Empower Texans, Inc. and Michael Quinn Sullivan v. State of Texas Ethics Commission Seanaa Willing, in Her Capacity as Executive Director of the Texas Ethics Commission Tom Ramsay, Individually and in His Capacity as Commissioner Paul Hobby, Individually and in His Capacity as Commissioner

ACCEPTED
03-17-00770-CV
21333123
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/15/2017 4:35 PM
JEFFREY D. KYLE
CLERK
No. 03-17-00770-CV
_______________________________________________
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT OF TEXAS12/15/2017 4:35:09 PM
AT AUSTIN JEFFREY D. KYLE
_______________________________________________ Clerk

Empower Texans, Inc., and Michael Quinn Sullivan,
Appellants
v.
Tom Ramsay, Paul Hobby, Hugh C. Akin, James T. Clancy,
Wilhelmina R. Delco, Warren T. Harrison, Robert K. Long, and
Charles G. Untermeyer, in their individual capacities,
Appellees.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
CAUSE NO. D-1-GN-14-001252,
THE HONORABLE AMY CLARK MEACHUM PRESIDING

Motion to Dismiss Interlocutory Appeal
for Want of Jurisdiction

Eric J.R. Nichols BECK REDDEN, LLP
enichols@beckredden.com 515 Congress Avenue, Suite 1900
State Bar No. 14994500 Austin, TX 78701
Amanda G. Taylor (512) 708-1000
State Bar No. 24045921
ataylor@beckredden.com ATTORNEYS FOR APPELLEES
Amy K. Penn
State Bar No. 24056117
apenn@beckredden.com
 IDENTITY OF PARTIES AND COUNSEL

Appellants Empower Texans, Inc. and
(Plaintiffs) Michael Quinn Sullivan

Appellants’ Joseph M. Nixon
Counsel AKERMAN, LLP
1300 Post Oak Blvd., Suite 2500
Houston, TX 77056

James E. “Trey” Trainor, III
AKERMAN, LLP
700 Lavaca Street, Suite 1400
Austin, TX 78701

Appellees Tom Ramsay, Paul Hobby, Hugh C. Akin, James T. Clancy,
(Defendants) Wilhelmina R. Delco, Warren T. Harrison, Robert K. Long,
and Charles G. Untermeyer, in their individual capacities.

• The order from which this appeal is pursued grants
a plea to the jurisdiction filed by only these eight
individuals, in their individual capacities. Hence,
they are the only Appellees.

Additional The Texas Ethics Commission.
Defendants
(Interested • Appellants’ Notice of Appeal misnames the
Parties; Not Commission as the “State of Texas Ethics
Appellees) Commission.” It should be corrected in this Court’s
records and future filings. See TEX. CONST., art. III,
§ 24a.
Additional Seana Willing, in her capacity as Executive Director of the
Defendants Texas Ethics Commission.
(Interested
Parties; Not • When this suit was filed, Natalia Luna Ashley was
Appellees) the Executive Director of the Texas Ethics
(cont.) Commission. She has been automatically
substituted in this proceeding by her successor,
Seana Willing. Tex. R. App. P. 7.2(a).

• Appellants’ Notice of Appeal misspells Ms. Willing’s
first name. It should be corrected in this Court’s
records and future filings.

Tom Ramsay, Hugh C. Akin, James T. Clancy, and Charles
G. Untermeyer in their official capacities as current
Commissioners of the Texas Ethics Commission; and

Steve P. Wolens, Chris Flood, Mary K. Kennedy, and Chad
M. Craycraft, in their official capacities as current,
successor Commissioners of the Texas Ethics Commission.

• The terms of former Commissioners Hobby, Delco,
Harrison, and Long expired on November 19, 2015.
In any proceeding against the Commissioners in
their official capacities, their above-named
successors should be automatically substituted.
Tex. R. App. P. 7.2(a).

Appellees’ Eric J.R. Nichols
Counsel Amanda Taylor
Amy K. Penn
BECK REDDEN, LLP
515 Congress Ave., Suite 1900
Austin, Texas 78701

ii
 TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL ..................................................... i

TABLE OF CONTENTS ................................................................................ iii

INDEX OF AUTHORITIES ........................................................................... v

SUMMARY OF THE MOTION.......................................................................1

BACKGROUND ..............................................................................................1

ARGUMENT & AUTHORITIES .................................................................... 5

A. Appellants Must Demonstrate a Specific, Proper
Statutory Basis for Interlocutory Jurisdiction. ........................... 5

B. Section 51.014(a)(8) Provides Interlocutory
Jurisdiction to Review Orders on Pleas by
Governmental Units—Not State Actors in their
Individual Capacities. ................................................................. 5

C. This Interlocutory Order Grants a Plea Filed by
Individuals, Not a Governmental Unit. ...................................... 9

PRAYER .......................................................................................................13

CERTIFICATE OF CONFERENCE ..............................................................14

CERTIFICATE OF SERVICE........................................................................14

iii
APPENDIX

1. Individual Defendants’ Plea to the Jurisdiction,
without exhibits, 6.13.2017 (CR.3941-3956).

2. Fourth Amended Petition, without exhibits,
7.26.2017 (CR.4247-4285).

3. Response to the Plea, without exhibits, 7.28.2017
(CR.4291-4295).

4. Letter Ruling, 9.15.2017 (CR.4298).

5. Order Granting Individual Defendants’ Plea,
10.20.2017 (CR.4325-4326).

6. Notice of Appeal, without exhibits, 11.9.2017
(CR.4327-4328).

7. Docketing Statement, 11.28.2017

iv
 INDEX OF AUTHORITIES

Cases Page(s)

Adams v. Harris County,
No. 04-15-00287-CV, 2015 Tex. App.
LEXIS 12459 (Tex. App.—San Antonio
Dec. 9, 2015, pet. denied) .............................................................. 8, 10, 12
Am. Heritage Capital, LP v. Gonzalez,
436 S.W.3d 865 (Tex. App.—Dallas
2014, no pet.). ........................................................................................... 5
Cen-Tex Childcare, Inc. v. Johnson,
339 S.W.3d 734 (Tex. App.—Fort Worth
2011, no pet.) ............................................................................................ 5
City of Donna v. Ramirez,
No. 13-16-00619-CV, 2017 Tex. App.
LEXIS 10476 (Tex. App.—Corpus Christi
Nov. 9, 2017, no pet.) ................................................................................ 8
City of Houston v. Estate of Jones,
388 S.W.3d 663 (Tex. 2012) ..................................................................... 5
Empower Texans, Inc.
v. Texas Ethics Comm’n,
No. 03-16-00019-CV, 2016 Tex. App.
LEXIS 12446 (Tex. App.—Austin
Nov. 22, 2016, no pet.) ......................................................................... 2, 3
Garcia v. Kubosh,
377 S.W.3d 89 (Tex. App.—Houston
[1st Dist.] 2012, no pet.) ........................................................................... 6
Great Sw. Reg’l Ctr., LLC v. ACSWD, LP,
No. 03-17-00359-CV, 2017 Tex. App.
LEXIS 8156 (Tex. App.—Austin
Aug. 25, 2017, no pet.) .........................................................................6, 12

v
LTTS Charter Sch., Inc. v. C2 Constr., Inc.,
342 S.W.3d 73 (Tex. 2011) ........................................................................ 6
Minton v. Gunn,
355 S.W.3d 634 (Tex. 2011) ...................................................................... 5
Sanders v. City of Grapevine,
218 S.W.3d 772 (Tex. App.—Fort Worth
2007, pet. denied)..................................................................................... 9
Stary v. DeBord,
967 S.W.2d 352 (Tex. 1998) ..................................................................... 5
Tex. A&M Univ. Sys. v. Koseoglu,
233 S.W.3d 835 (Tex. 2007) ................................................................. 7, 8
Tex. Dep’t of Pub. Safety v. Petta,
44 S.W.3d 575 (Tex. 2001) ....................................................................... 9

STATUTES
42 U.S.C. § 1983 ................................................................ 2, 3, 4, 9, 10, 11, 12
Tex. Civ. Prac. & Rem. Code
§ 51.014(a)(8)....................................................................1, 4, 5, 6, 8, 9, 12
§ 101.001(3) .............................................................................................. 7
Tex. Gov’t Code § 571.137(d) ......................................................................... 9

vi
TO THE HONORABLE THIRD COURT OF APPEALS

SUMMARY OF THE MOTION

Appellants Empower Texans, Inc., and Michael Quinn Sullivan seek to

appeal an interlocutory order, claiming that section 51.014(a)(8) of the Texas

Civil Practice and Remedies Code provides a basis for appellate jurisdiction.

They are mistaken. Section 51.014(a)(8) allows for an interlocutory appeal

of an order granting or denying a plea to the jurisdiction brought by a

governmental unit. The underlying order grants a plea brought by eight

commissioners in their individual capacities (Appellees), not by a

governmental unit nor by governmental officials in their official capacities.

Moreover, the plea was based on standing, ripeness, and mootness—not an

assertion of sovereign immunity. Hence, section 51.014(a)(8) does not

provide a basis for appellate jurisdiction to review this interlocutory order.

BACKGROUND

Empower Texans, Inc. and its President, Michael Quinn Sullivan,

brought the underlying suit in 2014 seeking a protective order and moving

to quash two subpoenas that the Texas Ethics Commission (“the

Commission”) issued as part of its investigation of complaints filed against

Empower Texans. CR.6, 20. The complaints alleged that Empower Texans
violated certain campaign finance rules set forth in Chapter 305 of the Texas

Government Code. CR.11, 3943-3944. 1

Empower Texans and Sullivan amended their petition in November

2015 to add the then-current Commissioners as defendants in their

individual and official capacities. CR.2243-2244. As is relevant here, Count

IV of the Second Amended Petition complained that the eight named

Commissioners, in their individual capacities, were liable under 42 U.S.C.

1There are currently two other appeals pending before this Court in related
matters. In Cause No. 03-17-00392-CV, Sullivan appeals from the denial of a TCPA
motion that he filed against the Commission in a separate trial court proceeding (D-1-GN-
17-001878), which Sullivan filed as a de novo appeal from the Commission’s final
administrative order finding him in violation of Section 305.003 of the Texas Government
Code. That matter was argued before Justices Puryear, Field, and Bourland on December
13, 2017.

In Cause No. 03-16-00872-CV, Empower Texans and Sullivan appeal from the
grant of a partial plea to the jurisdiction filed by the Commission, which dismissed some
of Sullivan’s and Empower Texans’ claims in a separate lawsuit (D-1-GN-15-004455) on
the basis of immunity, mootness, and standing. That lawsuit, like this one, is also based
on Empower Texans’ and Sullivan’s challenges to the Commission’s subpoenas and its
ability under Chapter 571 of the Texas Government Code to enforce the lobbying
regulations in Chapter 305. That matter is fully briefed and pending a submission notice.

Notably too, in Cause No. 03-16-00019-CV, this Court dismissed a prior
interlocutory appeal pursued by Empower Texans and Sullivan in this same lawsuit (D-1-
GN-14-001252). There, Empower Texans appealed from an order denying its application
for a temporary injunction to prohibit the Commission from taking further action to
investigate the complaints. While the appeal was pending, the Commission dismissed its
subpoenas. This Court dismissed the appeal as moot. Empower Texans, Inc. v. Texas
Ethics Comm'n, No. 03-16-00019-CV, 2016 Tex. App. LEXIS 12446, *2 (Tex. App.—
Austin Nov. 22, 2016, no pet.).

2
§ 1983 for their actions related to the investigation of Empower Texans and

Sullivan. CR.2266-2270.

In the fall of 2016, the Commission withdrew its subpoenas and

formally dismissed the complaints against Empower Texans. CR.3945; see

also Empower Texans, 2016 Tex. App. LEXIS 12446, at *5.

The eight named Commissioners, in their individual capacities, then

filed an “Individual Defendants’ Plea to the Jurisdiction,” arguing that the

trial court lacked subject-matter jurisdiction over the section 1983 claims

against them in Count IV because (1) Empower Texans and Sullivan lacked

standing, having suffered no cognizable injury; (2) the claims were not ripe,

because the subpoenas had never been enforced at the time of filing suit and

none of Empower Texans’ or Sullivan’s anticipated injuries ever

materialized; and, (3) alternatively, the claims were moot because the

subpoenas had been fully and finally withdrawn. CR.3941, 3949-3955

(Appx. 1).

The plea was filed in response to the Second Amended Petition. Prior

to the hearing, Empower Texans and Sullivan filed a Fourth Amended

Petition that did not make substantive changes to the section 1983 claims

asserted against the Commissioners individually. However, these claims

became “Count V” in the Fourth Amended Petition, which was the live

3
pleading for purposes of the hearing on August 15, 2017. CR.4247-4285

(Appx. 2); RR.11-12.

The Honorable Amy Clark Meachum granted the plea. The Court

issued a letter ruling on September 15 (CR.4298, Appx. 4), followed by a

formal order on October 20, 2017 (CR.4325-4326, Appx. 5). The order states

that the “Individual Defendants’ Plea to the Jurisdiction is GRANTED, and

all claims brought pursuant to 42 U.S.C. § 1983 contained within Count V of

Plaintiffs’ Fourth Amended Petition are DISMISSED in their entirety with

prejudice as to refiling.” CR.4325-4326 (Appx. 5). Because the order does

not dispose of all claims and parties, it is interlocutory.

Empower Texans and Sullivan filed their notice of appeal “pursuant to

section 51.014 (a)(8) of the Texas Civil Practice and Remedies Code” on

November 9. CR.4327-4331 (Appx. 6). Their Docketing Statement likewise

claims that section 51.018(a)(8) provides this Court with jurisdiction to

review the interlocutory order. Appx. 10, pg. 2, § V.

4
 ARGUMENT & AUTHORITIES

A. Appellants Must Demonstrate a Specific, Proper Statutory
Basis for Interlocutory Jurisdiction.

An interlocutory order is appealable “only if a statute explicitly

provides appellate jurisdiction.” Stary v. DeBord, 967 S.W.2d 352, 352-53

(Tex. 1998); Cen-Tex Childcare, Inc. v. Johnson, 339 S.W.3d 734 (Tex.

App.—Fort Worth 2011, no pet.). Courts strictly construe statutes

authorizing interlocutory appeals because they are a “narrow exception to

the general rule that only final judgments are appealable.” City of Houston

v. Estate of Jones, 388 S.W.3d 663, 666 (Tex. 2012) (per curiam).

The appellate court must determine its jurisdiction to consider the

interlocutory appeal before reaching the merits. Minton v. Gunn, 355

S.W.3d 634, 639 (Tex. 2011). “[I]f the record does not affirmatively

demonstrate that appellate jurisdiction is proper, the appeal must be

dismissed.” Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 869

(Tex. App.—Dallas 2014, no pet.).

B. Section 51.014(a)(8) Provides Interlocutory Jurisdiction to
Review Orders on Pleas by Governmental Units—Not State
Actors in their Individual Capacities.

Section 51.014(a)(8) allows an interlocutory appeal from an order that

“grants or denies a plea to the jurisdiction by a governmental unit as that

term is defined in Section 101.001.” Tex. Civ. Prac. & Rem. Code

5
§ 51.014(a)(8); see also LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342

S.W.3d 73, 76 (Tex. 2011) (jurisdictional decision turned on whether

appellant fit within the definition of “governmental unit” in Section

101.001(3)(D); Great Sw. Reg’l Ctr., LLC v. ACSWD, LP, No. 03-17-00359-

CV, 2017 Tex. App. LEXIS 8156, *2 (Tex. App.—Austin Aug. 25, 2017, no pet.)

(dismissing interlocutory appeal on appellee’s motion prior to merits

briefing because appellants, who relied on section 51.014(a)(8) for

jurisdiction, were not “governmental units”).

“[T]he statute’s limitation of interlocutory jurisdiction to certain pleas

to the jurisdiction—those brought by a governmental unit—indicates that the

Legislature did not intend section 51.014(a)(8) as a blanket authorization for

interlocutory appellate review of a trial courts’ subject-matter jurisdiction.”

Garcia v. Kubosh, 377 S.W.3d 89, 105 & 107 n.41 (Tex. App.—Houston [1st

Dist.] 2012, no pet.) (Brown, J., concurring). “[W]hen a party appeals from

an interlocutory ruling on a plea to the jurisdiction filed by an entity that is

not a ‘governmental unit,’ as defined in section 51.014(a)(8), courts of

appeals generally dismiss the appeal for lack of appellate jurisdiction without

deciding challenges to the trial court's subject-matter jurisdiction.” Id.

(collecting cases).

6
 Section 101.001(3) defines “governmental unit” as:

(A) this state and all the several agencies of
government that collectively constitute the
government of this state, including other agencies
bearing different designations, and all departments,
bureaus, boards, commissions, offices, agencies,
councils, and courts;

(B) a political subdivision of this state, including any
city, county, school district, junior college district,
levee improvement district, drainage district,
irrigation district, water improvement district, water
control and improvement district, water control and
preservation district, freshwater supply district,
navigation district, conservation and reclamation
district, soil conservation district, communication
district, public health district, and river authority;

(C) an emergency service organization; and

(D) any other institution, agency, or organ of
government the status and authority of which are
derived from the Constitution of Texas or from laws
passed by the legislature under the constitution.

Tex. Civ. Prac. & Rem. Code § 101.001(3).

Each category of this definition facially refers to a type of entity, not an

individual. Nevertheless, the Texas Supreme Court has held that the

definition includes state officials who are sued in their official capacities

when they file a plea “invoking the sovereign immunity from suit held by the

government itself.” Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 837,

843-46 (Tex. 2007). The Koseoglu Court explained: “A suit against a state

7
official in his official capacity ‘is not a suit against the official personally, for

the real party in interest is the entity.’ Such a suit actually seeks to impose

liability against the governmental unit rather than on the individual

specifically named and ‘is, in all respects other than name, … a suit against

the entity.” Id. (internal citations omitted). Because the defendant in

Koseoglu “filed a plea to the jurisdiction in defense of claims against him in

his official capacity,” the appellate court had jurisdiction under section

51.014(a)(8). Id. at 846. The Court made clear, however, that no claims

against the defendant in his individual capacity were at issue in the

interlocutory appeal. Id. at 846, n.3.

Without question, interlocutory orders on pleas to the jurisdiction filed

by state actors seeking dismissal of claims against them in their individual

capacities remain outside the scope of section 51.014(a)(8). See, e.g., City of

Donna v. Ramirez, No. 13-16-00619-CV, 2017 Tex. App. LEXIS 10476, *19

(Tex. App.—Corpus Christi Nov. 9, 2017, no pet.) (holding “appellants’

interlocutory appeal [of order denying plea based on declaratory judgment

claims asserted against state actors in their individual capacities] is not

authorized by section 51.014(a)(8)”); Adams v. Harris County, No. 04-15-

00287-CV, 2015 Tex. App. LEXIS 12459, *9 (Tex. App.—San Antonio Dec. 9,

2015, pet. denied) (holding order granting plea and dismissing 42 U.S.C.

8
§ 1983 claims brought against state actor in his individual capacity was not

subject to interlocutory appeal under section 51.014(a)(8)); Sanders v. City

of Grapevine, 218 S.W.3d 772, 776 (Tex. App.—Fort Worth 2007, pet.

denied) (holding trial court’s order granting plea to jurisdiction and

dismissing with prejudice claims against city officials in their individual

capacities was not an appealable interlocutory order under section

51.014(a)(8)).

C. This Interlocutory Order Grants a Plea Filed by Individuals,
Not a Governmental Unit.

There can be no doubt on this record that the order appealed from is

outside the scope of section 51.014(a)(8) because it was granted on behalf of

eight individual defendants in their individual capacities. This is apparent

from a review of the pleadings, the plea and the response to the plea, the

hearing transcript, and the order.

Live Pleading: Empower Texans’ and Sullivan’s Fourth Amended

Petition asserted only two grounds for the trial court’s subject-matter

jurisdiction: (1) Texas Government Code § 571.137(d); and (2) 42 U.S.C

§ 1983. CR.4249 (Appx. 2). The first supports a motion to quash an

administrative subpoena, which is not at issue here. The second supports a

claim of constitutional deprivation brought against defendants in their

individual (not official) capacities. See Tex. Dep’t of Pub. Safety v. Petta, 44

9
S.W.3d 575, 581 (Tex. 2001); Adams, 2015 Tex. App. LEXIS 12459, at *9 (“A

section 1983 claim against a governmental official or employee in his

individual capacity for actions taken under the authority of his office seeks

to impose personal monetary liability on the officer or employee. It is not a

claim against a governmental unit, and a person sued only in his individual

capacity may not assert the governmental unit's sovereign immunity.”).

Count V of the petition asserts that the individual Commissioners

violated Empower Texans’ and Sullivan’s constitutional rights by engaging

in certain conduct related to their investigation of the complaints and

issuance of the subpoenas. CR.3945-3948 (Appx. 1); CR.4276-4282 (Appx.

2). Empower Texans and Sullivan claimed they were damaged by such

conduct because they were “forced to expend time and resources in their

defense, as well as attorney’s fees.” CR.4279 (Appx. 2). “Accordingly, [they

sought] relief and damages as is authorized pursuant to 42 U.S.C. [§] 1983

and attorney’s fees, costs, and expenses pursuant to 42 U.S.C. [§] 1988.”

CR.4279, 4282 (Appx. 2).

Plea, Response, and Hearing: The plea was expressly filed by the

“Individual Defendants” in their individual capacities, seeking dismissal of

the section 1983 claims set forth in Count V. CR.3941, 3945 (Appx. 1). Their

plea was in no way based on an assertion of immunity. Instead, the

10
Individual Defendants urged that the trial court lacked jurisdiction because

(1) Empower Texans and Sullivan lacked standing to assert the claims,

having suffered no legally cognizable injury; (2) the claims were not ripe; or

alternatively, (3) the claims were moot following the Commission’s full and

final dismissal of the complaints and termination of its investigation into

Empower Texans’ activities. CR.3949-3955 (Appx. 1).

In response, Empower Texans and Sullivan agreed that the claims

subject to the plea were brought “under 42 U.S.C. 1983 against the

Defendants in their individual capacities.” CR.4292 (Appx. 3). The response

makes clear that the plea did not involve any claims against the defendants

in their official capacities, any claims against the Commission as a

governmental unit, nor any assertion of immunity. CR.4291-4295 (Appx. 3).

This was confirmed by the argument presented at the hearing. Counsel

for the Individual Defendants made clear that the plea was brought only by

the eight named defendants in their individual capacities, and that it was

“focused solely on claims brought pursuant to 42 U.S.C. 1983.” RR.5:20-24,

10:17-23, 22:9-12. Counsel for Empower Texans and Sullivan unequivocally

acknowledged that the plea was aimed at the section 1983 claims against the

defendants in their individual capacities, and that “there’s a difference”

11
between this type of claim and one brought against a state official in his

official capacity. RR.41:7-19.

Order Granting Plea: Consistent with the pleadings and argument

presented, the district court “ORDERED that the Individual Defendants’

Plea to the Jurisdiction is GRANTED, and all claims brought pursuant to 42

U.S.C. § 1983 contained within Count V of the Plaintiffs’ Fourth Amended

Petition are DISMISSED in their entirety with prejudice as to refiling.”

CR.4325-4326 (Appx. 5).

This order does not grant or deny “a plea to the jurisdiction by a

governmental unit” within the scope of section 51.014(a)(8). All claims that

were the subject of the plea and resulting order were brought against the

Individual Defendants in their individual capacities. The plea and order do

not cover any claims against the Commissioners in their official capacities,

and the Individual Defendant did not rely on sovereign immunity as the basis

for their plea. Hence, section 51.014(a)(8) does not provide a basis for

jurisdiction over this interlocutory appeal. The appeal must be dismissed for

a want of jurisdiction. Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); see also

Great Sw. Reg’l, 2017 Tex. App. LEXIS 8156, at *2; Adams, 2015 Tex. App.

LEXIS 12459, at *9.

12
 PRAYER

For these reasons, Appellees (Tom Ramsay, Paul Hobby, Hugh Akin,

James Clancy, Wilhelmina Delco, Warren Harrison, Robert Long, and

Charles Untermeyer, in their individual capacities) respectfully pray that this

Court grant their Motion to Dismiss the Appeal for a Want of Jurisdiction,

and tax all costs against Appellants, Empower Texans, Inc., and Michael

Quinn Sullivan. The Appellees further request any and all further relief to

which they may be entitled in law or equity.

Respectfully submitted,
BECK REDDEN, LLP
515 Congress Avenue, Suite 1900
Austin, TX 78701
(512) 708-1000

By: /s/Amanda Taylor
Eric J.R. Nichols
enichols@beckredden.com
State Bar No. 14994500
Amanda G. Taylor
State Bar No. 24045921
ataylor@beckredden.com
Amy K. Penn
State Bar No. 24056117
apenn@beckredden.com

ATTORNEYS FOR APPELLEES

13
 CERTIFICATE OF CONFERENCE

As required by Texas Rule of Appellate Procedure 10.1(a)(5), I certify
that counsel for Appellees has conferred with counsel for Appellants about
the merits of Appellees’ Motion. Mr. Joe Nixon, counsel for Appellants, is
opposed to the relief requested herein.
/s/ Amanda G. Taylor
Amanda G. Taylor

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion to
Dismiss and Award Just Damages has been electronically filed and served on
all counsel below on December 15, 2017. See Tex. R. App. P. 9.2(c)(1),
9.5(b)(1).

Joseph M. Nixon James E. “Trey” Trainor, III
joseph.nixon@akerman.com Trey.trainor@akerman.com
AKERMAN, LLP AKERMAN, LLP
1300 Post Oak Blvd., Suite 2500 700 Lavaca Street, Suite 1400
Houston, TX 77056 Austin, TX 78701
(713) 623-0887 (512) 623-6700
(713) 960-1527 Facsimile (512) 623-6701 Facsimile

Attorneys for Appellants

/s/ Amanda G. Taylor
Amanda G. Taylor

14
Appx. 1

3941
3942
3943
3944
3945
3946
3947
3948
3949
3950
3951
3952
3953
3954
3955
3956
Appx. 2

2

4247
4248
4249
4250
4251
4252
4253
4254
4255
4256
4257
4258
4259
4260
4261
4262
4263
4264
4265
4266
4267
4268
4269
4270
4271
4272
4273
4274
4275
4276
4277
4278
4279
4280
4281
4282
4283
4284
4285
Appx. 3

4291
4292
4293
4294
4295
Appx. 4

4298
Appx. 5

4325
4326
 11/9/2017 12:32 PM
Appx. 6 Velva L. Price
District Clerk
CAUSE NO. D-1-GN-14-001252 Travis County
D-1-GN-14-001252
EMPOWER TEXANS, INC., and § Victoria
IN THE DISTRICT COURT OF Chambers
MICHAEL QUINN SULLIVAN, §
Plaintiffs, §
§
V. §
§
STATE OF TEXAS ETHICS COMMISSION, §
SEANAA WILLING, in hers capacity as Executive §
Director of the Texas Ethics Commission, TOM §
RAMSAY, individually and in his capacity as §
Commissioner, PAUL HOBBY, individually and in §
his capacity as Commissioner, HUGH C. AKIN, §
individually and in his capacity as Commissioner, § TRAVIS COUNTY, TEXAS
JAMES T. CLANCY, individually and in his §
capacity as Commissioner, WILHELMINA R. §
DELCO, individually and in her capacity as §
Commissioner, WARREN T. HARRISON, §
individually and in his capacity as Commissioner, §
ROBERT K. LONG, individually and in his §
capacity as Commissioner, and CHARLES G. §
UNTERMEYER, individually and in his capacity §
as Commissioner, §
Defendants. § 53RD JUDICIAL DISTRICT

NOTICE OF APPEAL

Plaintiffs Empower Texans, Inc. and Michael Quinn Sullivan files this Notice of Appeal

pursuant to section 51.014 (a) (8) of the Texas Civil Practice and Remedies Code and Rules 25.1

and 26.1(b) of the Texas Rules of Appellate Procedure, and would respectfully show the Court as

follows:

1. Plaintiffs desire to appeal this Court’s Order, signed October 20, 2017, a copy of

which is attached hereto.

2. Plaintiffs appeal is to the Third Court of Appeals in Austin, Texas.

3. A copy of this Notice of Appeal has been served on all parties to the proceeding

from which this appeal is taken. See TEX. R. APP. P. 25.1(e), 28.1(b).

4327
 4. This interlocutory appeal is an accelerated appeal under Rule 28.1 of the Texas

Rules of Appellate Procedure and is not a parental termination or child protection case. Tex. R.

App 28.1 and 25.1 (d) (6).

5. This interlocutory appeal results in an automatic stay of all proceedings in the trial

court during the pendency of this appeal Tex. Civ. Proc. & Rem. Code § 51.014 (b) and (c).

Respectfully submitted,

AKERMAN L.L.P.

By: /s/ Joseph M. Nixon
Joseph M. Nixon
State Bar No. 15244800
1300 Post Oak Blvd., Suite 2500
Houston, Texas 77056
Telephone: (713) 871-6809
Facsimile: (713) 960-1527
Email: joe.nixon@akerman.com

James E. “Trey” Trainor, III
State Bar No. 24042052
700 Lavaca Street Suite 1400
Austin, Texas 78701
Telephone: (512) 623-6700
Facsimile: (512) 623-6701
Email: trey.trainor@akerman.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that on November 9, 2017, a true and correct copy of this pleading was served on
all counsel of record in accordance with the Texas Rules of Civil Procedure.

/s/ Joseph M. Nixon
Joseph M. Nixon

4328
 ACCEPTED
Appx. 7 03-17-00770-CV
20934840
Appellate Docket Number: ðíóïéóððééðóÝÊ THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/28/2017 11:52 AM
Appellate Case Style: Û³°±©»® Ì»¨¿²-ô ײ½ò ¿²¼ Ó·½¸¿»´ Ï«·²² Í«´´·ª¿² JEFFREY D. KYLE
CLERK
Vs.
ͬ¿¬» ±º Ì»¨¿- Û¬¸·½- ݱ³³·--·±²ô »¬ ¿´

Companion Case No :

Amended/corrected statement: DOCKETING STATEMENT (Civil)
Appellate Court: í®¼ ݱ«®¬ ±º ß°°»¿´-
(to be filed in the court of appeals upon perfection of appeal under TRAP 32)

Person Organization (choose one) Lead Attorney
Û³°±©»® Ì»¨¿²-ô ײ½ò ¿²¼ Ó·½¸¿»´ Ï«·²² Í«´´·ª¿² First Name: Ö±-»°¸

First Name: Middle Name: Óò

Middle Name: Last Name: Ò·¨±²

Last Name: Suffix:
Suffix: Law Firm Name: ßµ»®³¿² ÔÔÐ

Pro Se: Address 1: ïíðð б-¬ Ñ¿µ Þ´ª¼

Address 2: Í«·¬» îëðð

City: ر«-¬±²

State: Ì»¨¿- Zip+4: ééðëê

Telephone: éïíóêîíóðèèé ext.
Fax: éïíóçêðóïëîé

Email: ¶±»ò²·¨±²à¿µ»®³¿²ò½±³

SBN: ïëîììèðð Add Appellant / Attorney

Person Organization (choose one) Lead Attorney
First Name: Û®·½

First Name: ͬ¿¬» ±º Ì»¨¿- Û¬¸·½- ݱ³³·--·±²ô »¬ ¿´ Middle Name: ÖòÎò

Middle Name: Last Name: Ò·½¸±´-

Last Name: Suffix:
Suffix: Law Firm Name: Þ»½µ λ¼¼»²ô ÔÔÐ

Pro Se: Address 1: ëïë ݱ²¹®»-- ߪ»²«»

Address 2: Í«·¬» ïçðð

City: ß«-¬·²

State: Ì»¨¿- Zip+4: éèéðï

Telephone: ëïîóçððóíîðë ext.
Fax: ëïîóéðèóïððî

Email: »²·½¸±´-ྻ½µ®»¼¼»²ò½±³

SBN: ïìççìçðð Add Appellee / Attorney

п¹» ï ±º é
Nature of Case (Subject matter or type of case): Ѭ¸»®

Date order or judgment signed: ïðñîðñîðïé Type of judgment: ײ¬»®´±½«¬±®§ Ñ®¼»®

Date notice of appeal filed in trial court: ïïñðçñîðïé
If mailed to the trial court clerk, also give the date mailed:
Interlocutory appeal of appealable order: Yes No
If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28): ëïòðïìø¿÷øè÷ ÌÝÐúÎÝ

Accelerated appeal (See TRAP 28): Yes ² No
If yes, please specify statutory or other basis on which appeal is accelerated:

Parental Termination or Child Protection? (See TRAP 28.4): Yes No

Permissive? (See TRAP 28.3): Yes ² No
If yes, please specify statutory or other basis for such status:

Agreed? (See TRAP 28.2): Yes No
If yes, please specify statutory or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: Yes No
If yes, please specify statutory or other basis for such status:

Does this case involve an amount under $100,000? Yes No
Judgment or order disposes of all parties and issues: Yes No
Appeal from final judgment: Yes No
Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes No

Motion for New Trial: Yes No If yes, date filed:
Motion to Modify Judgment: Yes No If yes, date filed:
Request for Findings of Fact Yes No If yes, date filed:
and Conclusions of Law:
Yes No If yes, date filed:
Motion to Reinstate:
Yes No If yes, date filed:
Motion under TRCP 306a:
Other: Yes No
If other, please specify:

Yes No If yes, date filed:

Yes No If yes, date filed:

Yes No :

Yes No :

п¹» î ±º é
Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? Yes No
If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

Court: ëí®¼ Clerk's Record:
County: Ì®¿ª·- ݱ«²¬§
Trial Court Clerk: District County
ÜóïóÙÒóïìóððïîëî Was clerk's record requested? Yes No
If yes, date requested: ïïñîïñîðïé
Trial Judge (who tried or disposed of case): If no, date it will be requested:
First Name: ß³§ Were payment arrangements made with clerk?
Middle Name: Yes No Indigent
Last Name: Ý´¿®µ ó Ó»¿½¸«³

Suffix:
Address 1: ïððð Ù«¿¼¿´«°» í®¼ Ú´±±®

Address 2 :
City: ß«-¬·²

State: Ì»¨¿- Zip + 4: éèéðï

Telephone: ëïîóèëìóçíðë ext.
Fax: ëïîóèëìóîîêè

Email:

Reporter's or Recorder's Record:

Is there a reporter's record? Yes No
Was reporter's record requested? Yes No

Was there a reporter's record electronically recorded? Yes No
If yes, date requested: ïïñîïñîðïé
If no, date it will be requested:
Were payment arrangements made with the court reporter/court recorder? Yes No Indigent

п¹» í ±º é
 Court Reporter Court Recorder
Official Substitute

First Name: ß´·½·¿

Middle Name:
Last Name: ο½¿²»´´·

Suffix:
Address 1: ïððð Ù«¿¼¿´«°» í®¼ Ú´±±®

Address 2:
City: ß«-¬·²

State: Ì»¨¿- Zip + 4: éèéðï

Telephone: ëïîóèëìóìðîè ext.
Fax: ëïîóèëìóîîêè

Email: Add Reporter

Supersedeas bond filed: Yes No If yes, date filed:

Will file: Yes No

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes No
If yes, briefly state the basis for your request:

Should this appeal be referred to mediation?
Yes No

If no, please specify: ̸»®» ·- ²± ·--«» ¬± ³»¼·¿¬»
Has the case been through an ADR procedure? Yes No
If yes, who was the mediator?
What type of ADR procedure?
At what stage did the case go through ADR? Pre-Trial Post-Trial Other

If other, please specify:

Type of case?
Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without
prejudice to the right to raise additional issues or request additional relief):
̸·- ·- ¿ ìî ËÍÝ ïçèí ½¿-» ¾®±«¹¸¬ º±® ½·ª·´ ®·¹¸¬- ª·±´¿¬·±²- ¾®±«¹¸¬ ¿¹¿·²-¬ ¬¸» ÌÛÝ ½±³³·--·±²»®- ·² ¾±¬¸ ¬¸»·® ·²¼·ª·¼«¿´ ¿²¼ ±ºº·½¿´ ½¿°¿½·¬·»-ò ̸» ½±«®¬ ·²½±®®»½¬´§ ¹®¿²¬»¼ ¿ °´»¿ ¬± ¬¸» ¶«®·-¼

How was the case disposed of? Ѭ¸»®
Summary of relief granted, including amount of money judgment, and if any, damages awarded. °´»¿ ÌÑ ÌØÛ ÖËÎ×ÍÜ×ÝÌ×ÑÒ
If money judgment, what was the amount? Actual damages:
Punitive (or similar) damages:

п¹» ì ±º é
Attorney's fees (trial):
Attorney's fees (appellate):
Other:
If other, please specify:

Will you challenge this Court's jurisdiction? Yes No
Does judgment have language that one or more parties "take nothing"? Yes No
Does judgment have a Mother Hubbard clause? Yes No
Other basis for finality? ÑÎÜÛÎ Í×ÙÒÛÜ É×ÌØ ÐÎÛÖËÜ×ÝÛ

Rate the complexity of the case (use 1 for least and 5 for most complex): 1 2 3 4 5
Please make my answer to the preceding questions known to other parties in this case. Yes No
Can the parties agree on an appellate mediator? Yes No
If yes, please give name, address, telephone, fax and email address:
Name Address Telephone Fax Email

Languages other than English in which the mediator should be proficient:
Name of person filing out mediation section of docketing statement:

List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

Docket Number: ðíóïéóððíçîó½ª Trial Court: ¼óïó¹²óïéóððïèéè

Style: Ó·½¸¿»´ Ï«·²² Í«´´·ª¿²
Vs.
Ì»¨¿- Û¬¸·½- ݱ³³·--·±²

Add Related Matter

п¹» ë ±º é
The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar
Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in
the appeal before this Court.

The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of
discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched
with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information
regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at
www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within
thirty (30) to forty-five (45) days after submitting this Docketing Statement.
Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select
your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you
in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and
information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate
attorneys.
Do you want this case to be considered for inclusion in the Pro Bono Program? Yes No

Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have
regarding the appeal? Yes No

Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for
the purposes of considering the case for inclusion in the Pro Bono Program.

If you have not previously filed an and attached a file-stamped copy of that , does your
income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? Yes No

These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml.

Are you willing to disclose your financial circumstances to the Pro Bono Committee? Yes No
If yes, please attach an completed and executed by the appellant or appellee. Sample forms may be
found in the Clerk's Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon
your execution of a under oath as to your financial circumstances.

Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without
prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary).

Signature of counsel (or pro se party) Date: ïïñîïñîðïé

Printed Name: Ö±-»°¸ Óò Ò·¨±² State Bar No.: ïëîììèðð

Electronic Signature: Ö±-»°¸ Óò Ò·¨±²
(Optional)

п¹» ê ±º é
The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial
court's order or judgment as follows on .

Signature of counsel (or pro se party) Electronic Signature: Ö±-»°¸ Óò Ò·¨±²
(Optional)

State Bar No.: ïëîììèðð
Person Served
Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must
state:
(1) the date and manner of service;
(2) the name and address of each person served, and
(3) if the person served is a party's attorney, the name of the party represented by that attorney

Please enter the following for each person served:

Date Served: ïïñîîñîðïé

Manner Served: »Í»®ª»¼

First Name: Û®·½

Middle Name: ÖòÎò

Last Name: Ò·½¸±´-
Suffix:
Law Firm Name: Þ»½µ λ¼¼»²ô ÔÔÐ
Address 1: ëïë ݱ²¹®»-- ߪ»²«»ô Í«·¬» ïçðð

Address 2:
City: ß«-¬·²

State Ì»¨¿- Zip+4: éèéðï

Telephone: ext.
Fax:
Email:
If Attorney, Representing Party's Name: ͬ¿¬» ±º

п¹» é ±º é