NUMBER 13-23-00091-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
REYNALDO GONZALEZ JR., Appellant,
v.
MORGAN GRAHAM, Appellee.
On appeal from the 107th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Justice Benavides
Appellant Reynaldo Gonzalez Jr. appeals from the trial court’s denial of his Texas
Citizens Participation Act (TCPA) motion to dismiss appellee Morgan Graham’s claim
brought under § 253.131 of the Texas Election Code. See TEX. CIV. PRAC. & REM. CODE
ANN. § 27.003; TEX. ELEC. CODE ANN. § 253.131. By three issues that we have
reorganized, Gonzalez argues the trial court erred in denying his motion to dismiss
because: (1) Graham lacks standing to bring her claim; (2) the TCPA applies to his claim
and Graham failed to demonstrate a prima facie case with clear and specific evidence;
and (3) permitting Graham to bring her claim against Gonzalez violates the First and
Fourteenth Amendments of the United States Constitution. See U.S. CONST. amends. I,
XIV. We affirm.
I. BACKGROUND
On December 13, 2021, Gonzalez filed an application to oppose Graham for the
office of County Chair for the Cameron County Republican Party. Graham, as the
incumbent County Chair, rejected Gonzalez’s application for incompleteness. Gonzalez
filed a petition for writ of mandamus in this Court, seeking review of Graham’s decision.
In re Gonzalez, No. 13-21-00452-CV, 2022 WL 37769, at *3 (Tex. App.—Corpus Christi–
Edinburg Jan. 4, 2022, orig. proceeding) (mem. op.). We concluded that “Gonzalez’s
application failed to comply with the express requirements of the election code,” and
therefore, “Graham had a ministerial duty to reject Gonzalez’s application.” Id. Gonzalez
was ultimately prevented from appearing on the March 2022 Republican primary ballot,
and Graham won reelection.
On August 2, 2022, Graham filed her original petition in the underlying case.
According to her petition, Gonzalez “failed to abide by the requirements of Title 15 of the
Texas Election Code” because he “failed to appoint a campaign treasurer with the Texas
Ethics Commission upon becoming a candidate.” See TEX. ELEC. CODE ANN. § 252.001
(entitled “Appointment of Campaign Treasurer Required”). In addition, Graham alleged
that Gonzalez “accepted political contributions and made and/or authorized campaign
2
expenditures at a time when he did not have a campaign treasurer appointment in effect.”
See id. § 253.031 (entitled “Contribution and Expenditure Without Campaign Treasurer
Prohibited”). Therefore, Graham sought to recover damages under § 253.131 of the
Texas Election Code. See id. § 253.131 (“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.”).
On November 21, 2022, Gonzalez filed his TCPA motion to dismiss, alleging that
Graham’s claim was based on or brought in response to his exercise of his First
Amendment rights to free speech, to petition, and to freely associate. See U.S. CONST.
amend. I; TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). He also alleged that the suit
was brought in response to conduct protected by § 27.010(b)(1) of the civil practice and
remedies code. Id. § 27.010(b)(1) (providing that the TCPA applies to a suit arising out of
conduct relating to “promotion of a dramatic, literary, musical, political, journalistic, or
otherwise artistic work” (emphasis added)).
Additionally, Gonzalez argued that Graham lacked standing to bring her claim, as
she suffered no injury. Gonzalez specifically alleged that “Graham ran for county chair[]
uncontested and spent $0 to defeat her non-exist[ent] political opponent.” He further
asserted that, to the extent Graham did suffer an injury, it was a “sovereign injury” rather
than a “proprietary injury,” “[a]nd neither the Texas Election Code, nor the Texas
Constitution, authorize private citizens to assert sovereign injuries.” Lastly, Gonzalez
argued that even if § 253.131 provided standing for politicians to sue their opponents,
“then it should hold those sections unconstitutional as applied to Mr. Gonzalez,” as “[a]
3
statute purporting to vest individuals with the authority to recover civil damages for
violations of campaign finance law cannot override the basic constitutional principle[] of
standing.”
Attached to Gonzalez’s motion to dismiss was his unsworn declaration in which he
detailed that he paid a law firm “$6,217.50 to pursue the mandamus action,” and
“accepted $700 from five friends to help pay [his] attorneys’ fees” during a time when no
campaign treasurer appointment was in effect. Gonzalez explained that he “relied on the
Texas Ethics Commission’s [TEC] website, which states ‘If you are on an upcoming
ballot . . . . , then Texas state law requires all candidates . . . to file a campaign treasurer
appointment . . . .’” As he would not be on the upcoming ballot, Gonzalez did not believe
he was required to file a campaign treasurer appointment.
Gonzalez also represented that, after Graham filed a sworn complaint on January
19, 2022, “with the [TEC] alleging that [he] had violated the [Texas] Election Code,” he
returned the $700 he received from friends and filed a campaign treasurer appointment
“out of an abundance of caution.” According to Gonzalez, Graham’s sworn complaint with
the TEC was resolved on April 19, 2022, when he signed an “Assurance of Voluntary
Compliance.” The TEC “amicably settled the issues complained of in this case, assessing
no penalties against [Gonzalez] for [his] allegedly belated filings.”
Gonzalez also attached to his motion to dismiss: (1) the campaign treasurer
appointment filing that was received by the TEC on February 1, 2022; (2) campaign
finance reports which itemized the campaign funds accepted and expended by Gonzalez;
and (3) campaign finance reports which demonstrated that Graham accepted and
4
expended no campaign funds in furtherance of her own candidacy.
On December 6, 2022, Graham amended her petition to specify that, in addition to
the statutory damages allowed by § 253.131, she also “suffered damages for lost wages
and additional unreimbursed fees for legal costs associated with the campaign activities
for the Cameron County Primary against Mr. Gonzalez.” That same day, Graham filed
her response to Gonzalez’s TCPA motion to dismiss, in which she argued that the TCPA
did not apply to her claim, but even if it did, she had clear and specific evidence to support
a prima facie case. Graham further asserted that “if potential candidates fail to follow state
[election] law and any opponents are not allowed to seek redress from the judicial
branch[,] such prohibition would be chilling on” the exercise of First Amendment rights.
Attached to her response were: (1) Gonzalez’s campaign finance reports; and
(2) Graham’s affidavit, in which she averred that Gonzalez’s political campaign caused
her to miss “40 hours” of work and be personally liable for an undetermined amount of
attorneys’ fees stemming from the mandamus litigation.
Gonzalez subsequently filed a reply to Graham’s response, reiterating much of the
same arguments as were raised in his initial motion to dismiss. However, he also
addressed Graham’s assertion that she suffered injuries in the form of lost wages and
potential attorneys’ fees, arguing that Graham did not provide clear and specific evidence
of these injuries and that her injuries were neither concrete and particularized nor
traceable to his conduct.
The trial court denied Gonzalez’s motion to dismiss, and this appeal followed.
5
II. STANDING
Gonzalez challenges Graham’s standing to bring a claim under the election code
“because she did not incur any damages.” “Because standing is a threshold jurisdictional
issue that ‘is essential to a court’s power to decide a case,’ we address that issue before
turning to the substance of the TCPA motion.” McLane Champions, LLC v. Hous.
Baseball Partners, 671 S.W.3d 907, 912 (Tex. 2023) (quoting Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 553–54 (Tex. 2000)).
A. Applicable Law & Standard of Review
“Standing requires an injury-in-fact that is fairly traceable to the defendant’s
conduct and likely to be redressed by a decision in the plaintiff’s favor.” Abbott v. Harris
County, 672 S.W.3d 1, 8 (Tex. 2023). An “injury-in-fact” is “an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical.” Perez v. Turner, 653 S.W.3d 191, 198 (Tex. 2022) (citing
Heckman v. Williamson County, 369 S.W.3d 137, 154–55 (Tex. 2012)) (internal quotation
marks omitted).
We review the issue of standing de novo. In re H.S., 550 S.W.3d 151, 155 (Tex.
2018); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). “In
evaluating standing, we construe the pleadings in the plaintiff’s favor, but we also consider
relevant evidence offered by the parties.” In re H.S., 550 S.W.3d at 155. “A plaintiff does
not lack standing simply because he cannot prevail on the merits of his claim; he lacks
standing because his claim of injury is too slight for a court to afford redress.”
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 305 (Tex. 2008).
6
B. Analysis
First, we must resolve an ancillary issue. Gonzalez contends that “Graham has no
clear and specific evidence of an actual, concrete and particularized, non-conjectural,
non-hypothetical injury.” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005 (“The court may
not dismiss a legal action under this section if the party bringing the legal action
establishes by clear and specific evidence a prima facie case for each essential element
of the claim in question.” (emphasis added)). But Gonzalez does not explain why a
heightened evidentiary burden should apply when the issue of standing is raised in a
TCPA motion to dismiss. We have found no authority suggesting that a novel evidentiary
burden is required in this context, and so we decline to adopt such a burden here. See
Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 22 (Tex. App.—Houston [14th
Dist.] 2020, no pet.) (“[I]t does not follow that a court must analyze jurisdiction using the
TCPA burden-shifting procedure, a mechanism ill-suited for resolving whether a court is
authorized to decide a controversy.”).
Graham alleged in her live pleading that Gonzalez was liable to her for damages
under § 253.131 of the election code, citing both subsections (b) and (c) of the statute.
See TEX. ELEC. CODE ANN. § 253.131(b), (c). Subsection (b) provides that “[i]f the
[unlawful] 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.” Id. § 253.131(b). And subsection (c) provides that “[i]f the [unlawful] contribution
or expenditure is in opposition to a candidate, the candidate is entitled to recover
damages under this section.” Id. § 253.131(c).
7
Gonzalez does not dispute that subsections (b) and (c) of § 253.131 apply to
Graham’s claim. Gonzalez relies on Spokeo and TransUnion, two recent United States
Supreme Court cases, to argue that Graham lacks standing, despite statutory
authorization to sue, because she has not suffered an injury-in-fact. See TransUnion LLC
v. Ramirez, 141 S.Ct. 2190 (2021); Spokeo, Inc. v. Robins, 578 U.S. 330 (2016); see also
Tex. Ass’n Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (“Because
standing is a constitutional prerequisite to maintaining a suit under both federal and Texas
law, we look to the more extensive jurisprudential experience of the federal courts on this
subject for any guidance it may yield.”).
Certainly, these cases stand for the proposition that a plaintiff will not
“automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person
a statutory right and purports to authorize that person to sue to vindicate that right.”
Spokeo, 578 U.S. at 341; see TransUnion, 141 S.Ct. at 2205. But Spokeo and TransUnion
also recognized that the legislative branch is often well-poised to identify injuries-in-fact
and to adopt statutes that provide remedies for those injuries. See TransUnion, 141 S.Ct.
at 2204 (“Courts must afford due respect to Congress’s decision to impose a statutory
prohibition or obligation on a defendant, and to grant a plaintiff a cause of action to sue
over the defendant’s violation of that statutory prohibition or obligation.”); Spokeo, 578
U.S. at 342 (explaining that “the violation of a procedural right granted by statute can be
sufficient in some circumstances to constitute injury in fact,” and a litigant “need not allege
any additional harm beyond the one Congress has identified” to have Article III standing);
see also Warth v. Seldin, 422 U.S. 490, 500 (1975) (“The actual or threatened injury
8
required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion
of which creates standing.” (cleaned up)).
In any event, we conclude that Graham has adequately demonstrated standing.
We address the elements of standing that Gonzalez challenges—i.e., injury-in-fact and
causation—in turn.
An injury-in-fact must be concrete and particularized. Spokeo, 578 U.S. at 339. A
concrete injury is not “necessarily synonymous with ‘tangible.’ Although tangible injuries
are perhaps easier to recognize, we have confirmed in many of our previous cases that
intangible injuries can nevertheless be concrete.” Id. at 340 (first citing Pleasant Grove
City v. Summum, 555 U.S. 460 (2009); and then citing Church of Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U.S. 520 (1993)); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–
63 (1992) (“[T]he desire to use or observe an animal species, even for purely esthetic
purposes, is undeniably a cognizable interest for purpose of standing.”). The United
States Supreme Court instructs lower courts to look to “history and tradition” when
determining whether a plaintiff’s alleged intangible injury provides her with standing. See
TransUnion, 141 S.Ct. at 2204; Spokeo, 578 U.S. at 341. Specifically, the Spokeo Court
explained that
[b]ecause the doctrine of standing derives from the case-or-controversy
requirement, and because that requirement in turn is grounded in historical
practice, it is instructive to consider whether an alleged intangible harm has
a close relationship to a harm that has traditionally been regarded as
providing a basis for a lawsuit in English or American courts.
578 U.S. at 340–41. “In looking to whether a plaintiff’s asserted harm has a ‘close
relationship’ to a harm traditionally recognized as providing a basis for a lawsuit in
9
American courts, we do not require an exact duplicate.” TransUnion, 141 S.Ct. at 2209.
“[T]raditional harms may also include harms specified by the Constitution itself.” Id. at
2204. And “because Congress is well positioned to identify intangible harms that meet
minimum Article III requirements, its judgment is also instructive and important.” Spokeo,
578 U.S. at 341.
The supreme court has already recognized that private individuals can have a
concrete interest in ensuring that an election is “validly conducted.” Brown v. Todd, 53
S.W.3d 297, 303 (Tex. 2001); see Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999). In
addition, our constitution specifically authorizes the Legislature to “make
such . . . regulations as may be necessary to detect and punish fraud and preserve the
purity of the ballot box.” TEX. CONST. art. 6, § 4. Early on in this state’s history, our highest
court recognized that if “the preservation and enforcement of the purity of the conduct of
elections. . . . cannot be done, then one of the very foundations of our system of
government may be seriously impaired.” De Shazo v. Webb, 113 S.W.2d 519, 524 (Tex.
1938); see State v. Connor, 23 S.W. 1103, 1107 (Tex. 1893) (“[T]he public has a right
that the ballot shall be protected from fraud . . . .”). In recognition of its duty to defend
against election fraud, the Legislature enacted § 253.131 of the election code, and we
must afford that decision due respect. See TransUnion, 141 S.Ct. at 2204 (“Courts must
afford due respect to Congress’s decision to impose a statutory prohibition or obligation
on a defendant . . . .”). Accordingly, we conclude that Graham had a concrete interest in
ensuring that the election was validly conducted. See Brown, 53 S.W.3d at 303.
“An injury is particularized for standing purposes if it affects the plaintiff in a
10
personal and individual way.” Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692, 696
(Tex. 2021) (citing Spokeo, 136 S.Ct. at 1548) (cleaned up). Gonzalez argues that only
the State of Texas has standing in this case to enforce a violation of the election code.
But the supreme court has specifically recognized § 253.131 as a right available to private
individuals to ensure compliance with campaign finance requirements. See Osterberg v.
Peca, 12 S.W.3d 31, 49 (Tex. 2000) (“Because state resources for policing election laws
are necessarily limited, in many cases [§] 253.131 is likely to provide the only viable
means of enforcing reporting requirements.”); see also City of El Paso v. Tom Brown
Ministries, 505 S.W.3d 124, 139 (Tex. App.—El Paso 2016, no pet.) (“The Texas
Supreme Court recognizes that the right to enforce the Texas Election Code . . . for
damages under Section 253.131 is a private right of action for the protection of private
rights.” (citing Osterberg, 12 S.W.3d at 49)).
In his reply to Graham’s response, Gonzalez asserted that the subject matter of
Graham’s suit consists of “allegations that Mr. Gonzalez attempted to organize a
campaign for political office against her, including filing an application for a place on the
ballot, filing campaign-finance forms, and filing a mandamus lawsuit seeking a place on
the ballot.” (Emphasis added). Because he categorized the act of filing a mandamus
lawsuit as part of an “attempt to organize a campaign for political office against [Graham],”
it seems apparent that when Gonzalez paid a law firm “$6,217.50 to pursue the
mandamus action” and “accepted $700 from five friends” “[i]n connection with the
litigation,” he was also “attempt[ing] to organize a campaign for political office against
her.” In other words, Gonzalez received and spent these campaign contributions and
11
expenditures to specifically oppose Graham. See TEX. ELEC. CODE ANN. § 253.131(c).
Our sister court found such an injury sufficient to confer standing in Buzbee v.
Clear Channel Outdoor, LLC, 616 S.W.3d at 24. In that case, Buzbee, a mayoral
candidate, sued his political opponent—the incumbent mayor—and an advertiser that
provided billboards for the incumbent mayor. Id. at 20. The court of appeals agreed with
Buzbee that the incumbent mayor and the advertiser acted “in opposition” to his
campaign, and it concluded that this resulted in “a concrete, particularized harm that
distinguishes [Buzbee’s] alleged injury from that of the general public.” Id. at 24. It further
concluded that Buzbee had standing to assert a claim under § 253.131(c) of the election
code. Id.
The record demonstrates that Gonzalez accepted illegal campaign contributions
with the specific intent to oppose Graham’s candidacy. Therefore, Graham’s injury is
distinct from that of the public at large. See Buzbee, 616 S.W.3d at 24. The fact that the
State might also have the option of enforcing election code violations does not deprive
Graham of standing. See Fed. Election Comm’n v. Akins, 524 U.S. 11, 25 (1998) (“[T]he
fact that [an injury] is widely shared does not deprive Congress of constitutional power to
authorize its vindication in the federal courts.”). We conclude that Graham’s alleged injury
was sufficiently particularized.1
Next, we determine whether Graham suffered an “actual” injury as opposed to a
merely “hypothetical” one. See Inman, 252 S.W.3d at 304–05. Here, Graham’s allegation
1 Because of this, we conclude that Gonzalez’s argument that § 253.131 is unconstitutional
because it permits Graham to assert a “sovereign injury,” rather than a private injury, is unfounded, and we
overrule it.
12
that Gonzalez accepted illegal campaign contributions means that Gonzalez’s unlawful
conduct tainted the electoral process. Simply because an injury may be difficult to
measure does not render that injury “hypothetical.” Cf. Massachusetts v. E.P.A., 549 U.S.
497, 521 (2007) (concluding that potential side effects of climate change qualified as an
actual injury, sufficient to confer Massachusetts with standing to sue the EPA for failing
to regulate greenhouse gas emissions); Tex. Propane Gas Ass’ns v. City of Houston, 622
S.W.3d 791, 800 (Tex. 2021) (“TPGA has standing to challenge regulations it claims the
City had no authority to enact.”). That Graham eventually won the election and that
Gonzalez returned the campaign contributions does not render the injury hypothetical. At
best, these are facts that relate to the merits of Graham’s case, not whether she suffered
any injury. We conclude that Graham suffered an injury-in-fact.
Additionally, Gonzalez’s conduct is fairly traceable to Graham’s injury. There is no
need to show the exact responsibility the defendant bears for the alleged injuries, so long
as a plaintiff can trace these injuries to the defendant’s conduct. Heckman, 369 S.W.3d
at 157. Here, Gonzalez’s unlawful campaign finance activities violated Graham’s interest
in ensuring the election was validly conducted. We therefore conclude Graham has
demonstrated this element of standing.
To summarize, we conclude that Graham has demonstrated an injury-in-fact and
causation. 2 Therefore, we further conclude that Graham has standing to bring the
2 Gonzalez does not challenge the redressability component of standing. Nonetheless, we
conclude this requirement has also been adequately satisfied. See Dep’t of Educ. v. Brown, 600 U.S. 551,
561 (2023) (“[W]hen a statute affords a litigant ‘a procedural right to protect his concrete interests,’ the
litigant may establish Article III jurisdiction without meeting the usual ‘standards for redressability and
immediacy.’” (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992))); see also Uzuegbunam v.
Preczewski, 141 S.Ct. 792, 802 (2021) (“[W]e conclude that a request for nominal damages satisfies the
redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal
13
underlying claims in this case.
III. TCPA
By his second issue, Gonzalez argues that the trial court erred by denying his
TCPA motion to dismiss.
A. Standard of Review & Applicable Law
“The [TCPA] is a bulwark against retaliatory lawsuits meant to intimidate or silence
citizens on matters of public concern.” Dall. Morning News, Inc. v. Hall, 579 S.W.3d 370,
376 (Tex. 2019). “A two-step process is initiated by motion of a defendant who believes
that the lawsuit responds to the defendant’s valid exercise of First Amendment rights.” In
re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). It is the movant’s initial
burden to prove that the plaintiff’s claim “is based on or is in response to” the movant’s
exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of
association.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). If the movant satisfies this
burden, the trial court must dismiss the lawsuit unless the non-movant “establishes by
clear and specific evidence a prima facie case for each essential element of the claim in
question.” Id. § 27.005(c); Buzbee, 616 S.W.3d at 26. This “clear and specific” evidentiary
standard “does not impose a higher burden of proof than that required of the plaintiff at
trial.” In re Lipsky, 460 S.W.3d at 591.
“We construe the TCPA liberally to effectuate its purpose and intent fully.” Buzbee,
616 S.W.3d at 26. “We consider de novo the legal questions of whether the Act applies
right.”); Brown v. Todd, 53 S.W.3d 297, 303 (Tex. 2001) (providing that “the judiciary’s limited role in
elections disputes” is to remedy “elections tainted by fraud, illegality, or other irregularity”).
14
and whether a non-movant has presented clear and specific evidence establishing a
prima facie case of each essential element of the challenged claims.” Id. We view “the
pleadings and evidence in a light most favorable to the plaintiff non-movant.” Gaskamp v.
WSP USA, Inc., 596 S.W.3d 457, 470 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d).
B. Analysis
Gonzalez and Graham dispute whether the TCPA applies to Graham’s claim.
Nonetheless, for purposes of our analysis, we will assume without deciding that the TCPA
applies.
The second step of the TCPA requires us to examine whether Graham has
established through clear and specific evidence a prima facie case for each essential
element of her claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); In re Lipsky,
460 S.W.3d at 590. To succeed on a § 253.131 claim, a plaintiff must show that the
defendant knowingly made or accepted a campaign contribution or made a campaign
expenditure in violation of Chapter 253 of the election code. TEX. ELEC. CODE ANN.
§ 253.131(a). To be entitled to damages, the plaintiff must also demonstrate that the
contribution or expenditure was made in opposition to the plaintiff’s candidacy or in
support of the defendant’s candidacy. Id. § 253.131(b), (c).
1. Knowingly Made or Accepted a Campaign Contribution or Expenditure
A claimant is not required to show that the candidate knowingly violated Chapter
253 of the election code. Osterberg, 12 S.W.3d at 38. Rather, “‘knowingly’ applies only to
whether a person is making a ‘campaign contribution’ or ‘campaign expenditure.’” Id. at
39. A “campaign contribution” is “a contribution to a candidate or political committee that
15
is offered or given with the intent that it be used in connection with a campaign for elective
office or on a measure.” TEX. ELEC. CODE ANN. § 251.001(3). A “campaign expenditure”
is “an expenditure made by any person in connection with a campaign for an elective
office or on a measure.” Id. § 251.001(7).
Here, attached to Graham’s response to Gonzalez’s motion to dismiss were
several campaign finance reports. One of these reports covered the period of July 1,
2021, through December 31, 2021. In this report, Gonzalez reported receiving
“POLITICAL CONTRIBUTIONS” in the amount of $700 and making “POLITICAL
EXPENDITURES” in the amount of $4,000. Gonzalez described the purpose of the
expenditures as “legal representation to try to become a candidate after [his] application
was rejected.” See id. Gonzalez swore, “under penalty of perjury, that the . . . report is
true and correct and includes all information required to be reported by [Gonzalez] under
Title 15, Election Code.” See In re Lipsky, 460 S.W.3d at 591 (holding that circumstantial
evidence can be used to establish a plaintiff’s prima facie case under the TCPA). Based
on this, we conclude that Graham provided clear and specific evidence that Gonzalez
knowingly made or accepted a campaign contribution or expenditure.
2. Violated Chapter 253 of the Election Code
Graham specifically alleged that Gonzalez’s expenditures and contributions
violated § 253.031 of the Texas Election Code. This statute prohibits candidates from
“accept[ing] a campaign contribution or mak[ing] or authoriz[ing] a campaign expenditure
at a time when a campaign treasurer appointment for the candidate is not in effect.” TEX.
ELEC. CODE ANN. § 253.031(a) (entitled “Contribution and Expenditure Without Campaign
16
Treasurer Prohibited”).
Attached to Graham’s response was a copy of Gonzalez’s campaign treasurer
appointment. The document indicated that Gonzalez made the appointment on January
28, 2022, it was received by the TEC on February 1, 2022, and it was processed by the
TEC on February 7, 2022. However, as noted above, the record indicates that Gonzalez
both accepted campaign contributions and made campaign expenditures between July
1, 2021, and December 31, 2021. Thus, the record affirmatively indicates that Gonzalez
“accept[ed] a campaign contribution or ma[de] . . . a campaign expenditure at a time when
a campaign treasurer appointment for the candidate [was] not in effect.” See id.
Gonzalez argues that he relied on advice promulgated on the Texas Ethics
Commission’s website “and believed that filing a campaign treasurer’s appointment was
unnecessary.” But, as already discussed above, to demonstrate a prima facie case,
Graham was not required to show that Gonzalez knowingly violated the law, just that he
knowingly accepted a campaign contribution or made a campaign expenditure. See
Osterberg, 12 S.W.3d at 38. We conclude that Graham met her burden to demonstrate
this element by clear and specific evidence.
3. Damages
A claimant’s entitlement to damages is determined based on whether the
contribution or expenditure is “in support of a candidate” or “in opposition to a candidate.”
TEX. ELEC. CODE ANN. § 253.131(b), (c). Gonzalez argues that he was never a candidate
because his ballot application was rejected, and § 253.131 therefore cannot support
Graham’s claims. We disagree. “Candidate” is defined in Title 15 of the election code as
17
“a person who knowingly and willingly takes affirmative action for the purpose of gaining
nomination or election to public office or for the purpose of satisfying financial obligations
incurred by the person in connection with the campaign for nomination or election.” Id.
§ 251.001(1). As examples of an “affirmative action” one might take to be a candidate,
the election code lists, inter alia, “the filing of an application for a place on a ballot” and
“the soliciting or accepting of a campaign contribution or the making of a campaign
expenditure.” Id. § 251.001(1)(B), (G).
Here, it is undisputed that Gonzalez filed an application to run against Graham for
the position of County Chair for the Cameron County Republican Party. We have also
determined that the evidence is sufficient to show that he accepted campaign
contributions and made campaign expenditures. Therefore, we conclude that Gonzalez
was a candidate for purposes of § 253.131. See id. § 251.001(1)(B), (G).
Graham has made a prima facie showing that, because Gonzalez accepted
campaign contributions and made campaign expenditures, Graham, as the opposing
candidate whose name appeared on the ballot, is entitled to receive statutory damages
in the amount of “twice the value of the unlawful contribution or expenditure” and
“reasonable attorney’s fees incurred in the suit.” See id. § 253.131(b), (d). Graham further
provided evidence, in the form of Gonzalez’s campaign finance reports, to demonstrate
the specific value of the unlawful contributions and expenditures for which she seeks to
recover. We conclude that Graham has provided clear and specific evidence of this
element.3
3 Gonzalez argues that awarding Graham damages would constitute a windfall, as Graham has
already won the election, she spent no money on her campaign, and it is Gonzalez who has suffered by
18
C. Conclusion
In sum, Graham has demonstrated a prima facie case for her § 253.131 claim with
clear and specific evidence, and we therefore conclude that the trial court did not err in
denying Gonzalez’s motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(c).
IV. CONSTITUTIONALITY OF § 253.131
Finally, Gonzalez contends that, as applied to him, § 253.131 violates his First and
Fourteenth Amendment rights. See U.S. CONST. amends. I, XIV. Gonzalez argued to the
trial court that the TCPA applied to Graham’s cause of action because it was based on or
brought in response to his exercise of his First Amendment rights. However, he did not
argue that § 253.131 was unconstitutional as it applied to him because it violated his First
or Fourteenth Amendment rights.
The TCPA is not synonymous with the First Amendment. See Sanchez v. Striever,
614 S.W.3d 233, 243 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Kawcak v. Antero
Res. Corp., 582 S.W.3d 566, 575 (Tex. App.—Fort Worth 2019, pet. denied). Though we
may look to constitutional jurisprudence when analyzing the TCPA’s applicability, see
Sanchez, 614 S.W.3d at 24, whether the TCPA protects certain speech and whether a
separate statute is unconstitutional because it chills speech are two different questions.
Therefore, because the trial court has not had the opportunity to consider Graham’s
challenge to § 253.131’s constitutionality under the First Amendment, we must refrain
from addressing the issue. See TEX. R. APP. P. 33.1; see also Perry v. Smyth, No. 13-19-
not being allowed to run for County Chair and having his reputation tarnished for making a simple mistake.
The appropriate audience for this argument is the ultimate factfinder in the case or the Legislature, not us.
19
00301-CV, 2020 WL 2776527, at *2 (Tex. App.—Corpus Christi–Edinburg May 28, 2020,
no pet.) (mem. op.) (“The requirement for error preservation extends to constitutional
challenges, including challenges that a statute is unconstitutional on its face or as applied
to the appellant.”).
Gonzalez’s Fourteenth Amendment challenge fails for the same reason. Gonzalez
argues that applying § 253.131 to him violates his substantive due process rights. See
U.S. CONST. amend. XIV. But he did not seek a ruling on this claim below. See TEX. R.
APP. P. 33.1; see also Perry, 2020 WL 2776527, at *2.
Therefore, we overrule this issue.
V. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Delivered and filed on the
18th day of January, 2024.
20