McCoy v. McCoy, No. 08-23-00119-CV, 2023 WL 5508828 (Tex. App.—El Paso Aug. 25, 2023, no pet. h.).


Texas Citizens Participation Act

The trust beneficiaries provided written notice to the trustee that they opposed the trustee’s asserting a cause of action against a party who is not a beneficiary of the trust (the co-trustee who is the beneficiaries’ mother and the trustee’s ex-wife). Under Trust Code § 113.028, the trustee is then prohibited from prosecuting or asserting the claim. Nonetheless, the trustee continued to do so causing the beneficiaries to sue the trustee for damages including court costs and legal fees for continuing with the claim. The trustee then moved to dismiss this suit based on the Texas Citizens Participation Act and the trustee’s right to petition. Because the probate court did not timely rule on the trustee’s motion, it was overruled by operation of law and the trustee appealed.


The El Paso Court of Appeals held that “the TCPA does not apply to claims brought by trust beneficiaries for violations of section 113.028 of the Texas Trust Code.” Id. at*2. The court explained that the statute itself provides specific limitations on the trustee’s petitioning rights. The Trust Code and the TCPA must be read together and the court presumes that the TCPA was not designed to “undermine or override” the Trust Code. Id. at *8. Accordingly, the trustee’s motion to dismiss is denied and the beneficiaries’ suit may continue.

Moral:  The TCPA does not apply to Trust Code § 113.028 claims.