King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs v. Texas Democratic Party Gilberto Hinojosa, Successor to Boyd Richie, in His Capacity as Chairman of the Texas Democratic Party And John Warren, in His Capacity as Democratic Nominee for Dallas County Clerk

• Court: Court of Appeals of Texas
• Decided: October 8, 2014
• Docket: 03-12-00255-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00255-CV

King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs, Appellants

v.

Texas Democratic Party; Gilberto Hinojosa, Successor to Boyd Richie, in His Capacity as Chairman of the Texas Democratic Party; John Warren, in His Capacity as Democratic Nominee for Dallas County Clerk; and Ann Bennett, in her Capacity as the Democratic Nominee for Harris County Clerk, 55th Judicial District, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. D-1-GN-11-002363, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

OPINION

This appeal is limited to facial challenges to the constitutionality of various Election

Code provisions. See Tex. Elec. Code §§ 251.001, 253.003, 253.031, 253.037, 253.091, 253.094,

253.095, 253.101, 253.102, 253.103, 253.104, 253.131, 253.132, 273.081; Act of June 19, 1987,

70th Leg., R.S., ch. 899, § 1, 1987 Tex. Gen. Laws 2995, 3009 (former sections 253.062 and

253.097, repealed 2011). “A party seeking to invalidate a statute ‘on its face’ bears a heavy burden

of showing that the statute is unconstitutional in all of its applications.” Combs v. STP Nuclear

Operating Co., 239 S.W.3d 264, 272 (Tex. App.—Austin 2007, pet. denied); see id. (comparing

facial and as-applied constitutional challenges). Facing cross-motions for summary judgment, the trial court ruled against appellants

King Street Patriots (KSP), Catherine Engelbrecht, Bryan Engelbrecht, and Diane Josephs, the

parties facially challenging the constitutionality of the Election Code provisions. The trial court

concluded that it did not have jurisdiction to consider some of appellants’ constitutional challenges

and, as to the remaining challenges, the trial court upheld the constitutionality of the Election Code

provisions at issue. For the reasons that follow, we affirm the trial court’s judgment.1

BACKGROUND

The Texas Democratic Party, Boyd Richie,2 in his capacity as Chairman of the Texas

Democratic Party, John Warren, in his capacity as Democratic nominee for Dallas County Clerk, and

Ann Bennett, in her capacity as the Democratic nominee for Harris County Clerk, 55th Judicial

District (collectively “TDP”), brought suit against appellants seeking damages and injunctive relief

based upon alleged Election Code violations. See Tex. Elec. Code §§ 253.131, 253.132, 273.081.

Their allegations included that KSP made unlawful political contributions to the Texas Republican

Party and its candidates (collectively “TRP”) with regard to the 2010 general election by training poll

1 To the extent appellants assert as-applied constitutional challenges in the severed suit, we express no opinion as to the merits of those challenges. See Combs v. STP Nuclear Operating Co., 239 S.W.3d 264, 272 (Tex. App.—Austin 2007, pet. denied) (noting that “party making an as-applied challenge need only show that the statute is unconstitutional because of the manner in which it was applied in a particular case” and that as-applied challenge is “fact specific”); see also Catholic Leadership Coal. of Tex. v. Reisman, No. 13-50582, 2014 U.S. App. LEXIS 15558, at *34 (5th Cir. Aug. 12, 2014) (noting that facial and as-applied challenges “have different substantive requirements” and comparing as-applied and facial constitutional challenges in context of challenges to Texas Election Code). 2 Gilberto Hinojosa replaced Boyd Richie as the Chairman of the Texas Democratic Party following Hinojosa’s election at the Texas Democratic Party State Convention.

2 watchers in coordination with the TRP and then offering the poll watchers’ services only to the TRP.

TDP also alleged that, based upon its political activities, KSP was “a sham domestic nonprofit

corporation” and “an unregistered and illegal political committee.” TDP asserted claims against KSP

for Election Code violations based upon KSP’s status as a political committee and its status as

a corporation.

Appellants answered and filed a counterclaim. They asserted that KSP was formed

as a non-profit Texas corporation on December 30, 2009, to “provide education and awareness” to

the “general public on important civic and patriotic duties.” They stated that they “decided that a

good way to participate was to help ensure that elections are free and fair” and that they “assisted

anyone who was interested in this project in becoming a poll watcher.” Their counterclaim sought

declaratory relief challenging the constitutionality of Election Code provisions. Appellants claimed

that the Election Code provisions at issue violated the First, Fourth, Eighth, and/or Fourteenth

Amendments to the United States Constitution. See U.S. Const. amends. I, IV, VIII, XIV, § 1.

The parties entered into a rule 11 agreement to sever appellants’ counterclaim

challenging the facial constitutionality of the Election Code provisions into a separate cause number

by agreed order and to abate the remaining claims until the new cause was resolved. Per that

agreement, the trial court severed KSP’s counterclaim into this cause and realigned the parties. The

parties then filed cross-motions for summary judgment. See Tex. R. Civ. P. 166a.

In their motion for summary judgment, TDP urged that the applicable provisions of

the Election Code were facially constitutional. See Tex. Elec. Code §§ 251.001, 253.031, 253.094,

253.104, 253.131, 253.132, 273.081. Among the grounds asserted to support summary judgment,

3 TDP argued that sections 251.001, 253.094, and 253.131 had already been determined constitutional.

To support this ground, TDP cited the opinions in Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App.

2010), Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000), and Castillo v. State, 59 S.W.3d 357 (Tex.

App.—Dallas 2001, pet. ref’d).

Appellants countered in their motion for summary judgment that the applicable

Election Code provisions were facially unconstitutional. Among the grounds asserted to support

summary judgment in their favor, appellants urged that: (i) the sections creating private rights of

action for Election Code violations, see Tex. Elec. Code §§ 253.131, 253.132, 273.081, violated the

First, Fourth, and Fourteenth Amendments; (ii) the sections prohibiting corporate contributions and

expenditures, see id. §§ 253.091, .094, were unconstitutional under Citizens United v. Federal

Election Commission, 558 U.S. 310 (2010), and violated the First and Fourteenth Amendments;

(iii) the definitions of contributions and expenditures, see Tex. Elec. Code § 251.001(2)–(10), were

unconstitutionally overbroad and vague; (iv) the definitions of political committees, see id.

§ 251.001(12), (14), were unconstitutionally overbroad and vague and violated the First Amendment;

(v) the direct expenditure sections, see id. former §§ 253.062, .097, violated the First Amendment;

(vi) the sections with “thirty and sixty day blackout periods,” see id. §§ 253.031(c), .037(a), violated

the First Amendment; and (vii) the sections providing criminal penalties, see id. §§ 253.003, .094,

.101, .102, .103, .104, violated the Eighth Amendment.

4 Appellants did not offer summary judgment evidence to support their motion. TDP’s

evidence included affidavits, documents, and videos concerning KSP’s recruitment and training of

poll watchers.3 The parties also stipulated to the following facts:

a. King Street Patriots, during and in advance of the 2010 General Election for State and County Officers, conducted, at its own expense, a training and recruitment program for poll watchers. Many of these KSP located and trained poll watchers were subsequently appointed to serve under Texas Election Code §§ 32.002–.003 by the Harris County Republican Party Chairman and/or Republican Nominees with regard to the 2010 General Election for State and County Officers.

b. Plaintiffs, the Texas Democratic Party, Boyd Richie, John Warren, and Ann Bennett, using the private right of action found in Tex. Elec. Code §§ 273.081, 253.131, and 253.132, intend to enforce Texas Election Code sections 251.001(2), (3), (4), (5), (6), (7), (8), (9), (10), (12), (14), 253.031(c), 253.037(a)(1) and (b), 253.062, 253.094, 253.097, and 253.104 against Defendants-Counterclaimants, King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs, based on alleged political speech the Defendants-Counterclaimants have engaged in, and intend to continue to engage in, in the future.

3 TDP presented affidavits from the Chair of the Harris County Democratic Party, the Deputy Executive Director for the Texas Democratic Party, and Bennett. They testified regarding KSP’s “assistance” and “support” of the TRP during the 2010 general election cycle and KSP’s poll watcher program. The Chair of the Harris County Democratic Party testified:

The poll watchers recruited and trained by KSP for service in Harris County were all appointed by Republican nominees or the Harris County Republican Party. The KSP never offered to provide poll watchers for or on behalf of the Harris County Democratic Party. I attended at least one meeting at the Harris County Attorney General’s Office at which the representative of the Harris County Republican Party discussed and acknowledged the coordinated efforts between the KSP and the Harris County Republican Party in connection with training and assigning poll watchers.

5 The trial court granted summary judgment against appellants and in favor of TDP. The

trial court declared that Election Code sections 251.001(2), (3), (5), (6), (7), (8), (10), (12), and (14),

253.031, 253.037, 253.094, 253.104, 253.131, 253.132, and 273.081 and former sections 253.062 and

253.097 were facially constitutional. The trial court also concluded that it did not have jurisdiction

to grant declaratory relief with respect to sections 251.001(4) and (9), the officeholder definitions,

sections 253.031(c) and 253.037(a), the “blackout” periods, and the criminal penalties contained in

sections 253.094(c), 253.003(e), 253.101, 253.102, 253.103, and 253.104. The trial court concluded

that it did not have jurisdiction with respect to those provisions because they were not at issue in the

case. This appeal followed.

ANALYSIS

Appellants bring six issues on appeal, primarily tracking the grounds raised in their

motion for summary judgment. Appellants challenge the constitutionality of the sections of the

Election Code that create a private right of action, the sections that allegedly “ban” corporate

contributions and expenditures, the section defining various terms, the sections allegedly creating

“blackout” periods, and the sections containing criminal penalties for violations of the Election Code.

Appellants contend that the trial court erred by concluding that it did not have jurisdiction with

respect to some of these challenged Election Code provisions and that it erred by declaring the

remaining Election Code provisions facially constitutional.

6 Standards of Review

We review a trial court’s summary judgment rulings de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a traditional motion for summary

judgment, the movant must show that there are no genuine issues of material fact and that it is entitled

to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215–16 (Tex. 2003). When, as is the case here, both parties move for summary

judgment and the trial court grants one motion and denies the other, we review the

summary-judgment evidence presented by both sides, determine all questions presented, and render

the judgment the trial court should have rendered. Texas Workers’ Comp. Comm’n v. Patient

Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004).

We also review matters of statutory construction de novo. See Texas Mun. Power

Agency v. Public Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Of primary concern in

construing a statute is the express statutory language. See Galbraith Eng’g Consultants, Inc. v.

Pochucha, 290 S.W.3d 863, 867 (Tex. 2009); Osterberg, 12 S.W.3d at 38. “We thus construe the

text according to its plain and common meaning unless a contrary intention is apparent from the

context or unless such a construction leads to absurd results.” Presidio Indep. Sch. Dist. v. Scott,

309 S.W.3d 927, 930 (Tex. 2010) (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.

2008)). We consider the entire act, not isolated portions. 20801, Inc. v. Parker, 249 S.W.3d 392, 396

(Tex. 2008).

We also interpret statutes, if possible, in a way that makes them constitutional. See

City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex. 2009). “A statute is presumptively

7 constitutional.” Brooks v. Northglen Ass’n, 141 S.W.3d 158, 170 (Tex. 2004) (citing Barshop v.

Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 625 (Tex. 1996)); see also

Tex. Gov’t Code § 311.021(1).

Declarations Addressing Constitutionality of Statutes

Declaratory relief is available to resolve constitutional challenges to statutes. See Tex.

Civ. Prac. & Rem. Code §§ 37.001–.011 (“UDJA”). The separation of powers article of the Texas

Constitution, however, prohibits courts from issuing advisory opinions. Tex. Const. art. II, § 1; see

Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001) (advisory opinion decides “abstract questions of law

without binding the parties”). An advisory opinion addresses a “theoretical dispute,” a dispute that

does not involve “a real and substantial controversy involving a genuine conflict of tangible interests.”

Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex. App.—Austin

2002, pet. denied). Accordingly, the UDJA has been interpreted “to be merely a procedural device

for deciding cases already within a court’s jurisdiction rather than a legislative enlargement of a

court’s power, permitting the rendition of advisory opinions.” Texas Ass’n of Bus. v. Texas Air

Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); see also Texas Health Care Info. Council, 94 S.W.3d

at 846 (“A declaratory judgment action does not vest a court with the power to pass upon hypothetical

or contingent situations, or to determine questions not then essential to the decision of an actual

controversy, although such questions may in the future require adjudication.”). As such, a party

seeking declaratory relief must show that a requested declaration will resolve a live controversy

between the parties. See Texas Health Care Info. Council, 94 S.W.3d at 846.

8 The constitutional challenges at issue here are limited to facial challenges. To sustain

a facial challenge, a party generally “‘must establish that the statute, by its terms, always operates

unconstitutionally.’” City of Corpus Christi v. Public Util. Comm’n of Tex., 51 S.W.3d 231, 240–41

(Tex. 2001) (citing Barshop, 925 S.W.2d at 627 (citing Texas Workers’ Comp. Comm’n v. Garcia,

893 S.W.2d 504, 518 (Tex. 1995))). In the context of facial challenges, because we must presume

the challenged provisions at issue are constitutional, it was appellants’ burden as to each challenged

provision to “‘establish that the statute, by its terms, always operates unconstitutionally.’” City of

Corpus Christi, 51 S.W.3d at 240–41; Brooks, 141 S.W.3d at 170.

Among their constitutional challenges, appellants claim that the Election Code

provisions at issue violate their free speech and associational rights under the First and Fourteenth

Amendments. See U.S. Const. amends. I, XIV, § 1. The United States Supreme Court has stated the

importance of these rights in the electoral context on many occasions. In Citizens United, the

Supreme Court explained:

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” . . . For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence.

558 U.S. at 339–40 (internal citations omitted).

The Supreme Court, however, has applied differing standards in the electoral context

depending on whether the statute at issue addresses political expenditures, contributions, or disclosure

9 requirements. For example, when reviewing statutes governing corporate contributions and

disclosure requirements, the Supreme Court has articulated the test as whether the statute is closely

drawn to match a sufficiently important governmental interest. See Doe v. Reed, 561 U.S. 186, 196

(2010) (noting that “exacting scrutiny” review applies when considering First Amendment challenges

to disclosure requirements in the electoral context); Citizens United, 558 U.S. at 366–67 (noting that

disclosure requirements are subject to “‘exacting scrutiny,’ which requires a ‘substantial relation’

between the disclosure requirement and a ‘sufficiently important’ governmental interest” (quoting

Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976))); Federal Election Comm’n v. Beaumont, 539 U.S. 146,

161 (2003) (noting that challenges to limits on corporate contributions pass constitutional muster if

“‘closely drawn’ to match a ‘sufficiently important interest’” (citation omitted)).

In contrast, when reviewing statutes governing corporate independent expenditures

in the electoral context, the Supreme Court used a strict-scrutiny review. See Citizens United,

558 U.S. at 340 (“Laws that burden political speech are ‘subject to strict scrutiny.’”). Strict-scrutiny

review “requires the Government to prove that the restriction ‘furthers a compelling interest and is

narrowly tailored to achieve that interest.’” Id. (quoting Federal Election Comm’n v. Wisconsin

Right to Life, Inc., 551 U.S. 449, 464 (2007)); Buckley, 424 U.S. at 39 (noting that restrictions on

political expenditures “limit political expression ‘at the core of our electoral process and of the First

Amendment freedoms’” (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968))); see also McCutcheon

v. Federal Election Comm’n, 134 S.Ct. 1434, 1444–45 (2014) (plurality op.) (declining to revisit

distinction in Buckley between contributions and expenditures and corollary distinction in applicable

standards of review). Within this framework, we turn to appellants’ issues.

10 Private Right of Action

In their first issue, appellants challenge the constitutionality of the sections creating

a private right of action for Election Code violations. See Tex. Elec. Code §§ 253.131, 253.132,

273.081. Appellants contend that these provisions on their face violate the First Amendment, the

Fourth Amendment, and the Due Process Clause of the Fourteenth Amendment. See U.S. Const.

amends. I, IV, XIV, § 1. They assert that the provisions infringe upon speech and associational rights:

that they “lack guidelines regarding what showing is necessary to initiate an investigation,” “lack

sufficient standards to protect discovery abuse,” and have “enormous potential for abuse.” They also

urge that the injunction section, section 273.081, is an improper prior restraint on speech.

Because appellants’ challenge to these sections is a facial challenge, they must

“‘establish that the statute, by its terms, always operates unconstitutionally.’” City of Corpus Christi,

51 S.W.3d at 240–41. We turn then to appellants’ challenges to the sections creating a private right

of action for statutory damages and the section authorizing injunctive relief to determine whether

appellants established that the provisions at issue always operate unconstitutionally.

a) Sections 253.131 and 253.132

Section 253.131 creates a private right of action for opposing candidates, and section

253.132 creates a private right of action for political committees, to bring actions against a

corporation or labor organization to recover statutory damages for violations of the Election Code.

See Tex. Elec. Code §§ 253.131, .132. Sections 253.131 and 253.132 state:

11 § 253.131. Liability to Candidates

(a) A person who knowingly makes or accepts a campaign contribution or makes a campaign expenditure in violation of this chapter is liable for damages as provided by this section.

(b) If the contribution or expenditure is in support of a candidate, each opposing candidate whose name appears on the ballot is entitled to recover damages under this section.

(c) If the contribution or expenditure is in opposition to a candidate, the candidate is entitled to recover damages under this section.

(d) In this section, “damages” means:

(1) twice the value of the unlawful contribution or expenditure; and

(2) reasonable attorney’s fees incurred in the suit.

(e) Reasonable attorney’s fees incurred in the suit may be awarded to the defendant if judgment is rendered in the defendant’s favor.

§ 253.132. Liability to Political Committees

(a) A corporation or labor organization that knowingly makes a campaign contribution to a political committee or a direct campaign expenditure in violation of Subchapter D is liable for damages as provided by this section to each political committee of opposing interest in the election in connection with which the contribution or expenditure is made.

(b) In this section, “damages” means:

(1) twice the value of the unlawful contribution or expenditure; and

(c) Reasonable attorney’s fees incurred in the suit may be awarded to the defendant if judgment is rendered in the defendant’s favor.

12 Id. §§ 253.131, .132. Appellants focus on the lack of standards within the private-right-of-action

sections regarding what showing is necessary to initiate investigation or discovery and what is

discoverable, arguing that discoverable evidence must satisfy a heightened showing of relevance in

the context of the First Amendment.

The trial court upheld the constitutionality of these sections based in part on the Texas

Supreme Court’s opinion in Osterberg. In that opinion, the Texas Supreme Court faced a

constitutional challenge to section 253.131 based on the First Amendment’s free speech and

associational rights. 12 S.W.3d at 48. The supreme court held that the private right of action created

in section 253.131 was constitutional, reasoning that private enforcement advanced a “sufficient

state interest”:

Section 253.131 is designed to “deter violators and encourage enforcement by candidates and others directly participating in the process, rather than placing the entire enforcement burden on the government.” . . . Because state resources for policing election laws are necessarily limited, in many cases section 253.131 is likely to provide the only viable means of enforcing reporting requirements. Preventing evasion of these important campaign finance provisions is a legitimate and substantial state interest. . . . Furthermore, that the person enforcing the law and receiving damages can be a private party rather than the State does not mean that section 253.131 adds additional restrictions on First Amendment rights.

Id. at 49 (internal citations omitted). Although the court did not address section 253.132, the rationale

for concluding that section 253.131 does not violate First Amendment rights applies equally to

section 253.132.

Appellants urge that Osterberg does not control here. They distinguish the issue

before this Court from the one addressed in Osterberg because, in that case, the challenge concerned

13 who could recover damages and only one opposing candidate brought the suit. Appellants argue that

the issue here is different because their focus is on the language in sections 253.131 and 253.132 that

allows multiple parties to seek damages for the same Election Code violation. For example, they urge

that multiple candidates may sue and recover damages when the challenged speech is about issues.

However, the dispute here concerns alleged improper contributions by KSP to the TRP and its

candidates, not issue advocacy by KSP. Declaratory relief is only available if the declaration will

resolve a live controversy that binds the parties, Texas Ass’n of Bus., 852 S.W.2d at 444, therefore,

we decline to consider appellants’ constitutional challenge based upon speech concerning issues.

Further, whether the statute is unconstitutional as-applied to a particular circumstance, such as

multiple candidates suing to recover damages for the same speech about issues, is not the dispositive

question before us, given that appellants’ facial challenge requires them to prove the statute is

unconstitutional in all circumstances.

Appellants urge that the private-right-of-action sections do not provide necessary

safeguards to avoid chilling the First Amendment fundamental right of privacy in association,

“particularly where one must divulge such information to political opponents.” In the context of

as-applied challenges, courts have found that the constitution provides protection from disclosure of

a person’s identity in the context of associational rights if there is a “reasonable probability” that the

disclosure will subject the person to “threats, harassment, or reprisals from either Government

officials or private parties.” Citizens United, 558 U.S. at 367; Buckley, 424 U.S. at 74; In re Bay Area

Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 376, 380–82 (Tex. 1998) (orig. proceeding). But

appellants only bring a facial challenge to the statutes at issue. See Citizens United, 558 U.S. at 367

14 (acknowledging as-applied challenge may be available based upon showing that there was reasonable

probability that disclosure would subject persons to threats, harassment, or reprisals). Appellants also

did not offer summary judgment evidence that would support a finding that there is a “reasonable

probability” that disclosure via discovery would subject them to “threats, harassment, or reprisals.”

See id. As such, precedent does not support appellants’ argument that subjecting a person to suit and

discovery under the Election Code facially violates First Amendment associational rights.

Appellants’ arguments also focus on the lack of standards for discovery and initiating

a suit within the private-right-of-action provisions to support their position that the provisions violate

the Due Process Clause and the Fourth Amendment. See U.S. Const. amends. IV, XIV, § 1. They

urge that the private-right-of-action provisions violate the Fourth Amendment because they do not

require a showing of probable cause prior to allowing discovery. They contend that discovery

initiated by a person acting under color of state law is a Fourth Amendment search and, therefore, that

probable cause is required. Otherwise, they urge, the government could circumvent probable cause

requirements by awaiting discovery in a civil proceeding. As to the Due Process Clause, appellants

urge that the sections fail to provide the necessary “procedural safeguards” to prevent “‘unbridled

discretion’ via discovery to seize constitutionally protected documents and communications, even if

the private enforcers lose on their claims.”

The Due Process guarantees, however, only provide protection against state action.

See Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478, 485 (1988); Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 349 (1974); Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (noting that since

1883, “principle has become firmly embedded in our constitutional law that the action inhibited by

15 the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of

the States” and that the Fourteenth Amendment “erects no shield against merely private conduct,

however discriminatory or wrong”).4 Similarly, the Fourth Amendment protections generally only

apply to state action. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989).

Although the Fourth Amendment provides protection against a search or seizure by a private party

if the private party is acting as an instrument or agent of the government, there was no evidence that

TDP was acting as an agent or instrument of the government here, see id., and, even if there were such

evidence, that would not satisfy appellants’ burden to show that the statute is facially unconstitutional.

See City of Corpus Christi, 51 S.W.3d at 240–41.

In any case, a private suit brought under the Election Code has procedural safeguards

in place to protect defendants from unnecessary or overly intrusive discovery. Such suits are subject

to the laws that apply to civil suits generally, such as the Texas Rules of Civil Procedure and the

Texas Rules of Evidence. The Texas Rules of Civil Procedure provide guidelines for discovery and

allow trial courts to limit discovery to protect confidential information. See Tex. R. Civ. P. 192.6.

The rules, as well as statutes, also allow trial courts to award sanctions for discovery abuse and

remedies for frivolous suits. See, e.g., Tex. Civ. Prac. & Rem. Code §§ 10.001–.006; Tex. R. Civ.

4 We also are not persuaded by the cases cited by appellants to support their position that the private-right-of-action provisions violate the Due Process Clause. Unlike the statutes at issue here, those cases involved laws that delegated legislative power to private citizens. See, e.g., Eubank v. City of Richmond, 226 U.S. 137, 141–44 (1912); General Elec. Co. v. New York Dep’t of Labor, 936 F.2d 1448, 1454–55 (2d Cir. 1991) (collecting similar cases). For example, an ordinance allowing boundaries to be fixed by a vote of two thirds of a particular group of property owners was found to be unconstitutional because it allowed a majority of private citizens to determine the rights of the minority without fixing a standard under which the decision was made. Eubank, 226 U.S. at 141–44.

16 P. 13, 215. And sections 253.131 and 253.132 allow the recovery of attorney’s fees for a successful

defendant. See Tex. Elec. Code §§ 253.131(e), .132(c).

We conclude that the trial court did not err by granting summary judgment in favor

of TDP with respect to sections 253.131 and 253.132 and by declaring those sections facially

constitutional.

b) Section 273.081

Section 273.081 states that “[a] person who is being harmed or is in danger of being

harmed by a violation or threatened violation of this code is entitled to appropriate injunctive relief

to prevent the violation from continuing or occurring.” Id. § 273.081. Appellants argue that section

273.081 is “a prior restraint” on speech. See Alexander v. United States, 509 U.S. 544, 550 (1993);

Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W.3d 387, 393 (Tex. App.—Austin 2000, no pet.).

“A prior restraint is an administrative or judicial order forbidding certain communications when

issued in advance of the time that such communications are to occur.” Minton, 33 S.W.3d at 393.

Appellants also argue that the section fails strict-scrutiny review and that it is not narrowly tailored

to an important governmental interest. Appellants focus on the language in section 273.081 that

allows injunctive relief to a “person,” not just a political opponent, based upon “threatened” harm.

Appellants argue that no compelling interest justifies enjoining political speech.

The plain language of section 273.081, however, does not support appellants’ assertion

that the section on its face violates the prohibition on prior restraints. See Scott, 309 S.W.3d at 930.

The section applies to the entire Election Code, allowing injunctions in many different contexts. See

Tex. Elec. Code § 273.081; In re Gamble, 71 S.W.3d 313, 318 (Tex. 2002) (orig. proceeding)

17 (discussing injunctive relief provided by section 273.081 in context of violation of section 141.032

by party chair); Cook v. Tom Brown Ministries, No. 08-11-00367-CV, 2012 Tex. App. LEXIS 1318,

at *43–45 (Tex. App.—El Paso Feb. 17, 2012, pet. denied) (mem. op.) (reversing trial court’s denial

of injunctive relief for Election Code violation and ordering city clerk to decertify and return recall

petitions); Ramirez v. Quintanilla, Nos. 13-10-00449-CV, 13-10-00450-CV, 13-10-00454-CV,

2010 Tex. App. LEXIS 6861, at *43–44 (Tex. App.—Corpus Christi Aug. 20, 2010, pet. denied)

(mem. op.) (affirming temporary injunction enjoining special election). The section also limits the

scope of injunctive relief to “appropriate injunctive relief.” Tex. Elec. Code § 273.081. And an order

granting a temporary injunction is subject to interlocutory appeal. See Tex. Civ. Prac. & Rem. Code

§ 51.014(4). Given the scope and limits of the injunctive relief available under section 273.081, we

conclude that this section is not facially unconstitutional or a “prior restraint” on speech. See Minton,

33 S.W.3d at 393.

We conclude that the trial court did not err by granting summary judgment in favor

of TDP with respect to section 273.081 and by declaring the section facially constitutional. We

overrule appellants’ first issue.

Corporate Contributions and Expenditures

In their second issue, appellants argue that sections 253.091 and 253.094 are

unconstitutional because they “ban” corporate contributions and expenditures. See Tex. Elec. Code

§§ 253.091, .094. They argue that the corporate “ban” on contributions and expenditures fails

strict-scrutiny review under Citizens United. As part of this issue, appellants also argue that the

restrictions are content based and violate the equal protection clause and that speech restrictions that

18 differentiate among speakers are subject to strict scrutiny. Content-based restrictions have been held

to raise equal protection concerns “because, in the course of regulating speech, such restrictions

differentiate between types of speech.” Burson v. Freeman, 504 U.S. 191, 197 n.3 (1992). “Under

either a free speech or equal protection theory, a content based regulation of political speech in a

public forum is valid only if it can survive strict scrutiny.” Id.

Section 253.091 sets forth the types of entities that are subject to subchapter D, the

subchapter addressing corporations and labor organizations. Tex. Elec. Code § 253.091. The section

includes non-profit corporations—such as KSP—as entities subject to subchapter D. See id. Prior

to its amendment in 2011, section 253.094(a) limited corporate political contributions and

expenditures to those expressly allowed in the subchapter. See Act of June 19, 1987, 1987 Tex. Gen.

Laws at 3009. In 2011, section 253.094(a) was amended to delete corporate political expenditures.

It now reads:

A corporation or labor organization may not make a political contribution that is not authorized by this subchapter.

Tex. Elec. Code § 253.094(a). Section 253.094 was amended after the Citizens United opinion in

which the Supreme Court held that the government may not prohibit corporate independent political

expenditures. 558 U.S. at 365.5

5 We disagree with appellants’ contention that the trial court failed to address the expenditure component of former section 253.094. In the final summary judgment, the trial court expressly referenced the 2011 amendment to section 253.094 that removed expenditures.

19 At this stage of the parties’ dispute, TDP’s claim as to section 253.094 is not based

on alleged political expenditures by KSP, but alleged contributions made by KSP.6 As to the

contribution limitations that section 253.094 places on the entities specified in section 253.091,

appellants ask this Court to expand the holding in Citizens United. We decline to do so. The

Supreme Court in Citizens United continued to distinguish between expenditures and contributions

and expressly stated that it was not reconsidering corporate contribution limits. 558 U.S. at 358–60;

see McCutcheon, 134 S.Ct. at 1444–45 (discussing Buckley and reasons for distinguishing between

political expenditures and contributions in context of First Amendment). Further, we are guided by

the Supreme Court’s analysis in Beaumont and the Texas Court of Criminal Appeals’ analysis in

Ex parte Ellis. In Beaumont, the Supreme Court rejected an as-applied challenge to corporate

contribution limitations. 539 U.S. at 163. Upholding the constitutionality of the corporate

contribution regulation at issue, the Supreme Court found that the regulation served compelling

governmental interests, preventing “war chest” corruption and serving to prevent individuals from

using the corporate form to circumvent contribution limits. Id. at 154–55. The Texas Court of

Criminal Appeals in Ex parte Ellis concluded that the opinion in Citizens United did not have any

effect on its jurisprudence relating to corporate contributions and upheld section 253.094 as facially

constitutional, guided in part by the Beaumont opinion. 309 S.W.3d at 83–85, 92.

6 TDP’s counsel confirmed at oral argument that TDP’s claim for statutory damages based upon a violation of section 253.094 was limited to alleged political contributions made by KSP. See Tex. Elec. Code § 253.094. Their fourth amended original petition conforms with counsel’s statements at oral argument.

20 Guided by the directives in Beaumont and Ex parte Ellis, we conclude that the trial

court did not err by granting summary judgment in favor of TDP with respect to appellants’

constitutional challenges to the corporate contribution limitations and by declaring section 253.094

facially constitutional. We overrule appellants’ second issue.

Contribution and Expenditure Definitions

In their third issue, appellants argues that the definitions of contribution, campaign

contribution, officeholder contribution, political contribution, expenditure, campaign expenditure,

direct campaign expenditure, officeholder expenditure, and political expenditure are

unconstitutionally vague. See Tex. Elec. Code § 251.001(2)–(10).

A law is unconstitutionally vague if it fails to give those affected by it a reasonable

opportunity to know what is required or when it is so indefinite that any enforcement is necessarily

arbitrary or discriminatory. City of Chicago v. Morales, 527 U.S. 41, 52 (1999); Commission for

Lawyer Discipline v. Benton, 980 S.W.2d 425, 437–38 (Tex. 1998). In the context of statutes that

impose criminal penalties and impact First Amendment interests, “[c]lose examination of the

specificity of [a] statutory limitation is required.” Buckley, 424 U.S. at 40–41. “In such

circumstances, vague laws may not only ‘trap the innocent by not providing fair warning’ or foster

‘arbitrary and discriminatory application’ but also operate to inhibit protected expression by inducing

‘citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were

clearly marked.’” Id. at 41 n.48 (internal citation omitted). “Because First Amendment freedoms

need breathing space to survive, government may regulate in the area only with narrow specificity.”

National Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 433 (1963).

21 Appellants focus on the words “direct” and “indirect” and the phrase “any other thing

of value” in the definitions of contribution and the phrase “any other thing of value” in the definitions

of expenditure to support their position that the general definitions are unconstitutionally vague. See

Tex. Elec. Code § 251.001(2), (6). For purposes of this appeal, the Election Code defines a

contribution to mean “a direct or indirect transfer of money, goods, services, or any other thing of

value” and an expenditure to mean “a payment of money or any other thing of value.” Id.

§ 251.001(2), (6). Appellants also raise additional concerns with the definitions of the different types

of contributions and expenditures. Focusing on the phrases “contribution,” “political committee,”

“the intent,” and “in connection with . . . a measure,” they contend that the definition of campaign

contribution is circular and vague. Section 251.001(3) defines a “campaign contribution” to mean

“a contribution to a candidate or political committee that is offered or given with the intent that it be

used in connection with a campaign for elective office or on a measure.” See id. § 251.001(3).

Appellants argue that “in connection with a campaign . . . on a measure” cannot be construed to

exclude “general issue advocacy” and, therefore, is vague and unconstitutional.

Appellants make similar arguments as to the definition of an officeholder contribution.

Section 251.001(4) defines an “officeholder contribution” to mean a “contribution to an officeholder

or political committee that is offered or given with the intent that it be used to defray expenses that:

(A) are incurred by the officeholder in performing a duty or engaging in an activity in connection with

the office; and (B) are not reimbursable with public money.” See id. § 251.001(4). Appellants make

the same argument and address intent, as well as contending that the words “defray” and “in

connection with” are vague. Finally, because a “political contribution” is defined as a “campaign

22 contribution” or an “officeholder contribution,” appellants urge that this definition is also vague for

the reasons stated above. See id. § 251.001(5).

Turning to the definitions of different types of expenditures, the Election Code defines

a “campaign expenditure” to mean “an expenditure made by any person in connection with a

campaign for an elective office or on a measure. Whether an expenditure is made before, during, or

after an election does not affect its status as a campaign expenditure.” Id. § 251.001(7). “A ‘direct

campaign expenditure’ means a campaign expenditure that does not constitute a campaign

contribution by the person making the expenditure.” Id. § 251.001(8). Appellants contend that the

words “in connection with” are vague when considering their impact on political speech about a

measure, especially because the definition includes political speech after an election. Appellants

further urge that the definitions include “general issue advocacy” and, therefore, are unconstitutional.

Appellants make the same vagueness argument as to the definition of “officeholder expenditure” as

they make as to the definition of “officeholder contribution.” See id. § 251.001(9). The definition

of officeholder expenditure also includes the word “defray” and the phrase “in connection with.”

Finally, appellants urge that the definition of political expenditure is vague because it uses the terms

“campaign expenditure” and “officeholder expenditure.” See id. § 251.001(10).

As an initial matter, the trial court concluded that it did not have jurisdiction to

consider the challenged officeholder definitions. See id. § 251.001(4), (9). We agree. Because the

officeholder definitions were not at issue between these parties, any declaratory relief as to their

constitutionality would be advisory. See Todd, 53 S.W.3d at 302 (noting that courts do not have

jurisdiction to render advisory opinions). For the same reason, we decline to address appellants’

23 arguments addressing the word “measure” in the various definitions. See id. The parties’ dispute

concerns KSP’s activities in connection with campaigns for elective office, not their activities in

connection with a measure. See id.

Appellants’ remaining arguments challenging the definitions are controlled by the

analysis and reasoning in Ex parte Ellis. In the context of alleged improper corporate contributions

and a criminal prosecution, the Texas Court of Criminal Appeals considered vagueness and

overbreadth challenges to the contribution definitions and found the definitions to be facially

constitutional. See 309 S.W.3d at 82–92. The Ellis court found that the definitions were “sufficiently

clear to afford a person of ordinary intelligence a reasonable opportunity to know what [was]

prohibited” and that the definitions provided appropriate guidelines for enforcement. Id. Although

the Ellis court did not address the expenditure definitions, the same rationale for concluding that the

contribution definitions are facially constitutional applies to the expenditure definitions. Following

the Ellis court’s analysis, we conclude that appellants failed to establish that the definitions at issue

are facially unconstitutional and that the trial court did not err in its summary judgment rulings as to

these definitions. We overrule appellants’ third issue.7

7 To the extent appellants challenge the definitions based upon the overbreadth doctrine, we also reject that challenge. “An overbroad statute ‘sweeps within its scope a wide range of both protected and non-protected expressive activity.’” Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 435 (Tex. 1998) (citation omitted). “To vindicate First Amendment interests and prevent a chilling effect on the exercise of First Amendment freedoms, the overbreadth doctrine allows a statute to be invalidated on its face even if it has legitimate application, and even if the parties before the court have suffered no constitutional violation.” Ex parte Ellis, 309 S.W.3d 71, 90–91 (Tex. Crim. App. 2010) (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). “The overbreadth doctrine is ‘strong medicine’ that should be employed ‘sparingly’ and ‘only as a last resort.’” Id. (quoting Broadrick, 413 U.S. at 613). “‘[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.’” Id. (quoting

24 Political Committee Definitions

In their fourth issue, appellants contend that the definitions of political committee,

specific-purpose committee, general-purpose committee, and the now-repealed direct expenditure

sections are facially unconstitutional because they violate the First Amendment and are

unconstitutionally vague. See Tex. Elec. Code §§ 251.001(12), (13), (14), 253.062, 253.097; Act of

June 19, 1987, 1987 Tex. Gen. Laws at 3009.

a) Political Committee Definitions

The Election Code defines a political committee to mean “a group of persons that has

as a principal purpose accepting political contributions or making political expenditures.” Tex. Elec.

Code § 251.001(12). A specific-purpose political committee supports or opposes identified

candidates or measures, id. § 251.001(13), and a general-purpose political committee “has among its

principal purposes . . . supporting or opposing” two or more unidentified candidates or one or more

unidentified measures or “assisting two or more officeholders who are unidentified.” Id.

§ 251.001(14). Appellants focus on the phrases “supporting or opposing” and “assisting two or more

officeholders” and the inclusion of “unidentified” measures, candidates, and officeholders and

“unknown” offices in the general-purpose committee definition. See id.

Broadrick, 413 U.S. at 615). “Only if the statute ‘reaches a substantial amount of constitutionally protected conduct’ may it be struck down for overbreadth.” Benton, 980 S.W.2d at 436 (quoting City of Houston v. Hill, 482 U.S. 451, 458 (1987)). On this record, appellants have failed to establish that the overbreadth doctrine should be applied to the challenged definitions. See id.; see also Clements v. Fashing, 457 U.S. 957, 972 n.6 (1982) (overbreadth exception to traditional requirement of standing may not apply where First Amendment rights may be litigated on a case by case basis).

25 Appellants argue that strict scrutiny applies, but that, even if exacting scrutiny applies,

the statutes are facially unconstitutional. Appellants focus on the analysis by the Supreme Court in

Citizens United and Buckley concerning regulation of political committees. The Supreme Court in

Citizens United observed that political committee status is “burdensome,” “onerous,” “expensive to

administer and subject to extensive regulation.” See 558 U.S. at 337. In Buckley, the Supreme Court

construed the federal definition of “political committee” to encompass only organizations “under the

control of a candidate[s]” or organizations with the “major purpose” to nominate or elect candidates.

424 U.S. at 79; see Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238,

253 n.6 (1986).

Appellants argue that because the definitions of political committee in the Election

Code do not have a “major purpose” or “under the control of a candidate” test that they are facially

unconstitutional. Appellants urge that allowing an organization to speak only if it becomes a political

committee equates with banning the organization’s speech when the organization decides that the

speech is “simply not worth it.” See Massachusetts Citizens for Life, Inc., 479 U.S. at 255. They also

urge that the political committee definitions are unconstitutional because they have a zero-dollar

threshold and that they are unconstitutionally vague because “[a] speaker cannot know when it has

this ‘principal purpose.’” They urge that the definitions do not provide fair warning and subject

speakers to “arbitrary and discriminatory application,” thereby chilling speech. See Buckley, 424 U.S.

at 41 n.48.

Because appellants’ challenge to the definitions is a facial challenge, as with their other

challenges they must “‘establish that the statute, by its terms, always operates unconstitutionally.’”

26 City of Corpus Christi, 51 S.W.3d at 240–41. We cannot conclude that these definitions always

operate unconstitutionally. See id.; compare Massachusetts Citizens for Life, Inc., 479 U.S. at 263–65

(holding that federal statute prohibiting corporate expenditures “as applied” to newsletter by

nonprofit, nonstock corporation formed to promote “pro life” causes was unconstitutional as a

violation of First Amendment). The plain language of section 251.001(12) limits “political

committee” status to groups with “a principal purpose of accepting political contribution or making

political expenditures.” The Election Code does not define the words “principal purpose” so we apply

their common meaning. “Purpose” means “[t]he object toward which one strives or for which

something exists; goal; aim.” American Heritage Dictionary of the English Language 1062 (1973).

“Principal” means “[f]irst, highest, or foremost in importance, rank, worth, or degree; chief.” Id. at

1041. Applying the phrase’s common meaning limits the reach of the definition, and the definition

also expressly encompasses the definitions of political contributions and expenditures, further

defining and narrowing the classification. See Tex. Elec. Code § 251.001(5), (10). The definitions

of specific-purpose and general-purpose also distinguish between and narrow the different types of

political committees on the basis of whether the measure or candidates at issue are identified and

known or unidentified and unknown.

Viewing the definitions as a whole and in context with each other, they are

“sufficiently clear to afford a person of ordinary intelligence a reasonable opportunity to know what

[was] prohibited” and provide appropriate guidelines for enforcement. See Ex parte Ellis,

309 S.W.3d at 82–92; see also Buckley, 424 U.S. at 41 n.48; Parker, 249 S.W.3d at 396. We

therefore conclude that the challenged definitions are not unconstitutionally vague. We also conclude

27 that the definitions are not facially unconstitutional under the First Amendment. See City of Corpus

Christi, 51 S.W.3d at 240–41.

b) Former Sections Addressing Direct Expenditures

As part of their fourth issue, appellants argue that the direct expenditure requirements

contained in former sections 253.062 and 253.097 are unconstitutional because they force political

committee burdens on individuals. See Act of June 19, 1987, 1987 Tex. Gen. Laws at 3009. Former

section 253.062 required an individual to comply with reporting requirements when the individual

made a direct campaign expenditure exceeding $100, and former section 253.097 required a

corporation or labor organization to comply with former section 253.062 as an individual when the

corporation or labor organization made direct expenditures in connection with an election on a

measure. See id. As previously stated above, the parties’ dispute concerns KSP’s activities in

connection with campaigns for elective office, not its activities in connection with a measure, and

TDP’s claim concerns alleged contributions by KSP, not expenditures. See id. We therefore decline

to address appellants’ arguments addressing these two sections. See Todd, 53 S.W.3d at 302. We

overrule appellants’ fourth issue.

30 and 60 day periods

In their fifth issue, appellants argue that the 30 and 60 day “blackout” periods in

sections 253.031 and 253.037 are unconstitutional. See Tex. Elec. Code §§ 253.031(c), .037(a).

Section 253.031(c) prohibits a political committee from making a campaign contribution or

expenditure supporting or opposing specified candidates unless its campaign treasurer appointment

28 has been on file for at least 30 days. Id. § 253.031(c). Section 253.037(a) prohibits a general-purpose

committee from making a political contribution or expenditure unless its campaign treasurer

appointment has been on file for at least 60 days and it has accepted political contributions from at

least 10 persons. Id. § 253.037(a). Appellants argue that the State does not have an interest in

prohibiting speech for a period of time after a group is formed or in prohibiting expenditures and

contributions by groups of fewer than 10 people. They contend that the 10-person minimum is

unconstitutional because the government has no interest in ensuring that political speech has a base

of support and violates the right of association of any group of persons smaller than 10 persons.

The trial court concluded that it did not have jurisdiction to grant declaratory relief

with respect to these provisions because they were not at issue in this case and, therefore, any relief

would be advisory. See Todd, 53 S.W.3d at 305. Appellants argue that the trial court’s conclusion

that it did not have jurisdiction was in error because appellants must abide by the deadlines in these

provisions to engage in political speech. The parties also stipulated that TDP “intended to enforce”

sections 253.031(c) and 253.037(a) against appellants. TDP’s petition, however, does not raise

section 253.037, and limits the alleged violation of section 253.031 to the failure to appoint a

campaign treasurer at all. We therefore agree with the trial court that it did not have jurisdiction to

consider appellants’ constitutional challenges to these provisions. On this basis, we overrule

appellants’ fifth issue.

Criminal Penalties

In their sixth issue, appellants argue that the criminal penalties in the Election Code

violate the Eighth Amendment. See Tex. Elec. Code §§ 253.003(e), 253.094(c), 253.095, 253.101(b),

29 253.102(c), 253.103(c), 253.104(c). The specified offenses under the Election Code are third-degree

felonies and subject to punishment by imprisonment “not more than 10 years or less then 2 years.”

Tex. Penal Code § 12.34. In addition to imprisonment, a corporate officer “may be punished by a fine

not to exceed $10,000.” Id. The Eighth Amendment states that “[e]xcessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.

amend. VIII.

The trial court did not address appellants’ constitutional challenges to the criminal

penalties in the Election Code because it concluded that it did not have jurisdiction to do so. In its

order, the trial court reasoned that the State is not a party and that TDP was not entitled to seek

criminal penalties and, therefore, that any ruling would be an improper advisory opinion. See Todd,

53 S.W.3d at 305. We agree and, on this basis, overrule appellants’ sixth issue.

CONCLUSION

Having overruled appellants’ issues, we affirm the trial court’s final

summary judgment.

__________________________________________

Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: October 8, 2014