ACCEPTED 15-25-00140-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 8/25/2025 5:42 PM NO. __________________ CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE FIFTEENTH DISTRICT 8/25/2025 5:42:52 PM 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
MOTION FOR EMERGENCY RELIEF
TO THE HONORABLE FIFTEENTH COURT OF APPEALS:
Pursuant to Texas Rule of Appellate Procedure 52.10, Powered by the
People and Robert Francis O’Rourke, Relators, file this Motion for Emergency
Relief to accompany their Petition for Writ of Mandamus, and in support of
this motion would show the court as follows.
1. Relators’ Petition for Writ of Mandamus is being filed
concurrently seeking appellate review of the trial court’s orders granting and
modifying the Temporary Restraining Order (“TRO”) that is an
Motion for Emergency Relief Page 1 unconstitutional prior restraint on constitutionally protected speech, when
the trial court lacked subject matter jurisdiction and proper venue to do so.
Specifically, on August 8, 2025, the Attorney General filed an injunction
lawsuit in Tarrant County asserting to restrain and enjoin Relators’
constitutionally protected political speech. The trial court does not have
subject matter jurisdiction over this suit because the State of Texas has no
standing to bring the claims it pleads against Relators. Moreover, venue is
mandatory in a different county.
2. Since it is the trial court’s orders granting and amending the TRO
that are at issue in the Petition for Writ of Mandamus, it is necessary to
suspend the TRO ordered by the trial court and stay the underlying
proceedings pending this Court’s ruling. See In re Bates, 429 S.W.3d 47, 53
(Tex. App.—Houston [1st Dist.], 2014, no pet.) (“A stay of the underlying
proceedings prevents the parties and the respondent trial court from taking
action in the case until they receive further orders from the appellate court.”)
3. Suspending the TRO and amended TRO in the underlying case is
also necessary to maintain the status quo, to prevent further cost and time
over discovery matters before the trial court that are being pursued in
anticipation of the temporary injunction when the court lacks subject matter
Motion for Emergency Relief Page 2 jurisdiction and venue is not proper, and to avoid Relators’ loss of substantive
and procedural rights. The Respondent has ordered expedited discovery that
creates unnecessary burden and expense for a matter in which no jurisdiction
exists. See City of Anson v. Harper, 216 S.W.3d 384, 390 (Tex. App.–Eastland
2006, no pet.) (“If the trial court does not have jurisdiction to enter a
judgment, it does not have jurisdiction to allow plaintiffs to conduct
discovery.”).
4. The existence of the TRO is actively chilling protected free speech
of both the Relators as well as disrupting and preventing the free political
speech of Texas donors. Because the purpose of the State’s suit is primarily to
restrain conduct and embarrass a potential political opponent, the Attorney
General’s improper weaponization of the DTPA must be halted until this
Court makes a threshold determination of whether the statute can be used in
the absurd manner the State currently contends. Failure to stay the
underlying proceedings and the existing TRO will cause substantial
irreparable harm to the Relators and do untold damage to Texas’s
constitutional order. As the Supreme Court of Texas noted nearly fifty years
ago, “‘…any delay in the exercise of First Amendment rights constitutes an
irreparable injury to those seeking such exercise.’” See Iranian Muslim Org. v.
Motion for Emergency Relief Page 3 City of San Antonio, 615 S.W.2d 202, 208 (quoting Southwestern Newspapers
Corp. v. Curtis, 584 S.W.2d 362, 365 (Tex.Civ.App. Amarillo 1979, no writ)).
5. The State is actively pursuing a motion for contempt against
Relators, including requesting that Relator O’Rourke be jailed, for alleged
violations of the TRO. The Court has set that motion for a hearing on
September 2, at the same time as the hearing on the State’s temporary
injunction. The fundamental flaws with the TRO, including the Court’s lack
of jurisdiction, improper venue, and violations of Relator’s constitutional
rights, are exacerbated by the State’s efforts to proceed with a contempt
motion.
5. The Court must at least preliminarily examine “the likely merits
of the parties’ legal positions” as well as examine the injury that “will befall
the either party depending on the court’s decision.” In re State, 711 S.W.3d
641, 645 (Tex. 2024). Evaluating these two considerations it is clear that
temporary relief should issue and the underlying case and the Respondent’s
modified TRO should be stayed.
6. One, the Attorney General asserts a claim that is not cognizable
under the DTPA and he has provided no evidentiary basis to even argue that
the transactions it challenges in his suit qualify as consumer transactions in
Motion for Emergency Relief Page 4 goods and services. Because there is no basis to assert an emergency
injunction suit against the Relators under the DTPA, the Relators are likely to
succeed on their jurisdictional challenge. Relators incorporate by reference
the arguments set forth in the contemporaneously filed Original Petition for
Writ of Mandamus.
7. Two, the balance of harms if the Court does not issue a temporary
stay pending appeal weighs disproportionately on the constitutional speech
and associational rights of the Relators. The existence of the TRO and the
abuse of the DTPA is an active chilling of free speech, expression, and
association under the Texas Constitution. Both Relators and the public writ
large are having their opportunity to express political speech stifled because
of the Attorney General’s egregious actions. Staying the underlying
proceedings and TRO ensures those constitutional free speech rights are
preserved and not trampled. On the other hand, the State suffers no harm if
the Court stays the proceedings. 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 TRO, the State’s primary purpose of
bringing suit in Tarrant County was to enjoin political speech and disrupt a
political rally that has already occurred. The political basis for the State’s
Motion for Emergency Relief Page 5 argument – that Texas legislators were out of state, preventing the legislature
from proceeding with a quorum – is no longer at issue as a quorum exists and
the legislature is moving forward with legislation. There is no longer any
emergency justifying a TRO and the undisputed factual record before the trial
court is that no improper or deceptive solicitations were even made and that
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ACCEPTED 15-25-00140-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 8/25/2025 5:42 PM NO. __________________ CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE FIFTEENTH DISTRICT 8/25/2025 5:42:52 PM 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
MOTION FOR EMERGENCY RELIEF
TO THE HONORABLE FIFTEENTH COURT OF APPEALS:
Pursuant to Texas Rule of Appellate Procedure 52.10, Powered by the
People and Robert Francis O’Rourke, Relators, file this Motion for Emergency
Relief to accompany their Petition for Writ of Mandamus, and in support of
this motion would show the court as follows.
1. Relators’ Petition for Writ of Mandamus is being filed
concurrently seeking appellate review of the trial court’s orders granting and
modifying the Temporary Restraining Order (“TRO”) that is an
Motion for Emergency Relief Page 1 unconstitutional prior restraint on constitutionally protected speech, when
the trial court lacked subject matter jurisdiction and proper venue to do so.
Specifically, on August 8, 2025, the Attorney General filed an injunction
lawsuit in Tarrant County asserting to restrain and enjoin Relators’
constitutionally protected political speech. The trial court does not have
subject matter jurisdiction over this suit because the State of Texas has no
standing to bring the claims it pleads against Relators. Moreover, venue is
mandatory in a different county.
2. Since it is the trial court’s orders granting and amending the TRO
that are at issue in the Petition for Writ of Mandamus, it is necessary to
suspend the TRO ordered by the trial court and stay the underlying
proceedings pending this Court’s ruling. See In re Bates, 429 S.W.3d 47, 53
(Tex. App.—Houston [1st Dist.], 2014, no pet.) (“A stay of the underlying
proceedings prevents the parties and the respondent trial court from taking
action in the case until they receive further orders from the appellate court.”)
3. Suspending the TRO and amended TRO in the underlying case is
also necessary to maintain the status quo, to prevent further cost and time
over discovery matters before the trial court that are being pursued in
anticipation of the temporary injunction when the court lacks subject matter
Motion for Emergency Relief Page 2 jurisdiction and venue is not proper, and to avoid Relators’ loss of substantive
and procedural rights. The Respondent has ordered expedited discovery that
creates unnecessary burden and expense for a matter in which no jurisdiction
exists. See City of Anson v. Harper, 216 S.W.3d 384, 390 (Tex. App.–Eastland
2006, no pet.) (“If the trial court does not have jurisdiction to enter a
judgment, it does not have jurisdiction to allow plaintiffs to conduct
discovery.”).
4. The existence of the TRO is actively chilling protected free speech
of both the Relators as well as disrupting and preventing the free political
speech of Texas donors. Because the purpose of the State’s suit is primarily to
restrain conduct and embarrass a potential political opponent, the Attorney
General’s improper weaponization of the DTPA must be halted until this
Court makes a threshold determination of whether the statute can be used in
the absurd manner the State currently contends. Failure to stay the
underlying proceedings and the existing TRO will cause substantial
irreparable harm to the Relators and do untold damage to Texas’s
constitutional order. As the Supreme Court of Texas noted nearly fifty years
ago, “‘…any delay in the exercise of First Amendment rights constitutes an
irreparable injury to those seeking such exercise.’” See Iranian Muslim Org. v.
Motion for Emergency Relief Page 3 City of San Antonio, 615 S.W.2d 202, 208 (quoting Southwestern Newspapers
Corp. v. Curtis, 584 S.W.2d 362, 365 (Tex.Civ.App. Amarillo 1979, no writ)).
5. The State is actively pursuing a motion for contempt against
Relators, including requesting that Relator O’Rourke be jailed, for alleged
violations of the TRO. The Court has set that motion for a hearing on
September 2, at the same time as the hearing on the State’s temporary
injunction. The fundamental flaws with the TRO, including the Court’s lack
of jurisdiction, improper venue, and violations of Relator’s constitutional
rights, are exacerbated by the State’s efforts to proceed with a contempt
motion.
5. The Court must at least preliminarily examine “the likely merits
of the parties’ legal positions” as well as examine the injury that “will befall
the either party depending on the court’s decision.” In re State, 711 S.W.3d
641, 645 (Tex. 2024). Evaluating these two considerations it is clear that
temporary relief should issue and the underlying case and the Respondent’s
modified TRO should be stayed.
6. One, the Attorney General asserts a claim that is not cognizable
under the DTPA and he has provided no evidentiary basis to even argue that
the transactions it challenges in his suit qualify as consumer transactions in
Motion for Emergency Relief Page 4 goods and services. Because there is no basis to assert an emergency
injunction suit against the Relators under the DTPA, the Relators are likely to
succeed on their jurisdictional challenge. Relators incorporate by reference
the arguments set forth in the contemporaneously filed Original Petition for
Writ of Mandamus.
7. Two, the balance of harms if the Court does not issue a temporary
stay pending appeal weighs disproportionately on the constitutional speech
and associational rights of the Relators. The existence of the TRO and the
abuse of the DTPA is an active chilling of free speech, expression, and
association under the Texas Constitution. Both Relators and the public writ
large are having their opportunity to express political speech stifled because
of the Attorney General’s egregious actions. Staying the underlying
proceedings and TRO ensures those constitutional free speech rights are
preserved and not trampled. On the other hand, the State suffers no harm if
the Court stays the proceedings. 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 TRO, the State’s primary purpose of
bringing suit in Tarrant County was to enjoin political speech and disrupt a
political rally that has already occurred. The political basis for the State’s
Motion for Emergency Relief Page 5 argument – that Texas legislators were out of state, preventing the legislature
from proceeding with a quorum – is no longer at issue as a quorum exists and
the legislature is moving forward with legislation. There is no longer any
emergency justifying a TRO and the undisputed factual record before the trial
court is that no improper or deceptive solicitations were even made and that
no transactions involving “goods” or “services” ever occurred. In this
situation, the balance of equities weighs heavily in favor of protecting the
First Amendment and stopping an encroaching government abuse.
8. This morning, the Respondent compounded its errors by
continuing to ignore its lack of subject matter jurisdiction to hear this case
and also entered two more orders constituting an abuse of discretion, which
if not immediately stayed will irreparably harm and damage Relators.
9. On August 25, 2025, the Court denied Relators any and all
expedited discovery before the temporary injunction hearing, despite
granting burdensome expedited discovery to the State of Texas, which will
require the Relators to sit for depositions, currently noticed for August 28,
2025, as well as produce voluminous documents in defense of a claim that
lacks merit and the State refuses to provide the factual basis for its claims.
The failure to grant any discovery on the claims the State seeks and to enable
Motion for Emergency Relief Page 6 the Relators to prepare for the temporary injunction hearing, while
simultaneously granting the State every discovery request it seeks, ignores
fundamental fairness and due process concerns.
10. Moreover, on August 25, 2025, the Court entered another TRO,
which decided an issue that was not before the Court and expanded the scope
of the September 2, 2025 temporary injunction beyond the original
applications for TRO and the Court’s initial modified TRO. On August 11,
2025, Relator Powered by People sought injunctive relief against the Attorney
General Paxton, to prevent him from filing an information in the nature of
quo warranto against Powered by People without leave of an El Paso Court.
On August 12, 2025, the State filed a Motion for Leave to File Information in
Nature of Quo Warranto to attempt and append a quo warranto proceeding
to this ongoing DTPA proceeding. The State’s Motion for Leave, however,
was never set for hearing and never ruled upon. On August 15, 2025, the
Court modified its initial TRO but did not grant the State leave to file its quo
warranto action. Further, the TRO did not address or include quo warranto
proceedings. On August 19, 2025, after holding two hearings four days apart,
and with an intervening hearing in Tarrant County, the 41st District Court of
El Paso granted Powered by People’s request, finding that Ken Paxton had
Motion for Emergency Relief Page 7 likely violated its constitutional rights and sought to retaliate against it for
exercising those rights.
11. For the first time today, the State asserted it intended to pursue a
quo warranto proceeding in its temporary injunction hearing on September
2, 2025, even though no authorized pleading support such relief, it was not
included in the Court’s original or modified TRO, and the State never set for
hearing or received an order from the Court granting leave to file the claim
as required by statute. Despite receiving no notice of hearing on the motion
for leave to file a quo warranto proceeding, the Respondent, realizing that the
order setting temporary injunction for September 2, 2025, did not include the
quo warranto claim abruptly entered a new TRO that both restrained Relators
from pursuing relief in a currently pending proceeding in El Paso (where pre-
existing relief precludes the Attorney General from taking the actions he is
seeking to take) and suddenly determined that quo warranto venue was
appropriate in Tarrant County (it is not). MR.0978. This new TRO
compounds Respondent’s errors and severely prejudices Relators.
12. One, the State has now successfully deprived Relators from any
discovery on its claim to prepare a defense and morphed the original
temporary injunction proceeding into something that no TRO hearing was
Motion for Emergency Relief Page 8 ever held on. The mistake is made worse by the fact that there are only seven
days before the temporary injunction hearing.
13. Two, the anti-suit injunction portion of the August 25, 2025 TRO
also denies Relators fundamental due process and infringes on the direct
jurisdiction of both the El Paso Court and this Court because read plainly it
would preclude the Relators from even responding to the State’s own
interlocutory appeal of the El Paso proceeding because doing so would be
pursuing the prosecution of the existing El Paso suit seeking to stop improper
quo warranto proceedings from being raised in an improper county. The anti-
suit injunction TRO entered on August 25, 2025 reads, in pertinent part:
Temporary Restraining Order, immediately restraining Defendants, their officers, agents, servants, employees, and attorneys, and those persons or entities in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, from the following: Initiating, filing, or prosecuting any suit, claim, or proceeding that seeks to restrain or enjoin the State from initiating, filing, or prosecuting the quo warranto claims alleged by the State in this proceeding.
14. The order effectively handcuffs the Relators, and their attorneys,
from pursuing a response to the State’s appeal in this Court and proceeding
in El Paso to vindicate their constitutional rights of free speech. This cannot
be permitted to stand.
Motion for Emergency Relief Page 9 15. For these reasons, Relators respectfully request that this court
grant temporary relief by issuing an order staying the TRO, amended TRO,
and the 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. “An appellate court asked to decide whether to stay a lower
court's ruling pending appeal or to stay a party's actions while an appeal
proceeds should seek “to preserve the parties’ rights until disposition of the
appeal.” In re State, 711 S.W.3d 641, 645 (Tex. 2024) (exercising equitable
authority to under Rule 52.10 to preserve the parties’ rights and prevent
potential unconstitutional actions from occurring during pendency of
appeal).
Respectfully submitted,
____/s/ Joaquin Gonzalez
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
Motion for Emergency Relief Page 10 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
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
Motion for Emergency Relief Page 11 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
Motion for Emergency Relief Page 12 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: 104826226 Filing Code Description: Original Proceeding Petition Filing Description: Petition for Writ of Mandamus Status as of 8/25/2025 7:24 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Brian Falligant` bfalligant@inquestresources.com 8/25/2025 5:42:52 PM SENT
Joaquin Gonzalez jgonzalez@msgpllc.com 8/25/2025 5:42:52 PM SENT
Mimi Marziani mmarziani@msgpllc.com 8/25/2025 5:42:52 PM SENT
Rebecca Stevens bstevens@msgpllc.com 8/25/2025 5:42:52 PM SENT
Sean McCaffity 24013122 smccaffity@textrial.com 8/25/2025 5:42:52 PM SENT
Rebecca Neumann rneumann@textrial.com 8/25/2025 5:42:52 PM SENT
Robert Farquharson 24100550 rob.farquharson@oag.texas.gov 8/25/2025 5:42:52 PM SENT