Pecan Street Owners Association, a Texas Non-Profit Corporation; And Shawn Cirkiel, an Individual v. Mala Vida, LLC, a Texas Limited Liability Company, and Gabriela Bucio, an Individual

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00216-CV

Pecan Street Owners Association, a Texas Non-Profit Corporation;

and Shawn Cirkiel, an Individual, Appellants

v.

Mala Vida, LLC, a Texas Limited Liability Company,

and Gabriela Bucio, an Individual, Appellees

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-24-008025, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

MEMORANDUM OPINION

In this interlocutory appeal, Pecan Street Owners Association (the Association)

and Sean Cirkiel appeal from the trial court’s denial by operation of law of their TCPA motion to

dismiss appellees’ lawsuit. See Tex. Civ. Prac. & Rem. Code §§ 27.003 (“Motion to Dismiss”),

.008 (“Appeal”). For the following reasons, we reverse and remand in part and affirm in part.

BACKGROUND1

Appellees are Gabriela Bucio and Mala Vida, LLC (the LLC). Bucio is a long-

time Austin resident who operates several hospitality businesses in the Austin area, including

1

The facts in this section are derived from the pleadings and evidence attached to the

parties’ motions and responses, which we view in the light most favorable to appellees as the

nonmovants. See Warner Bros. Ent., Inc. v. Jones, 538 S.W.3d 781, 801 (Tex. App.—Austin

2017), aff’d, 611 S.W.3d 1 (Tex. 2020).

nightclubs, restaurants, and coffee shops. Bucio is a co-owner and a manager of the LLC,

through which she owns and operates the downtown nightclubs Mala Vida and Mala Fama,

located in the East Sixth Street area. Bucio and the LLC sued appellants for defamation related

to statements appellants made linking appellees to criminal activity.

Appellants supported their TCPA motion with the affidavit of Cirkiel, the

Association’s President and non-voting Chairman of its Board of Directors. In the motion, they

allege that the Association—a non-profit association of downtown Austin property owners—has

long “contracted with the [C]ity to implement annual service plans to achieve” the City’s goals

of improving public safety, economic development, and historic preservation of the East Sixth

Street Planned Improvement District (PID). Consistent with these goals, appellants allege that

in early 2024 the Association engaged a licensed private investigator, Vicio Security and

Investigations, to conduct an undercover investigation “to report on nightlife activities in the

PID.” Marcus Stokke is the owner of Vicio and has over twenty-five years of law-enforcement

experience, including as a police officer and enforcement supervisor for the Texas Alcoholic

Beverage Commission (TABC).2 Stokke and his associates conducted their investigation over

two weekends in March of 2024. Stokke then prepared two reports that he provided to the

Association: (1) a six-page “Expert Investigative Report Summary” (Report) and (2) a twenty-

two page “Expert Investigative Report” (Investigation Log) containing photographs and detailing

observations made by Stokke and his associates.

2

Stokke was a defendant below, filed a TCPA motion that was denied by operation of

law, and filed a notice of appeal, but he has since settled with the plaintiffs and is no longer a

party to this suit.

2

Appellees allege that the Association provided the Report3 to “media outlet

KVUE ABC” and “permitted KVUE ABC to publish the Report to the general public via [an

article on] its website” that contained a link to access the Report. In their petition, appellees

allege that “at least” the following statements (Statements) in the Report are false and

defamatory:

Statement No. 1: By nonchalantly going through the motions and not effectively

patting down customers and at the same time preventing a known police officer

from entering with a weapon, as happened with me at Mala Fama during the first

week’s operation, it would appear that the criminal element has taken over the

area.

Statement No. 2: In regard to the bars Mala Vida and Mala Fama, there is most

definitely a criminal enterprise involved in the ultimate control of these

establishments.

Statement No. 3: If I was supervising this area with TABC, I would start an

investigation into both of these establishments [Mala Vida and Mala Fama] for

money laundering of drug proceeds related to cartel activity, underage drinking,

and subterfuge ownership. Ties to unlicensed bar Space Siete.

Other relevant portions of the Report include the following:

Space Siete

Engaging in organized criminal activity, money laundering, narcotics activity,

selling A/B without license/permit, and underage drinking. At 2AM, most of the

customers from Mala Vida and Mala Fama walk to Space Siete, the illegal after

hours club they own and control. At Space Siete the public can purchase and

consume alcoholic beverages all night long with absolutely no fear of any law

enforcement intervention.

Appellees contend that, through their attorney, they demanded that appellants

correct, clarify, and retract the false Statements but appellants have refused to do so.

3

It is not clear from the record whether appellees allege that the Association and Cirkiel

also published the Investigation Log to the cited media outlet, but the specific statements they

challenge as defamatory appear only in the Report.

3

Furthermore, appellees contend that appellants “caused the Report to again be published online

via the Austin Monitor.” Appellees allege that appellants knew or should have known, in the

exercise of ordinary care, that the Report contained false statements of fact about them and that

they published the Statements with negligent disregard for their truth. They further allege that

appellants “targeted” them “with actual malice and with the intent to damage” their business

operations and to “further the personal financial interests” of Cirkiel and other Association

members. Appellees contend that as a direct result of appellants’ publication of the defamatory

Report, “the general public suspects Ms. Bucio is a criminal and that her businesses, including

Mala Vida, LLC, are criminal enterprises.” Appellees allege that their businesses have

“experienced an increase in police activity,” detracting from their normal business activities and

creating “undue apprehension amongst the consuming public as to the safety” of their businesses.

They have asserted causes of action for common-law defamation and statutory libel. See Tex.

Civ. Prac. & Rem. Code § 73.001 (defining libel as “defamation expressed in written or other

graphic form” that causes one or more specified harms).

DISCUSSION

In two issues, appellants contend that the trial court erred in (1) denying their

motion to dismiss because (a) they established that the TCPA applies to appellees’ claims and

(b) appellees failed to establish a prima facie case for their claims and (2) failing to rule on or,

alternatively, overruling by implication their objections to the affidavits of Bucio and Brandon T.

Cook, appellees’ attorney. We review the trial court’s ruling on the TCPA motion de novo. See

RigUp, Inc. v. Sierra Hamilton, LLC, 613 S.W.3d 177, 182 (Tex. App.—Austin 2020, no pet.).

4

Does the TCPA apply?

Determining whether the TCPA applies to a legal action is a threshold issue

in reviewing a trial court’s ruling on a TCPA motion. See Tex. Civ. Prac. & Rem. Code

§ 27.005(b) (requiring movant to show that legal action is “based on or is in response to”

movant’s exercise of protected rights); Cavin v. Abbott, No. 03-23-00541-CV, 2025 WL

2248705, at *6 (Tex. App.—Austin Aug. 7, 2025, no pet.) (mem. op.). Appellants contend that

the TCPA applies because their publication of the Report constituted the exercise of their rights

of free speech and of association and that appellees’ lawsuit was based on or in response to such

publication. See Tex. Civ. Prac. & Rem. Code §§ 27.001 (defining “exercise of the right of

association” and “exercise of the right of free speech”), .003(a). We conclude that appellees’

lawsuit is based on or in response to appellants’ exercise of their right of free speech and thus

need not consider whether the lawsuit was based on appellants’ exercise of their right of

association.

The TCPA defines the exercise of the right of free speech as “a communication

made in connection with a matter of public concern,” with a “communication” being “the

making or submitting of a statement or document in any form or medium, including oral, visual,

written, audiovisual, or electronic.” Id. § 27.001(1), (3). A matter of public concern is broadly

defined as a statement or activity regarding (a) a public official, public figure, or other person

who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or

celebrity; (b) a matter of political, social, or other interest to the community; or (c) a subject of

concern to the public. Id. § 27.001(7). The parties do not dispute that publication of the Report

constituted a communication; they join issue, however, on whether publication of the Report

was in connection with a matter of public concern. Whether speech is a matter of public concern

5

is a question of law. Klentzman v. Brady, 456 S.W.3d 239, 257 (Tex. App.—Houston [1st Dist.]

2014), aff’d, 515 S.W.3d 878 (Tex. 2017).

The Statements involve allegations of criminal activity by individuals and entities

in a busy and popular, historic downtown area. Texas courts have generally held that criminal

conduct is a matter of public concern. See, e.g., Walgreens v. McKenzie, 713 S.W.3d 394, 401

(Tex. 2025); Davis v. Weston, No. 03-22-00378-CV, 2024 WL 4995724, at *8 (Tex. App.—

Austin Dec. 6, 2024, no pet.) (mem. op.). Courts view the content, form, and context of

allegedly defamatory statements in determining whether they were made in connection with a

matter of public concern. See Saks & Co. v. Ya Xi Li, 653 S.W.3d 306, 316 (Tex. App.—

Houston [14th Dist.] 2022, no pet.); Kadow v. Grauerholz, No. 02-20-00044-CV, 2021 WL

733302, at *3–4 (Tex. App.—Fort Worth Feb. 25, 2021, no pet.) (mem. op.). Here, the content,

form, and context of the Statements compel the conclusion that they were made in connection

with a matter of public concern. The Statements allege serious, ongoing criminal activity by

several businesses and their operators in a busy and popular, historic part of downtown Austin,

and the Statements were made initially to the members of the Association (who are owners of

other businesses in the area) and then to the public through the media, against the backdrop of

existing City Council and media attention to issues of crime in the area.

Given the general rule that criminal conduct is a matter of public concern, plus the

facts that the Report involved businesses in a busy and popular part of downtown Austin in the

midst of City Council and media attention to the issues of crime in that area, we conclude that

the Report’s publication was made in connection with a matter of public concern and that the

TCPA applies.

6

Did appellees meet their prima facie burden?

Because appellants established that the TCPA applies to appellees’ lawsuit, the

burden shifted to appellees to establish by clear and specific evidence a prima facie case for each

essential element of their defamation claim.4 See Tex. Civ. Prac. & Rem. Code § 27.005(c). To

establish a claim for defamation, a plaintiff must show (1) the publication of a false statement of

fact to a third party; (2) that was defamatory concerning the plaintiff; (3) made with the requisite

degree of fault; and (4) damages, in some cases. See In re Lipsky, 460 S.W.3d 579, 593 (Tex.

2015) (orig. proceeding).

When a plaintiff alleges defamation per se, she need not prove the fourth element

because the statements are so obviously harmful that damages, such as mental anguish and

loss of reputation, are presumed. Id. at 596. Appellees allege that the Statements constitute

defamation per se, and we agree. See id. (stating that “[a]ccusing someone of a crime, of having

a foul or loathsome disease, or of engaging in serious sexual misconduct are examples of

defamation per se”); Van der Linden v. Khan, 535 S.W.3d 179, 198 (Tex. App.—Fort Worth

2017, pet. denied). Therefore, to determine whether appellees’ defamation action survived

appellants’ motion to dismiss, we look only for clear and specific evidence as to the first, second,

and third elements.

We first address the second element. Appellants contend that the Statements

are not defamatory as to Bucio because she is not mentioned in the Report and there is no

4

Because statutory libel subsumes the elements of common-law defamation and

specifically occurs when the defamatory statements are in writing, as alleged here, we need not

analyze libel separately. See Austin v. Amundson, No. 05-22-00066-CV, 2022 WL 16945911, at

*7 (Tex. App.—Dallas Nov. 15, 2022, no pet.) (mem. op.) (noting that statutory libel “is a subset

of defamation and means defamation in writing”).

7

“indication that the reasonable reader would associate” the Statements with her individually.5

But appellants’ own evidence—in the form of social-media posts and online media articles—

demonstrates that Bucio is publicly associated with her various hospitality businesses, including

Mala Fama and Mala Vida, and that a person who knew or was acquainted with her would

understand from viewing the Statements that the defamatory matter referred to her. See

Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 894 (Tex. 1960) (“[I]t is not necessary that the

individual referred to be named if those who knew and were acquainted with the plaintiff

understand from reading the publication that it referred to plaintiff.”); Vice v. Kasprzak,

318 S.W.3d 1, (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“It is not necessary that the

plaintiff be specifically named in the communication to be defamatory, but it must be clear to

those who know and are acquainted with him that the defamatory statement is directed to him.”)

(citing Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 433 (Tex. App.—Austin 2007,

pet. denied)). The plaintiff need not prove that the defendant intended to refer to her, and

whether a communication “references” a plaintiff is a question of law. Vice, 318 S.W.3d at 13.

The Statements allege that the persons or entities who are “in ultimate control” of

Mala Fama and Mala Vida are involved in a criminal enterprise, that Mala Fama and Mala Vida

“own and control” the unlicensed bar Space Siete, and that Mala Fama and Mala Vida should be

investigated for specified criminal activities including money laundering of drug proceeds

5

Appellants do not contend that the Statements are not defamatory as to the LLC, and it

is settled law that legal entities have reputations and may recover for defamatory statements

directed at their professional reputation and practices. See Innovative Block of S. Tex., Ltd. v.

Valley Builders Supply, Inc., 603 S.W.3d 409, 419 (Tex. 2020). Additionally, when a statement

is defamatory as to a business, it is the business’s owner that courts deem as having standing to

sue for the defamation and that suffered damages. Waste Mgmt. of Tex., Inc. v. Texas Disposal

Sys. Landfill, Inc., 434 S.W.3d 142, 150 n.35 (Tex. 2014). It is undisputed that the LLC owns

Mala Vida and Mala Fama.

8

related to cartel activity. Like any entertainment establishment, nightclubs do not operate

themselves, and a reasonable reader of the Statements would understand them to be defamatory

as to the operators of Mala Vida and Mala Fama. The articles and social-media posts that

appellants attached to their motion demonstrate that Bucio manages and operates Mala Vida and

Mala Fama. Moreover, appellants’ evidence demonstrates that Bucio is one of the members and

managers of the LLC, and appellees’ pleadings allege that the LLC owns and operates Mala Vida

and Mala Fama. We conclude that the pleadings and evidence demonstrate that members of

the public who know or are acquainted with Bucio would have reasonably understood the

Statements to be referring to her. We conclude that appellees met their prima facie burden as to

the second element.

We next address the third element, as our determination thereof guides our

analysis of the first element. The status of the person allegedly defamed determines the requisite

degree of fault: a private plaintiff need only prove negligence, whereas a public figure or official

must prove actual malice, that is, that the statement was made with knowledge of its falsity or

with reckless disregard for its truth. Lipsky, 460 S.W.3d at 593. Public figures fall into two

categories: (1) all-purpose, or general-purpose, public figures; and (2) limited-purpose public

figures. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). General-purpose

figures are those individuals who have achieved such pervasive fame or notoriety that they

become public figures for all purposes and in all contexts. Id. Limited-purpose public figures

are only public figures for a limited range of issues surrounding a particular public controversy.

Id. Appellants contend that Bucio and the LLC are limited-purpose public figures.

A plaintiff is a limited-purpose public figure if three conditions are met: (1) the

controversy at issue must be public both in the sense that people were discussing it and people

9

other than the immediate participants in the controversy are likely to feel the impact of its

resolution; (2) the plaintiff must have more than a trivial or tangential role in the controversy;

and (3) the alleged defamation must be germane to the plaintiff’s participation in the

controversy. Id. To determine if the plaintiff’s role in the controversy was more than tangential,

a court examines whether the plaintiff (1) actually sought controversy, (2) had access to the

media, and (3) voluntarily engaged in activities that necessarily involved the risk of increased

exposure and injury to reputation. Klentzman v. Brady, 312 S.W.3d 886, 905 (Tex. App.—

Houston [1st Dist.] 2009, no pet.) (citing McLemore, 978 S.W.2d at 572–73).

As to this requirement, the supreme court has noted, “By publishing your views

you invite public criticism and rebuttal; you enter voluntarily into one of the submarkets of ideas

and opinions and consent therefore to the rough competition in the marketplace.” McLemore,

978 S.W.2d at 573. A person does not become a public figure merely because she is “discussed”

repeatedly by a media defendant or because her actions become a matter of controversy as a

result of the media defendant’s actions. Klentzman, 312 S.W.3d at 905. Even engaging in

criminal conduct does not make a person a limited-purpose public figure. Id. Rather, a

defamation defendant must show that the plaintiff “relinquished . . . his interest in the protection

of his own name” by “engag[ing] the attention of the public in an attempt to influence the

resolution” of “an[] issue of public concern.” Id. (citing Wolston v. Reader’s Dig. Ass’n, Inc.,

443 U.S. 157, 168 (1979)).

The question of public-figure status is one of constitutional law for the courts to

decide, McLemore, 978 S.W.2d at 571, and it is the defendant’s burden to establish that a

defamation plaintiff is a public figure, see Klentzman, 312 S.W.3d at 905 (concluding that

defendant had not met summary-judgment burden to establish as matter of law that plaintiff

10

was limited-purpose public figure). We conclude that appellants did not meet their burden

to establish that Bucio and the LLC are limited-purpose public figures. In making this

determination, we must first identify the alleged public “controversy” at issue. See McLemore,

978 S.W.2d at 572. A public controversy is a dispute that in fact has received public attention

because its ramifications will be felt by persons who are not direct participants. Mohamed v.

Center for Security Pol’y, 554 S.W.3d 767, 774 (Tex. App.—Dallas 2018, pet. denied);

see also Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/controversy

(defining “controversy” as “a discussion marked especially by the expression of opposing views:

dispute”) (last visited Oct. 21, 2025). The supreme court recently looked to the D.C. Circuit for

assistance in determining the existence and scope of a public controversy:

To determine whether a controversy indeed existed and, if so, to define its

contours, the judge must examine whether the persons actually were discussing

some specific question. A general concern or interest will not suffice. The court

can see if the press was covering the debate, reporting what people were saying[,]

and uncovering facts and theories to help the public formulate some judgment.

See McLemore, 978 S.W.2d at 572 (quoting Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d

1287, 1297 (D.C. Cir. 1980)).

Appellants contend that the public controversy here is “the issue of crime and

illegal alcohol sales in the area of East Sixth Street” and the “character and development” of the

area, which “has garnered substantial public attention, including that of the press and the City

Council.” But public and media attention around an issue does not equate to public controversy.

As evidence of this alleged public controversy, appellants cite resolutions by the City Council

to make the East Sixth Street area safer and to reduce violence and crime there and the

Association’s repeated complaints to law enforcement about after-hours liquor sales in the area

11

seemingly to no avail. But the City Council’s efforts or intention to combat crime and violence

in the area and the Association’s complaints to law enforcement about criminal activity do not

indicate there was a public debate or dispute about any particular issue, much less do those facts

evince that there were persons in the public sphere opposing the City’s efforts and thus making

the issue a debate or dispute.

However, even assuming that the “issue of crime and illegal alcohol sales” in the

East Sixth Street Area constituted a public controversy, appellants have identified no evidence

supporting their contention that Bucio or the LLC have engaged the attention of the public in an

attempt to influence the resolution of that area’s crime activity or illegal alcohol sales or that

Bucio or the LLC have any role whatsoever in the controversy, much less that they have any role

more than a tangential one. Id. at 571. Appellants cite evidence attached to their TCPA motion

comprising social-media posts and online media articles (predating the Report’s publication)

profiling Bucio, her success, and her various businesses, including Mala Vida. Having reviewed

this evidence, we cannot reasonably conclude that Bucio or the LLC were thereby publishing

their views on crime and illegal alcohol sales in the area, engaging the attention of the public to

influence resolution of the issue of crime in the area, or thrusting Mala Vida and Mala Fama into

the alleged public controversy of crime and illegal alcohol sales in the East Sixth Street area. See

Klentzman, 312 S.W.3d at 905. We hold that appellants did not meet their burden to establish

that Bucio and the LLC are limited-purpose public figures.

Having determined that, for purposes of our TCPA-motion review, Bucio and the

LLC are private individuals, we consider whether Bucio and the LLC established a prima facie

case that appellants acted with negligence in publishing the Statements. In the defamation

context, negligence is “the failure to investigate the truth or falsity of a statement before

12

publication, and the failure to act as a reasonably prudent person.” Hoskins v. Fuchs,

517 S.W.3d 834, 842 (Tex. App.—Fort Worth 2016, pet. denied). Reasonableness entails an

objective inquiry about what a person of ordinary sensibilities would do and presents a question

of law when from the facts in evidence only one rational inference can be drawn. See Freeport-

McMoRan Oil & Gas LLC v. 1776 Energy Partners, 672 S.W.3d 391, 399 (Tex. 2023).

“Inherently improbable assertions and statements made on information that is obviously dubious

may show actual malice, and that which is probative of actual malice tends to show the lesser

state of negligence as well.” Maggret v. Ramsey’s Rods & Restoration, No. 02-20-00395-CV,

2021 WL 2253244, at *3 (Tex. App.—Fort Worth June 3, 2021, no pet.) (mem. op.) (citing

Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex. 2002)).

Appellees cite as “improbable” and “dubious” the Statements in the Report, which

they contend are unsupported by any factual observations, as evidence that appellants failed to

act as reasonably prudent persons in publishing the Statements. Regarding Mala Fama, appellees

argue that the “only factual observances” reported by Stokke in either report concerning that

establishment are the following: (1) as stated in the Investigative Log, during the investigation, a

Stokke associate was asked if he wanted to purchase crack cocaine in an alley behind Mala

Fama; and (2) as stated in the Report, employees at Mala Fama did not effectively pat down

customers and prevented “a known police officer from entering the establishment with a

weapon.” The inferential leap from those two factual observations to the conclusions that a

criminal enterprise is involved in the ultimate control of Mala Fama and that Mala Fama should

be investigated for money laundering, cartel activity, underage drinking, and subterfuge

ownership is simply too great to not elicit further investigation by a reasonably prudent person.

Regarding Mala Vida, Bucio, and the LLC, appellees argue that Stokke reported no factual

13

observations about any of those three in either report, and, having reviewed the record, we agree

with appellees. Without any factual observations about Mala Vida, Bucio, or the LLC, it again

follows that the inferential leap is too great to not elicit further investigation on the part of

appellants.

Also, although Stokke asserts in his Report that Mala Fama and Mala Vida have

“ties” to the unlicensed bar Space Siete—the “illegal after hours club they own and control”—

nowhere therein (or in the Investigative Log) does Stokke explain any factual observations from

which he could reasonably have made such inference. Albeit there is one statement in Stokke’s

affidavit that attempts to tie Mala Fama and Mala Vida to Space Siete: he avers that his

associates “observed employees of Mala Fama and Mala Vida leaving work at those

establishments to set up shop at Space Siete and directing customers of Mala Fama and Mala

Vida to move over to Space Siete after 2:00 a.m.” However, there is no evidence that the

Association and Cirkiel knew about these observations; therefore, this averment cannot support

any finding that the Association and Cirkiel acted as reasonably prudent persons in publishing

the Report. More importantly, the observations do not reasonably support the inference that a

criminal enterprise is involved in the ultimate control of Mala Fama and Mala Vida or that

they should be investigated for narcotics and cartel activity, money laundering, and illegal

alcohol sales. Furthermore, that employees of one establishment are also employees of another

establishment and that said employees direct customers to the other establishment after closing

hours does not, without more, indicate a connection between ownership or control of the two

establishments. Viewing the evidence in appellees’ favor, as we must, see Warner Bros. Ent.,

Inc. v. Jones, 538 S.W.3d 781, 801 (Tex. App.—Austin 2017), aff’d, 611 S.W.3d 1 (Tex. 2020),

we conclude that appellees established a prima facie case that appellants did not act as

14

reasonably prudent persons in publishing the Statements without having any factual support

for them.

Having determined that appellees established a prima facie case that appellants

were negligent in publishing the Report, we turn to the remaining element we must address in

this appeal: whether appellants made false statements of fact. Appellants contend that appellees

did not establish a prima facie case that the Statements were (1) false statements (2) of fact,

rather than of mere opinion. We turn first to the legal question of whether the Statements are

opinions or facts. See Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 639 (Tex. 2018)

(noting that determination of whether particular statement is opinion or fact is question of law).

Statements that are not verifiable as false cannot form the basis of a defamation

claim, and in determining whether a statement is verifiable as false, courts must look at the entire

context in which it was made. Id. Even when a statement is verifiable as false, it does not give

rise to liability if the “entire context in which it was made” discloses that it is merely “an opinion

masquerading as fact.” Id. Thus, statements that cannot be verified, as well as statements that

cannot be understood to convey a verifiable fact, are non-actionable opinions. Id. We classify

a statement as fact or opinion based on the verifiability of the statement and the entire context

in which the statement is made. Bentley, 94 S.W.3d at 581. Furthermore, even a statement

conveying a person’s opinion can be actionable in defamation “if it expressly or impliedly asserts

facts that can be objectively verified.” Avila v. Larrea, 394 S.W.3d 646, 658 (Tex. App.—Dallas

2012, pet. denied).

The context of the Report is that the statements and conclusions therein are

supported by Stokke’s investigation and factual observations. See Scripps NP Operating, LLC v.

Carter, 573 S.W.3d 781, 795 (Tex. 2019) (“[T]he context of the editorial indicates that it is not

15

simply opinion masquerading as fact.”). Although some of the statements, viewed in isolation,

allege vague criminal activity in general that might prove difficult to verify—such as challenged

Statement No. 2 that those persons or entities in ultimate control of Mala Vida and Mala Fama

are part of a “criminal enterprise” and challenged Statement No. 1 that “a criminal element has

taken over the area”—when viewed in the entire context of the Report, it becomes clear that the

Report concludes that the owners or operators of Mala Vida and Mala Fama, via Space Siete,

are involved in money laundering for a cartel, narcotics activity, and violations of liquor laws

including selling liquor to minors during unauthorized hours and without a permit.

The gist of the Report is that the persons or entities who ultimately control Mala

Vida and Mala Fama, who also own and operate Space Siete, are involved in the enumerated

criminal activities through the alleged illegal activities occurring at Space Siete. Whether such

statements of criminal activity are true or false can be verified; they are not mere opinions

and are not opinions masquerading as fact. And while, in isolation, other portions of the

Statements—such as “nonchalantly going through the motions and not effectively patting down

customers” and “if I was supervising this area with TABC, I would start an investigation into

these establishments”—resemble opinions more than facts, we conclude that in their proper

context, they support the overall verifiable factual gist of the Report: Mala Vida and Mala Fama,

via the persons or entities who in fact control both of them and the purportedly unlicensed

bar Space Siete, are engaged in money laundering of cartel drug proceeds and in violating

liquor laws.6

6

In this same issue, appellants also contend that the Statements are not defamatory as

to Bucio because she is not mentioned in the Report and there is no “indication that the

reasonable reader would associate” the Statements with her individually. However, appellants’

own evidence—in the form of social-media posts and online media articles—demonstrates

16

We now consider whether the Statements were false. This Court has previously

determined that when reviewing the denial of a TCPA motion in cases involving private

plaintiffs suing nonmedia defendants, as here, falsity of the challenged statements is presumed.

See Zilkha-Shohamy v. Corazza, No. 03-20-00380-CV, 2021 WL 3009034, at *5 (Tex. App.—

Austin July 16, 2021, pet. denied) (mem. op.). Because of this presumption, appellees were not

required to establish a prima facie case as to whether the alleged defamatory statements were

false. See id. We conclude on this record that appellees satisfied their burden to establish a

prima facie case for defamation and accordingly overrule appellants’ first issue.7

Must appellees’ claims against Cirkiel be dismissed?

Appellants argue that even if appellees met their burden as to their claims against

the Association, their claims against Cirkiel cannot proceed because their entire case against

him is based on his alleged activities as the Association’s President and non-voting Chairman of

its Board and his purported “control” over the Association’s actions, yet he enjoys protection

from personal liability under the Texas Business Organizations Code. See Tex. Bus. Orgs.

Code §§ 22.221(b), .235(a). Sections 22.221 and 22.235 provide that a director or officer is

not liable to a person for actions that were taken in good faith, with ordinary care, and in a

manner the director or officer reasonably believed to be in the corporation’s best interest. See id.

§§ 22.221(b), .235(a).

that Bucio is publicly associated with her various hospitality businesses, including Mala Fama

and Mala Vida. Therefore, defamatory statements as to those businesses and their operators

necessarily defame her too.

7

We need not address appellants’ second issue, in which they contend that the trial court

erred in either failing to rule on their objections or in overruling their objections to the affidavits

of Bucio and Cook because the evidence contained in the affidavits is not relevant to the issues

dispositive to this appeal.

17

A plaintiff seeking to establish liability of the director or officer of a nonprofit

corporation must prove that the person did not act in those three manners. Green v. Port of Call

Homeowners Ass’n, No. 03-18-00264-CV, 2018 WL 4100855, at *5 (Tex. App.—Austin

Aug. 29, 2018, no pet.) (mem. op.) (holding that safe harbor for officers of nonprofit corporation

is not affirmative defense but issue on which plaintiff bears burden of proof). Appellees

therefore bear the burden to prove that in publishing the Report, Cirkiel did not act (1) in good

faith, (2) with ordinary care, and (3) in a manner he reasonably believed would be in the

Association’s best interest. See Burns v. Seascape Owners Ass’n, Inc., No. 01-11-00752-CV,

2012 WL 3776513, at *9–10 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no pet.) (mem. op.)

(holding that to defeat no-evidence summary-judgment motion, plaintiffs bore burden of

establishing fact issue on each of those three elements).

Appellants argue that appellees in their response to the TCPA motion “did not

even try to present clear and specific evidence” on these elements, instead relying on the legal

argument that Cirkiel cannot claim the safe harbor because the Association had forfeited its

corporate status at the time the Report was published, citing Section 171.255 of the Tax Code.8

That section provides, relevantly,

8

It is undisputed that the Association lost its corporate status in February 2024.

Appellants contend that the Association’s certificate of formation was properly reinstated after

publication of the subject Statements, and the website for the Texas Comptroller of Public

Accounts confirms that its status is currently active. See comptroller.texas.gov/taxes/franchise/

account-status/search/32015686903 (last visited Oct. 21, 2025). The Association cites its

retroactive reinstatement as an additional reason why Cirkiel is not individually liable, but we

need not reach this issue based on our consideration of its other reasons. See Tex. Bus. Orgs.

Code § 11.255(a) (“A nonprofit corporation whose certificate of formation is reinstated under

Section 22.365 is considered to have continued in existence without interruption from the date of

termination.”).

18

If the corporate privileges of a corporation are forfeited for the failure to file a

report or pay a tax or penalty, each director or officer of the corporation is liable

for each debt of the corporation that is created or incurred in this state after the

date on which the report, tax, or penalty is due and before the corporate privileges

are revived. . . .

Tex. Tax Code § 171.255(a). But, as appellants respond, Section 171.255 applies only to

corporations that are required to pay franchise taxes, and nonprofits such as the Association are

not. See id. §§ 171.251 (“The comptroller shall forfeit the corporate privileges of a corporation

on which the franchise tax is imposed if the corporation . . . ), .252 (“If the corporate privileges

of a corporation are forfeited under this subchapter [F] . . . each director and officer of the

corporation is liable for a debt of the corporation as provided by Section 171.255.”); see also id.

§ 171.063(a)(1) (providing that nonprofit corporations exempted from federal income tax under

Internal Revenue Code Section 501(c)(6), among other provisions, are exempted from franchise

tax). As a matter of law, the Association’s temporary forfeiture of its corporate status during the

period at issue does not affect Cirkiel’s ability to rely on the safe-harbor provision in Business

Organizations Code Sections 22.221 and 22.235.

Moreover, even if Tax Code Section 171.255 were to apply to the Association, it

would not expose Cirkiel to personal liability because there is no alleged “debt” that was

incurred during the period of forfeited status that was owed to appellees. A debt is “any legally

enforceable obligation to a certain amount of money which may be performed or paid within an

ascertainable period of time or on demand.” Williams v. Adams, 74 S.W.3d 437, 439 (Tex.

App.—Corpus Christi–Edinburg 2002, pet. denied). In the context of a tort claim, as here, there

is no “debt” until there is a judgment. See Benbow v. Al-Barnawi, No. 13-20-00131-CV, 2021

WL 3556214, at *1 (Tex. App.—Corpus Christi–Edinburg Aug. 12, 2021, no pet.) (mem. op.).

19

We sustain appellants’ issue concerning whether appellees’ claims may proceed

against Cirkiel and render judgment granting appellants’ TCPA motion as to the claims against

Cirkiel. Because Cirkiel is entitled to an award of attorneys’ fees, we remand for further

proceedings on that issue. See Tex. Civ. Prac. & Rem. Code § 27.009.

CONCLUSION

We reverse the trial court’s ruling by operation of law that denied appellants’

motion to dismiss as to Cirkiel, render judgment granting appellants’ motion as to appellees’

claims against Cirkiel, and remand for further proceedings on attorneys’ fees. We affirm the trial

court’s ruling by operation of law that denied the Association’s TCPA motion.

__________________________________________

Karin Crump, Justice

Before Chief Justice Byrne, Justices Crump and Ellis

Affirmed in Part; Reversed and Rendered in Part; Remanded

Filed: October 23, 2025

20