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
9/10/2025 9:12 AM
NO. 15-25-00140-CV CHRISTOPHER A. PRINE
CLERK
FILED IN
15th COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE FIFTEENTH DISTRICT 9/10/2025 9:12:07 AM
AUSTIN, TEXAS CHRISTOPHER A. PRINE
Clerk

IN RE POWERED BY PEOPLE AND ROBERT FRANCIS O’ROURKE,
Relators

ORIGINAL PROCEEDING FROM THE 348TH JUDICIAL DISTRICT
OF TARRANT COUNTY, TEXAS
TRIAL COURT NO. 348-367652-2025

REPLY IN SUPPORT OF MOTION FOR EMERGENCY RELIEF

TO THE HONORABLE FIFTEENTH COURT OF APPEALS:

On Monday, August 25, 2025, pursuant to Texas Rule of Appellate Procedure

52.10, Relators Powered by the People and Robert Francis O’Rourke filed a Motion

for Emergency Relief (the “Motion”) to accompany their Petition for Writ of

Mandamus (the “Petition” or “Pet.”). On September 9, 2025, the State of Texas, real

party-in-interest, filed a short response to this Motion, as part of its larger Response

to Petition for Writ of Mandamus and Motion for Temporary Relief.

Relators plan to file a separate reply addressing the merits of the Petition for

Writ of Mandamus by Tuesday, September 16, 2025, subject to any decision by this

Court to either require an earlier reply or to order no reply at all.
Reply in Support of Motion for Emergency Relief Page 1
Here, Relators respectfully submit this Reply in further support of their

Motion for Emergency Relief, including Relators’ request that this Court stay the

modified Temporary Restraining Order issued on August 15, 2025 (the “TRO”) and

the second temporary restraining order issued on August 25, 2025 (the “Antisuit

TRO”), and continue to stay other proceedings pending this Court’s ruling on the

Petition.

The State sidesteps the actual standard for granting a stay pending appeal,

which is done “to preserve the parties’ rights until disposition of the appeal.” In re

State, 711 S.W.3d 641, 645 (Tex. 2024) (citing with approval TEX. R. APP. P. 29.3’s

“analogous formulation” to guide standard for considering stay requests). In

deciding this Motion—as is the case for any request for injunctive relief—this Court

must consider “the injury that will befall either party depending on the court’s

decision,” as well as “the harm that other parties or the public will suffer if relief is

granted—as well as any potential injury to non-parties caused by granting or denying

relief.” In re State, 711 S.W.3d at 645. Ultimately, “[t]he equitable balancing of

these harms is a required aspect of a court’s effort to preserve the parties’ rights

pending appeal.” Id.

Here, the balance of equities indisputably favors Relators—indeed, the State

does not seriously try to argue otherwise. See Resp. at 51-52.

Reply in Support of Motion for Emergency Relief Page 2
First, the allegedly exigent circumstances the State relied upon to justify the

original and modified TRO are now decidedly past, but the TRO continues to cause

irreparable injury to Relators and to Relators’ supporters by chilling protected

speech and association rights. The balance of equities clearly favors Relators.

Second, the Antisuit TRO restrains Powered by People and its counsel from

“prosecuting any . . . claim, or proceeding that seeks to restrain or enjoin the State

from initiating, filing, or prosecuting the quo warranto claims alleged by the State.”

MR.0978 (emphasis added). However, the State has forced action in the El Paso

proceedings by filing its own interlocutory appeal of an “implicit” denial of a plea

to the jurisdiction, which is now pending before this Court, No. 15-25-00141-CV.

In doing so, the State has invoked Section 51.014(b) of the Texas Civil Practice &

Remedies Code, which stays proceedings in the trial court. So—by the State’s own

position—the only pending proceeding related to the El Paso case is one which it

itself initiated. On its face, the Antisuit TRO could be read to prevent Powered by

People from responding to this appeal, which would be an absurd result and raise

severe due process concerns.

Finally, while Relators plan to submit a separate reply in support of the merits

of the Petition, “a preliminary inquiry into the likely merits of the parties’ legal

positions” favors Relators. In re State, 711 S.W.3d at 645. Fundamentally, and as

summarized below, the State cannot demonstrate that any act or practice complained

Reply in Support of Motion for Emergency Relief Page 3
of is unlawful under the Texas Deceptive Trade Practices Act (“DTPA”); therefore,

the Respondent lacks jurisdiction and proper venue to pursue this case.

RELEVANT PROCEDURAL & FACTUAL BACKGROUND

This case concerns the weaponization of the Texas Attorney General’s civil

enforcement powers to silence political opposition and retaliate against protected

speech and political activities, against the backdrop of a contentious public debate

about Texas’ mid-decade redistricting efforts. See generally Pet. at 7-13. Indeed, the

Attorney General’s response to this Court’s administrative stay—a routine case

management tool meant to “freeze legal proceedings until the court can rule on a

party’s request for expedited relief,” United States v. Texas, 144 S. Ct. 797, 798

(2024) (internal quotation marks and citation omitted)—illustrates the hyperbole and

vitriol General Paxton has consistently employed in pursuing this case against

Relators. Specifically, General Paxton posted on social media that:1

1
Ken Paxton (@KenPaxton), “What we are witnessing in Texas…”, X (Aug. 27,
2025, 2:59 PM) https://x.com/KenPaxtonTX/status/1960794232710684922
Reply in Support of Motion for Emergency Relief Page 4
Meanwhile, the crux of the State’s claimed injury to Texans—that “Robert

Francis O’Rourke and his political influence operation, Powered by People, are

traveling the state misleadingly raising political funds to pay for the personal

expenses of Texas Democrats who have abandoned their offices and fled the state in

the middle of a Special Legislative Session”2—has ceased to be a live concern.

Democrats returned to Austin on Monday, August 18, 2025, and the new

2
This is the first sentence of the State’s operative Petition. MR.0198.
Reply in Support of Motion for Emergency Relief Page 5
redistricting maps were passed by the Texas House of Representatives on August

20, 2025 and signed into law by Governor Abbott on August 29, 2025.3

But acute and irreparable harm continues each day for Relators. Given the

vague, broad language of the TRO, the State’s changing position about the reach of

that injunction, and the Attorney General’s repeated, targeted attacks against Mr.

O’Rourke, Relators are forced to consult with legal counsel prior to public events

and fundraising solicitations, including for topics far afield of the quorum-break

(which, of course, has long concluded). Relators’ in-state assets remain frozen. And,

as noted above, Powered by People questions its ability to prosecute the El Paso

proceeding in the pending appeal before this Court due to the Antisuit TRO which—

at this juncture—seemingly serves no other purpose.

On top of that, recent donations from like-minded Texans made to Powered

by People on the ActBlue platform remain in limbo as ActBlue will not transmit that

money to Relators for fear of violating the TRO, overtly preventing the free

association of Relators and their likeminded donors. SR.0049-0050 (hearing

transcript from Relators’ August 19, 2025 motion to dissolve the TRO, where

Relators’ counsel explains that “since Friday’s modification, ActBlue is not sending

3
See, e.g., J. David Goodman, Abbott Signs Gerrymandered Map as Texas G.O.P.
Moves Further Right, The New York Times (Aug. 29, 2025),
https://www.nytimes.com/2025/08/29/us/politics/abbott-texas-legislature-
redistricting-map.html
Reply in Support of Motion for Emergency Relief Page 6
any money to Powered By People from Texas donors because the donors’ money

leaves the state to go to ActBlue’s account outside of Texas”) & SR.0055 (counsel

further explaining that “men and women of reasonable intelligence, including

attorneys for ActBlue, have determined that this TRO requires ActBlue to cut off

entire streams of funds from Texas donors because the Texas donation leaves Texas

and goes to ActBlue’s bank account, regardless of the reasons that the funds were

raised”).

ARGUMENT

This Court is fully justified in granting emergency relief to stay the Trial Court

proceedings because the Respondent issued an overbroad TRO infringing bedrock

constitutional rights of free speech and association and did so without subject matter

jurisdiction. Mandamus is the appropriate avenue to challenge this type of manifest

abuse because failure to stop the error and cease the constitutional violation creates

both irreparable harm and renders any appellate remedies inadequate as a matter of

course.

Texas law is clear that mandamus is appropriate to challenge overbroad and

unconstitutional prior restraints of speech, TRO’s, and a court’s lack of subject

matter jurisdiction. Mandamus is appropriate when a TRO is improvidently granted,

permitting a party to seek immediate relief. In re Cnty. of Hidalgo, 655 S.W.3d 44,

55 (Tex. App.—Corpus Christi–Edinburg 2022, no pet.) (“Mandamus review of a

Reply in Support of Motion for Emergency Relief Page 7
trial court’s temporary restraining order is proper because such an order cannot be

appealed; thus, the party against whom such injunctive relief is granted lacks an

adequate remedy by appeal”); In re Abbott, 601 S.W.3d 802, 813 (Tex. 2020) (orig.

proceeding) (per curiam); In re Office of Att’y Gen., 257 S.W.3d 695, 698 (Tex.

2008) (orig. proceeding) (per curiam); In re Tex. Nat. Res. Conservation Comm’n,

85 S.W.3d 201, 207 (Tex. 2002) (orig. proceeding).

Mandamus is also appropriate when a court exercises jurisdiction when no

subject matter jurisdiction exists. See In re Accident Fund Gen. Ins. Co., 543 S.W.3d

750, 755 (Tex. 2017) (conditionally granting writ of mandamus to require dismissal

for lack of subject matter jurisdiction). Mandamus issues to “correct a clear abuse of

discretion or a violation of a duty imposed by law when there is no other adequate

remedy at law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Here, there is

a clear abuse of discretion, with patent constitutional violations that are ongoing.

Because the Court should both immediately remedy those violations and preclude

the Respondent from exercising jurisdiction over a matter it does not have power to

entertain, mandamus is appropriate and the request for emergency relief should be

granted.4

4
The State relies on Tex. Right to Life v. Van Stean, 702 S.W.3d 348, 354 (Tex.
2024), to misconstrue Relators’ argument as one solely about whether the Attorney
General has the “right to bring such a cause of action.” Resp. at 15. This is not simply
a merits decision based on the applicability of the statute; rather, it is fundamentally
a question of constitutional standing jurisprudence. Can the plaintiff show a
Reply in Support of Motion for Emergency Relief Page 8
A. The TRO Imposes Irreparable Injuries on Relators, but the State’s
Purported Need for the TRO has Long Passed.

To be clear, the State has offered no evidence of actual wrongdoing justifying

the TRO in the first place, but even assuming it made a modest showing of harm to

justify the original TRO, the State’s primary purpose of bringing suit in Tarrant

County was to enjoin political fundraising and disrupt a political rally that occurred

nearly a month ago. See generally MR.0001-0013 (Original Pet.) & MR.0009

(“Defendants are preparing to engage in the same unlawful and deceptive

fundraising practices described above during the Fort Worth rally” on August 9,

2025). The fundamental factual basis for the State’s argument—that Texas

legislators were out of state, preventing the legislature from proceeding with a

quorum and that Relators were somehow improperly facilitating the quorum break—

is no longer at issue at all. And yet, and as the Attorney General’s office boasted just

concrete, particularized injury fairly traceable to the conduct of the defendant? See
Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012) (Texas constitutional
standing follows Article III courts’ standing jurisprudence generally). Here, the
alleged “injury” suffered is defined entirely and exclusively by the DTPA as a
consumer injury (with discrete and specific meanings) and the AG is only authorized
to bring actions within the scope of that limited grant of authority. If the injury
alleged is entirely outside the scope of the DTPA and the AG’s authority to sue, then
the State has no injury it can trace to a plaintiff (no constitutional standing to even
sue) and also has no legal basis upon which it is authorized to act (no statutory cause
of action). This is not simply a merits decision that a trial court must determine after
a trial; rather, the Court must assess whether the injuries alleged in this case are the
type of injuries that are even cognizable and traceable to the Relators and whether
the State has the statutory authority to bring such a suit. That is the essence of a
standing inquiry depriving any court of subject matter jurisdiction.
Reply in Support of Motion for Emergency Relief Page 9
last week, after this Court clarified the scope of the administrative stay, the TRO

continues to “prevent[] O’Rourke and Powered by People—and any of its

institutional partners, such as ActBlue—from removing any property or funds out of

Texas.”5 Notably, the State never even sought this form of relief against Mr.

O’Rourke in either its original or amended petition. Cf. RP&R, Inc. v. Territo, 32

S.W.3d 396, 402 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“[W]here the

injunctive relief granted exceeds the relief requested by the applicant in the petition,

the trial court exceeds its jurisdiction.”) (citing Fairfield v. Stonehenge Ass’n Co.,

678 S.W.2d 608, 611 (Tex. App.—Houston [14th Dist.] 1984, no writ)).

Now, the State cannot produce any credible rationale to support the continuing

need for the TRO, much less meet the strict requirements necessary to justify prior

restraints of speech. Meanwhile, Relators continue to suffer irreparable injury. It is

black letter law that “any delay in the exercise of First Amendment rights constitutes

an irreparable injury to those seeking such exercise.” Iranian Muslim Org. v. City of

San Antonio, 615 S.W.2d 202, 208 (Tex. 1981) (quoting Southwestern Newspapers

Corp. v. Curtis, 584 S.W.2d 362, 365 (Tex. Civ. App. Amarillo 1979, no writ)).

Accord Elrod v. Burns, 427 U.S. 347, 373 (1976); Opulent Life Church v. City of

5
Attorney General Ken Paxton Secures Extended TROs Against Beto O’Rourke,
Preventing Additional Financial Payoffs to Texas Politicians, Tex. Att’y Gen.,
News Release (Sept. 4, 2025),
https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-
secures-extended-tros-against-beto-orourke-preventing-additional.
Reply in Support of Motion for Emergency Relief Page 10
Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012). For this reason, prior restraints of

speech, including “judicial orders forbidding certain communications that are issued

in advance of the time that such communications are to occur,” are “heavily

disfavored” and presumptively unconstitutional. Kinney v. Barnes, 443 S.W.3d 87,

90 (Tex. 2014). Thus, when language “evoked no threat of danger to anyone,” even

when it was allegedly defamatory and unlawful, the Texas Supreme Court has found

that such language “may not be subject to the prior restraint of a temporary

injunction.” Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983).

Indeed, the Texas Supreme Court has explained that “[s]o great is our reticence to

condone prior restraints that we refuse to allow even unprotected speech to be

banned if restraining such speech would also chill a substantial amount of protected

speech.” Kinney, 443 S.W.3d at 89. Accordingly, prior restraints of speech “may be

permissible only when essential to the avoidance of an impending danger, and only

when it is the least restrictive means of preventing that harm” Id. at 95 (quoting in

part Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992); cleaned up).

At this point, there is no plausible argument that the TRO is “essential” to

avoid any “impending danger,” much less that it is the least restrictive way to do so.

The TRO explicitly targets Relators’ core political speech and association, as it aims

at the solicitations of funds, the utilization of political fundraising as a means of

association, and—as evidenced by the State’s attempted enforcement efforts—

Reply in Support of Motion for Emergency Relief Page 11
Relators’ statements on matters of public concern. Relators have argued at length

that this constitutes an unlawful prior restraint on speech. See Pet. at 42-53; see

generally MR.0249-0275 (Mot. to Dissolve).

The TRO, in prohibiting “[r]aising funds for non-political purposes,”

MR.0392, is also unconstitutionally vague. Because it does not provide clear

guidance on what conduct is allowed or prohibited, Relators must consult counsel

prior to speaking and fundraising. Cf. Citizens United v. FEC, 558 U.S. 310, 324

(2010) (“The First Amendment does not permit laws that force speakers to retain a

campaign finance attorney, conduct demographic marketing research, or seek

declaratory rulings before discussing the most salient political issues of our day.”);

see also Pet. at 54-56.

Moreover, the TRO is grossly overbroad. As a result, it has severely disrupted

Relators’ ability to raise and distribute political and charitable funds of any kind, far

past any specific contributions and expenditures implicated by the State’s DTPA

claim. Today, Relators’ Texas-based assets remain frozen in full, preventing

Relators from utilizing in-state resources. See MR.0393 (restraining “any filing

entity or foreign filing entity in active concert or participation with Defendant

Powered by People and/or Defendant O’Rourke (including banks, financial

institutions, and ActBlue” from “removing any property or funds that belong to”

Relators from Texas). This exceeds what is necessary to prevent any conceivable

Reply in Support of Motion for Emergency Relief Page 12
violation of the DTPA. Avila v. State, 252 S.W.3d 632, 648 (Tex. App.—Tyler 2008,

no pet.) (deleting portion of injunction under DTPA when it restrained defendants

from transferring funds; reasoning that, because some of that “money has been

earned through legitimate business activities,” injunction was overly broad).

Moreover, ActBlue has interpreted this provision to prevent it from

transferring donations from Texas-based donors to Powered by People, on the theory

that such donations are funds “that belong to” Relators in Texas by virtue of the

donor’s residence. SR.0049-0051 & SR.0055. This means that Texas-based donors

who have exercised their right to give political donations and pool resources with

Powered by People based on shared political beliefs are being actively prevented

from doing so because of the TRO. The injunction reaches far past the quorum-

break: For instance, the contributions of Texas donors who decided long ago to give

recurring monthly donations to Powered by People are currently blocked. As a result,

of course, Relators are wholly prevented from accessing and spending this same

money to effectuate their mission, far past any nexus with the allegations of the

lawsuit.

Such broad censorship is not permitted by the Texas or U.S. Constitution. See,

e.g., Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734–

35 (2011) (“[W]e have invalidated government-imposed restrictions on campaign

expenditures, restraints on independent expenditures applied to express advocacy

Reply in Support of Motion for Emergency Relief Page 13
groups . . . and regulations barring unions, nonprofit and other associations, and

corporations from making independent expenditures for electioneering

communication.” (citations omitted; cleaned up)). The balance of equities thus

favors granting the Motion.

B. The Antisuit TRO Serves No Clear State Purpose but Poses Grave
Due Process Concerns, Providing Another Equitable Reason to
Grant the Motion.

The State has only ever identified one possible State harm justifying the

extraordinary remedy of the Antisuit TRO: “hemorrhaging taxpayer dollars on

duplicative litigation.” MR.0459; see generally MR.0458-0824. Ironically enough,

the State’s alleged harm is most directly addressed by granting this Motion, and

staying further proceedings pending this appeal. Again, the El Paso trial court

proceeding is currently stayed due to the State’s appeal so the only pending

proceeding related to the El Paso case is now before this Court. On its face, the

Antisuit TRO could be read to prevent Relator Powered by People from responding

to the State’s appeal, which would be an absurd result and raise severe due process

concerns. See City of Houston v. Kunze, 258 S.W.2d 226, 228 (Tex. Civ. App.—Fort

Worth 1953), aff’d, 153 Tex. 42, 262 S.W.2d 947 (1953) (“An injunction against the

prosecution of any suit is at best a harsh remedy and should never be resorted to in

a doubtful case, nor to avoid the possibility of conflicting decisions, nor yet to

discourage litigation.”). And for reasons more fully explained in Relators’ Petition,

Reply in Support of Motion for Emergency Relief Page 14
Pet. at 70-74, and trial court brief, MR.0862-0869, the Antisuit TRO was improper

in the first place. Accordingly, equitable considerations also heavily favor a stay of

the Antisuit TRO.

C. Relators are Likely to Prevail on the Merits of their Claims.

As summarized below,6 the TRO is fundamentally invalid because the

Attorney General asserts a claim that is not cognizable under the DTPA and is, in

fact, at odds with its plain language. He thus has no standing to prosecute this case,

nor did the trial court have jurisdiction to grant the TRO.

The DTPA only protects against “[f]alse, misleading, or deceptive acts” that

are made “in the conduct of any trade or commerce.” TEX. BUS. & COM. CODE §

17.46(a) (emphasis added). At its core, the DTPA “is designed to protect consumers

from any deceptive trade practices made in connection with the purchase or lease of

any goods or services.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.

1996) (quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 541 (Tex.

1981)). Texas courts “are bound to construe the[] terms [of the DTPA] in accordance

with their statutory definitions.” Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 274

(Tex. 1995) (overturning jury charge substituting “ordinary person” for “consumer”

and omitting the terms “goods and services”). The State has failed to provide any

6
Again, Relators would like the opportunity to file a more complete reply in support
of their Petition, and plan to file their reply by September 16, 2025 (seven days from
the State’s response deadline) unless instructed otherwise by this Court.
Reply in Support of Motion for Emergency Relief Page 15
basis to even argue that the acts it challenges qualify as being conducted in trade or

commerce.

In order to determine whether a challenged practice is actionable under the

DTPA, courts look at a purported consumer’s “relationship to the transaction.”

Vinson & Elkins v. Moran, 946 S.W.2d 381, 407 (Tex. App.—Houston [14th dist.]

1997, writ dism’d). The only purportedly deceptive transactions being challenged

are Relators’ solicitations of “political donations.” MR.0202. Setting aside its

veracity, the State’s petition rests entirely on a single premise: that Relators raised

“political donations” but then used the money for “non-political purposes.”

MR.0198. The transactions with the purported “Texas consumers” are the donations

and solicitations of the donations. MR.0201.

But political donations are, by definition, not conduct in “trade and

commerce,” because the core characteristic of a trade or a commercial transaction is

that there is at least the prospect of a “transfer [of] valuable consideration.” Martin

v. Lou Poliquin Enters., Inc., 696 S.W.2d 180, 184 (Tex. App.—Houston [14th

Dist.] 1985, writ ref’d n.r.e.). The transfer need not be fully consummated, id., but

the plain language of the DTPA requires, at a minimum, an “advertising, offering

for sale, sale, lease, or distribution” of some “thing of value.” Tex. Bus. & Com.

Code § 17.45(6). This prospect of exchanging valuable things, is a key element that

distinguishes a gift, or donation, from a transaction in “trade and commerce.” Accord

Reply in Support of Motion for Emergency Relief Page 16
Commerce, Black’s Law Dictionary (12th ed. 2024) (defining commerce as “[t]he

exchange of goods and services.”); NexPoint Advisors, L.P. v. United Dev. Funding

IV, 674 S.W.3d 437, 448 (Tex. App.—Fort Worth 2023, pet. denied) (“A

commercial transaction is generally a business deal.”) (internal quotation marks and

citation omitted)).

In contrast to trades or commercial transactions, the “sine qua non” of a

donation is “a transfer of money or property without adequate consideration.”

Hernandez v. Commissioner, 490 U.S. 680, 691 (1989); see also Pankhurst v.

Weitinger & Tucker, 850 S.W.2d 726, 730 (Tex. App.—Corpus Christi 1993, writ

denied) (“A gift is a transfer of property made voluntarily and gratuitously. . . . Lack

of consideration is an essential characteristic of a gift such that an exchange of

consideration precludes a gift.”) (citing Hilley v. Hilley, 342 S.W.2d 565, 568 (Tex.

1961)). Thus, in determining whether a transfer of money was a donation, courts

look for whether the purported donor received “an identifiable benefit” in exchange,

Hernandez, 490 U.S. at 691, or, in other words, a “measurable, specific return [that]

comes to the payor as a quid pro quo for the donation.” Id. at 688; New Jersey v.

Bessent, Nos. 24-1499-cv, 24-1503-cv, 2025 U.S. App. LEXIS 20554, at *29 (2d

Cir. Aug. 13 2025) (same).

The State has failed to articulate what valuable, good, service, or other “thing”

Relators advertised or offered to sell to the donors. Nor can the State do so because

Reply in Support of Motion for Emergency Relief Page 17
on the face of its petition it only alleges that Relators made solicitations for

gratuitous donations: “Every dollar you give will go towards stopping this power

grab”; “100% of your donation will go to supporting Texas Democrats”; “Your

contribution will benefit Powered by People.” MR.0203. Because the donations

were gratuitous without any prospect of an exchange of value, they were not made

in “trade or commerce.”

For this reason, when considering an attempted DTPA action by the Attorney

General against a church, the Western District of Texas wrote: “Solicitation of funds

from church members, and new members, is not a business practice. . . . The DTPA

was meant to protect those residents from deceptive ‘business’ acts and practices

only.” Word of Faith World Outreach Ctr. Church, Inc. v. Morales, 787 F. Supp.

689, 697 (W.D. Tex. 1992) (citing Murdock v. Pennsylvania, 319 U.S. 105, 111

(1943) (rejecting a reading of an ordinance under which “the passing of the

collection plate in church would make the church service a commercial project.”)),

vacated on other grounds, 986 F.2d 962. Although the trial court decision in Word

of Faith was vacated on abstention grounds, the Fifth Circuit wrote, “It is highly

likely, as the district court noted, that the DTPA does not even apply to the church.”

Word of Faith World Outreach Ctr. Church, Inc. v. Morales, 986 F.2d 962, 968 (5th

Cir. 1993).

Reply in Support of Motion for Emergency Relief Page 18
The Legislature has seen fit to create entire statutory schemes regulating, inter

alia, “political funds and campaigns,” TEX. ELEC. CODE Title 15, “the collection or

solicitation by for-profit entities of certain public donations,” Tex. Bus. & Com.

Code Title 2, Ch. 17, Subchapter K, “solicitation for public safety organizations,”

TEX. OCC. CODE Ch. 1803, and “telephone solicitation for certain law-enforcement

related charitable organizations,” TEX. BUS. & COM. CODE Ch. 303. And indeed, it

has had to alter some of those schemes when they impermissibly infringe on the First

Amendment by failing to recognize that “charitable . . . solicitation is protected under

the First Amendment to a greater extent than commercial speech.” Texas State

Troopers Ass’n, Inc. v. Morales, 10 F. Supp. 2d 628, 632 (N.D. Tex. 1998) (holding

that portions of the Texas Law Enforcement Telephone Solicitation Act violated

First Amendment). The Attorney General may be dissatisfied that the direct tools

the Legislature provided to regulate political donations and expenditures require the

participation of the Texas Ethics Commission or a district attorney—which, of

course, would undermine his goal of using this baseless litigation to promote his

Senatorial campaign—but his displeasure with the Legislature does not permit him

to turn an inapposite consumer protection statute into a weapon against his political

opponent for engaging in noncommercial political speech.

Indeed, Relators’ more limited interpretation of the DTPA must be correct—

otherwise, the DTPA would be a potentially boundless legal weapon that raises

Reply in Support of Motion for Emergency Relief Page 19
inherent constitutional problems. Particularly in light of the DTPA’s relaxed

standards for obtaining emergency injunctive relief, TEX. BUS. & COM. CODE §

17.47, the Attorney General’s interpretation would grant plenary authority to the

State to bring an ex parte DTPA action without prior notice, in virtually any Texas

jurisdiction, against anyone engaged in political or charitable fundraising, and use

that action to immediately freeze their assets, threaten hundreds of thousands of

dollars of fines and (as the State has done here) potentially seek arrest. This puts

churches, charities, and political groups and actors of all stripes in danger of state

overreach whenever they engage in fundraising practices the State does not like, and

guarantees the chilling of protected association. Cf. Americans for Prosperity Found.

v. Bonta, 594 U.S. 595, 606 (2021) (“Protected association furthers a wide variety

of political, social, economic, educational, religious, and cultural ends, and is

especially important in preserving political and cultural diversity and in shielding

dissident expression from suppression by the majority. Government infringement of

this freedom can take a number of forms . . . [including] where individuals are

punished for their political affiliation.” (citations omitted; cleaned up)). Because

there is no legal or factual basis to support the underlying lawsuit, Relators are likely

to succeed on their jurisdictional challenge.

Reply in Support of Motion for Emergency Relief Page 20
CONCLUSION

For these reasons and those articulated in Relators’ Motion for Emergency

Relief, Relators respectfully request that this court grant temporary relief by issuing

an order staying the TRO, Antisuit TRO, and all underlying proceedings until such

time as the Court has ruled on Relators’ Petition for Writ of Mandamus and for any

other relief to which they may be entitled.

Respectfully submitted,

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

-and-

Sean J. McCaffity
State Bar No. 24013122
SOMMERMAN McCAFFITY,
QUESADA & GEISLER L.L.P.
3811 Turtle Creek Blvd, Ste 1400
Dallas, Texas 75219-4461
Phone: 214-720-0720
smccaffity@textrial.com
Reply in Support of Motion for Emergency Relief Page 21
CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 52.10(a), I certify that the
undersigned has made a diligent effort to notify all parties of the requested temporary
relief sought in this motion and that a true copy of the foregoing has this day been
sent via Federal Express Overnight Delivery and e-mail to the Respondent, by and
through their counsel of record, and to the real party in interest and other parties in
the underlying lawsuit at the addresses below:

Hon. Megan Fahey
348th Judicial District Court
Tarrant County Courthouse
100 North Calhoun St., 3rd Floor
Fort Worth, TX 76196
Phone: 817-884-2715
ndbentley@tarrantcountytx.gov
LAAdams@tarrantcountytx.gov

Ken Paxton
Attorney General of Texas
Rob Farquharson
Dep. Chief, Consumer Protection Division
Johnathan Stone
Chief, Consumer Protection Division
Office of the Attorney General of Texas
Consumer Protection Division
300 W. 15th St.
Austin, Texas 78701
Phone: (214) 290-8811
Fax: (214) 969-7615
Rob.Farquharson@oag.texas.gov
/s/ Sean J. McCaffity
Sean J. McCaffity

Reply in Support of Motion for Emergency Relief Page 22
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Joaquin Gonzalez on behalf of Joaquin Gonzalez
Bar No. 24109935
jgonzalez@msgpllc.com
Envelope ID: 105424859
Filing Code Description: Response
Filing Description: Reply in Support of Motion for Emergency Relief
Status as of 9/10/2025 9:17 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Sean McCaffity 24013122 smccaffity@textrial.com 9/10/2025 9:12:07 AM SENT

Robert Farquharson 24100550 rob.farquharson@oag.texas.gov 9/10/2025 9:12:07 AM SENT

Maria Williamson maria.williamson@oag.texas.gov 9/10/2025 9:12:07 AM SENT

William FCole William.Cole@oag.texas.gov 9/10/2025 9:12:07 AM SENT

Mimi Marziani mmarziani@msgpllc.com 9/10/2025 9:12:07 AM SENT

Joaquin Gonzalez jgonzalez@msgpllc.com 9/10/2025 9:12:07 AM SENT

Pauline Sisson pauline.sisson@oag.texas.gov 9/10/2025 9:12:07 AM SENT

Rebecca Stevens bstevens@msgpllc.com 9/10/2025 9:12:07 AM SENT

Emily Samuels emily.samuels@oag.texas.gov 9/10/2025 9:12:07 AM SENT

Brian Falligant` bfalligant@inquestresources.com 9/10/2025 9:12:07 AM SENT

William Peterson william.peterson@oag.texas.gov 9/10/2025 9:12:07 AM SENT

Rebecca Neumann rneumann@textrial.com 9/10/2025 9:12:07 AM SENT

Associated Case Party: State of Texas

Name BarNumber Email TimestampSubmitted Status

William Cole 24124187 William.Cole@oag.texas.gov 9/10/2025 9:12:07 AM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 9/10/2025 9:12:07 AM SENT

Johnathan Stone johnathan.stone@oag.texas.gov 9/10/2025 9:12:07 AM SENT

William Peterson William.Peterson@oag.texas.gov 9/10/2025 9:12:07 AM SENT

Abby Smith abby.smith@oag.texas.gov 9/10/2025 9:12:07 AM SENT