The Texas nonconsensual pornography statute (chapter 98B of the Texas Civil Practice & Remedies Code) provides:
A defendant is liable … to a person depicted in intimate visual material for damages arising from the disclosure of the material if:
(1) the defendant discloses the intimate visual material without the effective consent of the depicted person and with the intent to harm that person;
(2) at the time of the disclosure, the defendant knows or has reason to believe that the intimate visual material was obtained by the defendant or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private;
(3) the disclosure of the intimate visual material causes harm to the depicted person; and
(4) the disclosure of the intimate visual material reveals the identity of the depicted person in any manner ….
{“Intimate visual material” means visual material that depicts a person: (A) with the person’s intimate parts exposed; or (B) engaged in sexual conduct.}
{This chapter shall be liberally construed and applied to promote its underlying purpose to protect persons from, and provide adequate remedies to victims of, the disclosure or promotion of intimate visual material.}
The statute provides for damages liability and an injunction, and it has no exception for disclosure of such material in court; but the Texas Court of Appeals (San Antonio) held Wednesday (in Doe v. Cruz, written by Justice Lori I. Valenzuela, joined by Justices Luz Elena D. Chapa and Beth Watkins) that the general Texas judicial-proceedings privilege applies to the statute. (The logic of the opinion suggests that similar privilege rules would apply to similar conduct, such as disclosing the material to the police and the like.) From the opinion:
Here, the only disclosure of allegedly “intimate visual material” to which Cruz has directed us is Doe’s assertion in his amended petition that unredacted photographs “will be made available to the court and jury as this case proceeds to jury trial.” Thus, the only anticipated disclosures are disclosures to be made in this legal proceeding to the court and jury. If the judicial-proceedings privilege is available, Doe has established its applicability.
However, the question remains whether the privilege applies to statutory claims under Chapter 98B. Doe assumes that it does, and Cruz has not specifically contested its applicability to his Chapter 98B claim. We hold that the judicial-proceedings privilege applies to Cruz’s Chapter 98B claim because (1) his claim is a tort seeking damages for reputational harm, (2) applying the privilege furthers the policy behind the privilege, and (3) the Supreme Court has applied the related attorney-immunity defense to a statutory claim within a statutory framework that, like Chapter 98B, does not expressly, or by necessary implication, abrogate the privilege.
First, “[t]he absolute [judicial-proceedings] privilege bars claims that are based on communications that are related to a judicial proceeding in which the claimant seeks damages for reputational harm.” The privilege has been held to apply in libel and slander suits and to “business-disparagement and tortious-interference claims, when those claims are based on an allegedly defamatory communication in a judicial proceeding.” Chapter 98B is contained within Title 4 of the Texas Civil Practice and Remedies Code, entitled “Liability in Tort.” … “Although [the judicial-proceedings privilege is] commonly applied in defamation cases, the privilege prohibits any tort litigation based on the content of the communication at issue.” … Allowing the privilege for the Chapter 98B claim alleged here comports with the general allowance for the privilege against tort claims asserting reputational harm. Moreover, Chapter 98B allows for recovery of “actual damages,” which can include damages for reputational harm. Cruz, through his “revenge porn” claim, seeks damages for harm to his reputation and legal practice, including for monetary loss caused by the loss of clients.
Second, the judicial-proceedings privilege “furthers public policy by promoting a ‘complete and unbridled development of evidence in the settlement of disputes without fear of reprisals.’ ” Depending on the circumstances, that policy is furthered if the privilege applies to Chapter 98B claims. It is not inconceivable that a photograph depicting “intimate visual material” may be relevant to a sexual assault claim and that a redacted photograph may not fully resolve disputed facts. {We caution, however, that improper use of sensitive material in litigation may be grounds for discipline, even if the judicial-proceedings privilege applies.}
Finally, our determination that the privilege can apply to Chapter 98B claims finds support, by analogy, from the Supreme Court’s decision in Taylor v. Tolbert (Tex. 2022). In that case, an attorney told opposing counsel she intended to use a nude photograph of opposing counsel’s client that was inadvertently shared “as a poster-size demonstrative in [a] jury trial.” Opposing counsel’s client sued the attorney under the Texas wiretap statute, which “grants a private right of action for ‘[a] person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of’ certain statutes ….” The attorney moved for summary judgment, arguing she was immune because all claims stemmed from her role as an attorney. The Supreme Court agreed, and determined the attorney’s conduct was encompassed by the attorney-immunity defense and the Texas wiretap statute did not abrogate the defense. The Court stated:
[W]hen conduct is prohibited by statute, the attorney-immunity defense is neither categorically inapplicable nor automatically available, even if the defense might otherwise cover the conduct at issue. In such cases, whether an attorney may claim the privilege depends on the particular statute in question.
Attorney-immunity attached “because the Texas wiretap statute does not expressly, or by necessary implication, abrogate the immunity defense.” Likewise, here, we find nothing in Chapter 98B that expressly, or by necessary implication, abrogates the judicial-proceedings privilege. {The attorney-immunity defense “is not merely the lawyer’s version of the judicial-proceedings privilege, although there is considerable overlap.” It is a “comprehensive affirmative defense protecting attorneys from liability to non-clients,” and “generally applies when attorneys act in the uniquely lawyerly capacity of one who possesses the office, professional training, skill, and authority of an attorney.”}
Here are the factual allegations, which also led to a defamation counterclaim by Cruz that the court did allow to go forward:
On August 30, 2021, Doe filed an original petition against Cruz, whose law firm represents United Independent School District (“UISD”) in Laredo. The petition’s “Case Summary” states: “Defendant Juan J. Cruz is a homosexual pedophile that assaulted John Doe, a minor who was his employee and a student at one of the school districts where he serves as general counsel.” The petition continues with a “Notice to School Districts Employing Juan J. Cruz,” which states:
Defendant Juan J. Cruz holds himself out [as] a school law expert dealing with minor children. Any school district that has Juan J. Cruz employed as general counsel is hereby on notice of his deviant proclivity to have homosexual intercourse and sexually assault minor children and should take appropriate actions to protect their students from Defendant Juan J. Cruz.
Doe alleged Cruz began “homosexual advances,” including “licking his lips while staring provocatively” at Doe and giving “offensive touch[es] including massages” when Doe was sixteen years old. Doe further alleged Cruz “lured” Doe to work for him. According to Doe’s original petition:
Cruz would furnish alcohol and Xanax to minor John Doe to make it easier for Defendant Cruz to sexually assault John Doe. Defendant Cruz would require John Doe to stay at his apartment in San Antonio and at his home … in Laredo, Texas so he could conveniently sexually assault him ….
Doe stated a cause of action, under the heading “Defendant Juan J. Cruz’s Homosexual Sexual Assault and Battery of a Minor Child,” in which he alleged as follows:
John Doe was 16 years old when Defendant Cruz began homosexually assaulting him. At the time the cause of action accrued, the age of consent was seventeen (17) in the State of Texas. Defendant Juan J. Cruz used his position as a school attorney and the trust he gained from John Doe to commit acts of sexual assault and sexual battery against John Doe….
John Doe’s status as a minor, coupled with Defendant Juan J. Cruz’s position as his boss, lawyer and authority figure, allowed Defendant Cruz to exercise control and influence over John Doe. Using the power, authority and trust of his position, Defendant Juan J. Cruz homosexually assaulted and molested John Doe on countless occasions, for money….
Doe also asserted causes of action for breach of fiduciary duty and intentional infliction of emotional distress…. Doe’s attorney emailed a copy of Doe’s original petition to the superintendent and board members of UISD two days after the lawsuit was filed. The subject line of the email states, “Suit filed against UISD School Attorney Juan J. Cruz for Sexual Assault,” and the body of the email states:
Good afternoon Superintendent Gonzalez and UISD Board,
A file-stamped copy of Plaintiff’s Original Petition filed Monday against UISD school attorney Juan J. Cruz is attached for your review. The facts in the petition are very detailed, with dates and places. There is solid evidence including texts, photos and other conclusive proof substantiating the claims made therein.
This matter of public concern is being forwarded to you because it is understood that Mr. Cruz frequently visits UISD’s schools where children are present, in order that you can take appropriate measures to safeguard the children under your care….
Cruz filed an original answer, and thereafter Doe filed an amended petition. On the first page of the amended petition is a redacted photograph of Cruz in a swimming pool. A black square covers Cruz’s body, except for his head and shoulders. The redacted photograph is captioned: “Powerful Evidence of Defendant Cruz'[s] Misconduct.” …
Cruz filed an amended answer and counterclaims [for, among other things, violation of the revenge porn statute and for defamation -EV]. Cruz “categorically denie[d] that he has ever had forcible sexual contact with any person at any time,” and he “categorically denie[d] that he has ever had sexual contact of any kind with a minor.” Cruz alleged Doe’s counsel held personal animosity toward Cruz and asserted that the aim of Doe’s lawsuit was harm to Cruz’s reputation and legal practice….
Cruz attached an affidavit [to his motion to dismiss], in which he stated:
I know the true identity of plaintiff “John Doe” in this litigation. He is currently 22 years of age. I met him in November, 2018 when he was 19 years old at the Laredo Country Club gym. I did not know “John Doe” when he was 16 years old, as alleged. I had a continuous, consensual, adult relationship with “John Doe” from August 2019 to December 2019…. I never sexually assaulted “John Doe.”
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