we will treat them as a single complaint. See McKinney v. Meador, 

 (Tex. App.—Tyler 1985, writ ref’d n.r.e) (combining all of appellant’s points
addressing separate elements of prejudgment interest claim and treating them as one
challenge to the propriety of awarding prejudgment interest); see also Espey v. Crown
Mins. Co., No. 09-93-053-CV, 

, at *3 (Tex. App.—Beaumont
Sept. 15, 1994, writ dism’d by agr.) (not designated for publication) (treating separate
points of error as a single complaint).
      4
        SLAPP stands for Strategic Lawsuit Against Public Participation. See Windsor
v. Round, 

, 658 (Tex. App.—Waco 2019, pet. denied).


                                            5
specific evidence, a prima facie case for each essential element of the claim in

question; and (3) finally, the burden shifts back to the movant to justify dismissal by

establishing an affirmative defense or other ground on which she is entitled to

judgment as a matter of law. See 

(b)–(d);

Miller v. Schupp, No. 02-21-00107-CV, 

, at *1 (Tex. App.—Fort Worth

Jan. 6, 2022, no pet.) (mem. op.).

      We review a trial court’s ruling on a TCPA motion to dismiss—including its

determination of the parties’ satisfaction of their respective burdens—de novo.

Landry’s, Inc. v. Animal Legal Def. Fund, 

, 45–46 (Tex. 2021); Miller,

, at *1–2. Our review encompasses “the pleadings, evidence a court

could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and

opposing affidavits stating the facts on which the liability or defense is based,” and we

view all of these in a light most favorable to the nonmovant. 

(a); see Maggret v. Ramsey’s Rods & Restoration, No. 02-20-00395-CV,

, at *2 (Tex. App.—Fort Worth June 3, 2021, no pet.) (mem. op.);

Stallion Oilfield Servs., Ltd. v. Gravity Oilfield Servs., LLC, 

, 214 (Tex.

App.—Eastland 2019, pet. denied).

B. Bodily-Injury Exemption

      Intertwined with and overlying the TCPA’s multi-step dismissal process is the

TCPA provision exempting certain actions from the TCPA’s application. See 

(a); Temple v. Cortez Law Firm, PLLC,

                                           6


, 343 (Tex. App.—Dallas 2022, no pet.). When a nonmovant invokes

an exemption, the trial court must consider its applicability in the context of

determining whether the TCPA movant has met its initial burden under the first step

of the dismissal process. See Temple, 657 S.W.3d at 345–46 (concluding that when a

TCPA movant’s step-one burden and the nonmovant’s exemption claim are both

disputed, a court may address these issues in any order). As part of this analysis, the

nonmovant bears the burden of proving the statutory exemption. 

; Hieber v.

Percheron Holdings, LLC, 

, 211 (Tex. App.—Houston [14th Dist.] 2019,

pet. denied); Grant v. Pivot Tech. Sols., Ltd., 

 (Tex. App.—Austin

2018, pet. denied). If the nonmovant proves that an exemption applies to a particular

legal action, that action may not be dismissed under the TCPA, and the nonmovant is

relieved from making a prima facie case. See 

(a); Temple, 657 S.W.3d at 343; see also Round Table Physicians Grp., PLLC v.

Kilgore, 

, 883 (Tex. App.—Houston [14th Dist.] 2020, pet. denied);

Atlas Survival Shelters, LLC v. Scott, No. 12-20-00054-CV, 

, at *6

(Tex. App.—Tyler Nov. 18, 2020, no pet.) (mem. op.).

      Among the TCPA’s enumerated exemptions is the so-called bodily-injury

exemption, which provides that the TCPA does not apply to any “legal action seeking

recovery for bodily injury” or to “statements made regarding that legal action.” 

(a)(3). Appellees contend that this exemption

applies to their claims against Grant even though (1) their assault and battery causes

                                          7
of action are directed solely at Fowlkes and (2) their petition does not allege that

Grant directly participated in the assault and battery (either as the pepper sprayer or as

one of the blockers). According to Appellees, the bodily-injury exemption applies to

their entire lawsuit; thus, it is irrelevant whether their specific claims against Grant

seek recovery for bodily injuries. But Appellees’ oversimplified analysis fails to take

into account all of the TCPA’s language and is contrary to existing caselaw.

      Appellees, noting that the TCPA’s definition of “legal action” includes

“lawsuit” or “petition,” 

.001(6)5—and applying simple substitution principles—

posit that the bodily-injury exemption could be read as excluding “a [lawsuit or

petition] seeking recovery for bodily injury” from the TCPA’s scope.                   

§ 27.010(a)(3). Based on this reading, Appellees contend that the TCPA’s plain text

dictates that their entire lawsuit is excluded from dismissal because their petition

includes at least two claims—assault and battery—that undeniably seek recovery for

bodily injury. See Cavin v. Abbott, 

 (Tex. App.—Austin 2017, no

pet.) (defining bodily injury to mean “[p]hysical damage to a person’s body” (quoting

Black’s Law Dictionary 906 (10th ed. 2014))).

       But in making this argument, Appellees ignore the fact that the TCPA’s

definition of “legal action” also includes the narrower term “cause of action.” Tex. Civ.

      5
       The TCPA defines “legal action” as “a lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial pleading or filing that
requests legal, declaratory, or equitable relief.” 

(6).


                                            8
Prac. & Rem. Code Ann. § 27.001(6) (emphasis added). Thus, using the Appellees’

same substitution principles, the bodily-injury exemption could also be read to apply

to any “[cause of action] seeking recovery for bodily injury.” Id. § 27.010(a)(3). Such

a reading obviously runs counter to Appellees’ contention that their entire lawsuit is

exempted from dismissal under the TCPA merely by virtue of the fact that it includes

assault and battery causes of action and suggests instead that we must examine each of

Appellees’ individual causes of action and exempt only those actually “seeking

recovery for bodily injury.” See id. Accordingly, Appellees’ assertion that we “can end

[our] inquiry here”—that is, with the text of TCPA Sections 27.001(6) and

27.010(a)(3)—is simply incorrect.

      The applicable case law makes clear that under a proper construction of

Section 27.010, the TCPA’s exemptions are to be applied on a cause-of-action-by-

cause-of-action basis. See Baylor Scott & White v. Project Rose MSO, LLC, 

, 281–82 (Tex. App.—Tyler 2021, pet. denied); KB Home Lone Star Inc. v. Gordon,

, 657–58 (Tex. App.—San Antonio 2021, no pet.); see also Whataburger

Rests., LLC v. Fuentes, No. 08-23-00017-CV, 

, at *7 (Tex. App.—El

Paso Sept. 7, 2023, no pet.) (mem. op.) (acknowledging that “the application of [a

TCPA] exemption is determined on a cause-of-action-by-cause-of-action basis” but

concluding on specific facts that appellee’s negligence claim seeking damages for both

bodily injury and property damage was a single cause of action to which the bodily-

injury exemption applied); cf. State ex rel. Best v. Harper, 

, 11–14 (Tex.

                                          9
2018) (reading Section 27.010(a) exemption narrowly to effect liberal application of

the TCPA in keeping with its overall purpose). Indeed, in both Baylor Scott & White

and KB Home Lone Star Inc., our sister courts explicitly rejected arguments—like the

one raised by Appellees—that the presence of one exempt cause of action in a lawsuit

effectively excludes the entire lawsuit from dismissal under the TCPA. See Baylor Scott

& White, 633 S.W.3d at 281–82 (rejecting appellee’s argument that its entire

counterclaim was exempt under the TCPA’s common-law-fraud exemption merely

because one of its many alleged causes of action was a common-law-fraud claim); KB

Home Lone Star Inc., 629 S.W.3d at 657 (rejecting appellees’ contention that because

their lawsuit included an exempt DTPA claim, “the TCPA [could] not be used to

dismiss any other pleading, claim, document, or filing within the[ir] lawsuit”). We

agree with the Tyler Court of Appeals that the TCPA’s exemption provision, which

sets forth itemized exemptions applicable only to a specified laundry list of parties

based on their statuses in the underlying suit and to different categories of causes of

action based on the nature of the claims, reflects the legislature’s intent to apply

TCPA exemptions on a cause-of-action-by-cause-of action basis. Baylor Scott & White,

633 S.W.3d at 282; see 

(a). As our sister

court observed,

      [g]iven that any particular lawsuit may involve multiple parties redressing
      several independent injuries through a multitude of different causes of
      action, [the TCPA’s] laundry list exemption methodology demonstrates
      the legislature’s intent to examine each exemption on a cause of action


                                          10
      by cause of action basis within the context of the entire lawsuit that
      otherwise falls within the TCPA.
Baylor Scott & White, 633 S.W.3d at 282.
      Thus, we must individually examine Appellees’ causes of action against Grant

to determine whether any of them fall within the bodily-injury exemption. See id.; see

also KB Home Lone Star Inc., 629 S.W.3d at 657. As noted above, Appellees’ petition

alleges four causes of action, but only two of them—civil conspiracy and stalking—

are directed against Grant. Accordingly, we will limit our analysis to these two claims.

      1. Civil Conspiracy

      To recover for civil conspiracy, a plaintiff must prove the following essential

elements: (1) defendant was a member of a combination of two or more persons;

(2) the combination’s object was to accomplish either an unlawful purpose or a lawful

purpose by unlawful means; (3) the members had a meeting of the minds on the

object or course of action; (4) one of the members committed an unlawful, overt act

to further the object or course of action; and (5) the plaintiff suffered injury as the

proximate result. Agar Corp. v. Electro Circuits Int’l, LLC, 

, 141 (Tex.

2019) (quoting Massey v. Armco Steel Co., 

 (Tex. 1983)); see also

O’Connor’s Texas Causes of Action ch. 37, § 1.1 (2022).

      Civil conspiracy is not an independent tort; rather, it is a theory of vicarious

liability by which a plaintiff may seek to hold a party liable for the commission of an

unlawful act committed by a co-conspirator. See Agar Corp., 580 S.W.3d at 141–42;



                                           11
Tilton v. Marshall, 

 (Tex. 1996).          Thus, civil conspiracy is a

“derivative tort” that “survives or fails alongside” the underlying tort alleged. Agar,

580 S.W.3d at 141. Because of civil conspiracy’s derivative status, such a claim does

not provide an independent basis for liability; the plaintiff’s damages result from the

underlying tort, not the conspiracy itself. See Backes v. Misko, 

 (Tex.

App.—Dallas 2015, pet. denied) (citing Tilton, 

); see also Hart v.

Moore, 

 (Tex. App.—Amarillo 1997, pet. denied) (“Damages are not

presumed from the existence of a conspiracy because the gist of a civil conspiracy

action is the damage resulting from commission of a wrong which injures another, not

the conspiracy itself.”).

       Here, Appellees’ petition makes clear that their civil conspiracy claim is

derivative of their assault and battery claims. Their petition specifically alleges that the

defendants, including Grant and the other Elm Fork JBGC members, “agreed to

inflict bodily injury on [Appellees],” “planned the attack, [and] acted as a shield for

Fowlkes while he sprayed [Appellees] with pepper spray.” Thus, through their civil

conspiracy claim, Appellees seek to hold Grant and the other defendants liable for

Appellees’ underlying assault and battery claims arising from the pepper-spray attack.

See Agar Corp., 580 S.W.3d at 141–42.

       Because Appellees’ civil conspiracy claim is derivative of their assault and

battery claims arising from the pepper-spray attack, it is a cause of action “seeking



                                            12
recovery for bodily injury.”6 

(a)(3).

Accordingly, the conspiracy claim falls within the TCPA’s bodily-injury exemption,

and the trial court did not err by denying Grant’s TCPA motion to dismiss this cause

of action. See id.; see also Baylor Scott & White, 633 S.W.3d at 284 (holding that the

TCPA’s fraud exemption applied to appellee’s civil conspiracy claim because that

claim was derivative of a fraud cause of action).

       2. Stalking

       The Texas Civil Practice & Remedies Code sets forth the following elements

for a stalking claim:

       1. on more than one occasion the defendant engaged in harassing
       behavior;
       2. as a result of the harassing behavior, the claimant reasonably feared
       for the claimant’s safety or the safety of a member of the claimant’s
       family; and



       6
        In her brief, Grant argues that Appellees failed to show that the bodily-injury
exemption applies to their civil conspiracy claim because the specific allegations
against Grant are “weak at best and not specific enough to survive the motion to
dismiss.” However, whether the bodily-injury exemption applies to a particular cause
of action turns on the nature of the claim, not on the strength of the allegations
supporting it. See 

(a)(3); see also Baylor Scott
& White, 633 S.W.3d at 282. Indeed, if an exemption applies, the nonmovant is
removed of its burden to establish a prima facie case by clear and specific evidence.
RigUp, Inc. v. Sierra Hamilton, LLC, 

, 182 (Tex. App.—Austin 2020, no
pet.) (“[T]he nonmovant can avoid its burden of demonstrating a prima facie case
entirely by showing that one of the TCPA’s several exemptions applies.”). Thus,
Grant’s arguments regarding the viability of Appellees’ civil conspiracy claim are
irrelevant to our analysis concerning whether the bodily-injury exemption applies.


                                           13
       3. the defendant violated a restraining order prohibiting harassing
       behavior or:
           (A) the defendant, while engaged in harassing behavior, by acts or
           words threatened to inflict bodily injury on the claimant or to commit
           an offense against the claimant, a member of the claimant’s family, or
           the claimant’s property;
           (B) the defendant had the apparent ability to carry out the threat;
           (C) the defendant’s apparent ability to carry out the threat caused the
           claimant to reasonably fear for the claimant’s safety or the safety of a
           family member;
           (D) the claimant at least once clearly demanded that the defendant
           stop the defendant’s harassing behavior;
           (E) after the demand to stop by the claimant, the defendant
           continued the harassing behavior; and
           (F) the harassing behavior has been reported to the police as a
           stalking offense.

(a). Thus, when—as in the present case—

no restraining order is involved, a stalking claimant must prove, among other things,

that the defendant repeatedly engaged in “harassing behavior”7 and made one or more

threats against the claimant, his family, or his property. See 

       Here, Appellees allege that the defendants, including Grant, have “created

‘dossiers’ on Appellees and their families” and that “on more than one occasion” the

defendants have “engaged in harassing behavior towards [Appellees] in a manner

       7
        The stalking statute defines “harassing behavior” as “conduct by the defendant
directed specifically toward the claimant, including following the claimant, that is
reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the claimant.”

 § 85.001(4).


                                            14
likely to and intended to harass, annoy, alarm, abuse[,] and torment [them].” They

further allege that because of such behavior, Appellees “reasonably fear for their

safety and the safety of their families”; that defendants have continued their harassing

behavior even though Appellees have demanded that they stop “at least once”; and

that Appellees have reported this behavior to law enforcement as a stalking offense.

      At most,8 Appellees’ stalking claim is predicated on harassing behavior and

threats of bodily injury; it does not appear to seek recovery for any actual bodily injury.

Whether the TCPA’s bodily-injury exemption applies to a claim arising from a mere

threat of bodily injury is an open question. See O’Connor’s Texas Causes of Action

ch. 4-A, § 6.4 (2022) (“It is unclear to what extent the TCPA applies to . . . claims for

assault by threat of bodily injury.”). But we need not resolve this question because, as

discussed below, we conclude that Grant has not satisfied her burden under the

TCPA’s first step to show that Appellees’ stalking claim is “based on or is in response

to” her exercise of a protected constitutional right. See 

(b); Miller, 

, at *1; see also Temple, 657 S.W.3d at 345–46

      8
        As Grant points out, Appellees do not explicitly allege in their petition that the
defendants—including Grant—made any specific threats, much less threats to inflict
bodily injury. However, Appellees’ petition describes at length the violent tactics
employed in general by John Brown Gun Clubs, including the Elm Fork JBGC, and
alleges that the defendants have “created ‘dossiers’” on the Appellees and that
Appellees “reasonably fear for their safety and the safety of their families.” Thus,
viewing the petition—as we must—in the light most favorable to Appellees, see
Maggret, 

, at *2; Stallion Oilfield Servs., Ltd., 592 S.W.3d at 214, we
conclude that Appellees’ petition, taken as a whole, impliedly alleges that the
defendants threatened them with bodily injury.


                                            15
(concluding that a court may address a TCPA movant’s step-one burden and a

nonmovant’s exemption claim in any order).

C. Appellees’ Stalking Claim Is Beyond the TCPA’s Scope

      Grant argues that the TCPA applies to Appellees’ stalking claim9 because it is

based on or is in response to her exercise of the rights to free speech, association, and

petition. See 

(b)(1). We disagree.

      As the Texas Supreme Court has recognized, when it comes to free speech,

      [t]he TCPA casts a wide net. . . . The “exercise of the right of free
      speech” extends to any “communication made in connection with a
      matter of public concern.” 

 § 27.001(3). Almost every imaginable
      form of communication, in any medium, is covered. Id. § 27.001(1). A
      matter of public concern “includes” but is not limited to “an issue
      related to . . . environmental, economic, or community well-
      being; . . . the government; . . . or . . . a good, product, or service in the
      marketplace.” Id. § 27.001(7).
Adams v. Starside Custom Builders, LLC, 

 (Tex. 2018).

      The TCPA takes a similar approach to the rights of association and petition. It

broadly defines the “exercise of the right to association” as “join[ing] together to

collectively express, promote, pursue, or defend common interests relating to a

governmental proceeding or a matter of public concern.” 

(2).       The “exercise of the right to petition” extends to


      9
        Having already determined that the bodily-injury exemption applies to
Appellees’ civil conspiracy claim, we limit our analysis under step one of the TCPA’s
analytical framework to Appellees’ stalking claim. See 

(b)(1), 27.010(a)(3).


                                           16
“any . . . communication that falls within the protection of the right to petition the

government” under either the United States Constitution or the Texas Constitution,

including, among other things, (1) “a communication in connection with an issue

under consideration or review by a legislative, executive, judicial, or other

governmental body or in another governmental or official proceeding” or (2) a

communication “that is reasonably likely to encourage” or to “enlist public

participation in an effort to effect” such consideration or review. 

 § 27.001(4)(B)–

(E).

       “Despite the TCPA’s broad implications, however, the act ‘has its limits[,]’ and

not every communication falls under the statute.” Sanchez v. Striever, 

,

244 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (quoting Dyer v. Medoc Health

Servs., LLC, 

 (Tex. App.—Dallas 2019, pet. denied)). When

interpreting the TCPA, we must not construe the statute’s chosen words and phrases

in isolation; rather, we must consider the context and framework of the entire statute

and construe it as a whole. See Worsdale v. City of Killeen, 

 (Tex.

2019). Thus, the TCPA’s broad definitions concerning the exercise of protected

rights are necessarily restricted by the statute’s expressly stated purpose “to encourage

and safeguard the constitutional rights of persons to petition, speak freely, associate

freely, and otherwise participate in government to the maximum extent permitted by

law.” Sanchez, 614 S.W.3d at 245 (quoting 

(emphasis added)); accord Cheniere Energy, Inc. v. Lotfi, 

 (Tex.

                                           17
App.—Houston [1st Dist.] 2014, no pet.) (op. on reh’g) (Jennings, J., concurring).

“The TCPA plainly contemplates and encourages government participation, but only

law-abiding participation comes within its purview.” Sanchez, 614 S.W.3d at 245.

      Bearing these principles in mind, we conclude that the TCPA does not apply to

Appellees’ stalking claim, which is predicated upon allegations of both harassing and

threatening conduct—not on Grant’s presence at or participation in the underlying

protest or membership in the Elm Fork JBGC. See Whitelock v. Stewart, 

, 606 (Tex. App.—El Paso 2023, pet. denied). “Although citizens most certainly

do have a First Amendment right to associate to bring about social and political

change for our ‘common interests,’ there is no constitutional right to engage in

criminal behavior, commit civil wrongs, or otherwise inflict injury upon others.”

Cheniere Energy, 

 (Jennings, J., concurring); see also Sanchez,

614 S.W.3d at 244 (“Put simply, there is no constitutional right to engage in criminal

behavior or commit civil wrongs.”). Thus, the TCPA’s definition of the “exercise of

the right to association,” broad though it may be, cannot be reasonably construed to

protect harassing behavior or threatening conduct. See Kawcak v. Antero Res. Corp.,

, 583 (Tex. App.—Fort Worth 2019, pet. denied) (rejecting

interpretation of the right to association that would make the TCPA “a sword to

protect the commission of civil wrongs”).        Similarly, the alleged harassing and

threatening conduct at the heart of Appellees’ stalking claim cannot be considered a



                                          18
protected communication10 for purposes of the TCPA. See Whitelock, 661 S.W.3d at

606 (holding that the TCPA did not apply to appellees’ intentional-infliction-of-

emotional-distress claim, which involved allegations of threatening, assaultive, and

destructive conduct, because “such conduct cannot be considered a protected

communication about a matter of public concern within the meaning of the TCPA”);

Sanchez, 614 S.W.3d at 245–46 (holding that protesters’ assault of plaintiff was not a

protected communication under the TCPA); see also Webb v. Schlagal, 

 (Tex. App.—Eastland 2017, no pet.) (“To the extent that [appellant’s] e-mails and

online posts constituted stalking or threatened [appellee], they were not protected

speech under the First Amendment.”); cf. Test Masters Educ. Servs. v. Singh, 

, 580 (5th Cir. 2005) (“Courts have made a distinction between communication

and harassment. The difference is one between free speech and conduct that may be

proscribed.” (first citing Giboney v. Empire Storage & Ice Co., 

, 

, 690–91 (1949); and then citing R.A.V. v. City of St. Paul, 

, 

 (1992))); Lewis v. State, 

 (Tex. App.—Fort Worth

2002, pet. ref’d) (“Conduct enjoys no [F]irst [A]mendment protection when the actor

intends to place the recipient in fear of bodily injury or death . . . . A person who

knows or reasonably believes his conduct will be regarded as threatening bodily injury


        As defined by the TCPA, both the exercise of the right to free speech and the
       10

exercise of the right to petition constitute a type of “communication.” See 

(3)–(4).


                                            19
or death is necessarily on notice that his conduct is prohibited.”). Therefore, we

cannot say that Appellees’ stalking claim is “based on” or “in response to” Grant’s

exercise of the right to free speech, association, or petition as those terms are used in

the TCPA.11 See Whitelock, 661 S.W.3d at 606.

      Because Appellees’ stalking claim does not fall within the TCPA’s scope, the

trial court did not err by denying Grant’s motion to dismiss this cause of action. See

In re Estate of L.R.M., No. 13-19-00598-CV, 

, at *3 (Tex. App.—

Corpus Christi–Edinburg Nov. 18, 2021, no pet.) (mem. op.).

                                  IV. CONCLUSION

      Having determined that (1) the TCPA’s bodily-injury exemption applies to

Appellees’ civil conspiracy claim, see 

(a)(3),

and (2) Appellees’ stalking claim is beyond the TCPA’s purview, see 

 § 27.005(b), we

affirm the trial court’s order denying Grant’s motion to dismiss and remand this

matter for further proceedings.

                                                      /s/ Dana Womack

                                                      Dana Womack
                                                      Justice

Delivered: December 28, 2023


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         We note that Appellees’ petition expressly states that “[f]or the avoidance of
doubt, [Appellees’] claims . . . do not extend to any speech, expression, or association
activities of Defendants. . . . Instead, [Appellees’] claims are directed at Defendants’
violent actions and violations of criminal law.”


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