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
9/16/2025 7:22 PM
NO. 15-25-00140-CV CHRISTOPHER A. PRINE
CLERK
FILED IN
15th COURT OF APPEALS

In the Fifteenth Court of Appeals AUSTIN, TEXAS
9/16/2025 7:22:41 PM
CHRISTOPHER A. PRINE
Austin, Texas 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

RELATOR’S REPLY IN SUPPORT OF
PETITION FOR WRIT OF MANDAMUS

Mimi Marziani Sean J. McCaffity
Joaquin Gonzalez George (Tex) Quesada
Rebecca (Beth) Stevens SOMMERMAN, MCCAFFITY
MARZIANI, STEVENS, AND GONZALEZ PLLC QUESADA & GEISLER, L.L.P.
500 W. 2nd Street, Suite 1900 3811 Turtle Creek Boulevard, Suite 1400
Austin, TX 78701 Dallas, Texas 75219-4461
mmarziani@msgpllc.com smccaffity@textrial.com
jgonzalez@msgpllc.com quesada@textrial.com
bstevens@msgpllc.com

Counsel for Relators
TABLE OF CONTENTS
Index of Authorities ................................................................................................ iii

Introduction ...............................................................................................................1

Relevant Facts ...........................................................................................................1

Argument...................................................................................................................3

I. The TRO Is an Unconstitutional Prior Restraint on Political
Activity. ................................................................................................3

II. Respondent Abused its Discretion in Making Erroneous Legal
Conclusions in the Original and Modified TRO. .................................7

A. Text, history, and structure show that the DTPA does not
apply to political advertising......................................................9

i. The plain text of the DTPA .............................................9
ii. Legislative history and structure of Texas statutes .......15
B. Caselaw supports the DTPA’s inapplicability to political
activity. .....................................................................................18

C. An Attorney General DTPA action must be based on at
least the prospect of a consumer transaction. ..........................20

III. The Trial Court Abused its Discretion in Denying Relators’
Motion to Transfer Venue. .................................................................22

A. Venue is mandatory in El Paso County. ..................................22
B. Tarrant County Cannot be Considered a Proper Venue. .........27

IV. The Trial Court Abused Its Discretion in Failing to Grant
Reciprocal Discovery. ........................................................................28
V. The Trial Court Abused its Discretion in Granting an Anti-Suit
TRO. ...................................................................................................30
Conclusion ..............................................................................................................32

i
Certificate in Accordance with TEX. R. APP. P. 52.3(j) ..........................................33

Certificate of Compliance .......................................................................................33

Certificate of Service ..............................................................................................34

ii
INDEX OF AUTHORITIES

Cases
Arizona Free Enter. Club’s Freedom Club PAC v. Bennett,
564 U.S. 721 (2011).........................................................................................4

Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812 (Tex. 1997) .........................................................................21

Atkinson v. Arnold,
893 S.W.2d 294 (Tex. App.—Texarkana 1995, no writ) ..............................31
Brown v. Gulf Television Company,
306 S.W.2d 706 (Tex. 1957) .........................................................................24
Bryant v. Cady,
445 S.W.3d 815 (Tex. App.—Texarkana 2014, no pet.) ..............................12
Buckley v. Valeo,
424 U.S. 1 (1976).............................................................................................4
Camunas v. Nat’l Republican Senatorial Comm.,
570 F. Supp. 3d 288 (E.D. Pa. 2021) .............................................................19

Citizens United v. FEC,
558 U.S. 310 (2010).........................................................................................6
City of Fort Worth v. Rylie,
602 S.W.3d 459 (Tex. 2020) .........................................................................10

Davenport v. Garcia,
834 S.W.2d 4 (Tex. 1992) ...............................................................................6

Del Tufo v. Nat'l Republican Senatorial Comm.,
248 N.J. Super. 684 (N.J. Super. Ct. Ch. Div. 1991) ......................................8
Del Tufo v. Nat'l Republican Senatorial Comm.,
591 A.2d 1040 (N.J. Super. Ct. Ch. Div. 1991) ............................................19
Ellebracht v. Ellebracht,
735 S.W.2d 658 (Tex. App.—Austin 1987, no writ) ....................................13

iii
Ex parte Tucci,
859 S.W.2d 1 (Tex. 1993) ...............................................................................6
Fix v. Flagstar Bank, FSB,
242 S.W.3d 147 (Tex. App.—Fort Worth 2007, pet. denied) .......................15

Ford v. City State Bank of Palacios,
44 S.W.3d 121 (Tex. App.—Corpus Christi–Edinburg 2001, no
pet.) ................................................................................................................14

Golden Rule Ins. Co. v. Harper,
925 S.W.2d 649 (Tex. 1996) .........................................................................31

Heckman v. Williamson Cty.,
369 S.W.3d 137 (Tex. 2012) .........................................................................22
Helena Chem. Co. v. Wilkins,
47 S.W.3d 486 (Tex. 2001) ...........................................................................16
Hernandez v. C.I.R.,
490 U.S. 680 (1989).......................................................................................12

Hobson v. Moore,
734 S.W.2d 340 (Tex. 1987) .........................................................................30

In re City of Dallas,
977 S.W.2d 798 (Tex. App.—Fort Worth 1998, orig. proceeding) ..............24
In re Cont’l Airlines, Inc.,
988 S.W.2d 733 (Tex. 1998) .........................................................................23

In re Dole Food Co., Inc.,
256 S.W.3d 851 (Tex. App.—Beaumont 2008) ............................... 23, 24, 26

In re Newton,
146 S.W.3d 648 (Tex. 2004) ...........................................................................3

In re Sanofi-Aventis U.S., LLC,
711 S.W.3d 732 (Tex. App—15th Dist. 2025) .............................................22

In re State,
489 S.W.3d 454 (Tex. 2016) (Willet, J., concurring in judgment) ...............26

iv
Ineos USA, LLC v. Elmgren,
505 S.W.3d 555 (Tex. 2016) .........................................................................18
Kinney v. Barnes,
443 S.W.3d 87 (Tex. 2014) .........................................................................5, 6

Longview Sav. & Loan Ass’n v. Nabours,
673 S.W.2d 357 (Tex. App.—Texarkana 1984), aff'd on other
grounds, 700 S.W.2d 901 (Tex. 1985) ..........................................................20

Lukasik v. San Antonio Blue Haven Pools, Inc.,
21 S.W.3d 394 (Tex. App.—San Antonio 2000, no pet.) .............................14

Lutheran Ass’n of Missionaries & Pilots, Inc. v. Lutheran Ass’n of
Missionaries & Pilots, Inc.,
No. Civ.03-6173, 2004 WL 1212083 (D. Minn. May 20, 2004) ..................19
Mother & Unborn Baby Care of North Texas, Inc. v. State,
749 S.W.2d 533 (Tex. App.—Fort Worth 1988, writ denied) ............... 20, 21
Murdock v. Pennsylvania,
319 U.S. 105 (1943).........................................................................................7
NexPoint Advisors, L.P. v. United Dev. Funding IV,
674 S.W.3d 437 (Tex. App.—Fort Worth 2023, pets. denied) .....................11
Paxton v. Annunciation House, Inc.,
No. 24-0573, 2025 WL 1536224 (Tex. May 30, 2025) ..................................9

Pennington v. Singleton,
606 S.W.2d 682 (Tex. 1980) .................................................................. 17, 21

PPG Indus., Inc. v. JMB/Houston Centers Partners, Ltd. P’ship,
146 S.W.3d 79 (Tex. 2004) (Brister, J.) ................................................. 16, 21

Quick v. City of Austin,
7 S.W.3d 109 (Tex. 1998) ...............................................................................9

Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc.,
487 U.S. 781 (1988).......................................................................................15

Rosell v. Farmers Tex. Cnty. Mut. Ins. Co.,
642 S.W.2d 278 (Tex. App.—Texarkana 1982, no writ) ..............................15

v
State of Texas v. Life Partners,
243 S.W.3d 236 (Tex. App.—Waco 2007) ...................................................27
Tex. State Troopers Ass’n, Inc. v. Morales,
10 F. Supp. 2d 628 (N.D. Tex. 1998) ........................................................7, 18

Texas v. Ysleta del Sur Pueblo,
79 F. Supp. 2d 708 (W.D. Tex. 1999) ...........................................................22
TGS-NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432 (Tex. 2011) .....................................................................9, 10

Vill. of Schaumburg v. Citizens for a Better Env’t,
444 U.S. 620 (1980).......................................................................................15

Vinson & Elkins v. Moran,
946 S.W.2d 381 (Tex. App.—Houston [14th Dist.] 1997, writ
dism’d by. agr.) ..............................................................................................13
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ............................................................ 27, 29, 30
Woods v. Littleton,
554 S.W.2d 662 (Tex. 1977) .........................................................................16

Woodworth v. Cortez,
660 S.W.2d 561 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.) ..............11
Word of Faith World Outreach Ctr. Church, Inc. v. Morales,
787 F. Supp. 689 (W.D. Tex. 1992), rev’d on other grounds, 986
F.2d 962 (5th Cir. 1993) ................................................................................17

Statutes

TEX. BUS. & COM. CODE § 17.08(1) ........................................................................11

TEX. BUS. & COM. CODE § 17.41 .............................................................................21
TEX. BUS. & COM. CODE § 17.44 .........................................................................8, 17

TEX. BUS. & COM. CODE § 17.46 .................................................................. 8, 16, 17

TEX. BUS. & COM. CODE § 17.46(a).........................................................................10

vi
TEX. BUS. & COM. CODE § 17.47(a).................................................................. 20, 28
TEX. CIV. PRAC. & REM. CODE § 15.012..................................................................31

TEX. CIV. PRAC. & REM. CODE § 15.016..................................................................23
TEX. CIV. PRAC. & REM. CODE § 65.023(a) .............................................................23

TEX. CIV. PRAC. & REM. CODE § 66.002(a) .............................................................25
TEX. ELEC. CODE Title 15 ........................................................................................18

TEX. GOV’T CODE § 311.011(a) .................................................................................9
TEX. GOV’T CODE § 311.021....................................................................................10
TEX. GOV’T CODE § 312.005......................................................................................9

Other Authorities

Advertise, Webster’s New Twentieth Century Dictionary 2d Ed. (Simon
& Schuster 1983) ...........................................................................................12
Commerce, Black’s Law Dictionary (12th ed. 2024) ..............................................10
Donation, Black’s Law Dictionary (12th ed. 2024) ................................................11

H.R. Rep. No. 102-317, at 13 (1991) .......................................................................19
House Research Org., Bill Analysis, Tex. S.B. 1581 (“The Charitable
Telephone Solicitation Act”) ...........................................................................7

Press Release, Tex. Att’y Gen, Attorney General Ken Paxton Takes
Action to Hold Robert Francis O'Rourke in Contempt for
Violating Court Order and Scamming Texans (Aug. 12, 2025), ..................26
Press Release, Tex. Att’y Gen., Attorney General Ken Paxton Secures
Extended TROs Against Beto O’Rourke, Preventing Additional
Financial Payoffs to Texas Politicians (Sept. 4, 2025), ................................26

Press Release, Tex. Att’y Gen., Attorney General Ken Paxton Secures
Major Victory Stopping Runaway Democrats from Taking “Beto
Bribes” and Preventing Deceptive Fundraising (Aug. 8, 2025), .................25

vii
Samuel Johnson, A Dictionary of the English Language (London, W.
Strahan 1755) (defining “commerce”) ..........................................................10
Steven G. Calabresi, The Right to Buy Health Insurance Across State
Lines: Crony Capitalism and the Supreme Court, 81 U. Cin. L.
Rev. 1447, 1455 (2013) .................................................................................11

Tex. 75th Leg., R.S. (May 23, 1997) .........................................................................7
Tex. H.B. 18, 98th Leg., 2nd C.S...................................................................... 14, 18

Tex. S.B. 140, 89th Leg., R.S., Ch. 964 (Tex. 2025) ..............................................17
Tex. S.B. 1581, 75th Leg., R.S. (1997) ...................................................................17

Trade, Black's Law Dictionary (12th ed. 2024) ......................................................10

Transcript of Hearing on S.B. 75. Before the Senate Subcommittee on
Consumer Affairs, 63d Leg., R.S., at 20 (Feb. 2, 1973)............................8, 16

Rules
TEX. R. CIV. P. § 87(3)(a).........................................................................................27

viii
INTRODUCTION
On August 25, 2025, Relators filed a Petition for Writ of Mandamus

(“Petition” or “Pet.”), with a Motion for Emergency Relief. In a September 12, 2025

Order (the “Order”), this Court partially granted Relators’ emergency motion,

staying enforcement of the trial court’s August 15 temporary restraining order (the

“TRO”), but leaving in place the August 25, 2025 temporary restraining order (the

“Antisuit TRO”). Now, Relators respectfully file this Reply to the State’s Response

to the Petition (“Response” or “Resp.”).

RELEVANT FACTS
On August 6, 2025—two days before filing this case—Paxton admitted he did

not have “details” to support his claims against Relators and wanted to use an

“investigation” to “find out if they’ve done anything inappropriate.” MR.0497. To

date, the State has produced no evidence for its central assertion “that Relators

deceived consumers by claiming to solicit donations for political purposes and

directing consumers to political fundraising platforms, such as ActBlue, but were

actually using the donations to fund personal expenses for absent legislators.” Order

at 3, 22.

Rather, the State has repeatedly targeted statements of pure political speech to

justify its actions. See SR.0015-0016, Order at 5. For instance, its most recent trial

court brief identifies the following as continuing “deceptive acts”:

1
● O’Rourke repeatedly encouraged donors to donate to Powered by People
(“PxP”) “to have the backs of our Texas Democrats in this fight.” SR.0027,
SR.0029.

● PxP maintains an ActBlue page encouraging donations to fight “Paxton,
Abbott, and Trump.” The page clearly states that “contribution[s] will benefit
[PxP].” SR.0028.

● During the Fort Worth rally, which was publicly livestreamed (curiously,
given that Relators were allegedly engaged in criminal activity), the video
encouraged viewers to “Text FIGHT to 20377 to help Texas Democrats stop
Trump’s power grab” and were directed to PxP’s ActBlue page, which asked
donors, “Can you show your support for our fight for Texas by making a
donation today?” SR.0028-0029.

● O’Rourke tweeted that PxP donated money to various Texas Democratic
caucuses, which, according to the State, constituted “an apparent attempt to
elide legal liability for Defendants’ deceptive and illegal acts.” SR.0029.

Relators, on the other hand, have presented evidence in the form of an

unrebutted sworn declaration. MR.0050-0052. PxP has affirmed that:

● “Between June 1, 2025 (the relevant date from the Attorney General’s Request
to Examine) and the date of this declaration, no transfers of funds, or provision
of other benefits, have been made by [PxP] to any Texas Democratic
lawmaker,” MR.0051;

● “All money received since June 1, 2025, by [PxP] were donations and no
goods or services were provided to donors by [PxP] in exchange for any
donation received,” MR.0052;

● “[PxP] did not make any offers to fundraise or help pay for legislative fines,
hotel, and travel expenses in exchange for any political action or restraint,”
MR.0052; and

● “[PxP] made no statements, representations or offers to public officials
promising any benefit, pecuniary gain, or pecuniary advantage,” MR.0052.

2
Furthermore, PxP operates transparently as a registered political organization

which files regular, publicly available campaign finance reports with both the

Federal Election Commission and the Texas Ethics Commission. MR.0050. As the

Texas Supreme Court found significant in an analogous case, “nothing in the

plaintiffs’ verified pleadings . . . suggests that the plaintiffs or anyone else has

previously contested [the party’s] activities, even though they must be publicly

reported.” In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (“[T]he status quo to be

preserved is that of ART PAC’s publicly reported and until now unchallenged

activities over the past four years.”). PxP engaged in strikingly similar speech,

fundraising practices, and contributions to Democratic caucuses during the

Democrats’ 2021 quorum break and no action was taken.

ARGUMENT
I. The TRO Is an Unconstitutional Prior Restraint on Political Activity.

As this Court recently recognized, mandamus may issue when a temporary

restraining order is improvidently granted. Order at 12 (citing In re Newton, 146 at

650-651). Here, “as in In re Newton, the temporary restraining order shot far past

finding a likelihood of success on the merits and finally adjudicated the Relators’

political speech to be illegal based merely on pleadings and a ‘brief, non-evidentiary

TRO hearing when substantial rights are involved and the issues are far from clear.’”

Order at 13-14.

3
The State’s assertions that Relators violated the Deceptive Trade Practices Act

(“DTPA”) fail on their face—the Attorney General’s claims are simply not

cognizable under the DTPA’s plain language, as confirmed by legislative history

and decades of usage. The State is not justified to any relief, much less a broad prior

restraint of Relators’ political speech and association.

Here, the TRO operates as a prior restraint, Order at 18, and the State seeks to

expand this prior restraint by transforming the TRO into a temporary injunction, see

SR.0035-0036. The TRO explicitly restricts Relators’ political fundraising

solicitations and political expenditures, which, in turn “necessarily reduces the

quantity of expression by restricting the number of issues discussed, the depth of

their exploration, and the size of the audience reached.” Buckley v. Valeo, 424 U.S.

1, 19 (1976); see also Arizona Free Enter. Club’s Freedom Club PAC v. Bennett,

564 U.S. 721, 734–35 (2011).

Moreover, despite arguing the TRO is narrow, Resp. at 38, the State itself has

repeatedly interpreted it to bar Relators from engaging in core political speech. See,

e.g., SR.0015-0016. For instance, in its criminal contempt motion (and repeatedly in

other filings and communications), the Attorney General relies on a particular

statement O’Rourke allegedly made about ignoring the trial court’s rules. But the

full recording of O’Rourke’s remarks shows that he was referring to the rules of

4
redistricting, not the rule of law. See MR.0114-0117.1 In addition to manipulating

O’Rourke’s statements, the State has threatened criminal contempt for simply

speaking on an issue of nationwide public interest. See MR.0114-0117.

The State’s filings underscore that any version of the injunctive relief they

request will necessarily be vague and overbroad and, as a result, chill protected

speech. Kinney v. Barnes, 443 S.W.3d 87, 97 (Tex. 2014) (explaining that where the

law allegedly violated is of “inherently contextual nature . . . even the most narrowly

crafted of injunctions risks enjoining protected speech”). Accordingly, the State’s

assertion that “Relators are free to make any political statements they want, so long

as they do not make deceptive statements to lure Texans into thinking they are

making donations to be used for lawful political purposes,” Resp. at 40, must be

rejected for the precise reasons such arguments were rejected in Kinney. There, the

plaintiff argued that if an allegedly defamatory restrained statement was later found

to be true, “the defamer ‘could speak confident in the knowledge that [the enjoined

statement is] no longer defamatory.’” Kinney, 443 S.W.3d at 98. But, the Texas

1
He said: “We want California, and New Jersey, and Illinois, and Maryland, and
every other state . . . to redraw their Congressional Districts now, not wait for Texas
to move first . . . . Listen, you may say to yourself ‘Well, those aren’t the rules.’
There are no refs in this game. F** the rules. We are going to win whatever it takes.
. . . .” MR.0115.

5
Supreme Court retorted, “how confident could such a speaker be when he is bound

by an injunction not to speak?” Id. 2

That is why prior restraints are presumptively unconstitutional under federal

and state law. They are only permitted in Texas in the “most extraordinary

circumstances” (1) when justified by “imminent, severe harm” as an essential way

to avoid impending danger, and (2) when “no alternative exists to treat the specific

threat” that would be less restrictive of free speech. Davenport v. Garcia, 834

S.W.2d 4, 10 (Tex. 1992); accord Kinney, 443 S.W.3d at 95. Texas courts require

proof of these factors, not mere speculation and hyperbolic rhetoric. Ex parte Tucci,

859 S.W.2d 1, 6 (Tex. 1993). Not surprisingly, given this heavy burden, “our courts

have repeatedly rejected both legislative and judicial attempts to restrict expression.”

Id. at 5; see Pet. at 46-48 (citing decades of case law).

Here, “the trial court concluded that Relators’ ‘fundraising conduct constitutes

false, misleading, or deceptive acts’ without any evidence to support those findings.”

Order at 22. However, the record instead shows constitutionally protected activity

and lawful, protected contributions to likeminded Democratic caucus organizations

2
The State cites O’Rourke’s Aug. 13, 2025 interview with Gov. Newsom to claim
the TRO is not overbroad. Resp. 41. But the interview shows the opposite: O’Rourke
believed he complied while the State insists he violated it—uncertainty that chills
speech. Citizens United v. FEC, 558 U.S. 310, 324 (2010) (“vague laws chill speech”
because speakers must “guess at the law’s meaning and differ as to its application”).

6
in support of a common political goal. Supra, page 2-3. Not surprisingly, then, the

State does not even attempt to argue that the TRO satisfies the requirements for a

prior restraint on speech. See generally Resp. at 37-44. Thus, Respondent abused its

discretion in granting the TRO and denying Relators’ motion to dissolve it.

II. Respondent Abused its Discretion in Making Erroneous Legal
Conclusions in the Original and Modified TRO.

Over a month after filing its original petition and TRO, the State has, for the

first time, attempted to articulate what service it claims Relators “advertised” to

Texas donors: “crowdsourcing lawful political donations.” Resp. at 20, 23. Notably,

the State does not cite a single allegation suggesting Relators ever mentioned

“crowdsourcing.” Rather, the petition only alleges generalized fundraising messages

such as “100% of your donation will go to supporting Texas Democrats.” MR.0203.

But setting that aside, every fundraising effort, from “[s]occer moms who want[] to

raise money for their children’s competition,” to “the passing of the collection plate

in church,” implicitly involves aggregating donations from multiple individuals.

House Research Org., Bill Analysis, Tex. S.B. 1581 (“The Charitable Telephone

Solicitation Act”), Tex. 75th Leg., R.S. (May 23, 1997), at 3; Murdock v.

Pennsylvania, 319 U.S. 105, 111 (1943). That does not transform every religious,

charitable, or political fundraising request into a per se commercial transaction. Cf.

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

7
(charitable “solicitation is protected under the First Amendment to a greater extent

than commercial speech.”).

Text, history, and structure show the DTPA does not apply to political

advertising. By its plain text, the statute covers only transactions in “trade or

commerce,” TEX. BUS. & COM. CODE § 17.46, which require exchange of

consideration. Its stated overarching purpose is “to protect consumers.” TEX. BUS.

& COM. CODE § 17.44 (emphasis added). A gratuitous donation to a cause is simply

not a commercial transaction. Accordingly, the authors of the DTPA explicitly

rejected the DTPA’s application to “political advertising.” Transcript of Hearing on

S.B. 75. Before the Senate Subcommittee on Consumer Affairs, 63d Leg., R.S., at

20 (Feb. 2, 1973) (hereinafter “SB 75 Legislative History”).3 Further, the Legislature

has demonstrated that it knows how to regulate nonprofit fundraising when it wants

to and has, in fact, created an intricate statutory scheme regulating political finance.

Courts in other states have similarly concluded that “the raising of funds for

political purposes, whether at the national or local level, involves neither commercial

goods nor commercial services.” Del Tufo v. Nat'l Republican Senatorial Comm.,

248 N.J. Super. 684, 689 (N.J. Super. Ct. Ch. Div. 1991). Courts cannot read the

DTPA to broadly regulate every political and charitable fundraising action based on

a “service of crowdsourcing donations” theory given their “duty to harmonize

3
Available at https://lrl.texas.gov/scanned/DTPA/SB75_63R.pdf.

8
statutes and to interpret them ‘in a manner that avoids constitutional infirmity.’”

Paxton v. Annunciation House, Inc., No. 24-0573, 2025 WL 1536224, at *13 (Tex.

May 30, 2025) (quoting Quick v. City of Austin, 7 S.W.3d 109, 115 (Tex. 1998)).

The trial court abused its discretion by entering legally erroneous conclusions,

including that “Defendants’ fundraising conduct constitutes false, misleading, or

deceptive acts under the Texas Deceptive Trade Practices Act.” (MR.0391).

A. Text, history, and structure show that the DTPA does not apply to
political advertising.

i. The plain text of the DTPA

When construing a statute, a court’s “primary objective is to ascertain and

give effect to the Legislature’s intent.” TGS-NOPEC Geophysical Co. v. Combs, 340

S.W.3d 432, 439 (Tex. 2011) (citing TEX. GOV’T CODE § 312.005). Courts “begin

with the statute’s words,” id., which “shall be read in context and construed

according to the rules of grammar and common usage.” TEX. GOV’T CODE §

311.011(a). “[W]ords’ meanings cannot be determined in isolation but must be

drawn from the context in which they are used.” TGS-NOPEC, 340 S.W.3d at 441.

Thus, courts “consider statutes as a whole rather than their isolated provisions.” Id.

at 439.

Further, in considering a statutory list, the canon of noscitur a sociis “directs

that similar terms be interpreted in a similar manner.” Id. at 441. Even when a statute

9
is unambiguous, courts avoid an interpretation if that “interpretation would lead to

absurd results.” Id. at 439. Accordingly, courts “presume[]” that the Legislature

intends “compliance with the constitutions of this state and the United States” and

“a just and reasonable result.” TEX. GOV’T CODE § 311.021; see also City of Fort

Worth v. Rylie, 602 S.W.3d 459, 468 (Tex. 2020) (“Courts must construe statutes to

avoid constitutional infirmities.”).

There is no dispute that the DTPA only applies to transactions made in “trade

or commerce.” TEX. BUS. & COM. CODE § 17.46(a). The key feature that

distinguishes “trade” and “commerce” from non-commercial, gratuitous

transactions is that trade and commerce involve the “exchange of one thing for

another.” Samuel Johnson, A Dictionary of the English Language (London, W.

Strahan 1755) (defining “commerce”); see also Commerce, Black’s Law Dictionary

(12th ed. 2024) (“The exchange of goods and services”); Trade, Black's Law

Dictionary (12th ed. 2024) (“The business of buying and selling or bartering goods

or services”). Along those lines, the etymology of the word “Commerce” is:

Commerce n. 1537, borrowed from Middle French commerce, learned
borrowing from Latin commercium trade, trafficking (com- together,
with + merx, genitive mercis wares, merchandise; see MARKET) . . .
The root “mercis” refers in Latin to the buying and selling of goods or
“merchandise . . . .”

10
Steven G. Calabresi, The Right to Buy Health Insurance Across State Lines: Crony

Capitalism and the Supreme Court, 81 U. Cin. L. Rev. 1447, 1455 (2013) (quoting

The Chambers Dictionary of Etymology).

The “common meaning” of a “commercial transaction” as “generally a

business deal,” NexPoint Advisors, L.P. v. United Dev. Funding IV, 674 S.W.3d 437,

448 (Tex. App.—Fort Worth 2023, pets. denied), is further confirmed in that the

statute uses “trade and commerce” interchangeably with “business.” Section 17.46

prohibits “[f]alse, misleading, or deceptive acts or practices in the conduct of any

trade or commerce,” while § 17.44 identifies the purpose of the Act as “to protect

consumers against false, misleading, and deceptive business practices.” Elsewhere,

in Subchapter B of Chapter 17 (which precedes Subchapter E, “the Deceptive Trade

Practices-Consumer Protection Act,”), “commercial purpose” is defined as “a

purpose that is intended to result in a profit or other tangible benefit.” TEX. BUS. &

COM. CODE § 17.08(1).

By contrast, a donation is “[a] gift, esp. to a charity.” Donation, Black’s Law

Dictionary (12th ed. 2024). In turn, a “gift is a voluntary transfer of property to

another made gratuitously and without consideration.” Woodworth v. Cortez, 660

S.W.2d 561, 563 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.). Consideration

exists when a promisor obtains a benefit—“a legal right to which the promisor would

not otherwise be entitled”—or the promisee incurs a legal detriment—“surrenders a

11
legal right that the promisee otherwise would have been entitled to exercise.” Bryant

v. Cady, 445 S.W.3d 815, 820 (Tex. App.—Texarkana 2014, no pet.). There is no

consideration when an agreement, “at its inception, does not impose obligations on

both parties.” Id. (emphasis added). For a payment to constitute a “quid pro quo

exchange” rather than a donation, the payor must receive an “identifiable benefit.”

Hernandez v. C.I.R., 490 U.S. 680, 691 (1989). Here, the State fails to even allege

that Relators offered consideration to donors in exchange for their “donations.”

MR.0198-218.

The State acknowledges that they are targeting “donations,” see, e.g., Resp. at

6, but attempts to isolate individual words in the statutory definition of trade and

commerce to justify its overreach. However, the statutory definition comports with

the plain meaning of the words. Each predicate in the definition—advertising,

offering for sale, sale, lease, distribution—has an inherently commercial flavor. The

State focuses on “advertising,” Resp. at 19-22, which the statute does not further

define. Looking at its common usage, the primary definitions emphasize its

commercial nature: “To call the public’s attention to things for sale.” Advertise,

Webster’s New Twentieth Century Dictionary 2d Ed. (Simon & Schuster 1983).

The State, for the first time, claims that Relators advertised the “service” of

“crowdsourcing lawful political donations.” Resp. at 20. The State does not identify

how Relators “advertised” this “service of crowdfunding”—for example, they do not

12
cite messages stating, “if you donate money, we will raise money from other

people.” But to the extent all charitable, religious, and political fundraising implicitly

seeks donations from multiple individuals, it defies logic to suggest that donors

donate to nonprofits “for the principal purpose” of having other people also donate.

Vinson & Elkins v. Moran, 946 S.W.2d 381, 408 (Tex. App.—Houston [14th Dist.]

1997, writ dism’d by. agr.).

Collecting donations from other individuals is not offered by nonprofit

organizations as consideration to donors “in exchange for” for their donations.

Ellebracht v. Ellebracht, 735 S.W.2d 658, 659 (Tex. App.—Austin 1987, no writ)

(distinguishing between a gift and a sale). For example, if Relators collected a

donation from Donor A, Donor A could not sue Relators for breach of contract for

failing to also collect donations from other donors. The donor obtained no legal right

from Relators in exchange for their donation, nor did Relators give up a legal right

which they otherwise might have exercised. Any donations were purely gratuitous:

“Your contribution will benefit [PxP].” MR.0203.

Ironically, the Legislature addressed “crowdfunding” this year by creating a

tort action for “fraudulent crowdfunding,” which is defined as “collecting donations

on behalf of a donee with the intent to keep the donations instead of giving the

donations to the donee.” Tex. H.B. 4281, 89th Leg., R.S. (2025). The phrases

“collecting donations,” “giving,” and “donee” are all conspicuously absent from the

13
DTPA, nor does the legislative history suggest the DTPA already applied to this

activity.

Even more to the point, the Legislature just passed a law to regulate the

activity the State seeks to punish under the DTPA. H.B. 18 would prohibit political

committees from, inter alia, “mak[ing] a political expenditure for travel, food, or

lodging expenses in connection with” a legislator’s absence. Tex. H.B. 18, 98th Leg.,

2nd C.S. (bill sent to the Governor’s desk on Sept 5). The legislative history makes

no mention of the DTPA.

The State briefly suggests that Relators distributed goods by “paying the

personal expenses of unexcused Texas legislators.” Resp. at 23. It bears repeating

that the only competent evidence is a sworn statement that “no transfers of funds, or

provision of other benefits, have been made by [PxP] to any Texas Democratic

lawmaker.” MR.0051. But proceeding arguendo, the State’s position fails because

courts look at the parties’ relationship to the transaction that forms the basis of the

DTPA complaint itself. See, e.g., Lukasik v. San Antonio Blue Haven Pools, Inc., 21

S.W.3d 394, 403 (Tex. App.—San Antonio 2000, no pet.) (denying DTPA claim to

purchaser of a pool where basis of complaint was a pool alarm purchased by pool

installer, not by pool purchaser); Ford v. City State Bank of Palacios, 44 S.W.3d

121, 135 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.) (denying DTPA

claim where the basis of the complaint was a loan, rather than the transaction for

14
goods purchased by the loan proceeds); Rosell v. Farmers Tex. Cnty. Mut. Ins. Co.,

642 S.W.2d 278, 279 (Tex. App.—Texarkana 1982, no writ) (“post-sale conduct of

an insurer is not conduct occurring in connection with the purchase of goods or

services.”). Here, the basis of the complaint—the supposed injury to “Texas

consumers,” MR.0002—is the donation, not the expenditure. Secondarily, “money

is considered neither a good nor a service.” Fix v. Flagstar Bank, FSB, 242 S.W.3d

147, 160 (Tex. App.—Fort Worth 2007, pet. denied). Nor, even if they had occurred,

would donations to legislators constitute commercial transactions—the legality of

“political contributions” and “gifts” is regulated by the Election and Penal Codes.

Finally, the State’s interpretation of the DTPA would lead to absurd results

and constitutional conflicts. Under its reading, a politician’s fundraising email

(providing the “service of crowdsourcing political donations”) touting their support

for a particular policy could violate the DTPA if their policy position later changes.

Failing to limit the DTPA to commercial transactions would raise serious

constitutional concerns by restricting core protected speech. See, e.g., Riley v. Nat’l

Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781, 794–96 (1988); Vill. of

Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 620–21, (1980).

ii. Legislative history and structure of Texas statutes

As this Court noted, despite the DTPA’s fifty-two year history, “the State fails

to cite a single case in which the DTPA has been interpreted to apply to political

15
solicitations or political speech in the DTPA’s half century of existence, despite the

raucous nature of Texas’s political climate over the spanning decades.” Order at 14-

15. This is no coincidence, the “DTPA’s primary goal was to protect consumers by

encouraging them to bring consumer complaints.” PPG Indus., Inc. v. JMB/Houston

Centers Partners, Ltd. P’ship, 146 S.W.3d 79, 84 (Tex. 2004) (Brister, J.); Woods

v. Littleton, 554 S.W.2d 662, 669 (Tex. 1977) (“[T]he legislative intent [was] to

encourage aggrieved consumers to seek redress and to deter unscrupulous sellers

who engage in deceptive trade practices.”). Given that political fundraising is not

among the 34 examples of deceptive acts and practices listed in the DTPA,

legislative intent is essential to ascertain whether the legislation meant to expand the

law beyond its plain text. TEX. BUS. & COM. CODE § 17.46; see PPG Indus., Inc.,

146 S.W.3d at 84 (“A statute’s silence can be significant.”).

In determining legislative intent, a court may consider several factors,

including “legislative history” and “laws on the same or similar subjects.” Helena

Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). Here, the Bill’s author,

Representative Joe Longley, expressly rejected the premise that political solicitation

is covered by the DTPA when asked if the statute “would apply to political

advertising.” SB 75 Legislative History, supra, at 20 (“nothing applies to political

advertising”). The Chairman of the Subcommittee on Consumer Affairs and Texas

Senator, Ron Clower, supported Longley’s assertion. Id.

16
When “construing the DTPA,” the “primary emphasis is on the intention of

the legislature.” Pennington v. Singleton, 606 S.W.2d 682, 686 (Tex. 1980). The

DTPA “shall be liberally construed and applied to promote its underlying purposes,

which are to protect consumers against false, misleading, and deceptive business

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

Supp. 689, 697 (W.D. Tex. 1992), rev’d on other grounds, 986 F.2d 962 (5th Cir.

1993) (quoting TEX. BUS. & COM. CODE § 17.44) (emphasis in original). As much

as Paxton attempts to contort the language of the DTPA to meet his political goals,

this intent is inescapable.

Further, the Legislature has demonstrated that it knows how to regulate both

for-profit and nonprofit fundraising when it wants to. For example, the Texas Law

Enforcement Telephone Solicitation Act (“TETSA”) prohibited an “unfair or

deceptive act or practice in the conduct of solicitations for a charitable organization.”

Tex. S.B. 1581, 75th Leg., R.S. (1997). Again, charitable, religious, or political

fundraising is found nowhere among the DTPA’s enumerated deceptive acts and

practices. TEX. BUS. & COM. CODE § 17.46. The Legislature later limited the scope

of TETSA by amending § 13(a), so it applied only to “making a telephone

solicitation for a law enforcement-related charitable organization.” Tex. S.B. 140,

89th Leg., R.S., Ch. 964 (Tex. 2025); see Texas State Troopers Ass’n, Inc. v.

17
Morales, 10 F. Supp. 2d at 632 (holding that portions of TETSA violated First

Amendment).

Similarly, the Legislature has an entire subchapter of code “regulating the

collection or solicitation by for-profit entities of certain public donations,” which

does not provide the same injunctive relief as the Attorney General can seek under

the DTPA, § 17.47. The Legislature’s use of “donations” in one section of code but

omission of “donation” in the DTPA indicates the Legislature did not intend for such

transactions to be covered. See Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 563

(Tex. 2016).

The Legislature has also proven itself capable of regulating political

fundraising. See generally, TEX. ELEC. CODE Title 15; H.B. 18, supra at 14. As this

Court noted, if Relators violated any laws, “such activities can be punished after the

fact by the remedies in the Texas Election or Penal Codes.” Order at 2. The

Legislature’s established statutory schemes do not permit the Attorney General to

turn a consumer protection statute into a weapon against his political opponent for

engaging in noncommercial political speech.

B. Caselaw supports the DTPA’s inapplicability to political activity.

Courts in other jurisdictions have considered analogous consumer protection

statutes and concluded that political activity is not covered because it involves no

“commercial goods” or “commercial services.” As one court wrote:

18
By way of clear distinction, the raising of funds for political purposes,
whether at the national or local level, involves neither commercial
goods nor commercial services. In essence, said activity involves the
promotion and marketing of concepts dealing primarily with societal
ideas . . . . It should be obvious that those who are solicited for political
contributions are not being approached in their commonly accepted
capacity as consumers.

Del Tufo v. Nat'l Republican Senatorial Comm., 591 A.2d 1040, 1042 (N.J. Super.

Ct. Ch. Div. 1991); see also Lutheran Ass’n of Missionaries & Pilots, Inc. v.

Lutheran Ass’n of Missionaries & Pilots, Inc., No. Civ.03-6173, 2004 WL 1212083,

at *4 (D. Minn. May 20, 2004) (“charitable donations are not the sale of services or

intangibles, and thus are not ‘merchandise’ under the Consumer Fraud Act”).

Similarly, in interpreting the federal Telephone Consumer Protection Act, courts

have noted that Congress distinguished between charitable or political solicitation

and commercial solicitation, and found that “‘solicitations by [tax-exempt charitable

and political] organizations were less of a problem than commercial calls.” Camunas

v. Nat’l Republican Senatorial Comm., 570 F. Supp. 3d 288, 299–300 (E.D. Pa.

2021) (quoting H.R. Rep. No. 102-317, at 13 (1991)) (alteration in original).

Congress thus made a “commercial speech’ distinction consistent with Supreme

Court precedent.” Id. This distinction is further confirmed by Texas courts

repeatedly emphasizing that the DTPA does not apply to “gratuitous acts,” where no

purchase of goods or services occurs. See, e.g., Longview Sav. & Loan Ass’n v.

19
Nabours, 673 S.W.2d 357, 362 (Tex. App.—Texarkana 1984), aff'd on other

grounds, 700 S.W.2d 901 (Tex. 1985).

The State points to Mother & Unborn Baby Care of North Texas, Inc. v. State,

749 S.W.2d 533 (Tex. App.—Fort Worth 1988, writ denied), to make the case that

the DTPA applies to services advertised but not distributed by a nonprofit. There,

the defendant “intentionally, deceptively utilized [advertising] to bait women into

believing they would receive services” for a fee. Id. at 542. Specifically, women

were promised concrete, identifiable medical services—pregnancy testing,

counseling and abortion—that they never received, some of which they intended to

pay for, and the defendant never intended to deliver. Id. The defendant’s conduct in

Mother & Unborn Baby fell squarely within the commercial conduct of offering a

“service,” as regulated by the DTPA. It bears no resemblance to Relators’ conduct

here.

C. An Attorney General DTPA action must be based on at least the
prospect of a consumer transaction.

Although § 17.47 does not require identifying actual individual aggrieved

consumers, the civil enforcement aspect of the DTPA nevertheless still exists in the

context of its overall purpose. Thus, in the over 50 years the DTPA has existed, no

court has ever held that the “consumer protection division,” TEX. BUS. & COM. CODE

§ 17.47(a) (emphasis added), can bring DTPA suits to enjoin or penalize acts that

could never even theoretically injure Texas consumers. The State certainly realizes

20
as much and has continuously attempted to portray Relator’s fundraising as affecting

consumers. See, e.g., Resp. at 17 (“Preventing false and misleading representations

that warp consumer financial decisions is plainly in the public interest . . . .”). “The

Legislature did not intend the DTPA for everybody. It limited DTPA complaints to

‘consumers,’ and excluded a number of parties and transactions from the DTPA….”

PPG Indus., 146 S.W.3d at 85 (citing Arthur Andersen & Co. v. Perry Equip. Corp.,

945 S.W.2d 812, 815 (Tex. 1997).

In fact, the Attorney General is powerless to bring this action without such an

injury, i.e., without any “consumers” within the statutory definition whose rights

will be protected. See generally, TEX. BUS. & COM. CODE §§ 17.41, et seq.; see also

Pennington, 606 S.W.2d 682; Mother, 749 S.W.2d 533, 537 (“no doubt that the

women concerned are “consumers” seeking to purchase a service upon which this

complaint is based”). The State is only authorized to bring actions within its limited

statutory grant of authority and if the injury alleged is entirely outside the scope of

the DTPA, then the State has no injury and, thus, no statutory or constitutional

standing. This is fatal because “Texas courts have consistently held that the Texas

AG is powerless to act in the absence of explicit statutory or constitutional

21
authorization.” See Texas v. Ysleta del Sur Pueblo, 79 F. Supp. 2d 708, 712 (W.D.

Tex. 1999); Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012).4

Ultimately, the State articulates neither the injury nor the injured. Paxton

instead asserts plenary authority to act on behalf of the public to address acts

disconnected from the statutory authority it wields. But the DTPA, on its face, is not

applicable to the injuries the State seeks to redress. And Relators, and this Court, are

left to grapple with vague assertions of statutory injury under a statute never intended

to curtail political advertising, donations, speech, or fundraising.

III. The Trial Court Abused its Discretion in Denying Relators’ Motion to
Transfer Venue.

A. Venue is mandatory in El Paso County.

“Mandamus relief is available to enforce mandatory venue provisions in civil

cases.” In re Sanofi-Aventis U.S., LLC, 711 S.W.3d 732, 735 (Tex. App—15th Dist.

2025). Here, venue is mandatory in El Paso County because the primary purpose of

the State’s suit is injunctive.

Although this Court preliminarily concluded that the trial court had subject
4

matter jurisdiction, Order at 12, Relators maintain that the unique nature of the
Attorney General’s statutory authority renders a typical standing analysis
incomplete; rather, where the State fails to articulate a cognizable claim under an
authorizing statute, it per se lacks any injury (as it has no independent interest outside
of enforcing the statute) and hence lacks standing.

22
The legislature created a mandatory venue provision for lawsuits primarily

seeking injunctive relief: such lawsuits “shall be tried in a district or county court in

the county in which the party is domiciled.” TEX. CIV. PRAC. & REM. CODE §

65.023(a) (emphasis added); accord TEX. CIV. PRAC. & REM. CODE § 15.016. The

State does not dispute that PxP has its principal place of business in El Paso; indeed,

the State first initiated legal proceedings in El Paso by serving a RTE on each of

PxP’s directors in El Paso. MR.0312-0337 at 6-9. Nor does the State dispute that

O’Rourke is domiciled in El Paso. The State itself alleges that the acts giving rise to

this lawsuit have occurred “across the state and the nation,” with (at most) de minimis

ties to Tarrant County. MR.0201. Instead, the State claims that its lawsuit is not

primarily injunctive in nature, so Section 65.023(a) does not apply and the DTPA’s

permissive venue provisions control. Resp. at 27.

But “in cases where the plaintiff alleges it has no adequate remedy at law and

hence is entitled to injunctive relief, the plaintiff has chosen the equitable relief as

his primary remedy and venue is controlled by the injunction statute.” In re Dole

Food Co., Inc., 256 S.W.3d 851, 854 (Tex. App.—Beaumont 2008). In determining

the true nature of a case, Texas courts look to the relief sought by the allegations and

prayer for relief. In re Cont’l Airlines, Inc., 988 S.W.2d 733, 736 (Tex. 1998) (listing

venue disputes where courts have relied upon prayer to determine nature of case); In

re City of Dallas, 977 S.W.2d 798, 804 (Tex. App.—Fort Worth 1998, orig.

23
proceeding) (“When those pleadings show that the issuance of a permanent

injunction is the primary and principal relief sought in the lawsuit, venue is

mandatory in the county of the defendant’s domicile.”).

The State’s own pleadings and actions demonstrate that the Attorney General

has chosen equitable relief as his primary remedy.5 The State effectively concedes

as much before this Court, stating that the “relief the State [has] always sought” is

injunctive in nature: “blocking the illegal use, raising, and offering of political

contributions raised through ActBlue and other political platforms.” Resp. at 42.

That was the State’s entire justification for seeking an emergency, ex parte restraint

on speech—it claimed Relators’ political activities threatened immediate injury and

after-the-fact fines were insufficient. Compare MR.0011-0012 with In re Dole Food

Co., Inc., 256 S.W.3d at 855 (“Rather than seeking to hold the parties to the status

quo until the issues in controversy are resolved, the plaintiff seeks substantial,

permanent restraints on the defendants’ speech and conduct.”).

When the State filed its petition, it maintained this precise framing, claiming

that injunctive relief is “necessary” to protect Texas consumers. MR.0002. The

5
The State cites no authority for a supposed split between “legal” and
“equitable” injunctions, much less for the proposition that statutory injunction
remedies override the plain language of the Code’s mandatory injunction venue
provision. Rather, “where the petition discloses that the issuance of a perpetual
injunction is the primary and principal relief sought, the special venue provisions . .
. control.” See Brown v. Gulf Television Company, 306 S.W.2d 706, 709 (Tex. 1957).

24
petition has an entire “injunctive relief” section, MR.0208-0211, and includes in its

prayer for relief three detailed categories of “temporary and permanent” restraint,

plus two additional pleas for “temporary injunctive relief,” MR.0211-0212. The

main substantive addition to the amended petition was to add “information in the

nature of quo warranto,” setting the stage to contemporaneously file a motion for

leave to file a quo warranto action seeking “to judicially forfeit Defendant [PxP]’s

charter, rights, and privileges.” MR.0207-0208.6 While the petition also seeks “civil

penalties” and attorneys’ fees, the petition provides no specific allegations to

quantify those penalties.

That the primary intent of this lawsuit is injunctive is buttressed by the

Attorney General’s public explanations of this matter, such as:

● “Attorney General Ken Paxton secured a major victory . . . by stopping
continued unlawful fundraising activity . . . .” 7

6
To the extent this truly is a “quo warranto lawsuit,” Resp. at 28, then it's even
clearer that proper venue lies in El Paso County. See TEX. CIV. PRAC. & REM. CODE
§ 66.002(a).
7
Press Release, Tex. Att’y Gen., Attorney General Ken Paxton Secures Major
Victory Stopping Runaway Democrats from Taking “Beto Bribes” and Preventing
Deceptive Fundraising (Aug. 8, 2025),
https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-
secures-major-victory-stopping-runaway-democrats-taking-beto-bribes-and.

25
● “Robert Francis flagrantly and knowingly violated the court order I secured
that prevents him from raising funds and distributing any more Beto Bribes. .
. . It’s time to lock him up.”8

● “Attorney General Ken Paxton has secured the extension of restraining orders
against Robert Francis O’Rourke and his organization, [PxP], which prevents
the distribution of financial payoffs to Texas Democrats who broke quorum.”9

In sum, “[t]he injunctive relief sought in this case is not clearly ancillary, incidental,

or adjunctive to” the State’s vague requests for an unspecified amount of fees and

fines. In re Dole Food Co., Inc., 256 S.W.3d at 855.

“[I]t is precisely in divisive, consequential cases when by-the-book

fastidiousness by courts is most vital, to blunt even the appearance of evasive corner-

cutting or politicized judging.” In re State, 489 S.W.3d 454, 456 (Tex. 2016) (Willet,

J., concurring in judgment). Here, the nation’s mid-decade redistricting debate,

which started in Texas, could hardly be more consequential—or divisive.

Respondent’s decision to elevate the DTPA’s permissive venue provisions over the

8
Press Release, Tex. Att’y Gen, Attorney General Ken Paxton Takes Action to
Hold Robert Francis O'Rourke in Contempt for Violating Court Order and
Scamming Texans (Aug. 12, 2025),
https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-
takes-action-hold-robert-francis-orourke-contempt-violating-court-order.
9
Press Release, Tex. Att’y Gen., Attorney General Ken Paxton Secures Extended
TROs Against Beto O’Rourke, Preventing Additional Financial Payoffs to Texas
Politicians (Sept. 4, 2025),
https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-
secures-extended-tros-against-beto-orourke-preventing-additional.

26
mandatory injunction venue statute (issued via a summary denial, MR.0396, with no

explanation) is an abuse of discretion.

B. Tarrant County Cannot be Considered a Proper Venue.

Even if the State is correct and venue is not mandatory in El Paso County,

Tarrant County cannot be considered a proper permissive venue. As explained

above, the State has not credibly pleaded that Relators have “done business” in

Tarrant County, or that any relevant “transaction[s] occurred” in Tarrant County, as

required by § 17.47(b). See State of Texas v. Life Partners, 243 S.W.3d 236, 240-41

(Tex. App.—Waco 2007). The Court may only take the State’s allegations as true

when “properly pleaded” and only if not “specifically denied by the adverse party.”

TEX. R. CIV. P. § 87(3)(a). As this Court has already explained, it is not “immediately

clear” what “‘goods’ or ‘services’ are at issue,” much less what, if any, DTPA-

regulated conduct took place in Tarrant County. Order at 16; see also id. at 22;

MR.0034-0035. Further, any bare-boned allegations that exist are specifically

rebutted by the affidavit evidence submitted by Relators. MR.0050-0052.10

10
The State is wrong that Relators’ inadvertent omission of the August 14, 2025
hearing transcript from the initial Mandamus record forecloses the Court’s
consideration of venue issues. Relators’ original Mandamus record (which has now
been supplemented) in fact includes “a sufficient record to establish their right to
mandamus relief.” Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).

27
IV. The Trial Court Abused Its Discretion in Failing to Grant Reciprocal
Discovery.

Respondent abused its discretion in failing to grant Relators’ any reciprocal

discovery. Texas law and fundamental fairness dictate that Relators were entitled to

discovery prior to the temporary injunction hearing, especially when the trial court

allowed the State to obtain substantially similar discovery from Relators on a similar

timeline. The trial court’s failure to grant the discovery request was an abuse of

discretion and not remedial upon appeal.

At the then-set September 2 temporary injunction hearing, the State was

required to prove that there was “reason to believe” (a) that the DTPA is being or

has been violated; and (b) that a temporary injunction would be in the public interest.

See TEX. BUS. & COM. CODE § 17.47(a). All of Relators’ expedited discovery

requests went to the heart of the temporary injunction elements. See State SR.258-

264 (seeking: (1) documents from actual people complaining about allegedly

deceptive practices; (2) the political advertisement/solicitations the State claimed

violate the DTPA; (3) any communications with third parties outside of the State

about the lawsuit before it was filed; (4) documents that support the State’s claim

that PxP conspired to aid and abet Texas Democrats; (5) documents identifying

anything any donor received in exchange for a donation to PxP; (6) documents that

support the State’s contention that funds were used for “lavish personal expenses”;

and (7) documents that show PxP made offers to Democratic house members and

28
reliance on those offers). “[A] denial of discovery going to the heart of a party’s case

may render the appellate remedy inadequate.” Walker, 827 S.W.2d at 843-844. Such

is the case here where the trial court allowed discovery by the State to proceed prior

to the temporary injunction hearing but refused substantially similar, reciprocal,

discovery for Relators. The State’s counter-arguments are without merit.

Relators’ discovery request was not “eleventh-hour.” Rather, the motion was

filed at the same cadence of other filings in this fast-paced litigation. There is no

question that this case proceeded at a breakneck pace at the trial court. But the State

would have this Court believe their own requests for discovery were sought on a

much longer timeline than Relators. Not so. The series of events related to discovery

proceeded as follows:

● Tuesday, August 12 - The State filed an opposed motion for expedited
discovery, including requesting depositions of Relators and a plethora of
documents, to be completed within 7 days, before the then-set August 19 TRO
hearing. MR.0162-0167.

● Thursday, August 14 - A hearing was held on a number of motions, including
the State’s motion for expedited discovery. MR.0398-401. Respondent moved
the temporary injunction hearing from August 19 to September 2. MR.0391-
0395.

● Monday, August 18 - Respondent granted the State’s request for expedited
discovery, ordering discovery to conclude within 11 days, on August 29.
MR.0398-401.

● Wednesday, August 20 - Relators filed their emergency motion for reciprocal
discovery, asking Respondent to grant the motion outright or, in the
alternative, set the motion for hearing. State SR.258-264. The motion was
filed one day shy of two weeks before the temporary injunction hearing, only

29
two days after Respondent granted the State’s discovery motion. Relators
requested discovery be completed within 9 days, by August 29. State SR.258-
264.

● Monday, August 25 - A hearing was held on Relators’ motion for expedited
reciprocal discovery. MR.0975-0986. Respondent denied the motion outright
at the conclusion of the hearing. MR.0981.

The discovery sought did not, as the State claims, focus on “potential criminal

investigations” or “mental impressions and legal reasoning of the State’s attorneys.”

Resp. at 32-33. Rather, Relators sought documents and a limited deposition, all of

which go to the “heart of [Relator’s] case.” Walker, 827 S.W.2d at 843. Of course,

the rules related to privileges and work product doctrines still apply and such was

acknowledged in Relators’ motion. MR.0918.

The one case the State cites for the notion that Relators’ requests were

improper is Hobson v. Moore, 734 S.W.2d 340 (Tex. 1987), which is inapplicable

here. In Hobson, at the trial court, the plaintiffs brought a lawsuit against law

enforcement officers for an investigation they were conducting. The Supreme Court

denied mandamus because those officers did not timely object or raise a privilege to

civil discovery requests at the trial level. Nothing in the Hobson case suggests

Relators’ discovery requests were improper.

V. The Trial Court Abused its Discretion in Granting an Anti-Suit TRO.

The State has acted in bad faith on multiple occasions during the short

pendency of this litigation. It does so again here, claiming “to date, the Tarrant

30
County district court has issued substantive rulings on venue, jurisdiction, and other

matters—only to have the El Paso court enjoin those rulings piece by piece” and

alleging “constant interjection of the El Paso court into the Tarrant County court’s

proceedings.” Resp. at 47 (emphasis added). To the contrary, when the El Paso Court

issued its TRO, the Tarrant County Court had not ruled on proper venue for quo

warranto, jurisdiction for a potential quo warranto case, or even granted the State

leave to file its quo warranto petition. Relators requested their El Paso TRO before

the State set a hearing or obtained a ruling granting it leave to file its quo warranto

claim in Tarrant County. Indeed, there is still no order granting leave to pursue quo

warranto in Tarrant County. For its part, the State participated in two hearings, filed

and argued a plea in abatement, and filed an appeal in the El Paso case before seeking

an Antisuit TRO. MR.0533-0549, 0706, 0718-0723. The State has simply failed to

demonstrate an “irreparable miscarriage of justice.” Golden Rule Ins. Co. v. Harper,

925 S.W.2d 649, 652 (Tex. 1996); MR.0866-0867. Rather, a mandatory venue

statute applies, TEX. CIV. PRAC. & REM. CODE § 15.012, and the state has an adequate

remedy by appealing a plea in abatement. See, e.g., Atkinson v. Arnold, 893 S.W.2d

294, 298 (Tex. App.—Texarkana 1995, no writ). This Court should grant mandamus

as to the Antisuit TRO and deal with any matters related to the El Paso litigation in

proper course as part of that litigation.

31
CONCLUSION
For the foregoing reasons, Relators respectfully request this Court grant the

Petition.

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

COUNSEL FOR RELATORS

32
CERTIFICATE IN ACCORDANCE WITH TEX. R. APP. P. 52.3(J)
By signature below, the undersigned counsel certifies that she has reviewed

the response and concluded that competent evidence (included in the appendix or

record) supports every factual statement in the response.

/s/ Mimi Marziani
Mimi Marziani

CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Texas Rule of

Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface

no smaller than 14-point for text and 12-point for footnotes. This document also

complies with the word-count limitations of Rule 9.4(i), if applicable, because it

contains 7,477 words, excluding any parts exempted by Rule 9.4(i)(1).

/s/ Mimi Marziani
Mimi Marziani

33
CERTIFICATE OF SERVICE
Pursuant to the Texas Rule of Appellate Procedure, I certify that a true copy

of foregoing has on September 16, 2025 been sent via e-mail to the respondent, and

by and through their counsel of record to the real party in interest 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
Abigail E. Smith
Assistant Attorney General
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
Abby.Smith@oag.texas.gov

/s/ Mimi Marziani
Mimi Marziani

34
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: 105670280
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: Relator's Reply in Support of Petition for Writ of
Mandamus
Status as of 9/17/2025 7:02 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Sean McCaffity 24013122 smccaffity@textrial.com 9/16/2025 7:22:41 PM SENT

Robert Farquharson 24100550 rob.farquharson@oag.texas.gov 9/16/2025 7:22:41 PM SENT

Maria Williamson maria.williamson@oag.texas.gov 9/16/2025 7:22:41 PM SENT

William FCole William.Cole@oag.texas.gov 9/16/2025 7:22:41 PM SENT

Mimi Marziani mmarziani@msgpllc.com 9/16/2025 7:22:41 PM SENT

Joaquin Gonzalez jgonzalez@msgpllc.com 9/16/2025 7:22:41 PM SENT

Pauline Sisson pauline.sisson@oag.texas.gov 9/16/2025 7:22:41 PM SENT

Rebecca Stevens bstevens@msgpllc.com 9/16/2025 7:22:41 PM SENT

Emily Samuels emily.samuels@oag.texas.gov 9/16/2025 7:22:41 PM SENT

Brian Falligant` bfalligant@inquestresources.com 9/16/2025 7:22:41 PM SENT

William Peterson william.peterson@oag.texas.gov 9/16/2025 7:22:41 PM SENT

Rebecca Neumann rneumann@textrial.com 9/16/2025 7:22:41 PM SENT

Nancy Bentley ndbentley@tarrantcountytx.gov 9/16/2025 7:22:41 PM SENT

Lisa Adams LAAdams@tarrantcountytx.gov 9/16/2025 7:22:41 PM SENT

Associated Case Party: State of Texas

Name BarNumber Email TimestampSubmitted Status

William Cole 24124187 William.Cole@oag.texas.gov 9/16/2025 7:22:41 PM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 9/16/2025 7:22:41 PM SENT

Johnathan Stone johnathan.stone@oag.texas.gov 9/16/2025 7:22:41 PM SENT

Justin Sassaman justin.sassaman@oag.texas.gov 9/16/2025 7:22:41 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: 105670280
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: Relator's Reply in Support of Petition for Writ of
Mandamus
Status as of 9/17/2025 7:02 AM CST

Associated Case Party: State of Texas

Justin Sassaman justin.sassaman@oag.texas.gov 9/16/2025 7:22:41 PM SENT

William Peterson William.Peterson@oag.texas.gov 9/16/2025 7:22:41 PM SENT

Abby Smith abby.smith@oag.texas.gov 9/16/2025 7:22:41 PM SENT