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ACCEPTED
15-25-00141-CV
FIFTEENTH COURT OF APPEALS
No. 15-25-00141-CV AUSTIN, TEXAS
9/24/2025 3:55 PM
In the Court of Appeals CHRISTOPHER A. PRINE
CLERK
for the Fifteenth Judicial District15th COURT
FILED IN
OF APPEALS

Austin, Texas AUSTIN, TEXAS
9/24/2025 3:55:30 PM
CHRISTOPHER A. PRINE
Clerk
Ken Paxton, in his official capacity as Texas Attorney
General,
Appellant,
v.
Powered by People,
Appellee.

On Appeal from the 41st Judicial District Court, El Paso County

BRIEF FOR APPELLANT

Ken Paxton Abigail E. Smith
Attorney General of Texas Assistant Attorney General
State Bar No. 24141756
Brent Webster
First Assistant Attorney General Office of the Attorney General
Consumer Protection Division
Johnathan Stone 12221 Merit Drive, Ste. 650
Chief, Consumer Protection Division Dallas, Texas 75251
Tel: (214) 290-8830
Fax: (214) 969-7615

Counsel for Appellant
Identity of Parties and Counsel

Appellant:
Ken Paxton, in his official capacity as Texas Attorney General

Appellate and Trial Counsel for Appellant:
Abigail E. Smith Johnathan Stone
Assistant Attorney General Division Chief, Consumer Protection
State Bar No. 24141756 State Bar No. 24071779
Abby.Smith@oag.texas.gov Johnathan.Stone@oag.texas.gov

Rob Farquharson Scott Froman
Assistant Attorney General Assistant Attorney General
State Bar No. 24100550 State Bar No. 24122079
Rob.Farquharson@oag.texas.gov Scott.Froman@oag.texas.gov

Office of the Attorney General of Office of the Attorney General of
Texas Texas
Consumer Protection Division Consumer Protection Division
12221 Merit Drive, Ste. 650 P.O. Box 12548 (MC-010)
Dallas, Texas 75251 Austin, Texas 78711

iii
Appellee:
Powered by People

Appellate and Trial Counsel for Appellee:
Mimi Marziani Lynn Coyle
Texas Bar No. 24091906 State Bar No. 24050049
mmarziani@msgpllc.com lynn@coylefirm.com

Rebecca (Beth) Stevens Benoit Legal PLLC
Texas Bar No. 24065381 2700 Richmond Ave.
bstevens@msgpllc.com El Paso, TX 79930
Telephone: (915) 276-6700
Joaquin Gonzalez
State Bar No. 24109935
jgonzalez@msgpllc.com

MARZIANI, STEVENS & GONZA-
LEZ PLLC
500 W. 2nd St., Suite 1900
Austin, TX 78701
Telephone: (210) 343-5604

iv
Table of Contents
Page(s)
Identity of Parties and Counsel .............................................................................. iii
Index of Authorities ............................................................................................... vi
Record References ................................................................................................. ix
Statement of the Case ............................................................................................ ix
Statement of Jurisdiction ....................................................................................... ix
Issues Presented ..................................................................................................... x
Statement of Facts ................................................................................................ 12
I. The Office of the Attorney General Investigates Powered by
People for Potentially Violating Texas Law. ............................................. 12
II. Procedural History .................................................................................. 13
Summary of the Argument .................................................................................... 16
Standard of Review ...............................................................................................20
Argument..............................................................................................................20
I. A Court Implicitly Denies a Plea to the Jurisdiction When It
Rules a Party Is Likely to Succeed on the Merits of its Claims and
Proceeds to Merits Discovery. .................................................................20
A. A court that reaches the merits of the case has implicitly
rejected any live jurisdictional challenges on the pleadings. ...............20
B. This case is legally and factually distinct from City of Austin,
and if this Court disagrees, it should await the outcome of the
appeal in City of Austin before ruling on this case. ............................. 26
II. The Trial Court Should Have Granted the Attorney General’s
Plea to the Jurisdiction Because Appellee’s Claims are Moot. ................. 29
A. Appellee’s claims seeking relief from the RTE are moot on
their face because the RTE is withdrawn and cannot be
reissued. ............................................................................................ 29
B. No exception to mootness applies. .................................................... 31
Prayer ................................................................................................................... 38
Certificate of Compliance ..................................................................................... 38
Appellant’s Appendix ........................................................................................... 39

v
Index of Authorities
Cases
Austin Parents for Med. Choice v. Austin Indep. Sch. Dist., No. 03-21-00681-
CV, 2023 WL 5109592 (Tex. App.—Austin Aug. 10, 2023, no pet.) ............... 35
Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126 (Tex. App.—
Austin 2007) ........................................................................................ 17, 32, 35
Borgelt v. Austin Firefighters Ass’n, IAFF Loc. 975, 692 S.W.3d 288 (Tex.
2024) ............................................................................................................. 22
Brownback v. King, 592 U.S. 209 (2021) ............................................................... 22
Carswell v. Camp, 54 F.4th 307 (5th Cir. 2022) .................................................... 20
Curry v. Harris Cnty. Appraisal Dist., 434 S.W.3d 815 (Tex. App.—
Houston [14th Dist.] 2014, no pet.)................................................................ 22
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299 (Tex. 2008) .............................. 22
DeFunis v. Odegaard, 416 U.S. 312 (1974)............................................. 17, 30, 32, 33
Dickson v. Am. Gen. Life Ins. Co., 698 S.W.3d 234 (Tex. 2024)........................ 21, 22
Dubai Petrol. Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000) ............................................. 22
Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) ........................ 21
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167
(2000) ....................................................................................................... 17, 32
Glassdoor, Inc. v. Andra Grp., LP, 575 S.W.3d 523 (Tex. 2019) ..............................29
Heckman v. Williamson Cnty., 369 S.W.3d 137 (Tex. 2012)....................................29
Herrera v. Mata, 702 S.W.3d 538 (Tex. 2024) ....................................................... 23
In re City of Dallas, 501 S.W.3d 71 (Tex. 2016) (per curiam) ................................. 21
In re Cont. Freighters, Inc., 646 S.W.3d 810 (Tex. 2022) ........................................ 32
In re State, 711 S.W.3d 641 (Tex. 2024) ........................................................... 24, 27
In re Uresti, 377 S.W.3d 696 (Tex. 2012) ............................................................... 36
Jud v. City of San Antonio, 184 S.W.2d 821 (1945)................................................. 21
Martin v. Sheppard, 201 S.W.2d 810 (Tex. 1947) .................................................. 22
Matthews v. Kountze Independent School District, 484 S.W.3d 416 (Tex.
2016) ............................................................................................................... 34

vi
Murphy v. Hunt, 455 U.S. 478 (1982) .................................................................... 36
Paxton v. Annunciation House, Inc., No. 24-0573, 2025 WL 1536224 (Tex.
May 30, 2025) ...................................................................................... 18, 36, 37
Paxton v. City of Austin, No. 15-24-00078-CV, 2024 WL 4446073 (Tex.
App. [15th Dist.] Oct. 8, 2024)............................................................. 16, 26, 27
Paxton v. City of Austin, No. 24-1078 (pet. filed May 16, 2025)............................. 28
Rattray v. City of Brownsville, 662 S.W.3d 860 (Tex. 2023) ...................11, 16, 20, 21
Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 323 (Tex. App. - Houston
[14th Dist.] 2009, pet. denied) .................................................................. 18, 33
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) ............... 21
Speer v. Presbyterian Child. Home & Serv. Agency, 847 S.W.2d 227 (Tex.
1993) ............................................................................................................... 31
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ..................................... 22
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) .................. 21
Tex. Dep’t of Family & Protective Services v. Grassroots Leadership, Inc., 717
S.W.3d 854 (Tex. 2025) ................................................................. 17, 18, 29, 35
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ........... 11, 20
Tex. Med. Rsch., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424
(Tex. 2023) ............................................................................................... 21, 22
Tex. Parks & Wildlife Dep’t v. RW Trophy Ranch, Ltd., 712 S.W.3d 943
(Tex. App. [15th Dist.] 2025) .......................................................................... 37
Tex. Right to Life v. Van Stean, 702 S.W.3d 348 (Tex. 2024) (per curiam) ............ 20
Tex. S. Univ. v. Young, 682 S.W.3d 886 (Tex. 2023) ........................... 24, 25, 26, 28
Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841
(Tex.App.–Austin 2002, pet. denied) ............................................................. 34
Thomas v. Long, 207 S.W.3d 334 (Tex. 2006) ............................................. 12, 16, 27
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) .....................................29
United States v. Chem. Found, Inc., 272 U.S. 1 (1926) ........................................... 22
Webster v. Comm’n for Law. Discipline, 704 S.W.3d 478 (Tex. 2024) .................... 22
Williams v. Lara, 52 S.W.3d 171 (Tex. 2001) ................................... 16, 18, 19, 29, 36

vii
Statutes
Texas Business Organizations Code Section 12.153............................................... 31
Texas Civil Practice and Remedies Code Section 51.014(a)(8).............. ix, 12, 20, 23
Texas Government Code Section 22.220(d)(1)...................................................... ix
Rules
Tex. R. App. P. 33.1(a)(2)(A) .......................................................................... 20, 23
Tex. R. Civ. P. 176.6.............................................................................................. 37

viii
Record References
“CR” refers to the one-volume clerk’s record. “RR” refers to the five-volume
reporter’s record.

Statement of the Case
Nature of the Case: This is a subpoena challenge seeking to quash a Request to
Examine Appellee’s business records (“RTE”) under Tex.
R. Civ. P. 176.6 and 192.6.

Trial Court: 41st District Court, El Paso County
The Honorable Annabell Perez

Course of Proceedings: After Appellee filed the instant suit, the Attorney General
withdrew its RTE, then filed a plea to the jurisdiction and plea
in abatement arguing the case was moot and declaring that the
Attorney General would never reissue any substantially simi-
lar RTE to Appellee. CR.47.

Disposition in the The district court issued an anti-suit temporary restraining
Trial Court: order ruling that Appellee was likely to succeed on the merits
of its claims. CR.559. The district court later ordered merits
discovery in advance of the scheduled temporary injunction
hearing, including an apex third-party deposition of General
Paxton. CR.948. Viewing these two written orders as implicit
denials of his plea, the Attorney General noticed this appeal.
CR.951.

Statement of Jurisdiction
The Court has jurisdiction under Texas Civil Practice and Remedies Code Sec-
tion 51.014(a)(8) and Texas Government Code Section 22.220(d)(1).

ix
Issues Presented
The issues presented are as follows:

1. Whether the trial court implicitly denied the State’s Plea to the Juris-
diction by ruling that Appellee was likely to succeed on the merits of its
constitutional claims and ordering merits discovery (including the dep-
osition of Attorney General Ken Paxton)?

2. Whether the trial court should have granted the State’s Plea to the Ju-
risdiction because Appellee’s claims were moot?

x
Introduction
Because “[j]ust one valid jurisdictional obstacle is enough for the court to halt

further proceedings,” a trial court “may not move to the merits if even one jurisdic-
tional argument remains unresolved.” Rattray v. City of Brownsville, 662 S.W.3d 860,
868-69 (Tex. 2023). Instead, a court “must determine at its earliest opportunity

whether it has the constitutional or statutory authority to decide the case before al-
lowing the litigation to proceed.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004).
The trial court in this case disregarded these principles. Rather than ruling on
the Attorney General’s 1 pending plea to the jurisdiction, the court issued a written
temporary injunction order ruling that “Plaintiff has shown a probable right to relief
on its constitutional claims,” and that the Attorney General’s “enforcement actions
and public conduct associated with those enforcement actions . . . demonstrate that
Plaintiff has stated a probable right to relief under the Equal Protection Clauses of

the Texas and United States Constitutions.” CR.559, 563. The trial court then or-
dered substantial expedited merits discovery, including a third-party deposition of
Attorney General Ken Paxton. CR.948. The trial court’s decision to issue multiple
merits rulings before addressing jurisdiction constituted an implicit denial of the At-
torney General’s plea to the jurisdiction, so he availed himself of his statutory right

1
Throughout this brief, “Attorney General” refers to the Attorney General in his
official capacity, and the Office of the Attorney General as a whole. “General Pax-
ton” or “Attorney General Ken Paxton” refer to him in his individual capacity.
to take an interlocutory appeal of the denial of that plea. See Thomas v. Long, 207
S.W.3d 334, 339–40 (Tex. 2006); Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

This implicit denial of the Attorney General’s plea was wrong because the un-
derlying claims in this suit are moot. Appellee’s claims are all as-applied challenges
to the Attorney General’s Request to Examine Appellee’s business records in con-
nection with improper use of campaign funds (the “RTE”). But one day after this
suit was filed, the Attorney General withdrew the RTE and later declared under pen-
alty of perjury that the agency would never reissue the RTE, or another RTE con-
cerning the same underlying issues, to Appellee. As such, all Appellee’s as-applied
RTE claims are moot, not capable of repetition, and not subject to the voluntary ces-
sation exception. This Court should reverse the trial court’s implicit denial of the
Attorney General’s plea to the jurisdiction and direct the trial court to dismiss the
case for lack of subject matter jurisdiction.

Statement of Facts

I. The Office of the Attorney General Investigates Powered by People for
Potentially Violating Texas Law.
As part of an investigation into violations of various Texas laws related to
quorum-breaking Texas legislators, on Wednesday, August 6, 2025, OAG served a
narrowly-focused RTE on Appellee seeking records from June 1 through August 6,
2025, relating to (1) the solicitation and expenditure of funds to aid and abet the ab-
sent legislators in their efforts to evade arrest warrants seeking to return them to the

House, and (2) any benefits or compensation offered or provided to legislators in ex-
change for abstaining from performing their legislative duties. CR.37. OAG gave

12
Appellee until 5 p.m. on August 8, 2025, to respond to the RTE due to the emergent
nature of the violations, the narrow scope of the requests, and concerns about dissi-

pation of funds. CR.38.
On Friday, August 8, 2025, after continuing to conduct its own investigation,
the State filed suit against Appellee in Tarrant County for violating the Texas De-
ceptive Trade Practices Act. CR.85.

II. Procedural History
45 minutes after the State filed suit against Appellee in Tarrant County, but be-
fore Appellee’s 5 p.m. compliance deadline, Appellee filed suit against Ken Paxton
in his official capacity as the Attorney General in El Paso County challenging the
RTE under Texas Rules of Civil Procedure 176.6 and 192.6. CR.1. Appellee sought
relief from complying with the RTE and brought four claims challenging the RTE: a
freedom of association claim, a freedom of speech claim, an unreasonable search and
seizure claim, and an equal protection claim. CR.16–22.
The next day, on August 9, 2025, counsel for the Attorney General emailed Ap-
pellee formally withdrawing the RTE and asking Appellee to withdraw the case as

moot. CR.110. When Appellee did not do so, on August 11, 2025, the Attorney Gen-
eral filed a plea to the jurisdiction and plea in abatement, arguing that the case was
moot because all claims sought relief from an RTE that had been withdrawn, and in
the alternative that the El Paso should be abated in favor of the first-filed Tarrant
County case under the doctrine of dominant jurisdiction. CR.47. Attached to the
Plea was a declaration by the Chief of the Consumer Protection Division at the Office

of the Attorney General, declaring under penalty of perjury that the Attorney

13
General “will not reissue the challenged RTE nor send any other RTE to [Appellee]
seeking records relating to the solicitation and expenditure of funds to aid and abet

Texas legislators abandoning their offices and relating to any benefits or compensa-
tion offered or provided to the legislators for abandoning their offices during the 89th
Special Legislative Session.” CR.65. The same day, Appellee amended its petition

to add a request for a temporary restraining order blocking the State from pursuing
a quo warranto claim in Tarrant County. CR.114.
On August 13, 2025, the El Paso trial court held a hearing on the temporary re-
straining order, then issued an order abating the El Paso proceedings until the Tar-
rant County court ruled on a pending venue challenge. CR.373. After the Tarrant
County court denied Appellee’s motion to transfer venue to El Paso, on August 18,

2025, the El Paso court held a hearing on the Attorney General’s plea to the juris-
diction and plea in abatement. At the hearing, Appellee urged the trial court not to
rule on the Attorney General’s plea to the jurisdiction because doing so would enable
the Attorney General to “stay[] all proceedings” and “divest this court of the ability
to grant the TRO.” 3.RR.40.
The next day, the El Paso court issued an anti-suit temporary restraining order
restraining the Attorney General “from initiating, filing, or prosecuting any quo war-
ranto proceeding” without leave of the El Paso court. CR.564. The order purported
to not issue a “ruling on the merits or a ruling on the Court’s jurisdiction,” but then
proceeded to rule that “Plaintiff has shown a probable right to relief on its constitu-
tional claims,” and that the Attorney General’s “enforcement actions and public
conduct associated with those enforcement actions . . . demonstrate that Plaintiff has

14
stated a probable right to relief under the Equal Protection Clauses of the Texas and
United States Constitutions.” CR.559, 563. The trial court set a temporary injunc-

tion hearing for August 29, 2025. Id.
A day later, on August 20, 2025, Appellee filed a motion for expedited merits
discovery seeking a third-party apex deposition of General Paxton, a deposition of an
Attorney General employee concerning privileged information about what “formed
the basis for an initiation of an investigation into Powered by People,” and broad
categories of largely privileged documents concerning the Attorney General’s inter-
nal investigation and deliberative processes. App’x Ex. C. 2 At no point did Appellee
contend this discovery was jurisdictional; rather, it was meant to gather evidence for
the temporary injunction hearing. After a hearing where the Attorney General ar-
gued that ordering merits discovery was improper when his plea to the jurisdiction
was still pending, on August 22, 2025, the court ordered all the merits discovery re-
quested by Appellee, including the apex third-party deposition of General Paxton.

CR.948. The Attorney General viewed this ruling and the trial court’s merits rulings
in its temporary restraining order as implicit denials of his plea to the jurisdiction and
noticed this appeal the same day. CR.951.

2
The initial volume of the clerk’s record did not contain Appellee’s emergency mo-
tion for expedited discovery. The Attorney General has requested that the clerk’s
record be supplemented with this filing; in the interim, it is attached to this filing as
part of the Attorney General’s appendix.

15
Summary of the Argument
I. The trial court implicitly denied the Attorney General’s plea to the jurisdic-
tion through at least two written orders on the merits: its temporary injunction order
ruling that Appellee was likely to succeed on the merits of its constitutional claims,
and its order authorizing merits discovery to proceed. The Supreme Court has held
that a trial court “implicitly denie[s]” a plea to the jurisdiction when it “reach[es]
the merits” before resolving that jurisdictional plea. Thomas, 207 S.W.3d at 339-40.

That is because “a trial court may not reach the merits of the case without subject
matter jurisdiction.” Id. at 339. So its choice to do so “without explicitly rejecting an
asserted jurisdictional challenge . . . implicitly denie[s] the jurisdictional challenge.”
Id. at 339-40. That is, because a trial court “may not move to the merits if even one
jurisdictional argument remains unresolved,” Rattray, 662 S.W.3d at 869, a court
that issues a written ruling on the merits and then orders merits discovery without
resolving an outstanding objection to its jurisdiction has necessarily rejected—or im-
plicitly denied—that jurisdictional objection, Thomas, 207 S.W.3d at 339–40. This is
consistent with this Court’s ruling in Paxton v. City of Austin, No. 15-24-00078-CV,
2024 WL 4446073 (Tex. App. [15th Dist.] Oct. 8, 2024), because unlike that case,
which lacked any written orders on merits issues, this case contains two written or-
ders that either expressly or implicitly ruled on the merits of Appellee’s claims.

II. The trial court erred in implicitly denying the Attorney General’s plea to
the jurisdiction because Appellee’s underlying claims were moot. When the contro-
versy is no longer live and no “exception” to mootness applies, such as voluntary

cessation, Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001), the court must dismiss

16
“for lack of subject matter jurisdiction,” Tex. Dep’t of Family & Protective Services v.
Grassroots Leadership, Inc., 717 S.W.3d 854, 862 (Tex. 2025). All Appellee’s claims

involve as-applied challenges to the specific RTE served by the Attorney General.
But one day after this suit was filed, the Attorney General withdrew the RTE, and
later declared under penalty of perjury that the agency would not reissue the RTE or
any substantially similar RTE on the same issues raised in this suit. As the United
States Supreme Court held in DeFunis v. Odegaard, 416 U.S. 312, 319–20 (1974), a
case is moot when the government affirmatively represents to the court that it will
not reprise the complained-of conduct with regard to the plaintiff.
Furthermore, no exception to the mootness doctrine applies. Voluntary cessa-
tion does not apply here, because events after this lawsuit was filed made “absolutely
clear that the [challenged conduct] could not reasonably be expected to recur.”
Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 129 (Tex. App.—Austin
2007) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 189 (2000)). Such showings can be made by affirmative, unqualified represen-
tations by the government defendant that it will not reprise the complained-of con-
duct with regard to this particular plaintiff. See, e.g., DeFunis, 416 U.S. at 316–20

(dismissing an as-applied racial admissions challenge as moot, reasoning that even if
there was voluntary cessation of the challenged conduct, the school’s representation
that it would let DeFunis graduate demonstrated the challenged conduct was not

reasonably likely to recur as to DeFunis). And because Appellee never disputed the
Attorney General’s representation that he will not reissue the RTE, any concern
about voluntary cessation is “merely conjunctural and hypothetical.” Robinson v.

17
Alief Indep. Sch. Dist., 298 S.W.3d 323, 326–27 (Tex. App. - Houston [14th Dist.]
2009, pet. denied) (rejecting a suit as moot after the school district voluntarily ex-

punged Robinson’s personnel records as requested, because Robinson had no evi-
dence of any reasonable expectation that the school district would later retract the
expungement); accord Grassroots Leadership, 2025 WL 1642437 at *15 (holding that
“mootness poses a practical test, not one that turns on speculative, theoretical, con-
tingent, or unlikely events that might happen.”).
Nor does the capable-of-repetition exception to mootness apply. To invoke it, a
plaintiff must prove that “(1) the challenged action was too short in duration to be
litigated fully before the action ceased or expired; and (2) a reasonable expectation
exists that the same complaining party will be subjected to the same action again.”
Williams, 52 S.W.3d at 184. Appellee can satisfy neither prong. Appellee had two
days to challenge the RTE, and did so under Rule 176.6(e). The Supreme Court re-
cently held that even twenty-four hours to challenge an RTE under Rule 176.6(e)
was sufficient to satisfy due process concerns. See Paxton v. Annunciation House, Inc.,
No. 24-0573, 2025 WL 1536224, at *24 (identifying requests for protection pursuant
to Tex. R. Civ. P. 176.6 as an appropriate method of precompliance review for

RTEs), *1 (noting compliance with the RTE was sought “by the next day”) (Tex.
May 30, 2025). Furthermore, the Attorney General’s undisputed evidence that he
will not reissue a substantially similar RTE on the same issues, and that he could not

do so because presuit investigatory tools may not be used once litigation has com-
menced (as it did here in Tarrant County), dispel any “reasonable expectation” that

18
Appellee will be served one again. Williams, 52 S.W.3d at 184. As such, the trial court
erred in not granting the Attorney General’s plea to the jurisdiction.

19
Standard of Review
“Whether a court has subject matter jurisdiction is a question of law.” Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

Argument

I. A Court Implicitly Denies a Plea to the Jurisdiction When It Rules a
Party Is Likely to Succeed on the Merits of its Claims and Proceeds to
Merits Discovery.
The denial of a plea to the jurisdiction may be “either express[] or implicit[].”
Thomas, 207 S.W.3d at 339; Tex. R. App. P. 33.1(a)(2)(A). Here, the district court
issued at least two written merits orders: a temporary restraining order that Appellee
had a probable right to relief, and a discovery order ordering that substantial and in-
vasive merits discovery go forward ahead of an evidentiary hearing. Because both
these rulings are fundamentally incompatible with the possibility that the court lacks
jurisdiction based on the pleadings, proceeding to the merits without resolving out-
standing jurisdictional objections operates as an implicit denial of any live plea to the
jurisdiction based on the pleadings, thus triggering a governmental unit’s right to
take an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

A. A court that reaches the merits of the case has implicitly rejected
any live jurisdictional challenges on the pleadings.
1. Because “[j]urisdiction is always first,” Carswell v. Camp, 54 F.4th 307, 310
(5th Cir. 2022), the Supreme Court has repeatedly hewed to the “fundamental rule”
that courts “may not move to the merits if even one jurisdictional argument remains

unresolved,” Rattray, 662 S.W.3d at 868, 869; Tex. Right to Life v. Van Stean, 702
S.W.3d 348, 353 (Tex. 2024) (per curiam). Consequently, “courts have the authority

20
and indeed the duty to resolve any jurisdictional doubts that arise before proceeding
to the merits.” Rattray, 662 S.W.3d at 869 (emphasis added). Indeed, a court “must

determine at its earliest opportunity whether it has the constitutional or statutory au-
thority to decide the case before allowing the litigation to proceed.” Miranda, 133
S.W.3d at 226 (emphasis added). This “order of operations is not optional,” and
“courts must resolve any jurisdictional challenges—hard or easy, first raised in the
trial court or first raised in the court of appeals, raised by a party or raised by the
court itself—before turning to the merits.” Dickson v. Am. Gen. Life Ins. Co., 698
S.W.3d 234, 235 n.2 (Tex. 2024) (Young, J., concurring in the denial of the petition
for review).
These foundational principles inhere in the very nature of a court’s jurisdiction.
“Subject matter jurisdiction is essential to the authority of a court to decide a case.”
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Indeed,
“jurisdiction is the power to hear and determine a controversy.” Jud v. City of San
Antonio, 184 S.W.2d 821, 822 (1945). But “a court without subject-matter jurisdic-
tion cannot decide the case at all,” Tex. Med. Rsch., LLP v. Molina Healthcare of Tex.,
Inc., 659 S.W.3d 424, 440 (Tex. 2023), because it “cannot render a binding judgment

concerning matters over which it lacks subject-matter jurisdiction,” In re City of Dal-
las, 501 S.W.3d 71, 73 (Tex. 2016) (per curiam). That is why courts “may not [even]
assume jurisdiction for the purpose of deciding the merits of the case.” Fin. Comm’n

of Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) (quoting Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)); accord Steel Co. v. Citizens

21
for a Better Env’t, 523 U.S. 83, 94, 101 (1998) (rejecting the “doctrine of ‘hypothet-
ical jurisdiction’”).

As a corollary, “[a] court that decides a claim over which it lacks jurisdiction
violates the constitutional limitations on its authority, even if the claim is denied.”
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 307 (Tex. 2008). Such a decision
is, “by very definition, for a court to act ultra vires.” Brownback v. King, 592 U.S.
209, 218 (2021) (quoting Steel Co., 523 U.S. at 101-02). And such “a judgment will
never be considered final” and will be subject to collateral attack “if the court lacked
subject-matter jurisdiction.” Tex. Med. Rsch., 659 S.W.3d at 440 n.116 (quoting Du-
bai Petrol. Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000)). In other words, any merits
decision that a court makes without jurisdiction is “void,” Curry v. Harris Cnty. Ap-
praisal Dist., 434 S.W.3d 815, 820 (Tex. App.—Houston [14th Dist.] 2014, no pet.),
because the court lacked “the power to decide” in the first place, Martin v. Sheppard,
201 S.W.2d 810, 813 (Tex. 1947).
Yet “no court of this State should be presumed to undertake the unlawful and
ultra vires action of reaching a merits issue without resolving a contested issue of
jurisdiction.” Dickson, 698 S.W.3d at 236 n.2 (Young, J., concurring in the denial of

the petition for review). After all, “the official acts of public officers,” like the trial
judge here, are afforded “a presumption of regularity, good faith, and legality.” Web-
ster v. Comm’n for Law. Discipline, 704 S.W.3d 478, 501 (Tex. 2024) (first quoting

United States v. Chem. Found, Inc., 272 U.S. 1, 14-15 (1926); and then citing Borgelt
v. Austin Firefighters Ass’n, IAFF Loc. 975, 692 S.W.3d 288, 303 (Tex. 2024)). So,
under the Supreme Court’s precedents, a court that proceeds to “reach the merits

22
of a case[,] . . . without explicitly rejecting an asserted jurisdictional attack has im-
plicitly denied the jurisdictional challenge.” Thomas, 207 S.W.3d at 339–40 (cita-

tions omitted).
2. Under these foundational principles, the trial court implicitly denied the At-
torney General’s plea to the jurisdiction. “A plea to the jurisdiction challenges the
existence of subject matter jurisdiction; that is, the court’s power to decide the
case.” Herrera v. Mata, 702 S.W.3d 538, 541 (Tex. 2024). And the Legislature has
authorized interlocutory appeals of trial-court orders that “grant[] or den[y] a plea
to the jurisdiction by a governmental unit.” Tex. Civ. Prac. & Rem. Code §
51.014(a)(8). To properly take such an appeal, a governmental unit need only show
that the trial court ruled on the plea “either expressly or implicitly.” Tex. R. App.
P. 33.1(a)(2)(A). That is, both an express denial and an implicit denial trigger appel-
late jurisdiction under the interlocutory-appeal statute. Thomas, 207 S.W.3d at 339.
Here, there can be little question that the trial court implicitly denied the Attor-
ney General’s plea to the jurisdiction, thus conferring appellate jurisdiction on this
Court to resolve the merits of the Attorney General’s appeal. Despite the Attorney
General’s repeated attempts to convince the trial court to rule on his pending plea

to the jurisdiction before proceeding to merits discovery, see e.g. 4.RR.9–10 (“[N]o
merits discovery can occur when there’s a pending plea to the jurisdiction.”), the
trial court avoided ruling on the issue, likely to avoid an automatic stay. 3.RR.39–40

(acknowledging Appellee’s contention that the trial court should not rule on the plea
to the jurisdiction because it would “divest this court of the ability to grant [a]
TRO”).

23
But the trial court’s temporary restraining order and order of merits discovery
for the temporary injunction hearing—including a deposition of the sitting Attorney

General of Texas—both constituted written rulings on the merits. “[T]rial courts
asked to issue temporary injunctions or temporary restraining orders commonly
must consider the likely merits of the parties’ positions.” In re State, 711 S.W.3d 641,
645 (Tex. 2024). Furthermore, “[d]iscovery that implicates only the merits is wholly
improper until it is clear that the court has authority to reach the merits.” Tex. S.
Univ. v. Young, 682 S.W.3d 886, 888 (Tex. 2023) (Young, J., concurring in the denial
of the petition for review and petition for writ of mandamus). “Targeted discovery
cannot be allowed unless—and only to the extent that—it is essential to the resolu-
tion of a jurisdictional question.” Id. at 889.
While not all temporary restraining orders rule on the merits of parties’ claims,
this one certainly did. In the trial court’s temporary restraining order, the court re-
peatedly ruled that Appellee had a probable right to relief on its claims, and granted
injunctive relief on that basis. CR.559, 563 (ruling that “Plaintiff has shown a proba-
ble right to relief on its constitutional claims,” and that the Attorney General’s “en-
forcement actions and public conduct associated with those enforcement ac-

tions . . . demonstrate that Plaintiff has stated a probable right to relief under the
Equal Protection Clauses of the Texas and United States Constitutions”). Even Ap-
pellee conceded that the trial court had already implicitly ruled on jurisdiction.

4.RR.24–25 (arguing the trial court should order merits discovery because “the
Court has already assumed some probable jurisdiction without ruling on the plea.”).

24
Similarly, the trial court’s order of merits discovery did not even purport to be
jurisdictional. Rather, both Appellee and the court made clear that the ordered dis-

covery’s purpose was to gather evidence of the merits ahead of the temporary in-
junction hearing. See, e.g., 4.RR.8–9 (requesting “expedited discovery,” including
documents and a deposition of General Paxton, to gather evidence of “one of our
claims [which] is an equal protection claim”); CR.948 (ordering the requested expe-
dited discovery without mention of the phrase “jurisdiction”). In the absence of any
court-determined need for jurisdictional discovery, a trial court’s order ordering
merits discovery constitutes a merits ruling, and an implicit denial of the plea to the
jurisdiction. Tex. S. Univ, 682 S.W.3d at 889 (Young, J., concurring) (“Targeted
discovery cannot be allowed unless—and only to the extent that—it is essential to
the resolution of a jurisdictional question.”).
Nor would jurisdictional discovery have been appropriate in this case. The At-
torney General’s plea to the jurisdiction raises one issue: Mootness. The sole juris-
dictional question before the trial court was whether a case seeking relief from an
RTE is moot if the Attorney General withdrew the RTE, had declared under perjury
to not reissue the RTE or a substantially similar one, and could not issue a new RTE

in any event under the Texas Rules of Civil Procedure. CR.50–52. The Attorney
General submitted unrebutted evidence of mootness, including its formal with-
drawal of the RTE, CR.110, a declaration by the Chief of the Consumer Protection

Division that “the Office of the Attorney General will not reissue the challenged
RTE nor send any other RTE seeking records relating to” the fact issues in this case,
CR.65, and proof of the State’s Tarrant County lawsuit that subjected any future

25
document requests to the Texas Rules of Civil Procedure, CR.85. Because this evi-
dence “is undisputed,” the trial court was required to “rule[] on the plea to the ju-

risdiction as a matter of law,” not based on (unrequested) jurisdictional discovery.
Miranda, 133 S.W.3d at 228. The State’s plea to the jurisdiction did not involve, for
example, a factual dispute over waiver of sovereign immunity that could support an
ultra vires claim. Cf. Tex. S. Univ., 682 S.W.3d at 887 (noting jurisdictional discovery
is often necessary “[i]f the waiver of immunity is tethered to specific factual prereq-
uisites”). Rather, it involved a pure legal issue, and neither Appellee nor the trial
court ever expressed a need for jurisdictional discovery to resolve it. The trial court’s
decision to proceed with merits discovery that had no bearing on jurisdiction can
therefore be nothing other than an implicit denial of that jurisdictional argument.

B. This case is legally and factually distinct from City of Austin, and
if this Court disagrees, it should await the outcome of the appeal in
City of Austin before ruling on this case.
This case bears several key distinctions from this Court’s decision in Paxton v.
City of Austin, No. 15-24-00078-CV, 2024 WL 4446073. In City of Austin, this Court
held that proceeding to a merits trial did not constitute an implicit denial of the At-
torney General’s plea to the jurisdiction for two reasons: “First, the trial court ex-

plicitly stated that it declined to rule on the plea to the jurisdiction. Second, the trial
court did not issue an order or any ruling on the merits but rather proceeded to trial.”
Id. at *2. Neither of those is the case here. The trial court did not expressly refuse to
rule on the plea to the jurisdiction; rather, the court did not disagree with Appellee’s

26
counsel’s statement that “the Court has already assumed some probable jurisdiction
without ruling on the plea.” 5.RR.24–25.

Even more importantly, unlike the case record in City of Austin, the record in
this case contains at least two written orders that rule on the merits. Whereas in City
of Austin, the record “d[id] not contain any merits order that could be construed as
an implicit denial of the plea to the jurisdiction,” City of Austin, 2024 WL 4446073,
at *2, and indeed the record did not contain any written orders at all, here the trial
court issued both a temporary restraining order and an order on expedited merits
discovery. The temporary restraining order nominally claimed to not issue a “ruling
on the merits or a ruling on the Court’s jurisdiction,” but then proceeded to do just
that, ruling that “Plaintiff has shown a probable right to relief on its constitutional
claims,” and that the Attorney General’s “enforcement actions and public conduct
associated with those enforcement actions . . . demonstrate that Plaintiff has stated a
probable right to relief under the Equal Protection Clauses of the Texas and United
States Constitutions.” CR.559, 563; see also In re State, 711 S.W.3d at 645 (holding
“trial courts asked to issue temporary injunctions or temporary restraining orders
commonly must consider the likely merits of the parties’ positions,” and that “just

relief” “cannot be afforded without some consideration of the merits”). That is al-
most exactly like the situation in Thomas, where the trial court’s summary judgment
ruling reached the merits of one of the plaintiff’s claims without resolving antecedent

jurisdictional questions. 207 S.W.3d at 339–40.
Similarly, the trial court’s written order of expedited discovery to prove up the
merits of Appellee’s claim ahead of the temporary injunction hearing also

27
constituted a written order that implicated the merits. The record of this case
demonstrates that neither Appellee nor the trial court disputed the facts underlying

the Attorney General’s plea to the jurisdiction. As such, the trial court was required
to rule on it “as a matter of law.” Miranda, 133 S.W.3d at 228. Ordering merits dis-
covery—particularly invasive discovery of the sitting Attorney General, no less—
thus constituted an implicit acknowledgement that the merits of the case were
properly before the court. Cf. Tex. S. Univ., 682 S.W.3d at 888 (Young, J., concur-
ring in the denial of the petition for review and petition for writ of mandamus) (“Dis-
covery that implicates only the merits is wholly improper until it is clear that the
court has authority to reach the merits.”).
Either of these written orders were sufficient to establish an implicit denial of
the Attorney General’s plea to the jurisdiction. But should this Court disagree, the
Attorney General requests that this Court refrain from ruling on this issue until the
resolution of the Attorney General’s appeal in City of Austin. The Attorney General
recently concluded briefing the merits of that case before the Supreme Court of
Texas and awaits a ruling on its petition. See Paxton v. City of Austin, No. 24-1078
(pet. filed May 16, 2025). If granted, the Supreme Court’s ruling in that case will

likely have a significant impact on the outcome of this appeal and the Attorney Gen-
eral’s arguments. As such, waiting to rule until that appeal is resolved would both
preserve judicial resources and ensure the parties’ abilities to preserve their argu-

ments.

28
II. The Trial Court Should Have Granted the Attorney General’s Plea to
the Jurisdiction Because Appellee’s Claims are Moot.
The Attorney General’s undisputed evidence demonstrated that Appellee’s
claims are moot. Assessing mootness is a two-step inquiry: First, the court deter-

mines if the case is moot on its face—that is, whether the live controversy has come
to an end. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010). If the
answer is yes, then the Court determines if any “exception” to mootness applies.

See Williams, 52 S.W.3d at 184. Because the case is moot and no exception applies,
the trial court erred in implicitly denying the Attorney General’s plea to the jurisdic-
tion. See Grassroots Leadership, Inc., 717 S.W.3d at 862 (explaining that “the only

proper judgment in a moot case is one of dismissal for lack of jurisdiction”).

A. Appellee’s claims seeking relief from the RTE are moot on their
face because the RTE is withdrawn and cannot be reissued.
Appellee’s claims are moot because they seek relief from an RTE that has been
withdrawn, cannot be enforced, and could not be reissued. “A case becomes moot
if, since the time of filing, there has ceased to exist a justiciable controversy between
the parties—that is, if the issues presented are no longer ‘live,’ or if the parties lack
a legally cognizable interest in the outcome.” Heckman v. Williamson Cnty., 369

S.W.3d 137, 162 (Tex. 2012). “Put simply, a case is moot when the court’s action on
the merits cannot affect the parties’ rights or interests.” Id.; accord Glassdoor, Inc. v.
Andra Grp., LP, 575 S.W.3d 523, 530 (Tex. 2019).
Appellee’s original petition brought four claims, all based on the State’s RTE.
CR.16–23 (bringing claims against the RTE for violating the First and Fourth
Amendments to the U.S. Constitution, article I, section 9 of the Texas Constitution,

29
and the equal protection clauses of the U.S. and Texas Constitutions); see also CR.30
(requesting relief against the RTE, costs, and fees). Notably, all of these claims bring

as-applied challenges to the specific RTE served on Appellee; none raise facial chal-
lenges against the RTE statute as a whole. While Appellee’s operative petition added
a request for injunctive relief based on quo warranto, it added no new claims beyond
the original four RTE claims. CR.389–96, 403–04.
As such, all Appellee’s claims are mooted by the Attorney General’s undisputed
evidence that the challenged RTE has been withdrawn and cannot be reissued. The
Attorney General presented three pieces of undisputed evidence to establish this:
First, the agency’s formal withdrawal of its RTE to Appellee, CR.110; second, a dec-
laration by the Chief of the Consumer Protection Division that “the Office of the
Attorney General will not reissue the challenged RTE nor send any other RTE seek-
ing records relating to” the issues in this case, CR.65; and third, proof of the State’s
Tarrant County lawsuit that subjected any future document requests to the Texas
Rules of Civil Procedure, CR.85.
These are sufficient to establish facial mootness, and any arguments to the con-
trary are based only in conjecture and hypotheticals, not actual evidence. First, the

Attorney General is bound by the Consumer Protection Division Chief’s declaration
that the RTE shall not be reissued to Appellee, nor shall any similar RTE be issued
on the same issues. As the United States Supreme Court held in DeFunis v. Ode-

gaard, 416 U.S. at 319–20, a case is moot when the government affirmatively repre-
sents to the court that it will not reprise the complained-of conduct with regard to
the plaintiff. Second, even if the Attorney General wanted to violate his own

30
declaration and reissue the RTE in this case, he could not do so, because an RTE is
a pre-suit investigatory tool. Tex. Bus. Orgs. Code § 12.153 (“The attorney general

may investigate the organization, conduct, and management of a filing entity or for-
eign filing entity and determine if the entity has been or is engaged in acts or conduct
in violation of … any law of this state.”) (emphasis added). Once the State filed suit
in Tarrant County, this case changed from a pre-suit investigation to an active litiga-
tion subject to the ordinary civil discovery process, including requests for docu-
ments. Any attempt to reissue the challenged RTE could be construed as an attempt
to circumvent the ordinary discovery process set forth in the Texas Rules of Civil
Procedure. It is unlikely any such attempt would be enforceable. As such, there is no
reasonable possibility of the Attorney General enforcing the withdrawn RTE against
Appellee or serving a substantially similar RTE on Appellee, so all Appellee’s claims
are facially moot. See Speer v. Presbyterian Child. Home & Serv. Agency, 847 S.W.2d
227, 229 (Tex. 1993) (suit becomes moot when the action sought to be enjoined has
been accomplished).

B. No exception to mootness applies.
Neither the voluntary cessation exception nor the capable-of-repetition excep-
tion to mootness applies to this case.

1. Voluntary cessation does not apply because the challenged RTE is
not reasonably likely to be reissued.
A case is still moot, and voluntary cessation of complained-of conduct is no ex-
ception, when subsequent events make “absolutely clear that the [challenged con-
duct] could not reasonably be expected to recur.” Bexar Metro. Water Dist., 234

31
S.W.3d at 129 (quoting Friends of the Earth, 528 U.S. at 189). The Supreme Court
has held that for it to be “absolutely clear” that the challenged conduct is not rea-

sonably likely to recur, there must be no qualification or prevarications in the repre-
sentations by the defendant. See e.g., In re Cont. Freighters, Inc., 646 S.W.3d 810, 812–
14 (Tex. 2022) (holding that a plaintiff’s withdrawal of a discovery request after the
court indicated interest in reviewing a mandamus petition did not moot the issue
where the withdrawal lacked any guarantees that the same demands would not be
made in the future).
The U.S. Supreme Court case DeFunis v. Odegaard is instructive. In DeFunis,
the Court found that voluntary cessation of the challenged conduct mooted the case
when the defendant’s representations made it absolutely clear to the court that the
challenged conduct was unlikely to reoccur. 416 U.S. at 316-20. DeFunis alleged that
a state law school denied him admission based on his race. Id. at 314. DeFunis was
provisionally admitted to the school after obtaining an injunction from a trial court.
Id. By the time the case was argued before the U.S. Supreme Court, DeFunis was
already in his final term. Id. at 315–16. The law school represented during oral argu-
ment that whether it won or lost the appeal, it would allow DeFunis to complete that

term and graduate—thereby eliminating the injury of being wrongly denied admis-
sion based on race. Id. at 316. The U.S. Supreme Court dismissed the case as moot,
reasoning that even if there was voluntary cessation of the challenged conduct, the

school’s representation satisfied the principle that it was not reasonably likely to re-
cur as to DeFunis. Id. at 316–20. In doing so, the majority rejected as mere specula-
tion the dissent’s hypotheticals that the case was not moot because unexpected

32
events such as illness, economic necessity, or academic failure might prevent De-
Funis from graduating at the end of the term. Id. at 348 (Brennan, J., dissenting).

The majority opinion distinguished the mootness of DeFunis’s as-applied challenge
from a hypothetical facial challenge to the law school’s admission procedures, which
would not have been mooted by the law school voluntarily changing its admission
procedures (but leaving itself open to changing them back later). Id. at 318.
Texas courts have held similarly. For example, in Robinson v. Alief Independent
School District, Robinson sought injunctive and declaratory relief against his em-
ployer, a school district, including expungement of his personnel file and a declara-
tion that the school district violated his constitutional rights. 298 S.W.3d 323. After
Robinson sued, the school district voluntarily expunged Robinson’s personnel rec-
ords as requested. Id. at 323, 327 n.2. The school district then filed a plea to the ju-
risdiction alleging mootness, which the trial court granted. Id. at 324. On appeal,
Robinson argued his claim was not moot because, without a judicial admission of
wrongdoing or judicial action barring the school district from reversing its decision,
the school district could later retract its expungement of the records. Id. at 325. The
Fourteenth Court of Appeals rejected this argument, holding that Robinson had no

evidence of any reasonable expectation that the school district would later return the
expunged documents to his personnel file; thus, his request for injunctive relief “in
the event [the school district] reinstates the documents sometime in the future” was

“merely conjunctural and hypothetical” and would result in an advisory opinion. Id.
at 326–27.

33
By contrast, the typical case where voluntary cessation does act as an exception
to mootness involves state actors reserving discretion to themselves to repeat the

conduct again in the future. For example, in Matthews v. Kountze Independent School
District, a group of middle and high school cheerleaders brought a constitutional
challenge to the school district’s policy prohibiting the display of religious banners
at school-sponsored events. 484 S.W.3d 416, 417 (Tex. 2016). The school district
filed a plea to the jurisdiction asserting mootness after it adopted a resolution provid-
ing that the school district was “not required to prohibit messages on school banners
... that display fleeting expressions of community sentiment solely because the
source or origin of such message is religious,” but retained “the right to restrict the
content of school banners.” Id. The trial court denied the plea to the jurisdiction, but
the court of appeals held that the suit was moot. Id. The Supreme Court reversed
and remanded because the new policy merely stated that the school district was not
required to prohibit the cheerleaders from displaying the challenged banners, and re-
served to the school district unfettered discretion in regulating same, including the
apparent authority to do so based on their religious content. Id. at 420. The case was
not moot because the school district’s voluntary cessation provided “no assurance

that the District will not prohibit the cheerleaders from displaying banners with reli-
gious signs or messages at school-sponsored events in the future.” Id. at 419–20. 3

3
See also Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841
(Tex.App.–Austin 2002, pet. denied) (State’s voluntary abandonment of attempts
to collect the challenged penalty did not render the controversy moot nor deprive
the trial court of jurisdiction); see also Austin Parents for Med. Choice v. Austin Indep.

34
This suit clearly falls into the DeFunis and Robinson camp. Here, the Attorney
General withdrew the challenged RTE, then affirmatively and irrevocably repre-

sented that the agency will not reissue the challenged RTE nor send any other RTE
to Appellee seeking records relating to (1) the solicitation and expenditure of funds
to aid and abet Texas legislators abandoning their offices, or (2) relating to any ben-
efits or compensation offered or provided to the legislators for abandoning their of-
fices during the 89th Special Legislative Session. CR.65. Unlike the representations
made in Matthews, this unequivocal representation by the Attorney General makes it
“absolutely clear” that the challenged RTE will not be reissued. Bexar Metro. Water
Dist., 234 S.W.3d at 129.
Furthermore, like in Robinson, Appellee failed to present any evidence that the
Attorney General is reasonably likely to reissue the challenged RTE—or that the
Attorney General even could do so, given that an RTE is a pre-suit investigatory tool
and the State filed suit in Tarrant County. Indeed, Appellee never even requested

discovery into such jurisdictional evidence, instead choosing to leapfrog directly to
merits discovery. As such, any claims to the contrary are based on conjecture and are
not sufficient to defeat mootness. See Grassroots Leadership, 2025 WL 1642437 at *15

(holding that “mootness poses a practical test, not one that turns on speculative,
theoretical, contingent, or unlikely events that might happen”).

Sch. Dist., No. 03-21-00681-CV, 2023 WL 5109592, at *2 (Tex. App.—Austin Aug.
10, 2023, no pet.) (holding that voluntary cessation of a challenged policy by a school
district did not moot a challenge to same where the school district had never ex-
pressed that it could not and would not reinstate the challenged policy.).

35
2. The capable-of-repetition exception does not apply.
The capable-of-repetition exception to mootness applies only in rare circum-
stances, and this is not one of them. To invoke it, a plaintiff must prove that “(1) the
challenged action was too short in duration to be litigated fully before the action
ceased or expired; and (2) a reasonable expectation exists that the same complaining

party will be subjected to the same action again.” Williams, 52 S.W.3d at 184. The
“mere physical or theoretical possibility” is insufficient to invoke the capable-of-
repetition exception. Murphy v. Hunt, 455 U.S. 478, 482 (1982). “[T]here must be a

‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy
will recur involving the same complaining party.” Id. (emphasis added); see also In re
Uresti, 377 S.W.3d 696, 696 (Tex. 2012) (observing that “a reasonable expectation
must exist that the ‘same complaining party will be subjected to the same action
again’” (quoting Williams, 52 S.W.3d at 184)).
Appellee can satisfy neither prong. First, the challenged action, compliance with

the challenged RTE or a future similar RTE, is not so short in duration that Appellee
cannot fully litigate its challenge before the deadline to comply with the challenged
RTE. In Annunciation House, the Supreme Court held that all RTE recipients have

an opportunity to seek to precompliance review from district courts, including by
filing a subpoena challenge under Texas Rule of Civil Procedure 176.6(e). 2025 WL
1536224 at *24 (identifying requests for protection pursuant to Tex. R. Civ. P. 176.6
as one such method of precompliance review). Annunciation House held that even a
twenty-four hour compliance window to respond to an RTE was sufficient time to
challenge the RTE, because filing a 176.6(e) challenge automatically stays

36
compliance. Id. at *1 (noting compliance was sought “by the next day”); see also Tex.
R. Civ. P. 176.6(e) (providing that “a person need not comply with the part of a sub-

poena from which protection is sought under this paragraph unless ordered to do so
by the court”).
Here, Appellee was given two days to comply with the challenged RTE, and was
able to challenge compliance by filing a Rule 176.6(e) challenge before the deadline.
CR.8. As such, Appellee was excused from complying with the RTE once the chal-
lenge was filed. C.R.78 (Appellee informing the Attorney General that the filing of
the instant suit relieved it of its duty to comply). These rules affording precompli-
ance review of RTEs and relieving the obligation to comply until the matter is adju-
dicated render these circumstances quite different from those in other cases where
courts have found that the challenged action was too short in duration to be litigated
before it expires. See, e.g., Tex. Parks & Wildlife Dep’t v. RW Trophy Ranch, Ltd., 712
S.W.3d 943 (Tex. App. [15th Dist.] 2025).
Second, and as discussed supra, the burden is on Appellee to show a “reasonable
likelihood” that the Attorney General will reissue the same RTE. None exists where
the Attorney General has made absolutely clear that the same, or similar, RTE will

not be served on Appellee in the future, and where presuit investigatory tools are no
longer available now that a lawsuit has been filed. Appellee has produced no evidence
to the contrary.

Because Appellee failed to satisfy either element required to satisfy the capable-
of-repetition exception to the mootness doctrine, the trial court should have granted
the Attorney General’s Plea to the Jurisdiction and dismissed this suit as moot.

37
Prayer
The Court should reverse the district court’s implicit denial of the State’s plea
to the jurisdiction and direct the district court to dismiss the case for lack of subject-
matter jurisdiction.

Respectfully Submitted,

Ken Paxton Johnathan Stone
Attorney General of Texas Chief, Consumer Protection Division

Brent Webster
/s/ Abigail E. Smith
First Assistant Attorney General
Abigail E. Smith
Ralph Molina Assistant Attorney General
Deputy First Assistant Attorney General
Rob Farquharson
Austin Kinghorn Assistant Attorney General
Deputy Attorney General for
Civil Litigation Office of the Attorney General
Consumer Protection Division
12221 Merit Drive, Ste. 650
Dallas, Texas 75251
Tel: (214) 290-8830
Fax: (214) 969-7615

Counsel for Appellant

Certificate of Compliance
Microsoft Word reports that this document contains 7,483 words, excluding ex-
empted text.
/s/ Abigail E. Smith
Abigail E. Smith

38
No. 15-25-00141-CV

In the Court of Appeals
for the Fifteenth Judicial District
Austin, Texas
Ken Paxton, in his official capacity as Texas Attorney
General,
Appellant,
v.
Powered by People,
Appellee.

Appellant’s Appendix
Tab
1. August 19, 2025 Temporary Restraining Order....................................... A

2. August 22, 2025 Order Granting Motion for Expedited Discovery ......... B

3. Plaintiff’s Emergency Motion for Expedited Discovery .......................... C
EXHIBIT A
El Paso County - 41st District Court Filed 8/19/2025 2:19 PM
Norma Favela Barceleau
District Clerk
El Paso County
2025DCV3641
CAUSE NO. 2025DCV3641

POWERED BY PEOPLE, § IN THE DISTRICT COURT
Plaintiff, §
§
V. § 41st JUDICIAL DISTRICT
§
KEN PAXTON, §
IN HIS OFFICIAL CAPACITY AS §
TEXAS ATTORNEY GENERAL §
Defendants. § EL PASO COUNTY, TEXAS

TEMPORARY RESTRAINING ORDER

On this day, the Court considered Plaintiff Powered by People’s Application for

Emergency Temporary Restraining Order. Having reviewed the verified pleadings and exhibits

and having held a hearing on the matter, the Court finds that immediate and irreparable injury will

result absent a restraining order. Therefore, the Court issues the following Temporary Restraining

Order to preserve the status quo until a hearing on Plaintiff’s Application for Temporary Injunction

may be held. The Court issues this Order to prevent imminent, irreparable injury, and this Order

expressly is not a ruling on the merits or a ruling or the Court’s jurisdiction. Defendants’ Plea to

the Jurisdiction is held open for further consideration by this Court. Plaintiffs filed a response brief

on the Plea to the Jurisdiction on August 18, 2025. Defendants may submit a reply within 7 days

of today’s order. The court further finds and concludes as follows:

Required factual findings and conclusions of law:

1. Based on the verified record, Plaintiff has shown a probable right to relief on its

constitutional claims arising from Defendant’s actions, including the challenged Request

to Examine (“RTE”) served August 6, 2025, demanding sensitive information on an

1
abbreviated timeline, and Defendant’s stated intent to imminently institute and prosecute

quo warranto proceedings in Tarrant County.

2. Absent immediate restraint, and as more fully set out below, Plaintiff will suffer violations

of its constitutional rights—including rights of political speech and association and equal

protection under the law—which constitute irreparable injury not compensable by

monetary damages. These violations include outright restraint on protected speech as well

as retaliatory and chilling court processes in improper venues.

3. Further, temporary restraint is appropriate because Defendants’ proposed course of action

poses a severe risk of improper proceedings that would jeopardize the Court’s jurisdiction

to afford effective relief.

4. The threatened harms are immediate; entry of this Order is necessary to prevent the harms

before they occur and to preserve the Court’s jurisdiction to hear and decide the merits.

5. These findings are made pursuant to Texas Rule of Civil Procedure 680 and the Court’s

equitable authority. The acts restrained are described in reasonable detail below.

Additional factual findings and conclusions of law:

6. Plaintiff, Powered by People, is a Texas nonprofit corporation. It operates as a political

organization pursuant to 26 U.S.C. § 527(e)(1) for the purpose of “directly or indirectly

accepting contributions or making expenditures, or both” to influence elections.

7. Powered by People’s principal place of business is in El Paso County; all members of its

Board of Directors reside in El Paso County; and none of its staff reside in Tarrant County.

8. On August 6, 2025, Defendant launched an investigation and served Powered by People

board members David Wysong and Gwen Pulido in El Paso with an RTE. The RTE

demanded a broad range of internal materials—including strategy and communications—

2
on fewer than 48 hours’ notice. The State gave no specific justification for the abbreviated

deadline or the RTE itself. It demanded these extensive records within 48 hours while

publicly announcing the investigation in a press release.

9. Defendant Paxton has publicly identified Mr. O’Rourke as a prospective opponent in the

2026 U.S. Senate race, and has already used the prospect of running against Mr. O’Rourke

in a fundraising appeal.

10. The RTE expressly threatened that failure to comply could result in revocation or

termination of the organization’s registration or certificate of formation through an

information in the nature of quo warranto.

11. Defendant Paxton admitted at or around that time that he did not have “details” to support

his allegations, but planned to use this “investigation” to “find out if [Powered by People]

has done anything inappropriate,” pointing explicitly to Plaintiff’s recent political speech,

organizing and advocacy. Nevertheless, Defendant Paxton publicly characterized his

potential future political opponent’s protected political activity as “Beto Bribes.”

12. Powered by People requested an extension of twenty days, which Defendants denied.

respond.

13. Rather than responding to Powered by People’s reasonable request for extension,

Defendants abruptly headed to Tarrant County, Texas to institute an ex parte legal

proceeding against Powered by People. Despite knowing for days that Powered by People

was represented by counsel--given that counsel for Powered by People requested the two

extensions--Defendant did not inform the undersigned counsel of an imminent

3
“emergency” ex parte TRO filing and hearing until almost four hours later, and minutes

before it filed.

14. On August 11, 2025, Defendant announced his intention to seek a writ of quo warranto

against Powered by People for the purpose of revoking the organization’s charter and

ability to do business in Texas.

15. Since that time, Defendant has publicly threatened to jail Powered by People’s founder for

engaging in political speech such as “support these brave Texas Democrats.”

16. A quo warranto proceeding prosecuted in Tarrant County would immediately force

Plaintiff’s El Paso-based officers, employees, and records custodians to defend and respond

in a distant forum, diverting time and resources from ongoing political organizing and

speech. Plaintiff is a nonprofit political organization that sells no goods or services and

exists to promote political association and speech; restraint of its political speech and

diversion of its limited staff and volunteer resources is non-compensable.

17. Defendant has not presented any allegations or evidence to demonstrate that venue would

be proper for its threatened enforcement action in Tarrant County. Rather, Defendant’s

action is part of a larger course of attempting to use the legal system to impinge on Powered

by People’s constitutionally protected activity.

18. The specter and pendency of a charter‑revocation action in an improper forum threatens

Plaintiff’s ability to maintain its operations statewide, undermines confidence among

volunteers and partners, and chills ongoing political activity both in the form of speech

(contributions, expenditures, and fundraising) and association with likeminded individuals.

These constitutional harms cannot be remedied by damages after the fact.

4
19. Defendants’ entire course of conduct exhibits a purpose and effect of singling out one

organization for targeted enforcement based solely on that organization’s protected

constitutional activity--to wit, its support for Democratic political causes and opposition to

Republican political causes. In particular, Defendant has targeted Powered by People for

its support for Texas Democratic lawmakers who are opposing a current proposal at the

Texas Legislature. Defendant has further exhibited a purpose and effect of targeting

courts have recognized, the state and federal constitution protect an individual’s ability to

seek political office.

20. Defendant’s enforcement actions and public conduct associated with those enforcement

actions, including its threatened quo warranto proceeding, demonstrate that Plaintiff has

stated a probable right to relief under the Equal Protection Clauses of the Texas and United

States Constitutions.

21. Powered by People acted in a timely manner to seek relief from this Court to restrain

Defendant from continuing to subject it to chilling and selective enforcement actions.

institution of any quo warranto proceedings in Tarrant County.

22. Powered by People is currently suffering irreparable constitutional harm from Defendant’s

enforcement actions. Forcing Powered by People to defend a quo warranto action in an

improper venue would cause additional irreparable harm for which money damages cannot

provide full relief.

It is, therefore, ORDERED that, pending further order of this Court or expiration of this

Order:

5
Defendant is restrained and enjoined from initiating, filing, or prosecuting any quo

warranto proceeding against Powered by People (or its officers, directors, or

founders) without leave of this Court or leave of another El Paso County District

Court. Nothing in this Order is intended to bind any court; rather, it binds Defendant

and those in active concert or participation with him.

Security

As security for this Order, Plaintiff shall post a bond in the amount of $500.00 with the

Clerk of this Court, conditioned as the rules require, on or before August 22, 2025. The Court sets

the bond at a nominal amount in light of the non‑pecuniary nature of the harm and the lack of any

demonstrated monetary injury to Defendant.

Setting and Notice of Temporary Injunction

Hearing on Temporary Injunction. The Court sets Plaintiff’s Application for temporary

injunction for hearing on August 29, 2025 at 8:30 a.m. MST in the courtroom of the 41st Judicial

District Court, El Paso County, Texas. Defendant may appear and show cause why a temporary

injunction should not issue.

Effective Date and Duration

This Temporary Restraining Order takes effect upon signing and shall expire 14 days

thereafter, on September 2, 2025 unless extended by the Court for good cause, by agreement of

the parties, or until it is superseded by a temporary injunction.

SIGNED on 19th day of August, 2025 at 2:10 p.m.(MST).

__________________________________
JUDGE ANNABELL PEREZ
41st Judicial District Court

6
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.

Envelope ID: 104572037
Filing Code Description: Proposed Order
Filing Description: TEMP. RESTRAINING ORDER
Status as of 8/19/2025 3:59 PM MST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Lynn Coyle 24050049 lynn@coylefirm.com 8/19/2025 2:19:52 PM SENT

Johnathan Stone 24071779 Johnathan.Stone@oag.texas.gov 8/19/2025 2:19:52 PM SENT

Robert Farquharson 24100550 rob.farquharson@oag.texas.gov 8/19/2025 2:19:52 PM SENT

Pauline Sisson pauline.sisson@oag.texas.gov 8/19/2025 2:19:52 PM SENT

Scott Froman scott.froman@oag.texas.gov 8/19/2025 2:19:52 PM SENT

Mimi Marziani mmarziani@msgpllc.com 8/19/2025 2:19:52 PM SENT

Joaquin Gonzalez jgonzalez@msgpllc.com 8/19/2025 2:19:52 PM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 8/19/2025 2:19:52 PM SENT

Jacob Przada Jacob.Przada@oag.texas.gov 8/19/2025 2:19:52 PM SENT

Tisha James Tisha.James@oag.texas.gov 8/19/2025 2:19:52 PM SENT

Rebecca Stevens bstevens@msgpllc.com 8/19/2025 2:19:52 PM SENT

Emily Samuels emily.samuels@oag.texas.gov 8/19/2025 2:19:52 PM SENT

Abby Smith abby.smith@oag.texas.gov 8/19/2025 2:19:52 PM SENT

Clayton Watkins clayton.watkins@oag.texas.gov 8/19/2025 2:19:52 PM SENT
EXHIBIT B
El Paso County - 41st District Court Filed 8/22/2025 10:10 AM
Norma Favela Barceleau
District Clerk
El Paso County
2025DCV3641
CAUSE NO. 2025DCV3641

ORDER GRANTING PLAINTIFF’S
EMERGENCY MOTION FOR EXPEDITED DISCOVERY

ON THIS DAY came on to be heard Plaintiff’s Emergency Motion for Expedited

Discovery. After considering the Motion, the evidence presented, any Objections, and the

arguments of counsel, the Court finds that the Motion should be GRANTED.

IT IS THEREFORE ORDERED that Plaintiff’s Emergency Motion for Expedited

Discovery is hereby GRANTED.

IT IS ORDERED that Third party candidate Ken Paxton shall confer with Plaintiff and

appear for a deposition no more than 2 hours to occur no later than the close of business on

Thursday, August 28, 2025.

IT IS FURTHER ORDERED that Defendant Attorney General Ken Paxton shall confer

with Plaintiff and produce a corporate representative for a deposition lasting no more than 2 hours

and to occur no later than the close of business on Thursday, August 28, 2025, that is limited to

the topics set forth in Plaintiff’s Emergency Motion for Expedited Discovery.

IT IS FURTHER ORDERED that Defendant Attorney General Ken Paxton shall produce

the records as identified in Plaintiff’s Emergency for Expedited Discovery (with the modification
that Request for Production No. 3(i) is limited to members of the Consumer Protection Division

of the Office of Attorney General) no later than the close of business August 27, 2025.

SIGNED this the 22nd day of August, 2025.

___________________________________
JUDGE ANNABELL PEREZ
41st Judicial District Court
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.

Envelope ID: 104725946
Filing Code Description: Proposed Order
Filing Description:
Status as of 8/22/2025 10:18 AM MST

Associated Case Party: Ken Paxton

Name BarNumber Email TimestampSubmitted Status

Nicole A.Myette nicole.myette@oag.texas.gov 8/22/2025 10:10:31 AM SENT

William Farrell biff.farrell@oag.texas.gov 8/22/2025 10:10:31 AM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Lynn Coyle 24050049 lynn@coylefirm.com 8/22/2025 10:10:31 AM SENT

Johnathan Stone 24071779 Johnathan.Stone@oag.texas.gov 8/22/2025 10:10:31 AM SENT

Robert Farquharson 24100550 rob.farquharson@oag.texas.gov 8/22/2025 10:10:31 AM SENT

Pauline Sisson pauline.sisson@oag.texas.gov 8/22/2025 10:10:31 AM SENT

Mimi Marziani mmarziani@msgpllc.com 8/22/2025 10:10:31 AM SENT

Joaquin Gonzalez jgonzalez@msgpllc.com 8/22/2025 10:10:31 AM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 8/22/2025 10:10:31 AM SENT

Jacob Przada Jacob.Przada@oag.texas.gov 8/22/2025 10:10:31 AM SENT

Scott Froman scott.froman@oag.texas.gov 8/22/2025 10:10:31 AM SENT

Rebecca Stevens bstevens@msgpllc.com 8/22/2025 10:10:31 AM SENT

Emily Samuels emily.samuels@oag.texas.gov 8/22/2025 10:10:31 AM SENT

Abby Smith abby.smith@oag.texas.gov 8/22/2025 10:10:31 AM SENT

Clayton Watkins clayton.watkins@oag.texas.gov 8/22/2025 10:10:31 AM SENT

Tisha James Tisha.James@oag.texas.gov 8/22/2025 10:10:31 AM SENT
EXHIBIT C
El Paso County - 41st District Court Filed 8/20/2025 9:18 PM
Norma Favela Barceleau
District Clerk
El Paso County
2025DCV3641
CAUSE NO. 2025DCV3641

EMERGENCY MOTION FOR EXPEDITED DISCOVERY

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiff Powered by People files this Emergency Motion for Expedited Discovery and shows as

follows:

INTRODUCTION

Emergency relief is requested by Plaintiff Powered by People (Plaintiff) to obtain

expedited discovery from Defendant Ken Paxton so that the Court has a more established record

at the temporary injunction hearing scheduled for August 29, 2025. Prior to the hearing, Plaintiff

needs to engage in discovery as to matters within the knowledge and possession of Defendant

Paxton, in his official capacity as Texas Attorney General. Plaintiff also needs to engage in

discovery with persons and entities not parties to this action prior to the hearing date. Given the

time constraints and importance of the information sought, Plaintiff seeks an exceedingly narrow

amount of prehearing discovery.

Plaintiff seeks to depose Candidate Ken Paxton, who has posted materials on his

personal/candidate social media accounts indicating that the investigations and threatened actions

that are the basis of this suit are for retaliatory purposes against a perceived political opponent

1
based on that opponent’s political speech.1 Plaintiff seeks to depose Candidate Paxton for no more

than two (2) hours prior to close of business on Thursday, August 28, 2025. Second, Plaintiff seeks

to depose a corporate representative from Defendant Paxton for no more than two (2) hours prior

to close of business on Thursday, August 28, 2025, on the topics listed below. Third, Plaintiff

seeks from Defendant Paxton relevant records from June 1, 2025, through the present, relating to

the allegations forming the basis for the requested temporary injunction. Plaintiff attempted to

resolve this matter with Defendant Paxton but was not able to discuss with opposing counsel prior

to filing this motion.

BACKGROUND

On August 6, 2025, Defendant Paxton launched a retaliatory and unlawful investigation

into Powered by People, serving Mr. David Wysong and Ms. Gwen Pulido, Board members of

a self-imposed 48-hour deadline. The State provided no valid reason to support this urgent,

invasive, expensive inquiry. At the time, Defendant Paxton admitted publicly he did not have

“details” to support his allegations, he intended to use the RTE “investigation” to “find out if

they’ve done anything inappropriate,” pointing explicitly to Plaintiff’s recent political speech,

organizing and advocacy.2

1
See, e.g., Ken Paxton (@KenPaxtonTX), BREAKING: I just launched an investigation into
Beto O'Rourke's radical group, X.com (Aug. 6, 2025, 3:18 PM),
https://x.com/KenPaxtonTX/status/1953188955807273440; Ken Paxton (@KenPaxtonTX),
BREAKING: I'm seeking to revoke the charter of Beto O'Rourke's organization, X.com (Aug. 6,
2025, 3:18 PM),
https://x.com/KenPaxtonTX/status/1956455919455486123.
2
James Morley III, Texas AG Paxton to Newsmax: O’Rourke’s PAC to Be Investigated,
NEWSMAX (Aug. 6, 2025, 5:40 PM EDT), https://www.newsmax.com/newsmax-tv/ken-
paxton-texas-redistricting/2025/08/06/id/1221553/.

2
Earlier on August 8, 2025, and unbeknownst to the Defendants, the Attorney General

abruptly changed directions, and started to prepare a new filing in north Texas. As Plaintiff was

finalizing its El Paso lawsuit, the Attorney General announced the filing of a new court action in

Tarrant County against Plaintiff and Robert “Beto” O’Rourke (the founder of Powered by People).

Despite that, as of 9:56 am MT on Friday, counsel for the Attorney General knew that Powered by

People was represented by the undersigned counsel, and with plenty of time to do so, the Attorney

General did not inform the undersigned counsel of an imminent “emergency” ex parte TRO filing

and hearing until almost four hours later. Despite the failure to identify any substantial connection

to the Tarrant County venue, the State sought a temporary restraining order seemingly aimed to

achieve similar goals as the RTE: namely, to chill the exercise of constitutionally protected rights.

Later, a hearing was held before Judge Fahey in Tarrant County. The Tarrant County court

entered a Temporary Restraining Order at 5:32pm. The next day, on August 9, 2025, counsel for

the State indicated that “effectively immediately” it was withdrawing its RTE issued to Petitioner,

In the evening of August 11, 2025, in the latest egregious misuse of power, staff at

Defendant’s office indicated that that Defendant would be immediately seeking to institute quo

warranto proceedings in Tarrant County, a County where there is not even a colorable argument

for proper venue for such a proceeding.

On August 19, 2025, this Court granted a Temporary Restraining Order against Defendant

Paxton “restrain[ing] and enjoin[ing] [Defendant Paxton from] initiating, filing, or prosecuting any

quo warranto proceeding against Powered by People (or its officers, directors, or

3
Attorney Farquharson also indicated that it was withdrawing its RTE issued to Mr. O’Rourke;
however to date, Mr. O’Rourke has not been served with an RTE.

3
founders) without leave of this Court or leave of another El Paso County District Court.”

Temporary Restraining Order (El Paso TRO) at 6. On the same day, this Court set a Temporary

Injunction hearing for August 29, 2025. Id.

ARGUMENTS AND AUTHORITIES

The Rules of Civil Procedure provide ample flexibility for a court to order expedited

discovery in appropriate situations. Thus, “[p]arties frequently seek, and trial courts order,

expedited discovery in the course of proceedings pertaining to temporary restraining orders.” In re

Nat’l Lloyds Ins. Co., No. 13-15-00390-CV, 2015 WL 6759153, at *4 (Tex. App.--Corpus Christi

Nov. 3, 2015, no pet.) (collecting authorities). For instance, Rule 166 provides that “[i]n an

appropriate action, to assist in the disposition of the case without undue expense or burden to the

parties, the court may in its discretion direct the attorneys for the parties and the parties or their

duly authorized agents to appear before it for a conference to consider…a discovery

schedule…[and] …[s]uch other matters as may aid in the disposition of the action.” Tex. R. Civ.

P. 166(c)&(p). Further, “every case must be governed by a discovery control plan as provided in

this Rule.” Tex. R. Civ. P. 190.1. “The court may modify a discovery control plan at any time and

must do so when the interest of justice requires.” Tex. R. Civ. P. 190.5(a). “Except where

specifically prohibited, the procedures and limitations set forth in the rules pertaining to discovery

may be modified in any suit by…court order for good cause.” Tex. R. Civ. P. 191.1. “In a suit not

governed by the Family Code, unless otherwise agreed to by the parties or ordered by the court, a

party cannot serve discovery on another party until after the other party’s initial disclosures are

due.” Tex. R. Civ. P. 192.2(a)(1). This suit is not governed by the Family Code. Texas courts have

the discretion to craft a narrow, expedited discovery order prior to a temporary injunction hearing.

See Tex. R. Civ. P. 166(c)&(p), Tex. R. Civ. P. 191.1. Indeed, the 348th Judicial District Court of

4
Tarrant County granted expedited discovery to the State of Texas just this week. See Tarrant Order

on Exp. Disc., file-stamped Aug. 18, 2025 (Ex. A).

Good cause exists for expedited discovery.

An expedited discovery scheduling order is necessary for the parties to exchange relevant

information before the temporary injunction hearing scheduled for Friday, August 29, 2025.

Plaintiff filed this suit on August 8, 2025. Pl.’s Orig. Pet. On August 19, 2025, this Court entered

a temporary restraining order after holding two hearings where counsel for all parties appeared

and were heard. See El Paso TRO. The temporary injunction hearing is scheduled for August 29,

2025. See id.

The short timeline, and the importance of the information in Defendant Paxton’s

possession, warrant good cause for the Court to order expedited discovery. The constitutional

issues in question here — grave violations of Powered by People’s constitutional rights of political

speech and association and equal protection under the law — are of ultimate consequence.

Defendant Paxton’s choice to violate those constitutional protections, including restraining

Plaintiff’s protected political speech, as well as engaging in retaliatory and chilling court process

in improper venues, make the matters before this court at the temporary injunction hearing

sufficiently weighty to constitute good cause.

The discovery sought by Plaintiff will shed light on matters pertinent to the temporary

injunction hearing. In order to engage in the necessary discovery prior to the hearing, however, it

has become necessary for Plaintiff to request this Court order the completion of the discovery

discussed above and below prior to the hearing. The deadline outlined below will allow adequate

time for all parties to prepare the discovery received for use at the hearing on August 29, 2025.

5
Plaintiff asks that this Court, for all the foregoing reasons, enter an expedited discovery

scheduling order containing the following terms:

1. Third party Candidate Ken Paxton4 shall confer with Plaintiff and appear for a deposition

lasting no more than 2 hours to occur no later than close of business on Thursday, August

28, 2025.

2. Defendant Ken Paxton shall confer with Plaintiff and produce a corporate representative

for a deposition lasting no more than 2 hours and to occur no later than close of business

on Thursday, August 28, 2025, that is limited to the following topics covering the period

from June 1, 2025, through the present:

a. Specific facts that formed the basis for an initiation of an investigation into Powered

by People by the Office of Attorney General, Consumer Protection Division;

b. The documents and communications listed in no. 3 and the subject matters covered

thereby.

3. Defendant Ken Paxton shall produce the following records covering the period from June

1, 2025, through the present, to Plaintiff no later than close of business on August 27, 2025,

along with any corresponding privilege logs relating to same:

a. Communications with any third party discussing or relating to potential criminal

activity or civil violations committed by Powered by People or Robert Francis

O’Rourke (or “Beto” O’Rourke);

4
Ken Paxton is a candidate for United States Senate in the 2026 elections. See Gregory
Svirnovskiy, Texas Attorney General Ken Paxton to challenge John Cornyn for Senate, Politico,
(04/08/2025), https://www.politico.com/news/2025/04/08/ken-paxton-texas-senate-john-cornyn-
0028003.

6
b. Documents or communications that establish or relate to the Attorney General’s

contention that emergency relief is necessary to restrain Powered by People from

fundraising or taking other actions to support Texas Democratic lawmakers;

c. All documents and communications between the Attorney General's office and any

third parties (including political parties, advocacy groups, media outlets, or other

government officials) discussing, referencing, or relating to the investigation or

enforcement action against Plaintiff, including any discussions about the political

nature, viewpoints, or affiliations of the organization or its activities;

d. All documents establishing the timeline of the investigation, including intake

records, complaint logs, assignment of personnel, and milestone documents that

would show whether the investigation was initiated or escalated in response to

political events or pressures;

e. All press releases, media advisories, talking points, and communications with

media outlets regarding the investigation or enforcement action, including any

documents discussing the public relations or political impact of the Attorney

General's actions.

f. All documents relating to coordination or communication with other state or federal

agencies, law enforcement entities, or regulatory bodies regarding the investigation,

including any joint enforcement efforts or information sharing that might indicate

broader political targeting;

g. Any and all documents or communications in your possession, custody, or control

before August 6, 2025 that would form the basis for any purported allegation of

criminal or deceptive conduct by Powered by People and that could have informed

7
your decision to serve Requests to Examine on members of the Board of Powered

by People;

h. All e-mails and text messages between Ken Paxton and any third party from August

1, 2025 to date related to Powered by People, Robert Francis O’ Rourke (or “Beto”

O’Rourke), the Requests to Examine, or the Motion for Leave to File Information

in the Nature of Quo Warranto against Powered by People in Tarrant County (this

request includes any and all messages as more specifically defined below);

i. All non-privileged e-mails and messages between any member of the Office of

Attorney General and any third party from August 1, 2025 to date related to

to Examine, or the Motion for Leave to File Information in the Nature of Quo

Warranto against Powered by People in Tarrant County;

j. All non-privileged e-mails and messages between any member of the Office of

Attorney General, Consumer Protection Division and any third party from August

1, 2025 to date related to Powered By People, Robert Francis O’ Rourke (or “Beto”

O’Rourke), the Requests to Examine, or the Motion for Leave to File Information

in the Nature of Quo Warranto against Powered by People in Tarrant County;

k. Produce documents and communications discussing, or relating to Defendant

Paxton’s discussion of Mr. O’Rourke as a political opponent. This request also

includes e-mails and messages.

l. Produce documents and communications between the Attorney General’s Office

and the Ken Paxton for U.S. Senate Campaign relating to Powered by People and/or

Mr. O’Rourke. This request also includes e-mails and messages.

8
m. Documents sufficient to identify all communication devices, e-mail accounts, or

messaging application accounts that are controlled, owned, or possessed by Ken

Paxton, including personal mobile phones, government-issued mobile phones,

burner phones, or other types of personal digital communication devices.

“Messages” shall mean All electronic communications, including but not limited to text

messages, instant messages, direct messages, chat messages, and any other form of electronic

messaging, whether stored temporarily or permanently, sent or received via any device,

platform, application, or service, including but not limited to the following:

Traditional Messaging:

● SMS/text messages
● MMS/multimedia messages
● iMessage
● RCS (Rich Communication Services)

Popular Messaging Apps:

● WhatsApp, Signal, Telegram
● Facebook Messenger, Instagram Direct
● Snapchat, TikTok messages
● Discord, Slack, Microsoft Teams
● WeChat, Line, Viber
● Skype, Google Chat/Hangouts

Professional/Business Platforms:

● Slack, Microsoft Teams, Discord servers
● Zoom chat, WebEx messages
● Salesforce Chatter, Workplace by Meta

PRAYER

Plaintiff respectfully asks that this Court enter the proposed expedited discovery scheduling

order and grant any further relief Plaintiff is entitled to.

9
Respectfully submitted,

/s/ Mimi Marziani

Mimi Marziani
Texas Bar No. 24091906
mmarziani@msgpllc.com
Joaquin Gonzalez
Texas Bar No. 24109935
jgonzalez@msgpllc.com
Rebecca (Beth) Stevens
bstevens@msgpllc.com
Texas Bar No. 24065381
MARZIANI, STEVENS & GONZALEZ PLLC
500 W. 2nd Street, Suite 1900
Austin, TX 78701
Tel: (210) 343-5604

Lynn Coyle
Texas Bar No. 24050049
lynn@coylefirm.com
2700 Richmond Ave.
El Paso, TX 79930
Tel: (915)276-6700

ATTORNEYS FOR PLAINTIFF

10
VERIFICATION

My name is Rebecca (Beth) Stevens, my date of birth is May 9, 1983, and my business address is

500 W. 2nd Street, Suite 1900, Austin, TX 78701, United States. I declare under penalty of perjury

that the statements in the last sentence of the second paragraph of this motion are true and correct.

Executed in San Patricio County, State of Texas, on the 20th day of August, 2025.

/s/ Beth Stevens
Beth Stevens

CERTIFICATE OF CONFERENCE

On August 20, 2025 I attempted to confer by phone with counsel for Plaintiffs, but did not
receive a response.

/s/ Beth Stevens
Beth Stevens

11
CERTIFICATE OF SERVICE

By my signature below, I hereby certify that a true and correct copy of the foregoing
pleading was served on the following as set forth below, on August 20, 2025.

Via e-service: Rob.Farquharson@oag.texas.gov
Rob Farquharson
Deputy Chief
Consumer Protection Division
Office of the Attorney General

Via e-service: Johnathan.Stone@oag.texas.gov
Johnathan Stone
Chief
Consumer Protection Division
Office of the Attorney General

/s/ Mimi Marziani
Mimi Marziani

12
Exhibit A
348-367652-25
FILED
TARRANT COUNTY
8/18/2025 9:42 AM
THOMAS A. WILDER
DISTRICT CLERK
CAUSE NO. 348-367652-25

THE STATE OF TEXAS § IN THE DISTRICT COURT
§
Plaintiff, §
v. § TARRANT COUNTY, TEXAS
§
ROBERT FRANCIS O’ROURKE and §
POWERED BY PEOPLE §
§
Defendants. § 348th JUDICIAL DISTRICT

ORDER ON EXPEDITED DISCOVERY

On August 14, 2025, the Court considered the State’s Emergency Request for an Expedited

Discovery Scheduling Order. After due consideration and in light of the time-sensitive

circumstances of this case, including the upcoming temporary injunction hearing set for September

2, 2025, the Court rules that expedited discovery is merited in this cause and rules as follows:

1. Defendant Powered by People (PxP) shall confer with the State and produce a corporate
representative for a deposition lasting no more than two hours to occur no later than
close of business on Friday, August 29, 2025, that is limited to the following topics
covering the period from June 1, 2025, through the present:

a. Advertising, marketing, and representations directed toward Texans about the
purpose and intended use of funds received;

b. Benefits and compensation provided, or offered to, Texas legislators, their staff,
or their families;

c. Expenditure of funds on Texas legislators, their staff, or their families;

d. The total amount of funds raised; and

e. Compliance with the Court’s Temporary Restraining Order and Modified
Temporary Restraining Order.

2. Defendant Robert Francis O’Rourke (O’Rourke) shall confer with the State and appear
for a deposition lasting no more than two hours to occur no later than close of business
on Friday, August 29, 2025.

3. PxP and O’Rourke shall produce the following records covering the period from June
1, 2025, through the present to the State no later than close of business on August 29,
2025, along with any corresponding privilege logs relating to same:

Order on Expedited Discovery – Page 1
Exhibit
A
a. Documents and communications relating to planned or actual travel
arrangements, accommodations, or meals outside of Texas for any
Texas legislator, their staff, or their families;

b. Documents and communications relating to, or discussing, depriving the
Texas Legislature quorum during Texas’s current special legislative
session;

c. Documents and communications relating to the provision of any benefit
or compensation to a Texas legislator, their staff, or families, and offers
to provide any benefit or compensation to same;

d. Documents and communications discussing, or relating to, the
solicitation of funds to pay for planned or actual travel arrangements,
accommodations, or meals for any Texas legislator, their staff, or their
families;

e. Documents and communications relating to expenditures made for
travel arrangements, accommodations, or meals outside of Texas for
any Texas legislator, their staff, or their families;

f. Documents and communications directed toward Texans advertising,
marketing, or otherwise making representations about the purpose and
intended use of funds received; and

g. Documents sufficient to show the total amount raised since June 1,
2025.

IT IS SO ORDERED.

Signed: August 15, 2025.

__________________________________
JUDGE PRESIDING

Order on Expedited Discovery – Page 2
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.

Envelope ID: 104481942
Filing Code Description: No Fee Documents
Filing Description: ORD EXPEDITED DISC
Status as of 8/18/2025 10:04 AM CST

Associated Case Party: THESTATE OF TEXAS

Name BarNumber Email TimestampSubmitted Status

Scott Froman scott.froman@oag.texas.gov 8/18/2025 9:42:48 AM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 8/18/2025 9:42:48 AM SENT

Abby Smith abby.smith@oag.texas.gov 8/18/2025 9:42:48 AM SENT

Johnathan Stone johnathan.stone@oag.texas.gov 8/18/2025 9:42:48 AM SENT

Clayton Watkins clayton.watkins@oag.texas.gov 8/18/2025 9:42:48 AM SENT

Jacob Przada Jacob.Przada@oag.texas.gov 8/18/2025 9:42:48 AM SENT

Tisha James Tisha.James@oag.texas.gov 8/18/2025 9:42:48 AM SENT

Associated Case Party: THEPOWERED BY PEOPLE

Name BarNumber Email TimestampSubmitted Status

Sean McCaffity 24013122 smccaffity@textrial.com 8/18/2025 9:42:48 AM SENT

George Quesada 16427750 quesada@textrial.com 8/18/2025 9:42:48 AM SENT

Mimi Marziani mmarziani@msgpllc.com 8/18/2025 9:42:48 AM SENT

Joaquin Gonzalez jgonzalez@msgpllc.com 8/18/2025 9:42:48 AM SENT

Rebecca Stevens bstevens@msgpllc.com 8/18/2025 9:42:48 AM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Joseph Jaworski 10593200 joejaws@jaworskilawfirm.com 8/18/2025 9:42:48 AM SENT

Wolfgang P.Hirczy de Mino wphdmphd@gmail.com 8/18/2025 9:42:48 AM SENT

Pauline Sisson pauline.sisson@oag.texas.gov 8/18/2025 9:42:48 AM SENT
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.

Envelope ID: 104481942
Filing Code Description: No Fee Documents
Filing Description: ORD EXPEDITED DISC
Status as of 8/18/2025 10:04 AM CST

Case Contacts

Pauline Sisson pauline.sisson@oag.texas.gov 8/18/2025 9:42:48 AM SENT

Emily Samuels emily.samuels@oag.texas.gov 8/18/2025 9:42:48 AM SENT

Kathy Gatzemeyer kgatzemeyer@textrial.com 8/18/2025 9:42:48 AM SENT
Automated Certificate of eService
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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: 104649502
Filing Code Description: Motion (No Fee)
Filing Description: Emergency Motion for Expedited Discovery
Status as of 8/21/2025 9:13 AM MST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Lynn Coyle 24050049 lynn@coylefirm.com 8/20/2025 9:18:43 PM SENT

Johnathan Stone 24071779 Johnathan.Stone@oag.texas.gov 8/20/2025 9:18:43 PM SENT

Robert Farquharson 24100550 rob.farquharson@oag.texas.gov 8/20/2025 9:18:43 PM SENT

Pauline Sisson pauline.sisson@oag.texas.gov 8/20/2025 9:18:43 PM SENT

Scott Froman scott.froman@oag.texas.gov 8/20/2025 9:18:43 PM SENT

Mimi Marziani mmarziani@msgpllc.com 8/20/2025 9:18:43 PM SENT

Joaquin Gonzalez jgonzalez@msgpllc.com 8/20/2025 9:18:43 PM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 8/20/2025 9:18:43 PM SENT

Jacob Przada Jacob.Przada@oag.texas.gov 8/20/2025 9:18:43 PM SENT

Tisha James Tisha.James@oag.texas.gov 8/20/2025 9:18:43 PM SENT

Rebecca Stevens bstevens@msgpllc.com 8/20/2025 9:18:43 PM SENT

Emily Samuels emily.samuels@oag.texas.gov 8/20/2025 9:18:43 PM SENT

Abby Smith abby.smith@oag.texas.gov 8/20/2025 9:18:43 PM SENT

Clayton Watkins clayton.watkins@oag.texas.gov 8/20/2025 9:18:43 PM SENT
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.

Emily Samuels on behalf of Abigail Smith
Bar No. 24141756
emily.samuels@oag.texas.gov
Envelope ID: 106039020
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: 20250924 PxP EP Opening Br w exhibits
Status as of 9/24/2025 4:33 PM CST

Associated Case Party: Powered by People

Name BarNumber Email TimestampSubmitted Status

Mimi Marziani 24091906 mmarziani@msgpllc.com 9/24/2025 3:55:30 PM SENT

Joaquin Gonzalez jgonzalez@msgpllc.com 9/24/2025 3:55:30 PM SENT

Rebecca (Beth) Stevens bstevens@msgpllc.com 9/24/2025 3:55:30 PM SENT

Lynn Coyle lynn@coylefirm.com 9/24/2025 3:55:30 PM SENT

Associated Case Party: Ken Paxton, in his official capacity as Texas Attorney
General

Name BarNumber Email TimestampSubmitted Status

William Cole 24124187 William.Cole@oag.texas.gov 9/24/2025 3:55:30 PM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 9/24/2025 3:55:30 PM SENT

Abby Smith abby.smith@oag.texas.gov 9/24/2025 3:55:30 PM SENT

Johnathan Stone johnathan.stone@oag.texas.gov 9/24/2025 3:55:30 PM SENT

William Peterson William.Peterson@oag.texas.gov 9/24/2025 3:55:30 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Pauline Sisson pauline.sisson@oag.texas.gov 9/24/2025 3:55:30 PM SENT

Emily Samuels emily.samuels@oag.texas.gov 9/24/2025 3:55:30 PM SENT

Ken Paxton, in His Official Capacity as Texas Attorney General v. Powered by People

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