GINA M. PALAFOX, Justice

OPINION

Appellant Vianney Robles appeals the trial court's dismissal of her lawsuit against appellees Amy Nichols and her law firm, Kubinski & Nichols, P.C. (collectively, Nichols), and Andres E. Almanzan and his law firm, Mounce, Green, Myers, Safi, Paxson & Galatzan, P.C. (collectively, Almanzan). Robles’ claims arise from certain conduct by Nichols and Almanzan (collectively, Appellees) during their representation of their client, Jorge Ruiz, in his family court proceedings with Robles. The trial court dismissed Robles’ claims against Appellees pursuant to the Texas Citizens Participation Act (TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001 -.011. The order of dismissal includes attorney's fees and sanctions assessed against Robles and awarded to both Appellees. We affirm in part and reverse and remand in part.

I. BACKGROUND

In the course of a contentious divorce, Vianney Robles asserted claims against Jorge Ruiz for various types of wrongdoing to include illegally intercepting and recording several hundred hours of telephone conversations she had with other parties. Both Appellees represented Ruiz in the family court proceedings and in the related tort claims which were asserted against him by Robles.

During the divorce, the parties engaged in extensive discovery to include a request made by Robles for production of any audio recordings made of her that were in Ruiz’ possession. Ruiz initially responded that, after a diligent search, no responsive items had been identified. The parties subsequently signed a confidentiality agreement covering "[a]ny and all audio or visual recordings or photographs in the possession of either party which are either requested in discovery requests or intended to be relied upon in court and which are of a sensitive nature[.]" The agreement permitted the parties to use the confidential information for purposes of discovery, litigation, trial, and appeal. Ruiz later supplemented his discovery responses and produced two USB drives containing 756 hours of recorded telephone conversations between Robles and persons other than Ruiz.

After receiving the USB drives, Robles propounded additional discovery requests concerning the manner in which the recordings were made. Because Robles’ attorney had threatened to refer the matter for criminal investigation and prosecution, Ruiz responded to the discovery requests by invoking his rights against compelled self-incrimination under the Fifth Amendment. At a later hearing on the admissibility of the recordings, Ruiz again invoked the Fifth Amendment and refused to answer questions about their origin. Even so, Appellees urged the court to consider the recordings as "relevant to [Robles’] character and activities that are relevant in both the family law case as well as the civil action case[.]" Appellees also informed the court that they had distilled the recordings into a 30-minute excerpt containing the portions they believed were "relevant, material and impeachable[.]" The court directed Appellees to have the excerpt transcribed. Robles filed a written objection and it appears from our record that the transcription was never performed.

In the divorce action, Robles filed a request for sanctions against Ruiz and, later, a request for sanctions against Appellees. She then filed the present lawsuit against Appellees directly wherein she alleged claims under section 123.002 of the Texas Civil Practice and Remedies Code. That statute creates a cause of action by a party to a communication against a person who "uses or divulges information that he knows or reasonably should know was obtained by interception of the communication[.]" TEX. CIV. PRAC. & REM. CODE ANN. § 123.002(a)(2).

Appellees filed motions to dismiss Robles’ lawsuit against them pursuant to the TCPA. The trial court granted those motions, dismissed Robles’ claims, and awarded attorney's fees in the amount of $12,500 to Nichols and $32,500 to Almanzan. The court also imposed sanctions against Robles in the total amount of $50,000.

II. DISCUSSION

Robles presents four related issues on appeal. In her first and second issues, Robles asserts that the trial court erred by dismissing her claims, urging that the TCPA does not apply and, even if it did, she met her burden to establish by clear and specific evidence a prima facie case for each essential element of those claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005. With her third and fourth issues, Robles asserts that the trial court's assessment of attorney's fees and sanctions, respectively, constitute an abuse of discretion.

A. Standard of Review

The trial court's determinations concerning whether the parties met their respective burdens of proof under the TCPA are reviewed de novo. Dallas Morning News, Inc. v. Hall , 579 S.W.3d 370, 377 (Tex. 2019) ; see Youngkin v. Hines , 546 S.W.3d 675, 680 (Tex. 2018). The amount of attorney's fees and sanctions awarded under the TCPA are reviewed for abuse of discretion. See Sullivan v. Abraham , 488 S.W.3d 294, 299 (Tex. 2016) ; Hawxhurst v. Austin's Boat Tours , 550 S.W.3d 220, 232 (Tex. App.—Austin 2018, no pet.).

B. Waiver of the right to seek dismissal

As a preliminary matter, we first address Robles’ procedural argument that Appellees waived their right to seek dismissal pursuant to a TCPA motion to dismiss. A TCPA motion to dismiss must be filed within 60 days after service of the legal action. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(b). Robles argues here that Appellees waived their right to seek dismissal of her lawsuit because they did not file motions to dismiss within 60 days after she asserted a claim of wiretapping and a request for sanctions against Ruiz, or within 60 days after she sought sanctions arising from the intercepted conversations against Appellees, themselves. The claim against Ruiz and the requests for sanctions against Ruiz and Appellees were all asserted in the divorce proceeding.

Robles’ argument is defeated by the plain language of the statute. "A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the legal action ." Id. (emphasis added). This language clearly conveys that the trigger for filing a motion to dismiss is service of the legal action that is the subject of the motion. See id. Robles does not contend that Appellees did not file their motions to dismiss within 60 days following the date of service of the present lawsuit, that is, the legal action that is the subject of those motions to dismiss. See id. We conclude that her assertion of waiver is overruled.

C. Issues One and Two: The applicability of the TCPA and the attorney immunity defense

1. Overview of the TCPA The purpose of the TCPA is "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 and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." TEX. CIV. PRAC. & REM. CODE ANN. § 27.002. To effectuate this purpose, the legislature devised a three-step process for determining whether a particular lawsuit should be dismissed or permitted to go forward. Describing the analytical framework of the statute, the Supreme Court stated:

As a threshold matter, the moving party must show by a preponderance of the evidence that the TCPA properly applies to the legal action against it. If the moving party meets that burden, the nonmoving party must establish by clear and specific evidence a prima facie case for each essential element of its claim. If the nonmoving party satisfies that requirement, the burden finally shifts back to the moving party to prove each essential element of any valid defenses by a preponderance of the evidence.

Youngkin , 546 S.W.3d at 679–80 (citations omitted); see TEX. CIV. PRAC. & REM. CODE ANN. § 27.005.

Our starting point, then, is determining whether the statute applies to Robles’ lawsuit against Appellees. In making this determination, we are reminded that "[t]he surest guide to what lawmakers intended is the enacted language of a statute, which necessarily includes any enacted statements of policy or purpose." Youngkin , 546 S.W.3d at 680 (internal quotation marks and citations omitted). Additionally, we construe the words chosen by the legislature "according to their plain and common meaning, unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results." Id. (quoting City of Rockwall v. Hughes , 246 S.W.3d 621, 625–26 (Tex. 2008) ). But when the legislature expressly defines terms, we must adhere to those definitions. Id.

The TCPA provides that a party may file a motion to dismiss a legal action if that action is "based on or is in response to a party's exercise of the ... right to petition[.]" TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). Thus, it is the moving party's initial burden to show, by a preponderance of the evidence, that the legal action is based on, relates to, or is in response to the party's exercise of the right to petition. Id. at § 27.005(b)(2). The statute contains an extensive definition of "[e]xercise of the right to petition." Id. at § 27.001(4). As pertinent to this case, that definition includes "a communication in or pertaining to ... a judicial proceeding[.]" Id. at § 27.001(4)(A)(i). "Communication" is defined as including "the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. at § 27.001(1).

2. Guidance from Youngkin v. Hines

The Texas Supreme Court's opinion in Youngkin is instructive in guiding our analysis of whether Robles’ lawsuit is based on, relates to, or is in response to Appellees’ exercise of the right to petition. Youngkin involved a determination of whether the TCPA applied to a tort claim brought by a nonclient against an attorney for conduct of the attorney during his representation of his own client. 546 S.W.3d at 678. The asserted basis for liability was that Youngkin, in the course of representing his client in court, read into the record a Rule 11 agreement that was later alleged to be fraudulent. Id. at 680. The Supreme Court began its analysis by substituting the statutory definitions for the defined terms "exercise of the right to petition" and "communication." Id. Doing so revealed that "the TCPA applies to a legal action against a party that is based on, related to, or in response to the party's making or submitting of a statement or document in or pertaining to a judicial proceeding." Id. The court thus concluded that, by any common understanding of those words, Youngkin made a statement in a judicial proceeding by reading the Rule 11 agreement into the record during trial. Id.

The court noted that, viewing these provisions in isolation appeared to answer whether Youngkin met his burden of establishing that the TCPA applied. Id. But it went on to reaffirm that statutory interpretation requires more; it requires examining a statute's words and provisions in the context of the statute as a whole. Id. at 680-81. The court recognized that the TCPA "is intended to safeguard the constitutional rights of speech, petition, and association (without foreclosing the ability to bring meritorious lawsuits)." Id. at 681. But, even so, it found "no conflict between the plain meaning of the definition of the exercise of the right to petition and the statute's express purpose." Id. As a result, the court concluded that the TCPA's protections properly applied to the claims asserted against Youngkin arising out of his in-court reading of the Rule 11 agreement. Id.

3. Applicability of the TCPA in this case

Robles brought suit against Appellees for using or divulging information that they knew or reasonably should have known was obtained by interception of her telephone conversations. See TEX. CIV. PRAC. & REM. CODE ANN. § 123.002. Specifically, she alleged that one or both Appellees used or divulged intercepted information by (1) creating a 30-minute excerpt from the 756 hours of recordings; (2) permitting the legal staff of their respective law firms to review the recordings and create a catalog of the communications; (3) propounding discovery based on the communications; (4) urging, in court hearings, that the communications were admissible in evidence; and (5) cross-examining Robles about the communications.

We begin, as did the Supreme Court in Youngkin , by substituting the statutory definitions for the relevant defined terms. See Youngkin , 546 S.W.3d at 680. Thus, we find that a lawsuit is subject to dismissal under the TCPA if it is based on, relates to, or is in response to the moving party's making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic in a judicial proceeding. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(1), 27.001(4)(A)(i), 27.005(b)(2). By any common understanding of these words, the conduct made the basis of Robles’ claims constitutes the making or submission of statements in oral, written, and electronic forms in, or pertaining to, a judicial proceeding. In addition, as did the Supreme Court in Youngkin , we find no conflict between the plain meaning of these defined terms and the statute's express purpose. See Youngkin , 546 S.W.3d at 680.

Robles contends that this case is distinguishable from Youngkin because the conduct about which she complains, unlike Youngkin's conduct, is "obviously criminal." She urges that, to show that her lawsuit falls within the TCPA, Appellees were required "to prove by a preponderance of the evidence that their conduct is within the bounds of the law." But this argument suffers from two flaws. First, it "attempts to add a requirement to the statute that does not exist in its text." Youngkin , 546 S.W.3d at 681. This attempt must fail because "injecting such a requirement into the TCPA would be disloyal to its enacted text" and contrary to the principles of statutory construction by which our analysis is governed. Id. ; see ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 900 (Tex. 2017) (court may not judicially amend statute by adding words not contained in its language).

In addition, Robles’ argument conflates the first two steps in the TCPA burden-shifting framework. We are here concerned with step one—whether Robles’ lawsuit is based on, relates to, or is in response to a communication in, or pertaining to, a judicial proceeding. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)(2). Whether Appellees’ conduct at issue is wrongful is an essential element of Robles’ claims against them and, thus, implicates step two—whether Robles established by clear and specific evidence a prima facie case for each essential element of the claim in question. See id. at § 27.005(c). Indeed, that is where the policy limitation of protecting the right to petition "to the maximum extent permitted by law" comes into play. See id. at § 27.002.

Robles, in essence, attempts to alter the parties’ burdens of proof by relieving herself of the burden of establishing the wrongful conduct she alleges and instead imposing on Appellees a burden to disprove such conduct in the first instance. We reject that attempt and, as the TCPA requires, here confine our inquiry to Appellees’ initial burden, which is simply to show that the statute applies to Robles’ claims against them. See Youngkin , 546 S.W.3d at 679–80 (explaining TCPA's sequential burden shifting).

Robles’ final argument on this issue is that Appellees’ assertion that the TCPA applies is based on their exercise of their client's right to petition, not their own, and they cannot assert Ruiz's right because he abandoned it by invoking the Fifth Amendment. This is similar to the argument made, and rejected by the Supreme Court, in Youngkin . See 546 S.W.3d at 680–81. The nonmovant in that case argued that the TCPA did not apply because "an attorney speaking for a client in a courtroom is not exercising any personal First Amendment rights at all." Id. at 680. But the Supreme Court again adhered to the plain language of the statute and concluded that Youngkin exercised the right to petition by making a statement in a judicial proceeding. Id. The statutory language requires the same conclusion in this case.

As demonstrated above, applying the plain language of the TCPA to the circumstances of this case shows that Appellees made or submitted statements in oral, written, or electronic forms in, or pertaining to, a judicial proceeding. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(1), 27.001(4)(A)(i), 27.005(b)(2). This fact is not altered by their client's invocation of his Fifth Amendment rights.

We conclude that Appellees sustained their burden of establishing that Robles’ lawsuit is based on, relates to, or is in response to the exercise of the right to petition. Id. at § 27.005(b)(2) ; see also Youngkin , 546 S.W.3d at 680–81.

4. Applicability of the attorney immunity defense in this case

We need not next determine whether Robles sustained her evidentiary burden under the TCPA because, as discussed below, we ultimately conclude that Appellees successfully established on this record the valid defense of attorney immunity. See Youngkin , 546 S.W.3d at 681 (assuming without deciding nonmovant met his burden and resolving case based on attorney immunity defense). Thus, the trial court correctly dismissed Robles’ suit regardless of whether she otherwise established a prima facie case for each element of her claim.

"[A]n attorney is immune from liability to nonclients for conduct within the scope of his representation of his clients. Put differently, an attorney may be liable to nonclients only for conduct outside the scope of his representation of his client or for conduct foreign to the duties of a lawyer." Youngkin , 546 S.W.3d at 681 (citations omitted); see Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 481-82 (Tex. 2015). The purpose of this defense is to promote attorneys’ "loyal, faithful, and aggressive representation" of their clients by removing the fear of personal liability. Youngkin , 546 S.W.3d at 682 ; Cantey Hanger , 467 S.W.3d at 481.

The actions on which Robles bases her claims against Appellees—i.e., excerpting relevant portions of the recordings, urging their admissibility into evidence, and engaging in discovery related to those recordings—lie squarely within the scope of Appellees’ representation of their client, Ruiz. And, while Robles argues that the defense does not apply because Appellees’ conduct was allegedly wrongful, the Supreme Court of Texas has specifically rejected that argument: "[T]he above inquiry correctly focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct. That is, a lawyer is no more susceptible to liability for a given action merely because it is alleged to be fraudulent or otherwise wrongful." Youngkin , 546 S.W.3d at 681 ; see Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C. , 595 S.W.3d 651, 657 (Tex. 2020). Indeed, even Robles’ assertion that Appellees’ conduct was criminal does not remove it from the attorney immunity defense. As the Supreme Court recently stated in Bethel :

Under Bethel's proposed exception, a plaintiff could avoid the attorney-immunity doctrine by merely alleging that an attorney's conduct was "criminal." This would "significantly undercut" the protections of attorney immunity by allowing non-client plaintiffs to sue opposing counsel so long as the plaintiffs alleged that the attorney's actions were criminal in nature. We therefore conclude that criminal conduct is not categorically excepted from the protections of attorney civil immunity when the conduct alleged is connected with representing a client in litigation.

595 S.W.3d at 657 (citation omitted).

Robles points out that the Youngkin court recognized that the attorney immunity defense is broad, but not limitless, and that its holding did not mean that "attorneys are insulated from all liability to nonclients for all wrongdoing in the name of a client." Youngkin , 546 S.W.3d at 682. But the examples given by the court make clear that the conduct for which attorneys are subject to liability to nonclients still must fall outside the scope of representing the client or must be foreign to the duties of a lawyer. See id. at 682-83 (examples include "participation in a fraudulent business scheme with a client, knowingly helping a client with a fraudulent transfer to avoid paying a judgment, theft of goods or services on a client's behalf, and assaulting opposing counsel during trial"). The Supreme Court reiterated this in Bethel by stating that "[a]n attorney is not immune from suit for participating in criminal or ‘independently fraudulent activities’ that fall outside the scope of the attorney's representation of a client. " 595 S.W.3d at 657 (emphasis added).

Robles attempts to remove her claim from the purview of the attorney immunity defense by arguing that Appellees’ conduct was foreign to the duties of a lawyer because it was wrongful or criminal. This is merely a restatement of the argument addressed above. The fact remains that the kind of conduct at issue is within the scope of Appellees’ representation of their client, so the alleged wrongfulness of that conduct does not deprive Appellees of their defense. See Bethel , 595 S.W.3d at 657 (inquiry focuses on kind of conduct at issue not alleged wrongfulness); Youngkin , 546 S.W.3d at 681 (same).

Appellees established, by a preponderance of the evidence, the elements of the attorney immunity defense. Youngkin , 546 S.W.3d at 681. As a result, the trial court did not err by dismissing Robles’ lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d) (court shall dismiss action if movant establishes valid defense).

Accordingly, Issues One and Two are overruled.

D. Issue Three: Attorney's fees

The TCPA requires that the court award reasonable attorney's fees to a successful movant. Sullivan , 488 S.W.3d at 299 ; TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a)(1). "A ‘reasonable’ attorney's fee ‘is one that is not excessive or extreme, but rather moderate or fair.’ " Sullivan , 488 S.W.3d at 299 (quoting Garcia v. Gomez , 319 S.W.3d 638, 642 (Tex. 2010) ). In her third issue on appeal, Robles contends that the trial court abused its discretion by basing its award of attorney's fees on conclusory evidence.

The party seeking an award of attorney's fees bears the burden of proof. Sullivan , 488 S.W.3d at 299. "Sufficient evidence includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services." Rohrmoos Venture v. UTSW DVA Healthcare, LLP , 578 S.W.3d 469, 498 (Tex. 2019). The proof must be sufficient to permit a court "to perform a meaningful review of their fee application." Sullivan , 488 S.W.3d at 299 (quoting El Apple I, Ltd. v. Olivas , 370 S.W.3d 757, 764 (Tex. 2012) ). A trial court does not have sufficient information to meaningfully review a fee application in the absence of any evidence of the time spent on specific tasks. Id. at 300.

1. Almanzan's attorney's fees

Counsel for Almanzan testified that he and another firm lawyer charged $200 to $250 per hour and spent 130 hours on the case. The only testimony concerning what actual tasks were performed, however, was that co-counsel conducted research and "led the briefing and the writing and all of that," and that "[w]e had to learn what was going on in the divorce lawsuit, read all those pleadings. I've read all those pleadings, the transcripts from the other lawsuit, meeting with the clients." Based on this testimony, and over Robles’ objection that the testimony was conclusory and lacking the requisite specificity, the trial court awarded attorney's fees to Almanzan in the amount of $32,500.

We agree with Robles that the trial court lacked sufficient information to perform a meaningful review of Almanzan's fee application. See Sullivan , 488 S.W.3d at 299. There is no evidence demonstrating the time spent on any specific tasks. See id. at 300. Indeed, the testimony fails to even identify any specific tasks, relying instead on general descriptions such as "learn what was going on" and "read all those pleadings."

We conclude that the trial court's award of $32,500 in attorney's fees to Almanzan lacks a sufficient evidentiary basis and, thus, constitutes an abuse of discretion. Almanzan is, however, statutorily entitled to recover reasonable attorney's fees as a successful movant under the TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a)(1). Consequently, we remand the cause to the trial court for further proceedings on the issue of Almanzan's attorney's fees. See Sullivan , 488 S.W.3d at 300.

2. Nichols’ attorney's fees

Nichols concedes that the evidence in support of her attorney's fee award is insufficient under the Supreme Court's analysis in Rohrmoos Venture. See 578 S.W.3d at 498. But, she, too, is entitled to an award of reasonable attorney's fees as a successful movant under the TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a)(1). We therefore remand the cause to the trial court for further proceedings on the issue of Nichols’ attorney's fees. See Sullivan , 488 S.W.3d at 300.

Accordingly, Issue Three is sustained.

E. Sanctions

The imposition of sanctions is mandatory under the version of the TCPA that applies to this case. TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a)(2). The amount of sanctions is the amount "the court determines sufficient to deter the party who brought the legal action from bringing similar actions." Id. The amount of sanctions is thus within the trial court's discretion, and is subject to review "to determine whether the trial court assessed that amount arbitrarily or without reference to guiding principles such that the award is greater than necessary to serve that purpose." Landry's, Inc. v. Animal Legal Def. Fund , 566 S.W.3d 41, 70 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).

Robles contends that the amount of sanctions is not supported by any evidence. But she cites no authority, and we have found none, requiring that the court have before it evidence that expressly relates to the amount of sanctions. Robles further contends that the trial court abused its discretion by basing the amount of sanctions assessed against her on "symmetry" with the amount of attorney's fees awarded. The record does not show, however, that the amount of sanctions was based on any such "symmetry." Nevertheless, attorney's fees incurred by the party seeking sanctions are an appropriate factor to be considered in determining the appropriate amount of such sanctions. See Low v. Henry , 221 S.W.3d 609, 620 n.5 (Tex. 2007) (recognizing "a nonexclusive list of factors," including "the reasonableness and necessity of the out-of-pocket expenses incurred by the offended person as a result of the misconduct," to help determine the amount of sanctions); Landry's , 566 S.W.3d at 71.

It appears in this case that the trial court considered the amount of attorney's fees awarded as a factor in determining an appropriate amount of sanctions. Because we remand the issue of attorney's fees to the trial court for reassessment, we likewise remand the issue of the appropriate amount of sanctions to be imposed.

Accordingly, Issue Four is sustained.

III. CONCLUSION

The trial court did not err by dismissing Robles’ lawsuit against Appellees pursuant to the TCPA. It did, however, abuse its discretion by assessing attorney's fees and sanctions without a sufficient evidentiary basis to support those assessments. Therefore, the portions of the order of dismissal awarding attorney's fees to Appellees are reversed. The portions of the order of dismissal imposing sanctions, being intertwined with the award of attorney's fees, are also reversed. This cause is remanded to the trial court for further proceedings to determine the amount of attorney's fees and sanctions to be awarded. The order of dismissal is otherwise affirmed.

Rodriguez, J., dissenting

DISSENTING OPINION

YVONNE T. RODRIGUEZ, Justice, dissenting.

I respectfully dissent because I believe the court has incorrectly applied the law of attorney immunity to the facts in this case. While it is true that generally, "attorneys are immune from civil liability to non-clients for actions taken in connection with representing a client in litigation[,]" Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C. , 595 S.W.3d 651, 657 (Tex. 2020), with some exceptions that are inapplicable here, a lawyer is still "subject to liability to a ... nonclient when a nonlawyer would be in similar circumstances." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS: LIABILITY TO A CLIENT OR NONCLIENT UNDER GENERAL LAW § 56 (2000). And when an attorney intentionally engages in conduct that violates a criminal statute, that criminal conduct is "foreign to the duties of an attorney" and is not shielded by attorney immunity if it is committed while performing acts outside the scope of client representation. See Bethel , 595 S.W.3d at 657-58 ("attorney immunity is not boundless ... there is a wide range of criminal conduct that is not within the ‘scope of client representation’ and therefore ‘foreign to the duties of an attorney’ ") (citing Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 483 (Tex. 2015) and Poole v. Hous. & T.C. Ry.Co. , 58 Tex. 134 (1882) ).

Here, the Court's conclusion that attorney immunity shields Appellees from civil suit and liability as a matter of law is tethered to the fact that the acts alleged to have been committed in violation of a criminal statute were committed while furthering the interests of their client in a civil proceeding. But the Texas Supreme Court has never held that an attorney's alleged intentional criminal conduct is immune from civil liability so long as it was committed while representing a client. See Bethel , 595 S.W.3d at 658 ("nothing in our attorney-immunity jurisprudence affects an attorney's potential criminal liability if the conduct constitutes a criminal offense").

Rather, as the majority correctly observes in their opinion, the Court has instructed that when considering whether immunity applies, the inquiry must focus on the attorney's conduct, not on the plaintiff's characterization of that conduct. See Cantey Hanger , 467 S.W.3d at 483 ("the focus in evaluating attorney liability to a non-client is ‘on the kind-not the nature-of the attorney's conduct’ ... Merely labeling an attorney's conduct ‘fraudulent’ does not and should not remove it from the scope of client representation or render it ‘foreign to the duties of an attorney’ "); see also Youngkin v. Hines , 546 S.W.3d 675, 682 (Tex. 2018) ("we must look beyond Hines's characterizations of activity as fraudulent and conspiratorial and focus on the conduct at issue").

In Bethel , the conduct at issue consisted of examining and testing allegedly faulty brakes in a wrongful death suit. Bethel , 595 S.W.3d at 653, 658. In Cantey Hanger , the conduct at issue consisted of attorneys carrying out a specific responsibility assigned to it by a divorce decree. Cantey Hanger , 467 S.W.3d at 485. In each of those cases, the non-client plaintiff complained that the way the attorneys performed the duties owed to their client was unlawful. Accordingly, the Court observed that a non-client plaintiff's mere disapproval with how lawyers perform the duties owed to their clients does not remove the lawyer's conduct from the realm of protected activity. See Bethel , 595 S.W.3d at 658 ("at bottom, Bethel takes issue with the manner in which [attorneys] examined and tested evidence during discovery in civil litigation while representing Bethel's opposing party. These are paradigmatic functions of an attorney representing a client in litigation"); see also Cantey Hanger , 467 S.W.3d at 485 ("Byrd essentially complains that the manner in which Cantey Hanger carried out a specific responsibility assigned to it by the divorce decree ... Meritorious or not, the type of conduct alleged falls squarely within the scope of [attorneys] representation ... in the divorce proceedings.").

In Poole , however, where the Court held attorney-immunity was unavailable, the conduct at issue involved an attorney facilitating for his client the delivery of goods to which his client was not legally entitled (stealing). Of the attorney's conduct, the Court said:

Having assumed the apparent ownership of the goods, for the purpose and with the intention of consummating the fraud upon appellant, he will not be heard to deny his liability to appellant for the loss sustained by reason of his wrongful acts, under the privileges of an attorney at law, for such acts are entirely foreign to the duties of an attorney; neither will he be permitted, under such circumstances, to shield himself from liability on the ground that he was the agent of [his client], for no one is justified on that ground in knowingly committing wilful and premeditated frauds for another.

Poole , 58 Tex. at 137. Thus, in Poole , the attorney used his status as an attorney to accomplish that which his client could not legally accomplish on his own—he acquired possession of the plaintiff's goods without legal authority. And the fact that the attorney committed unlawful conduct while representing his client and in furtherance of his client's interest did not alone automatically shield the attorney of liability.

Here, the attorney conduct at issue is the use and/or disclosure of intercepted oral communications between Appellant and various third parties. Such interceptions are illegal under Texas law. See TEX. PENAL CODE ANN. § 16.02(b)(1) ("[a] person commits an offense if the person ... intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication"). Moreover, and more pertinent to the discussion here, is that any actual or attempted disclosure or use of the contents of an oral communication that was intercepted violates the Texas Penal Code if the person who engages in such conduct knows, has reason to know , or is reckless about whether the contents were illegally obtained. See TEX. PENAL CODE ANN. § 16.02(b)(2) ("[a] person commits an offense if the person ... intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection[.][emphasis added]"); see also TEX. PENAL CODE ANN. § 16.02(b)(3) ("[a] person commits an offense if the person ... intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection[.][emphasis added]"). Finally, the disclosure or use of such content subjects to civil liability the person who discloses or uses information that he/she knows or reasonably should know was obtained by interception. See TEX. CIV. PRAC. & REM. CODE ANN. § 123.002(a)(2) ("[a] party to a communication may sue a person who ... uses or divulges information that he knows or reasonably should know was obtained by interception of the communication[.][emphasis added]") There are no exceptions in these statutes for parties or attorneys in civil proceedings.

Moreover, Appellant's specific allegations are that Jorge Ruiz, Appellant's estranged husband, illegally intercepted and recorded her private conversations with third parties and then invoked Fifth Amendment protections in the civil proceeding to avoid criminal prosecution for his participation in the crime. Appellant further alleges that Ruiz's attorneys, who were informed these interceptions occurred without consent and were therefore obtained in violation of criminal law, did what their client legally could not—disclose and use the contents of the intercepted communications to gain advantage in the civil proceeding for Ruiz. Ruiz's attorneys do not dispute these underlying facts, they merely dispute what they mean. The Court in its majority opinion sees no distinction between the conduct engaged in by these attorneys and what lawyers do on a regular basis, but a distinction does exist and it should be made clear. But, first, a clear recitation of the sequence of events in the divorce proceeding is necessary.

The Divorce Proceeding

The record reflects that Ruiz filed a suit for divorce against Appellant in February 2017. The original petition, filed by attorney Mark Davis on Ruiz's behalf, sought joint managing conservatorship of the couple's only minor child and asked that Appellant be designated as the primary conservator. In April 2017, Appellant, by and through her attorney Doris Sipes, filed an amended counter-suit for divorce and several civil causes of action for intentional torts including assault, intentional infliction of emotional distress, invasion of privacy, and use of illegal electronic surveillance. The torts were based on allegations that Ruiz: beat Appellant, had recorded the couple having sex with his cell phone and then sent the recording to a third party, and had installed an "e-sonic voice-activated recorder" in Appellant's house. The counter-suit for divorce alleged that Appellant should be named sole managing conservator of the couple's minor child.

On July 25, 2017, Appellee Amy Nichols filed a motion to substitute herself in place of Mark Davis as attorney of record for Ruiz. On September 5, 2017, Appellee Andres E. Almanzan, entered his appearance for Ruiz "strictly in [Ruiz's] capacity as a Counter-Defendant ... regarding the civil tort claims and causes of action asserted against him by the Counter-Plaintiff[.]" On August 25, 2017, Ruiz, by and through his attorney Nichols, filed an amended petition for divorce still seeking joint managing conservatorship of the minor child, but omitting the assertion that Appellant should be designated primary conservator. By December 2017, the parties were engaged in discovery, and Ruiz, by and through his attorney Almanzan filed a motion to compel.

At the hearing on Ruiz's motion to compel, Almanzan introduced himself as "appearing for counter-defendant Jorge Ruiz, in his capacity as a counter-defendant in response to the ... civil tort counterclaim ... [for which Appellant was] seeking personal injury tort damages for claims involving alleged intentional infliction of emotional distress, alleged invasion of privacy, alleged unlawful surveillance, alleged, quote, illegal acts." Appellant, in defense of not producing certain audio and video recordings in her possession, which included a cell phone video of the couple having sex, sought a confidentiality agreement that would prohibit Ruiz and his attorneys from disclosing the contents of that material to third parties. The trial court asked the parties to work together to produce a mutually agreed confidentiality agreement to accommodate Appellant's concerns about the materials currently in her possession. At the time, however, neither Appellant nor her attorney were aware of the existence of the recordings of the intercepted communications made in Appellant's vehicle that are the subject of this appeal, despite having submitted a previous request for discovery to which such recordings would have been responsive.

On January 25, 2018, a "Confidentiality Agreement and Stipulated Protective Order," signed by the parties and their attorneys, was filed in the divorce case. The agreement limited the "scope of the agreement" to:

Any and all audio or visual recordings or photographs in the possession of either party which are either requested in discovery requests or intended to be relied upon in court and which are of a sensitive nature shall be provided in a sealed envelope, box or other container and marked "CONFIDENTIAL", to the Court within 10 days of this order or 10 days following receipt of said items after execution of this order.

The agreement permitted the use of "confidential information" as that term was defined in the agreement only for purposes of "discovery, litigation, trial and appellate purposes" unless written consent by the parties was given, or a court order was obtained permitting disclosure for another purpose.

Approximately two months later, on April 11, 2018, Nichols submitted to Appellant's attorney Ruiz's Fourth Supplemental Response to Appellant's discovery request in which Ruiz produced two USB drives containing the recordings of Appellant's intercepted communications that are the subject of this appeal. One of Appellant's discovery requests, originally served on March 21, 2017, while Mark Davis still represented Ruiz, sought the following information, to which Ruiz claimed on April 11, 2018, the USB drives were responsive:

Request No. 2: Produce any and all audio tape recordings, digital recordings, still photographs, video recordings which you intend to refer to or attempt to introduce into evidence at the time of trial and which depict any act by VIANNEY D. ROBLES which you claim would support an unequal division of community property and/or show that she should not be named Sole Managing Conservator of the Child.

On April 26, 2018, counsel for Appellant filed a motion to sanction Ruiz related to the contents of the USB drives and the delay in their production, seeking among other things: (1) a referral of the "illegal recording to law enforcement for investigation and prosecution;" and (2) a court order prohibiting Ruiz from "using any recordings, whether aural or visual[.]"

On June 1, 2018 after receiving discovery requests from Appellant seeking details about the audio recordings contained on the USB drives, including the method of recording and source of authorization, Almanzan submitted responses by Ruiz in which Ruiz refused to answer the interrogatories, requests for production, and requests for admissions, and instead, Ruiz invoked his right to Fifth Amendment protections.

On October 9, 2018, a hearing was held to determine how the parties would proceed. Attorney Almanzan again limited his appearance to only the "personal injury aspect of the case" but told the trial court that he and co-counsel Nichols intended to offer the contents of the audio recordings into evidence at trial in both the divorce and tort case because they "believe[d] that they are relevant to the claimant's character and activities that are relevant in both the family law case as well as the civil action case, Your Honor." Appellant's attorney in response, informed the trial court that she believed the recordings to be "illegal" and urged the trial court to first listen to evidence regarding the circumstances under which the recordings were made before listening to the actual recordings, which is what the trial court agreed to do.

On April 4, 2019, Appellant filed her Second Amended Counter-Suit for Divorce, which added a claim under Section 16.02 of the Texas Penal Code alleging that Ruiz had illegally intercepted Appellant's communications with third parties.

On April 5, 2019, a hearing was held on Appellant's motion to sanction Ruiz in relation to the contents of the USB drives. Appellant's attorney called Ruiz as a witness and asked him questions related to the circumstances in which the recordings were made, disclosed or used. Ruiz provided no answers, saying only "[a]s per my counsel's advice, I plead the Fifth." Appellant was also asked to testify. She said that Ruiz's voice was not present in the recordings, that she did not authorize the interceptions, that she was able to identify the voices of others on the recordings, who according to Appellant's attorney did not give permission to intercept the communications, and that, based on her review of the recordings, the interceptions began after she and Ruiz separated in February 2017 and ended in January 2018.

At the conclusion of the April 5, 2019 sanctions hearing, Almanzan informed the trial court that he had created a thirty-minute excerpt of the contents of the recordings contained on the USB drives that he intended to offer into evidence at trial. The trial court then ordered Almanzan to transcribe that excerpt, which would be read into the record and translated into English by a Spanish interpreter, to which Almanzan agreed.

On April 24, 2019, Appellant filed a written objection to the transcription and translation of the contents of the intercepted communications on the basis that doing so would violate Texas Penal Code section 16.02 and Chapter 123 of the Texas Civil Practice and Remedies Code. The objection was filed along with a supplement to Appellant's motion for sanctions which sought temporary and permanent injunctive relief against Ruiz and his attorneys preventing them from using the recordings, and others, for any purpose including "to conduct further discovery based upon such information."

Appellant subsequently filed her civil action in this case against Ruiz's attorneys and their law firms on April 29, 2019 seeking injunctive relief to prevent further use and disclosure of the contents of the intercepted communications as well as monetary damages for each and every intercepted communication that was used or divulged by the attorneys, as permitted by chapter 123 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 123.004. Appellees’ Factual Arguments

Here, Appellees argue that the conduct at issue falls within the scope of their representation of Ruiz, because it was their "duty to review the recordings at issue as potential evidence" in order to "protect[ ] their client against [Appellant's] allegations, and pursu[e] their client's legal interests." However, the record reflects that the attorneys did more than review the recordings for potential evidence against Ruiz in relation to Appellant's allegation that Ruiz had illegally intercepted her oral communications. At the April 5, 2019 hearing, after listening to Ruiz "take the Fifth on the tapes" the divorce court expressed its opinion that the tapes were inadmissible because Ruiz would be unable to "prove them up." In response, Almanzan said:

Not necessarily, Your Honor. Not necessarily ... in civil cases, Judge, the–the method of the recording is irrelevant as long as the content of the recording is material, relevant and for impeachment purposes. We need not go through this futile exercise as to how the recordings were made because the case law that I cited for you.... there's really two issues that are being presented to you today. Number one, the source and the method of the recording, that's one subject matter. An entirely second and different subject matter is the content of the recordings. You don't have to know how a recording was made to be able to authenticate, "I hear that voice. That voice is hers. That voice is his. That voice is them. They're talking about this." Mr. Robles [sic] can plead the Fifth as to the origin and source of how the recording was made, while he can be examined and offer testimony as to whether or not he is familiar with the voices on those recordings and what they're talking about, who they're talking about and so forth, Your Honor. They're two different issues. And as I was saying earlier, you don't have to consider the first issue in a civil case.... I have cited Texas civil cases that stand for the proposition that the source of the material is irrelevant. You can even allege it was illegally recorded. That's still not a bar to its admission and use, as long as it's relevant and/or material and/or for impeachment purposes.

Apart from the questionable support for Almanzan's claim that the content of an intercepted communication is admissible if it is "material, relevant and [can be utilized] for impeachment purposes," the above-referenced argument fails to account for the fact that section 16.02 of the Texas Penal Code does not limit the illegality of a person's conduct to acquisition of the recordings. Both section 16.02 and Chapter 123 of the Texas Civil Practice and Remedies Code make it illegal to disclose and use the contents of the intercepted communications for any purpose.

While it was Almanzan's duty to investigate his client's involvement in acquiring the illegal recordings and to determine whether his client was exposed to civil or criminal liability in relation to them, which would necessarily require a review of the recordings and which are duties well within the scope of representation, the above exchange demonstrates Almanzan went beyond performing those duties. By concluding that he and Nichols could and would use the content of the recordings even if they were illegally obtained--in direct contravention of the criminal and civil statute--to gain advantage in the civil proceeding, which was ostensibly the motivation behind Ruiz intercepting the communications in the first place, Almanzan crossed a line that now subjects him and his co-counsel to potential civil liability.

Moreover, the disclosure and use of the content of the recordings by these attorneys was not limited to their desire to "impeach" Appellant. Almanzan's arguments reveal his belief that Ruiz's attorneys could use the intercepted communications to coordinate, strategize and inform their cases against Appellant on issues unrelated to Ruiz's alleged illegal interception of Appellant's private communications. During the April 2019 hearing, Almanzan made clear that he had listened to the recordings with intent of using their content to develop Ruiz's case in the divorce case:

Judge for you to consider whether to admit evidence that's on the recordings you need to know what's on the recordings. The question has to be asked and answered, do the content of the recordings go to issues that are pertinent in this case?

And Almanzan repeatedly referenced the content of the recordings to justify its use in the tort and divorce proceeding:

[B]ased on the content of the recordings, the sanctions should be denied, Your Honor. If you allow me an opportunity to present to you the content of the recordings, Your Honor.... we have a USB which essentially narrows down what we believe to be relevant, material and impeachable evidence down to 30 minutes, Judge ... You are being called upon, pleaded upon, to take into consideration probative evidence of this woman's character for lying, for cheating, for possible drug use, for possibly putting her son in danger by who she associates with, Your Honor. That's why this is relevant and material, regardless of the

[sic] whether or not it was illegally obtained, Your Honor.

Significantly, Appellees did not argue in the divorce/tort proceeding, nor do they argue here, that Appellant's oral communications were not illegally intercepted. Appellees do not allege, for example, that a person whose voice is on the recordings gave prior consent, or the recordings were received from a law enforcement agency that had legally obtained the recordings through an application filed under Title 18, United States Code, Section 2516. See TEX. CIV. PRAC. & REM. CODE ANN. § 123.002(b) (excepting from civil liability interceptions and uses or disclosures of recordings authorized by Title 18). If the attorney conduct at issue had been limited to attempting to persuade the trial court that the communications were not illegally intercepted and could therefore be legally used in the civil proceeding, the immunity analysis would likely lead to a different conclusion.

But the record before us demonstrates that at a minimum the attorneys had reason to believe and should have known that Appellant's communications were illegally intercepted and that their client was responsible for the interception. The record demonstrates that the attorneys knew: (1) neither Appellant, nor anyone else on the recordings, gave prior consent to the recordings; (2) Ruiz was in possession of the recordings and was in the best position to explain to his attorneys how he obtained them; (3) Ruiz had motive and opportunity to intercept the communications; and (4) Ruiz invoked his Fifth Amendment right to remain silent about who recorded the conversation and how he came to possess the recording. In addition, the recordings include a time period in which the civil proceeding was pending.

On these facts, Appellees’ conduct is far from the type of conduct for which attorneys should be immune as a matter of law. Here, unlike the attorney conduct in Bethel and Cantey Hanger , Appellees cannot point to a duty they owed to their client to justify the use of content contained within the recordings because their client, who Appellant alleges broke the law when he intercepted her oral communications, does not have a common law, statutory or constitutional right to use the contents of those communications, and as a matter of fact is legally prohibited from doing so. And because an attorney owes no duty to accomplish for a client that which he could not legally accomplish on his own, Poole , 58 Tex. 134, the conduct committed by these attorneys fell outside the scope of representation that would protect them from a suit that was filed specifically to prevent them from further disclosing and using the intercepted communications. And the court's opinion suggesting an attorney can escape civil liability for such conduct as long as they can say they were representing their client when they engaged in it is an incorrect and misleading statement of the law and would encourage other attorneys and clients alike to engage in this type of conduct going forward.

In other words, Appellant's allegations do not amount to mere disapproval of how Appellees performed their duties owed to Ruiz, she complains that their client had no right to intercept and record her oral communications and that Ruiz's attorneys, therefore, had no duty to use the content of those illegal interceptions to accomplish that which Ruiz legally could not, when they knew or reasonably should have known those recordings were obtained in violation of criminal law. There is simply no question that the actual or attempted disclosure or use of such content for any purpose with the requisite knowledge is itself illegal. The attorneys may doubt that Appellant can prove they knowingly engaged in such conduct, but there can be no doubt that such conduct falls outside of lawyerly duties owed to a client.

In short, the actual/attempted use/disclosure of intercepted oral communications by an attorney who knows or has reason to know those communications were illegally intercepted by their client or another falls outside the scope of client representation for which immunity attaches because doing so is prohibited by criminal statute and because attorneys owe no duty to a client to accomplish what their client legally could not. This is precisely the type of conduct for which attorney immunity is unavailable. Consequently, rather than be shielded from civil suit and liability, Appellees should be required to answer for their actions and show why injunction is not required and why they are not liable to Appellant.

The TCPA

In addition, I would hold that the Texas Citizens Participation Act does not apply to Appellant's legal action because it is not based on, related to, or filed in response to Appellees’ exercise of the right to petition. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)(2). Rather, the legal action is based on, related to and filed in response to the intentional criminal conduct committed by Appellees, which they have no right--constitutional or statutory--to pursue.

The majority relies on Youngkin v. Hines , 546 S.W.3d 675 (Tex. 2018) to hold that that the TCPA applies, but once again, the facts here are clearly distinguishable. In Youngkin the attorney was sued for statements he made on behalf of his clients regarding a Rule 11 Agreement that was agreed to by the opposing litigant, but which the opposing litigant later claimed was fraudulent. The Court observed that "Youngkin's alleged liability stems from his dictation of the Rule 11 agreement into the court record during trial. By any common understanding of the words, he made a statement in a judicial proceeding." Id. at 680 (referring to TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(A)(i) ) (defining "Exercise of the right to petition" as "a communication in or pertaining to ... a judicial proceeding[.]").

Here, the attorneys’ alleged liability does not stem from statements or documents they made or authored in the divorce proceeding, it stems from the attorneys’ repeated disclosure and use of Appellant's oral communications that the attorneys knew or reasonably should have known were illegally intercepted by their client or another. Moreover, the suit in this case was filed to stop these attorneys from further disclosing and using the contents of the intercepted communications, not to chill their right to petition.

For these reasons, I dissent.