In Re Powered by People and Robert Francis O'Rourke v. the State of Texas

ACCEPTED
15-25-00140-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
11/3/2025 3:01 PM
CHRISTOPHER A. PRINE
CLERK
FILED IN
15th COURT OF APPEALS
AUSTIN, TEXAS
11/3/2025 3:01:21 PM
CHRISTOPHER A. PRINE
November 3, 2025 Clerk

Via Electronic Filing
Mr. Christopher A. Prine
Clerk of the Court
FIFTEENTH COURT OF APPEALS
300 W. 15th Street, Suite 607
Austin, Texas 78701

Re: Case No. 15-25-00140-CV; In re Powered By People and
Robert Francis O’Rourke, Relators

Trial Court Cause No. 348-367652-2025

To The Honorable Fifteenth Court of Appeals:

Relators, Powered By People and Robert Francis O’Rourke, write in response to
an “Advisory” filed by the State of Texas on October 23, 2025. In their Advisory, the State
asks this court to consider portions of the pending writ of mandamus moot, in light of
“changed facts” and its amended petition. Namely, the State writes, “Relators have
ceased the challenged misconduct (and cannot engage in that misconduct now that the
absent legislators have returned to the State and the Special Session has ended) and the
State no longer has any need or basis to seek prospective temporary or permanent
injunctive relief to prevent any ongoing or future violations of the DTPA [Deceptive
Trade Practices Act].”

The State’s new stance represents a complete about-face from its earlier positions.
Indeed, this stunning reversal echoes arguments that Relators made at the trial court, and
which the State then argued were “almost categorically” impossible. SR.0064 (Tr. at 25:16-
22). The letter should be viewed as an admission that the relief the State won previously
was unnecessary, baseless, and an abuse of the trial court’s discretion. The State’s
litigation tactic should also be seen for what it is: a misguided attempt to manipulate
appellate jurisdiction. “Mootness, however, cannot be used as a gamesmanship tactic to
Re: Cause No. 15-25-00140-CV
Nov. 3, 2025
Page 2

avoid imminent appellate review.” In re Mesilla Valley Transp., No. 04-23-01067-CV, 2024
WL 2034732, at *3 (Tex. App.—San Antonio May 8, 2024, no pet.)

Further, while the State conveniently disavows its interest in prospective
injunctive relief, it has not withdrawn its still-pending motion for criminal contempt of
court based on alleged violations of the constitutionally infirm temporary restraining
order.1 See MR.0149-0161. And, it still seeks to avoid the procedural requirements of Texas
law by bootstrapping a quo warranto proceeding onto a non-cognizable DTPA claim in
order to remain in the State’s preferred, but improper, venue in Tarrant County.

I. Relators raised these “changed facts” months ago, yet the State has continued to
relentlessly pursue a range of punitive injunctive relief against them.

Over two months ago, on August 19, 2025, Relators’ counsel asked the trial court
to dissolve the TRO restraining Relators’ core political speech, in part because “there is
now a quorum in the Texas House as of yesterday, and so that the concerns raised by the
state about having Texas legislators preventing a quorum such that the legislature cannot
do business should be much lower, if not . . . completely gone.” SR.0045 (Tr. at 6:17-22).
Counsel for Texas strongly disagreed, stating that “a DTPA injunction almost
categorically cannot be mooted” and insisting that the TRO remain in full effect. SR.0064
(Tr. at 25:16-22); accord SR.0065 (Tr. at 26:5-6 (“the DTPA injunction cannot be mooted”)).

On August 25, 2025, Relators filed a brief with the trial court in advance of the
then-pending temporary injunction hearing noting that “Democrats have now been back
in Austin for a week, and the new redistricting maps are on their way to the Governor’s
desk. There are no longer any ‘unexcused’ Texas lawmakers for whom money could be
raised. These dramatically changed circumstances beg the question: what injunctive relief
does the State now seek from Defendants, and why?” SR.0003. The State filed a brief
hours later, reiterating its request for broad prospective injunctive relief, including the
freezing of Powered by People’s in-state assets. SR.0035-36.

1
In an Order issued September 12, 2025, this Court stayed the temporary restraining order, as
modified on August 15, 2025, (the “TRO”) finding that it constituted an unlawful prior restraint
of speech.

MARZIANI, STEVENS & GONZALEZ PLLC
500 W. 2nd Street, Suite 1900, Austin, TX 78701
(210) 343-5604
Re: Cause No. 15-25-00140-CV
Nov. 3, 2025
Page 3

On August 27, 2025, following this Court’s decision to place a brief administrative
stay on trial court proceedings, Attorney General Paxton argued publicly that the order
was “helping” Mr. O’Rourke continue an “unlawful bribery scheme” and that the public
“must stop Beto from buying off our politicians.” 2 Paxton made this statement even
though, by that time, absent lawmakers had been back in Austin over a week and the
Legislature had already passed the new congressional maps.

As recently as September 9, 2025, the State specifically asked this Court to deny
Relators’ emergency motion to stay the TRO. They argued that the State would be
irreparably harmed if Relators were able to freely disburse the funds they had raised, and
claimed (without providing any evidence) that “Relators seek to continue engaging in
illegal fundraising practices.” Resp. at 51-52.

The State’s Advisory — arguing that the changed circumstances as of August 18,
2025 eviscerates their need for injunctive relief — underscores that the State has not been
engaged in any legitimate effort to prevent credible consumer protection violations.
Instead, the State has been singularly focused on using the machinery of government to
retaliate against Relators for their political views and to diminish Mr. O’Rourke’s
standing as General Paxton’s potential political opponent in next year’s Senate race. This
includes their attempt to revoke Powered by People’s business license through a
procedure wholly outside of the DTPA.

The Court should rely on the State’s admission to grant Relators’ mandamus as to
the unconstitutional TRO, which was improvidently granted to begin with and then
maintained well past any conceivable legitimate need.

II. The State cannot avoid higher-court review through manipulative
litigation tactics.

“Mootness . . . cannot be used as a gamesmanship tactic to avoid imminent
appellate review.” In re Mesilla Valley Transp., 2024 WL 2034732, at *3; see In re Contract
Freighters, Inc., 646 S.W.3d 810, 813–14 (Tex. 2022) (orig. proceeding) (per curiam); Already,
LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (“[A] defendant could engage in unlawful conduct,

2
Ken Paxton (@KenPaxton), “What we are witnessing in Texas...”, X (Aug. 27,
2025, 2:59 PM) https://x.com/KenPaxtonTX/status/1960794232710684922

MARZIANI, STEVENS & GONZALEZ PLLC
500 W. 2nd Street, Suite 1900, Austin, TX 78701
(210) 343-5604
Re: Cause No. 15-25-00140-CV
Nov. 3, 2025
Page 4

stop when sued to have the case declared moot, then pick up where he left off, repeating
this cycle until he achieves all his unlawful ends,” if a defendant could “automatically
moot a case”). Accordingly, “mootness is not readily found, particularly when a party
has taken steps to cause mootness,” as the State attempts to do here. In re Contract
Freighters, Inc., 646 S.W.3d at 813.

As discussed above, the State’s letter to the Court blatantly contradicts its earlier
statements in an effort to avoid a fulsome appellate review. See SR.0003; SR.0064; SR.0065.
The State has “conducted [itself] one way when appellate courts are looking and another
way when they are not.” In re Allied Chemical Corp., 227 S.W.3d 652 (Tex. 2007).

The State’s actions bear a striking resemblance to those of plaintiffs in In re Allied
Chemical Corp. There, defendants sought mandamus relief challenging a trial court’s
consolidation order in a large mass-tort case. Id. at 654-655. Once the Texas Supreme
Court stayed proceedings, plaintiffs changed course, asking the trial court to
deconsolidate and arguing that the mandamus proceeding had become moot because the
challenged order no longer existed. Id. The Texas Supreme Court rejected that argument
and explained that “[a]n appellate court’s jurisdiction cannot be manipulated in this
way.” Id. at 655. Other courts in Texas have frowned on similar gamesmanship. See, e.g.,
In re Contract Freighters, 646 S.W.3d at 814 (“Like the plaintiffs in Allied Chemical, the
McPhersons have provided no enforceable assurances via a Rule 11 agreement, a binding
covenant, or anything else that would provide sufficient certainty that they would not
refile the same or similar requests if the Court dismissed CFI’s petition.”); In re FedEx
Ground Package System, Inc., 609 S.W.3d 153, 158-159 (Tex. App.—Houston [14th Dist.]
2020) (holding that mandamus proceeding was not moot, despite party withdrawing
subpoenas related to certain claims, because court viewed the withdrawal as strategic
and the underlying issue as capable of repetition).

The State also argues that no exception applies to mootness, but this argument falls
flat. The voluntary cessation exception applies because this is merely the State’s “attempt
to avoid a binding loss.” Tex. Dep’t of Fam. & Protective Servs. v. Grassroots Leadership, Inc.,
717 S.W.3d 854, 875 (Tex. 2025). Moreover, there has been insufficient time to receive
“complete judicial review.” Empower Texans, Inc. v. Geren, 977 F.3d 367, 370 (5th Cir. 2020)
(emphasis in original) (quoting First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 774 (1978)).
And because “the same dispute still divides the same parties despite the seeming
termination of the dispute’s initial cause,” there is a “‘reasonable expectation’ of that

MARZIANI, STEVENS & GONZALEZ PLLC
500 W. 2nd Street, Suite 1900, Austin, TX 78701
(210) 343-5604
Re: Cause No. 15-25-00140-CV
Nov. 3, 2025
Page 5

cause’s recurrence.” Tex. Dep’t of Fam. & Protective Servs., 717 S.W.3d at 884 (emphasis in
original). Thus, the capable-of-repetition exception applies, and no part of the mandamus
petition is moot.

III. The State is still pursuing injunctive relief, including a motion for contempt of
the order that is the subject of the mandamus.

The State does not address how it can conceivably take the position, on the one
hand, that the portions of the mandamus challenging the TRO are moot while, on the
other hand, it pursues the still-pending motion for criminal contempt based on violating
that TRO before the trial court. See MR.0149-0161. If this Court agrees with Relators that
the TRO was an abuse of discretion, the criminal contempt motion would obviously not
be actionable either. “A criminal contempt conviction for disobedience to a court order
requires proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a
violation of the order; and (3) the willful intent to violate the order.” In re Luther, 620
S.W.3d 715 (Tex. 2021) (orig. proceeding). But “one may not be held guilty of contempt
for refusing to obey a void order.” Ex parte Shaffer, 649 S.W.2d 300, 301-02 (Tex. 1983).
And “[o]ne cannot be punished for contempt for violating an order which a court has no
authority to make.” Ex Parte Henry, 215 S.W.2d 588, 597 (Tex. 1948); see also In re Luther,
620 S.W.3d 715, 723 (Tex. 2021) (“The temporary restraining order’s failure to specify . . .
the precise conduct prohibited makes the order too uncertain when measured against
Rule 683 and therefore too uncertain to enforce by contempt.”). Thus, “Texas courts have
repeatedly granted habeas relief to release those confined for disregarding an
unconstitutional restriction on varying types of expression.” Ex Parte Tucci, 859 S.W.2d 1,
3–4 (Tex. 1993); see also Ex parte Tucker, 220 S.W. 75 (1920) (‘‘That part of the injunction
which attempted to control the relator in his speech, was beyond the power of the court
to issue and therefore void.”) (citing Ex parte McCormick, 88 S.W.2d 104 (Tex. Crim. App.
1935) (granting habeas for release of contempt of gag order); Ex parte Foster, 71 S.W. 593
(Tex. Crim. App. 1903) (same)).

Additionally, the State’s ultimate goal is to revoke Powered by People’s business
license through quo warranto, which is a form of non-monetary relief based on Relators’
alleged violations of the DTPA and TRO. See Ex. A to State’s Advisory, at 11-12 (Prayer
for Relief). The core questions raised in the mandamus—whether generalized political
fundraising messages are even regulated by the DTPA and could constitute grounds for
any sort of legal relief—remain very much alive. Relators have demonstrated that

MARZIANI, STEVENS & GONZALEZ PLLC
500 W. 2nd Street, Suite 1900, Austin, TX 78701
(210) 343-5604
Re: Cause No. 15-25-00140-CV
Nov. 3, 2025
Page 6

statutory text, history, and structure show the DTPA does not apply to political
advertising, thereby invalidating the TRO and all other forms of relief sought by the State.
See, e.g., Relators’ Reply in Support of Pet. for Writ of Mandamus, at 7-27.

Respectfully,

/s/ Mimi Marziani

Mimi Marziani

MARZIANI, STEVENS & GONZALEZ PLLC
500 W. 2nd Street, Suite 1900, Austin, TX 78701
(210) 343-5604
Re: Cause No. 15-25-00140-CV
Nov. 3, 2025
Page 7

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 November 3, 2025.

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

Via e-service: Abby.Smith@oag.texas.gov
Abigail E. Smith
Assistant Attorney General
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

Via e-service: smccaffity@textrial.com
Sean J. McCaffity
Sommerman, McCaffity, Quesada & Geisler L.L.P.

/s/ Mimi Marziani
Mimi Marziani

MARZIANI, STEVENS & GONZALEZ PLLC
500 W. 2nd Street, Suite 1900, Austin, TX 78701
(210) 343-5604
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Joaquin Gonzalez on behalf of Joaquin Gonzalez
Bar No. 24109935
jgonzalez@msgpllc.com
Envelope ID: 107600079
Filing Code Description: Letter
Filing Description: Relators Response to State's Mootness Letter
Status as of 11/3/2025 3:08 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Sean McCaffity 24013122 sjmdocsnotifications@textrial.com 11/3/2025 3:01:21 PM SENT

Robert Farquharson 24100550 rob.farquharson@oag.texas.gov 11/3/2025 3:01:21 PM SENT

Maria Williamson maria.williamson@oag.texas.gov 11/3/2025 3:01:21 PM SENT

William FCole William.Cole@oag.texas.gov 11/3/2025 3:01:21 PM SENT

Mimi Marziani mmarziani@msgpllc.com 11/3/2025 3:01:21 PM SENT

Joaquin Gonzalez jgonzalez@msgpllc.com 11/3/2025 3:01:21 PM SENT

Pauline Sisson pauline.sisson@oag.texas.gov 11/3/2025 3:01:21 PM SENT

Rebecca Stevens bstevens@msgpllc.com 11/3/2025 3:01:21 PM SENT

Emily Samuels emily.samuels@oag.texas.gov 11/3/2025 3:01:21 PM SENT

Brian Falligant` bfalligant@inquestresources.com 11/3/2025 3:01:21 PM SENT

William Peterson william.peterson@oag.texas.gov 11/3/2025 3:01:21 PM SENT

Rebecca Neumann rneumann@textrial.com 11/3/2025 3:01:21 PM SENT

Nancy Bentley ndbentley@tarrantcountytx.gov 11/3/2025 3:01:21 PM SENT

Lisa Adams LAAdams@tarrantcountytx.gov 11/3/2025 3:01:21 PM SENT

Associated Case Party: State of Texas

Name BarNumber Email TimestampSubmitted Status

William Cole 24124187 William.Cole@oag.texas.gov 11/3/2025 3:01:21 PM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 11/3/2025 3:01:21 PM SENT

Johnathan Stone johnathan.stone@oag.texas.gov 11/3/2025 3:01:21 PM SENT

Justin Sassaman justin.sassaman@oag.texas.gov 11/3/2025 3:01:21 PM SENT

William Peterson William.Peterson@oag.texas.gov 11/3/2025 3:01:21 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.

Joaquin Gonzalez on behalf of Joaquin Gonzalez
Bar No. 24109935
jgonzalez@msgpllc.com
Envelope ID: 107600079
Filing Code Description: Letter
Filing Description: Relators Response to State's Mootness Letter
Status as of 11/3/2025 3:08 PM CST

Associated Case Party: State of Texas

William Peterson William.Peterson@oag.texas.gov 11/3/2025 3:01:21 PM SENT

Abby Smith abby.smith@oag.texas.gov 11/3/2025 3:01:21 PM SENT