CourtListener 10671409•In Re Powered by People and Robert Francis O'Rourke v. the State of Texas
In Re Powered by People and Robert Francis O'Rourke v. the State of Texas
CourtListener 10671409Txctapp1510.09.2025
Gesamter Gesetzestext
ACCEPTED
15-25-00140-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
9/10/2025 9:12 AM
NO. 15-25-00140-CV CHRISTOPHER A. PRINE
CLERK
FILED IN
15th COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE FIFTEENTH DISTRICT 9/10/2025 9:12:07 AM
AUSTIN, TEXAS CHRISTOPHER A. PRINE
Clerk
IN RE POWERED BY PEOPLE AND ROBERT FRANCIS O’ROURKE,
Relators
ORIGINAL PROCEEDING FROM THE 348TH JUDICIAL DISTRICT
OF TARRANT COUNTY, TEXAS
TRIAL COURT NO. 348-367652-2025
REPLY IN SUPPORT OF MOTION FOR EMERGENCY RELIEF
TO THE HONORABLE FIFTEENTH COURT OF APPEALS:
On Monday, August 25, 2025, pursuant to Texas Rule of Appellate Procedure
52.10, Relators Powered by the People and Robert Francis O’Rourke filed a Motion
for Emergency Relief (the “Motion”) to accompany their Petition for Writ of
Mandamus (the “Petition” or “Pet.”). On September 9, 2025, the State of Texas, real
party-in-interest, filed a short response to this Motion, as part of its larger Response
to Petition for Writ of Mandamus and Motion for Temporary Relief.
Relators plan to file a separate reply addressing the merits of the Petition for
Writ of Mandamus by Tuesday, September 16, 2025, subject to any decision by this
Court to either require an earlier reply or to order no reply at all.
Reply in Support of Motion for Emergency Relief Page 1
Here, Relators respectfully submit this Reply in further support of their
Motion for Emergency Relief, including Relators’ request that this Court stay the
modified Temporary Restraining Order issued on August 15, 2025 (the “TRO”) and
the second temporary restraining order issued on August 25, 2025 (the “Antisuit
TRO”), and continue to stay other proceedings pending this Court’s ruling on the
Petition.
The State sidesteps the actual standard for granting a stay pending appeal,
which is done “to preserve the parties’ rights until disposition of the appeal.” In re
State, 711 S.W.3d 641, 645 (Tex. 2024) (citing with approval TEX. R. APP. P. 29.3’s
“analogous formulation” to guide standard for considering stay requests). In
deciding this Motion—as is the case for any request for injunctive relief—this Court
must consider “the injury that will befall either party depending on the court’s
decision,” as well as “the harm that other parties or the public will suffer if relief is
granted—as well as any potential injury to non-parties caused by granting or denying
relief.” In re State, 711 S.W.3d at 645. Ultimately, “[t]he equitable balancing of
these harms is a required aspect of a court’s effort to preserve the parties’ rights
pending appeal.” Id.
Here, the balance of equities indisputably favors Relators—indeed, the State
does not seriously try to argue otherwise. See Resp. at 51-52.
Reply in Support of Motion for Emergency Relief Page 2
First, the allegedly exigent circumstances the State relied upon to justify the
original and modified TRO are now decidedly past, but the TRO continues to cause
irreparable injury to Relators and to Relators’ supporters by chilling protected
speech and association rights. The balance of equities clearly favors Relators.
Second, the Antisuit TRO restrains Powered by People and its counsel from
“prosecuting any . . . claim, or proceeding that seeks to restrain or enjoin the State
from initiating, filing, or prosecuting the quo warranto claims alleged by the State.”
MR.0978 (emphasis added). However, the State has forced action in the El Paso
proceedings by filing its own interlocutory appeal of an “implicit” denial of a plea
to the jurisdiction, which is now pending before this Court, No. 15-25-00141-CV.
In doing so, the State has invoked Section 51.014(b) of the Texas Civil Practice &
Remedies Code, which stays proceedings in the trial court. So—by the State’s own
position—the only pending proceeding related to the El Paso case is one which it
itself initiated. On its face, the Antisuit TRO could be read to prevent Powered by
People from responding to this appeal, which would be an absurd result and raise
severe due process concerns.
Finally, while Relators plan to submit a separate reply in support of the merits
of the Petition, “a preliminary inquiry into the likely merits of the parties’ legal
positions” favors Relators. In re State, 711 S.W.3d at 645. Fundamentally, and as
summarized below, the State cannot demonstrate that any act or practice complained
Reply in Support of Motion for Emergency Relief Page 3
of is unlawful under the Texas Deceptive Trade Practices Act (“DTPA”); therefore,
the Respondent lacks jurisdiction and proper venue to pursue this case.
RELEVANT PROCEDURAL & FACTUAL BACKGROUND
This case concerns the weaponization of the Texas Attorney General’s civil
enforcement powers to silence political opposition and retaliate against protected
speech and political activities, against the backdrop of a contentious public debate
about Texas’ mid-decade redistricting efforts. See generally Pet. at 7-13. Indeed, the
Attorney General’s response to this Court’s administrative stay—a routine case
management tool meant to “freeze legal proceedings until the court can rule on a
party’s request for expedited relief,” United States v. Texas, 144 S. Ct. 797, 798
(2024) (internal quotation marks and citation omitted)—illustrates the hyperbole and
vitriol General Paxton has consistently employed in pursuing this case against
Relators. Specifically, General Paxton posted on social media that:1
1
Ken Paxton (@KenPaxton), “What we are witnessing in Texas…”, X (Aug. 27,
2025, 2:59 PM) https://x.com/KenPaxtonTX/status/1960794232710684922
Reply in Support of Motion for Emergency Relief Page 4
Meanwhile, the crux of the State’s claimed injury to Texans—that “Robert
Francis O’Rourke and his political influence operation, Powered by People, are
traveling the state misleadingly raising political funds to pay for the personal
expenses of Texas Democrats who have abandoned their offices and fled the state in
the middle of a Special Legislative Session”2—has ceased to be a live concern.
Democrats returned to Austin on Monday, August 18, 2025, and the new
2
This is the first sentence of the State’s operative Petition. MR.0198.
Reply in Support of Motion for Emergency Relief Page 5
redistricting maps were passed by the Texas House of Representatives on August
20, 2025 and signed into law by Governor Abbott on August 29, 2025.3
But acute and irreparable harm continues each day for Relators. Given the
vague, broad language of the TRO, the State’s changing position about the reach of
that injunction, and the Attorney General’s repeated, targeted attacks against Mr.
O’Rourke, Relators are forced to consult with legal counsel prior to public events
and fundraising solicitations, including for topics far afield of the quorum-break
(which, of course, has long concluded). Relators’ in-state assets remain frozen. And,
as noted above, Powered by People questions its ability to prosecute the El Paso
proceeding in the pending appeal before this Court due to the Antisuit TRO which—
at this juncture—seemingly serves no other purpose.
On top of that, recent donations from like-minded Texans made to Powered
by People on the ActBlue platform remain in limbo as ActBlue will not transmit that
money to Relators for fear of violating the TRO, overtly preventing the free
association of Relators and their likeminded donors. SR.0049-0050 (hearing
transcript from Relators’ August 19, 2025 motion to dissolve the TRO, where
Relators’ counsel explains that “since Friday’s modification, ActBlue is not sending
3
See, e.g., J. David Goodman, Abbott Signs Gerrymandered Map as Texas G.O.P.
Moves Further Right, The New York Times (Aug. 29, 2025),
https://www.nytimes.com/2025/08/29/us/politics/abbott-texas-legislature-
redistricting-map.html
Reply in Support of Motion for Emergency Relief Page 6
any money to Powered By People from Texas donors because the donors’ money
leaves the state to go to ActBlue’s account outside of Texas”) & SR.0055 (counsel
further explaining that “men and women of reasonable intelligence, including
attorneys for ActBlue, have determined that this TRO requires ActBlue to cut off
entire streams of funds from Texas donors because the Texas donation leaves Texas
and goes to ActBlue’s bank account, regardless of the reasons that the funds were
raised”).
ARGUMENT
This Court is fully justified in granting emergency relief to stay the Trial Court
proceedings because the Respondent issued an overbroad TRO infringing bedrock
constitutional rights of free speech and association and did so without subject matter
jurisdiction. Mandamus is the appropriate avenue to challenge this type of manifest
abuse because failure to stop the error and cease the constitutional violation creates
both irreparable harm and renders any appellate remedies inadequate as a matter of
course.
Texas law is clear that mandamus is appropriate to challenge overbroad and
unconstitutional prior restraints of speech, TRO’s, and a court’s lack of subject
matter jurisdiction. Mandamus is appropriate when a TRO is improvidently granted,
permitting a party to seek immediate relief. In re Cnty. of Hidalgo, 655 S.W.3d 44,
55 (Tex. App.—Corpus Christi–Edinburg 2022, no pet.) (“Mandamus review of a
Reply in Support of Motion for Emergency Relief Page 7
trial court’s temporary restraining order is proper because such an order cannot be
appealed; thus, the party against whom such injunctive relief is granted lacks an
adequate remedy by appeal”); In re Abbott, 601 S.W.3d 802, 813 (Tex. 2020) (orig.
proceeding) (per curiam); In re Office of Att’y Gen., 257 S.W.3d 695, 698 (Tex.
2008) (orig. proceeding) (per curiam); In re Tex. Nat. Res. Conservation Comm’n,
85 S.W.3d 201, 207 (Tex. 2002) (orig. proceeding).
Mandamus is also appropriate when a court exercises jurisdiction when no
subject matter jurisdiction exists. See In re Accident Fund Gen. Ins. Co., 543 S.W.3d
750, 755 (Tex. 2017) (conditionally granting writ of mandamus to require dismissal
for lack of subject matter jurisdiction). Mandamus issues to “correct a clear abuse of
discretion or a violation of a duty imposed by law when there is no other adequate
remedy at law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Here, there is
a clear abuse of discretion, with patent constitutional violations that are ongoing.
Because the Court should both immediately remedy those violations and preclude
the Respondent from exercising jurisdiction over a matter it does not have power to
entertain, mandamus is appropriate and the request for emergency relief should be
granted.4
4
The State relies on Tex. Right to Life v. Van Stean, 702 S.W.3d 348, 354 (Tex.
2024), to misconstrue Relators’ argument as one solely about whether the Attorney
General has the “right to bring such a cause of action.” Resp. at 15. This is not simply
a merits decision based on the applicability of the statute; rather, it is fundamentally
a question of constitutional standing jurisprudence. Can the plaintiff show a
Reply in Support of Motion for Emergency Relief Page 8
A. The TRO Imposes Irreparable Injuries on Relators, but the State’s
Purported Need for the TRO has Long Passed.
To be clear, the State has offered no evidence of actual wrongdoing justifying
the TRO in the first place, but even assuming it made a modest showing of harm to
justify the original TRO, the State’s primary purpose of bringing suit in Tarrant
County was to enjoin political fundraising and disrupt a political rally that occurred
nearly a month ago. See generally MR.0001-0013 (Original Pet.) & MR.0009
(“Defendants are preparing to engage in the same unlawful and deceptive
fundraising practices described above during the Fort Worth rally” on August 9,
2025). The fundamental factual basis for the State’s argument—that Texas
legislators were out of state, preventing the legislature from proceeding with a
quorum and that Relators were somehow improperly facilitating the quorum break—
is no longer at issue at all. And yet, and as the Attorney General’s office boasted just
concrete, particularized injury fairly traceable to the conduct of the defendant? See
Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012) (Texas constitutional
standing follows Article III courts’ standing jurisprudence generally). Here, the
alleged “injury” suffered is defined entirely and exclusively by the DTPA as a
consumer injury (with discrete and specific meanings) and the AG is only authorized
to bring actions within the scope of that limited grant of authority. If the injury
alleged is entirely outside the scope of the DTPA and the AG’s authority to sue, then
the State has no injury it can trace to a plaintiff (no constitutional standing to even
sue) and also has no legal basis upon which it is authorized to act (no statutory cause
of action). This is not simply a merits decision that a trial court must determine after
a trial; rather, the Court must assess whether the injuries alleged in this case are the
type of injuries that are even cognizable and traceable to the Relators and whether
the State has the statutory authority to bring such a suit. That is the essence of a
standing inquiry depriving any court of subject matter jurisdiction.
Reply in Support of Motion for Emergency Relief Page 9
last week, after this Court clarified the scope of the administrative stay, the TRO
continues to “prevent[] O’Rourke and Powered by People—and any of its
institutional partners, such as ActBlue—from removing any property or funds out of
Texas.”5 Notably, the State never even sought this form of relief against Mr.
O’Rourke in either its original or amended petition. Cf. RP&R, Inc. v. Territo, 32
S.W.3d 396, 402 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“[W]here the
injunctive relief granted exceeds the relief requested by the applicant in the petition,
the trial court exceeds its jurisdiction.”) (citing Fairfield v. Stonehenge Ass’n Co.,
678 S.W.2d 608, 611 (Tex. App.—Houston [14th Dist.] 1984, no writ)).
Now, the State cannot produce any credible rationale to support the continuing
need for the TRO, much less meet the strict requirements necessary to justify prior
restraints of speech. Meanwhile, Relators continue to suffer irreparable injury. It is
black letter law that “any delay in the exercise of First Amendment rights constitutes
an irreparable injury to those seeking such exercise.” Iranian Muslim Org. v. City of
San Antonio, 615 S.W.2d 202, 208 (Tex. 1981) (quoting Southwestern Newspapers
Corp. v. Curtis, 584 S.W.2d 362, 365 (Tex. Civ. App. Amarillo 1979, no writ)).
Accord Elrod v. Burns, 427 U.S. 347, 373 (1976); Opulent Life Church v. City of
5
Attorney General Ken Paxton Secures Extended TROs Against Beto O’Rourke,
Preventing Additional Financial Payoffs to Texas Politicians, Tex. Att’y Gen.,
News Release (Sept. 4, 2025),
https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-
secures-extended-tros-against-beto-orourke-preventing-additional.
Reply in Support of Motion for Emergency Relief Page 10
Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012). For this reason, prior restraints of
speech, including “judicial orders forbidding certain communications that are issued
in advance of the time that such communications are to occur,” are “heavily
disfavored” and presumptively unconstitutional. Kinney v. Barnes, 443 S.W.3d 87,
90 (Tex. 2014). Thus, when language “evoked no threat of danger to anyone,” even
when it was allegedly defamatory and unlawful, the Texas Supreme Court has found
that such language “may not be subject to the prior restraint of a temporary
injunction.” Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983).
Indeed, the Texas Supreme Court has explained that “[s]o great is our reticence to
condone prior restraints that we refuse to allow even unprotected speech to be
banned if restraining such speech would also chill a substantial amount of protected
speech.” Kinney, 443 S.W.3d at 89. Accordingly, prior restraints of speech “may be
permissible only when essential to the avoidance of an impending danger, and only
when it is the least restrictive means of preventing that harm” Id. at 95 (quoting in
part Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992); cleaned up).
At this point, there is no plausible argument that the TRO is “essential” to
avoid any “impending danger,” much less that it is the least restrictive way to do so.
The TRO explicitly targets Relators’ core political speech and association, as it aims
at the solicitations of funds, the utilization of political fundraising as a means of
association, and—as evidenced by the State’s attempted enforcement efforts—
Reply in Support of Motion for Emergency Relief Page 11
Relators’ statements on matters of public concern. Relators have argued at length
that this constitutes an unlawful prior restraint on speech. See Pet. at 42-53; see
generally MR.0249-0275 (Mot. to Dissolve).
The TRO, in prohibiting “[r]aising funds for non-political purposes,”
MR.0392, is also unconstitutionally vague. Because it does not provide clear
guidance on what conduct is allowed or prohibited, Relators must consult counsel
prior to speaking and fundraising. Cf. Citizens United v. FEC, 558 U.S. 310, 324
(2010) (“The First Amendment does not permit laws that force speakers to retain a
campaign finance attorney, conduct demographic marketing research, or seek
declaratory rulings before discussing the most salient political issues of our day.”);
see also Pet. at 54-56.
Moreover, the TRO is grossly overbroad. As a result, it has severely disrupted
Relators’ ability to raise and distribute political and charitable funds of any kind, far
past any specific contributions and expenditures implicated by the State’s DTPA
claim. Today, Relators’ Texas-based assets remain frozen in full, preventing
Relators from utilizing in-state resources. See MR.0393 (restraining “any filing
entity or foreign filing entity in active concert or participation with Defendant
Powered by People and/or Defendant O’Rourke (including banks, financial
institutions, and ActBlue” from “removing any property or funds that belong to”
Relators from Texas). This exceeds what is necessary to prevent any conceivable
Reply in Support of Motion for Emergency Relief Page 12
violation of the DTPA. Avila v. State, 252 S.W.3d 632, 648 (Tex. App.—Tyler 2008,
no pet.) (deleting portion of injunction under DTPA when it restrained defendants
from transferring funds; reasoning that, because some of that “money has been
earned through legitimate business activities,” injunction was overly broad).
Moreover, ActBlue has interpreted this provision to prevent it from
transferring donations from Texas-based donors to Powered by People, on the theory
that such donations are funds “that belong to” Relators in Texas by virtue of the
donor’s residence. SR.0049-0051 & SR.0055. This means that Texas-based donors
who have exercised their right to give political donations and pool resources with
Powered by People based on shared political beliefs are being actively prevented
from doing so because of the TRO. The injunction reaches far past the quorum-
break: For instance, the contributions of Texas donors who decided long ago to give
recurring monthly donations to Powered by People are currently blocked. As a result,
of course, Relators are wholly prevented from accessing and spending this same
money to effectuate their mission, far past any nexus with the allegations of the
lawsuit.
Such broad censorship is not permitted by the Texas or U.S. Constitution. See,
e.g., Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734–
35 (2011) (“[W]e have invalidated government-imposed restrictions on campaign
expenditures, restraints on independent expenditures applied to express advocacy
Reply in Support of Motion for Emergency Relief Page 13
groups . . . and regulations barring unions, nonprofit and other associations, and
corporations from making independent expenditures for electioneering
communication.” (citations omitted; cleaned up)). The balance of equities thus
favors granting the Motion.
B. The Antisuit TRO Serves No Clear State Purpose but Poses Grave
Due Process Concerns, Providing Another Equitable Reason to
Grant the Motion.
The State has only ever identified one possible State harm justifying the
extraordinary remedy of the Antisuit TRO: “hemorrhaging taxpayer dollars on
duplicative litigation.” MR.0459; see generally MR.0458-0824. Ironically enough,
the State’s alleged harm is most directly addressed by granting this Motion, and
staying further proceedings pending this appeal. Again, the El Paso trial court
proceeding is currently stayed due to the State’s appeal so the only pending
proceeding related to the El Paso case is now before this Court. On its face, the
Antisuit TRO could be read to prevent Relator Powered by People from responding
to the State’s appeal, which would be an absurd result and raise severe due process
concerns. See City of Houston v. Kunze, 258 S.W.2d 226, 228 (Tex. Civ. App.—Fort
Worth 1953), aff’d, 153 Tex. 42, 262 S.W.2d 947 (1953) (“An injunction against the
prosecution of any suit is at best a harsh remedy and should never be resorted to in
a doubtful case, nor to avoid the possibility of conflicting decisions, nor yet to
discourage litigation.”). And for reasons more fully explained in Relators’ Petition,
Reply in Support of Motion for Emergency Relief Page 14
Pet. at 70-74, and trial court brief, MR.0862-0869, the Antisuit TRO was improper
in the first place. Accordingly, equitable considerations also heavily favor a stay of
the Antisuit TRO.
C. Relators are Likely to Prevail on the Merits of their Claims.
As summarized below,6 the TRO is fundamentally invalid because the
Attorney General asserts a claim that is not cognizable under the DTPA and is, in
fact, at odds with its plain language. He thus has no standing to prosecute this case,
nor did the trial court have jurisdiction to grant the TRO.
The DTPA only protects against “[f]alse, misleading, or deceptive acts” that
are made “in the conduct of any trade or commerce.” TEX. BUS. & COM. CODE §
17.46(a) (emphasis added). At its core, the DTPA “is designed to protect consumers
from any deceptive trade practices made in connection with the purchase or lease of
any goods or services.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.
1996) (quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 541 (Tex.
1981)). Texas courts “are bound to construe the[] terms [of the DTPA] in accordance
with their statutory definitions.” Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 274
(Tex. 1995) (overturning jury charge substituting “ordinary person” for “consumer”
and omitting the terms “goods and services”). The State has failed to provide any
6
Again, Relators would like the opportunity to file a more complete reply in support
of their Petition, and plan to file their reply by September 16, 2025 (seven days from
the State’s response deadline) unless instructed otherwise by this Court.
Reply in Support of Motion for Emergency Relief Page 15
basis to even argue that the acts it challenges qualify as being conducted in trade or
commerce.
In order to determine whether a challenged practice is actionable under the
DTPA, courts look at a purported consumer’s “relationship to the transaction.”
Vinson & Elkins v. Moran, 946 S.W.2d 381, 407 (Tex. App.—Houston [14th dist.]
1997, writ dism’d). The only purportedly deceptive transactions being challenged
are Relators’ solicitations of “political donations.” MR.0202. Setting aside its
veracity, the State’s petition rests entirely on a single premise: that Relators raised
“political donations” but then used the money for “non-political purposes.”
MR.0198. The transactions with the purported “Texas consumers” are the donations
and solicitations of the donations. MR.0201.
But political donations are, by definition, not conduct in “trade and
commerce,” because the core characteristic of a trade or a commercial transaction is
that there is at least the prospect of a “transfer [of] valuable consideration.” Martin
v. Lou Poliquin Enters., Inc., 696 S.W.2d 180, 184 (Tex. App.—Houston [14th
Dist.] 1985, writ ref’d n.r.e.). The transfer need not be fully consummated, id., but
the plain language of the DTPA requires, at a minimum, an “advertising, offering
for sale, sale, lease, or distribution” of some “thing of value.” Tex. Bus. & Com.
Code § 17.45(6). This prospect of exchanging valuable things, is a key element that
distinguishes a gift, or donation, from a transaction in “trade and commerce.” Accord
Reply in Support of Motion for Emergency Relief Page 16
Commerce, Black’s Law Dictionary (12th ed. 2024) (defining commerce as “[t]he
exchange of goods and services.”); NexPoint Advisors, L.P. v. United Dev. Funding
IV, 674 S.W.3d 437, 448 (Tex. App.—Fort Worth 2023, pet. denied) (“A
commercial transaction is generally a business deal.”) (internal quotation marks and
citation omitted)).
In contrast to trades or commercial transactions, the “sine qua non” of a
donation is “a transfer of money or property without adequate consideration.”
Hernandez v. Commissioner, 490 U.S. 680, 691 (1989); see also Pankhurst v.
Weitinger & Tucker, 850 S.W.2d 726, 730 (Tex. App.—Corpus Christi 1993, writ
denied) (“A gift is a transfer of property made voluntarily and gratuitously. . . . Lack
of consideration is an essential characteristic of a gift such that an exchange of
consideration precludes a gift.”) (citing Hilley v. Hilley, 342 S.W.2d 565, 568 (Tex.
1961)). Thus, in determining whether a transfer of money was a donation, courts
look for whether the purported donor received “an identifiable benefit” in exchange,
Hernandez, 490 U.S. at 691, or, in other words, a “measurable, specific return [that]
comes to the payor as a quid pro quo for the donation.” Id. at 688; New Jersey v.
Bessent, Nos. 24-1499-cv, 24-1503-cv, 2025 U.S. App. LEXIS 20554, at *29 (2d
Cir. Aug. 13 2025) (same).
The State has failed to articulate what valuable, good, service, or other “thing”
Relators advertised or offered to sell to the donors. Nor can the State do so because
Reply in Support of Motion for Emergency Relief Page 17
on the face of its petition it only alleges that Relators made solicitations for
gratuitous donations: “Every dollar you give will go towards stopping this power
grab”; “100% of your donation will go to supporting Texas Democrats”; “Your
contribution will benefit Powered by People.” MR.0203. Because the donations
were gratuitous without any prospect of an exchange of value, they were not made
in “trade or commerce.”
For this reason, when considering an attempted DTPA action by the Attorney
General against a church, the Western District of Texas wrote: “Solicitation of funds
from church members, and new members, is not a business practice. . . . The DTPA
was meant to protect those residents from deceptive ‘business’ acts and practices
only.” Word of Faith World Outreach Ctr. Church, Inc. v. Morales, 787 F. Supp.
689, 697 (W.D. Tex. 1992) (citing Murdock v. Pennsylvania, 319 U.S. 105, 111
(1943) (rejecting a reading of an ordinance under which “the passing of the
collection plate in church would make the church service a commercial project.”)),
vacated on other grounds, 986 F.2d 962. Although the trial court decision in Word
of Faith was vacated on abstention grounds, the Fifth Circuit wrote, “It is highly
likely, as the district court noted, that the DTPA does not even apply to the church.”
Word of Faith World Outreach Ctr. Church, Inc. v. Morales, 986 F.2d 962, 968 (5th
Cir. 1993).
Reply in Support of Motion for Emergency Relief Page 18
The Legislature has seen fit to create entire statutory schemes regulating, inter
alia, “political funds and campaigns,” TEX. ELEC. CODE Title 15, “the collection or
solicitation by for-profit entities of certain public donations,” Tex. Bus. & Com.
Code Title 2, Ch. 17, Subchapter K, “solicitation for public safety organizations,”
TEX. OCC. CODE Ch. 1803, and “telephone solicitation for certain law-enforcement
related charitable organizations,” TEX. BUS. & COM. CODE Ch. 303. And indeed, it
has had to alter some of those schemes when they impermissibly infringe on the First
Amendment by failing to recognize that “charitable . . . solicitation is protected under
the First Amendment to a greater extent than commercial speech.” Texas State
Troopers Ass’n, Inc. v. Morales, 10 F. Supp. 2d 628, 632 (N.D. Tex. 1998) (holding
that portions of the Texas Law Enforcement Telephone Solicitation Act violated
First Amendment). The Attorney General may be dissatisfied that the direct tools
the Legislature provided to regulate political donations and expenditures require the
participation of the Texas Ethics Commission or a district attorney—which, of
course, would undermine his goal of using this baseless litigation to promote his
Senatorial campaign—but his displeasure with the Legislature does not permit him
to turn an inapposite consumer protection statute into a weapon against his political
opponent for engaging in noncommercial political speech.
Indeed, Relators’ more limited interpretation of the DTPA must be correct—
otherwise, the DTPA would be a potentially boundless legal weapon that raises
Reply in Support of Motion for Emergency Relief Page 19
inherent constitutional problems. Particularly in light of the DTPA’s relaxed
standards for obtaining emergency injunctive relief, TEX. BUS. & COM. CODE §
17.47, the Attorney General’s interpretation would grant plenary authority to the
State to bring an ex parte DTPA action without prior notice, in virtually any Texas
jurisdiction, against anyone engaged in political or charitable fundraising, and use
that action to immediately freeze their assets, threaten hundreds of thousands of
dollars of fines and (as the State has done here) potentially seek arrest. This puts
churches, charities, and political groups and actors of all stripes in danger of state
overreach whenever they engage in fundraising practices the State does not like, and
guarantees the chilling of protected association. Cf. Americans for Prosperity Found.
v. Bonta, 594 U.S. 595, 606 (2021) (“Protected association furthers a wide variety
of political, social, economic, educational, religious, and cultural ends, and is
especially important in preserving political and cultural diversity and in shielding
dissident expression from suppression by the majority. Government infringement of
this freedom can take a number of forms . . . [including] where individuals are
punished for their political affiliation.” (citations omitted; cleaned up)). Because
there is no legal or factual basis to support the underlying lawsuit, Relators are likely
to succeed on their jurisdictional challenge.
Reply in Support of Motion for Emergency Relief Page 20
CONCLUSION
For these reasons and those articulated in Relators’ Motion for Emergency
Relief, Relators respectfully request that this court grant temporary relief by issuing
an order staying the TRO, Antisuit TRO, and all underlying proceedings until such
time as the Court has ruled on Relators’ Petition for Writ of Mandamus and for any
other relief to which they may be entitled.
Respectfully submitted,
/s/ Mimi Marziani
Mimi Marziani
Texas Bar No. 24091906
Joaquin Gonzalez
Texas Bar No. 24109935
Rebecca (Beth) Stevens
Texas Bar No. 24065381
MARZIANI, STEVENS & GONZALEZ
PLLC
500 W. 2nd Street, Suite 1900
Austin, TX 78701
Phone: 210-343-5604
mmarziani@msgpllc.com
jgonzalez@msgpllc.com
bstevens@msgpllc.com
-and-
Sean J. McCaffity
State Bar No. 24013122
SOMMERMAN McCAFFITY,
QUESADA & GEISLER L.L.P.
3811 Turtle Creek Blvd, Ste 1400
Dallas, Texas 75219-4461
Phone: 214-720-0720
smccaffity@textrial.com
Reply in Support of Motion for Emergency Relief Page 21
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 52.10(a), I certify that the
undersigned has made a diligent effort to notify all parties of the requested temporary
relief sought in this motion and that a true copy of the foregoing has this day been
sent via Federal Express Overnight Delivery and e-mail to the Respondent, by and
through their counsel of record, and to the real party in interest and other parties in
the underlying lawsuit at the addresses below:
Hon. Megan Fahey
348th Judicial District Court
Tarrant County Courthouse
100 North Calhoun St., 3rd Floor
Fort Worth, TX 76196
Phone: 817-884-2715
ndbentley@tarrantcountytx.gov
LAAdams@tarrantcountytx.gov
Ken Paxton
Attorney General of Texas
Rob Farquharson
Dep. Chief, Consumer Protection Division
Johnathan Stone
Chief, Consumer Protection Division
Office of the Attorney General of Texas
Consumer Protection Division
300 W. 15th St.
Austin, Texas 78701
Phone: (214) 290-8811
Fax: (214) 969-7615
Rob.Farquharson@oag.texas.gov
/s/ Sean J. McCaffity
Sean J. McCaffity
Reply in Support of Motion for Emergency Relief Page 22
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Joaquin Gonzalez on behalf of Joaquin Gonzalez
Bar No. 24109935
jgonzalez@msgpllc.com
Envelope ID: 105424859
Filing Code Description: Response
Filing Description: Reply in Support of Motion for Emergency Relief
Status as of 9/10/2025 9:17 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Sean McCaffity 24013122 smccaffity@textrial.com 9/10/2025 9:12:07 AM SENT
Robert Farquharson 24100550 rob.farquharson@oag.texas.gov 9/10/2025 9:12:07 AM SENT
Maria Williamson maria.williamson@oag.texas.gov 9/10/2025 9:12:07 AM SENT
William FCole William.Cole@oag.texas.gov 9/10/2025 9:12:07 AM SENT
Mimi Marziani mmarziani@msgpllc.com 9/10/2025 9:12:07 AM SENT
Joaquin Gonzalez jgonzalez@msgpllc.com 9/10/2025 9:12:07 AM SENT
Pauline Sisson pauline.sisson@oag.texas.gov 9/10/2025 9:12:07 AM SENT
Rebecca Stevens bstevens@msgpllc.com 9/10/2025 9:12:07 AM SENT
Emily Samuels emily.samuels@oag.texas.gov 9/10/2025 9:12:07 AM SENT
Brian Falligant` bfalligant@inquestresources.com 9/10/2025 9:12:07 AM SENT
William Peterson william.peterson@oag.texas.gov 9/10/2025 9:12:07 AM SENT
Rebecca Neumann rneumann@textrial.com 9/10/2025 9:12:07 AM SENT
Associated Case Party: State of Texas
Name BarNumber Email TimestampSubmitted Status
William Cole 24124187 William.Cole@oag.texas.gov 9/10/2025 9:12:07 AM SENT
Rob Farquharson rob.farquharson@oag.texas.gov 9/10/2025 9:12:07 AM SENT
Johnathan Stone johnathan.stone@oag.texas.gov 9/10/2025 9:12:07 AM SENT
William Peterson William.Peterson@oag.texas.gov 9/10/2025 9:12:07 AM SENT
Abby Smith abby.smith@oag.texas.gov 9/10/2025 9:12:07 AM SENT
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