## Facts

- Billy Wayne McMillan and Mary Ann McMillan were married and jointly operated a lounge where Mary Ann worked as a bartender.
- Daniel I. Felsenthal was a frequent customer at the lounge over an extended period.
- After leaving the lounge on at least one occasion, Mary Ann accompanied Felsenthal to a lake house, where they admitted engaging in sexual intercourse.
- McMillan sued Felsenthal alleging interference with the marital relationship, including alienation of affections and criminal conversation (adultery).
- In depositions, Mary Ann and Felsenthal testified that the sexual encounter did not alienate Mary Ann’s affections from McMillan and that the marriage continued.
- The trial court granted Felsenthal’s motion for summary judgment.

## Issues

1. Whether Texas law recognizes criminal conversation as a cognizable, independent tort.
2. Whether the absence of alienation of affections defeats a criminal-conversation claim, or whether proof of marriage and intercourse during coverture is sufficient.
3. Whether the summary-judgment record negated the elements of criminal conversation, justifying judgment as a matter of law.

## Decision

- The court held that Texas recognizes criminal conversation as a common-law cause of action distinct from alienation of affections.
- The court identified the elements as: (1) an actual marriage, and (2) sexual intercourse between the defendant and the plaintiff’s spouse during coverture.
- McMillan’s pleadings alleged both elements, and the depositions did not negate them; instead, they supported a fact issue by admitting intercourse.
- The trial court’s summary judgment was reversed as to the criminal-conversation claim, and the case was remanded for further proceedings.

## Legal Principles

- Criminal conversation is a separate tort from alienation of affections; it does not require proof that the spouse’s affections were alienated.
- To establish criminal conversation, a plaintiff must prove only: (1) a valid marriage, and (2) sexual intercourse between the defendant and the plaintiff’s spouse during the marriage.
- Summary judgment is improper when the record does not conclusively disprove an essential element and leaves disputed matters (including credibility and damages) for the factfinder.

## Conclusion

The court recognized criminal conversation as an independent Texas common-law tort and held that the husband’s claim could proceed because the record raised, rather than eliminated, a triable issue on the elements of marriage and intercourse during coverture.


McMillan v. Felsenthal, 482 S.W.2d 9 (Tex. Civ. App. 1972)