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The gubernatorial election is over, but Kelcy Warren’s defamation lawsuit against Beto O’Rourke lives on.
Warren, the Dallas pipeline tycoon, sued O’Rourke in February over accusations he made on the campaign trail that Warren effectively bribed Gov. Greg Abbott with a $1 million contribution following the 2021 power grid collapse. The lawsuit has since been working its way through the legal system, and a state appeals court heard oral arguments Wednesday on O’Rourke’s motion to dismiss it.
Addressing a three-judge panel at the Third Court of Appeals, O’Rourke lawyer Chad Dunn argued that O’Rourke’s scrutiny of the donation was protected by the First Amendment and involved someone who had become a public figure.
“The minute you give $1 million to a gubernatorial candidate in one of the largest states, in Texas, you can expect attention,” Dunn said. “Mr. O’Rourke’s attention was not libel or slander.”
Warren’s lawyer, Dean Pamphilis, maintained his client is a private citizen.
“What they’re asking you to do here is to conclude that a million-dollar — or any — campaign contribution makes you a public figure, opens you up to attack that you can’t defend against unless you prove actual malice, and there is no precedent for that whatsoever,” Pamphilis said.
The court did not rule on the motion Wednesday, but the hearing was a reminder that the lawsuit remains pending after O’Rourke’s 11-percentage-point loss to Abbott about a month ago. The lawsuit was an issue in the race, with O’Rourke holding a March news conference at which he drew attention to it and promised not to back down. Abbott’s campaign said it was “in no way involved” in the lawsuit.
Warren’s Energy Transfer Partners reportedly made $2.4 billion off the 2021 winter storm as demand for gas soared. Months later, Warren wrote a $1 million check to Abbott’s reelection campaign once politicians were allowed to start accepting donations again after the legislative session. It was the largest contribution Warren had given to Abbott yet, and O’Rourke repeatedly alleged it amounted to bribery for Abbott to go easy on Warren’s industry after the storm as lawmakers were being pressured to tighten regulations.
Warren filed the lawsuit in state district court in San Saba County, where O’Rourke then filed motions to dismiss the lawsuit and separately change the venue. The court denied both motions, and O’Rourke appealed them to the Third Court of Appeals, whose judges are all Democrats except for one. The appeals court rejected the motion to change venue in September but agreed to hear oral arguments on the motion to dismiss.
On Wednesday, both sides faced questions from the three-judge panel, which included Chief Justice Darlene Byrne and justices Gisela Triana and Edward Smith. All three are Democrats.
Byrne questioned Dunn about the notion that Warren is a “limited purpose public figure,” which the U.S. Supreme Court has defined as a private individual “who voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” Byrne asked Dunn if there was a certain level of campaign donation that triggered such status for a person. Dunn said it was not only Warren’s donation that made him a public figure but also the fact that he oversees an energy company that had a prominent role in a newsworthy event.
“It’s all these facts together that say this is a person who thrust himself into the public sphere,” Dunn said.
In questioning Pamphilis, Triana suggested O’Rourke was simply echoing concerns about Warren that had already come up in media coverage about his company’s profits from the storm. Pamphilis countered that those articles only laid out the facts of lawful things that Warren did, like giving $1 million to a candidate in a state that allows unlimited campaign contributions.
“There was no ongoing debate about whether Mr. Warren was a criminal or not” until O’Rourke made his allegations, Pamphilis said.
Both lawyers suggested the case has broader stakes for freedom of speech and electoral politics.
“Do we wanna live in a world where after political campaigns, we’re gonna have jury trials about what candidates said along the way?” Dunn said.
Disclosure: Energy Transfer has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.