This is all still temporary and preliminary, but it’s also still good.
Every time it looks like Texas Attorney General Ken Paxton is getting the best of Beto O’Rourke in court, the former El Paso congressman pulls off another victory.
For weeks now, Paxton, a Republican running for the U.S. Senate, has been using state tax dollars to sue O’Rourke and his Powered By People PAC, claiming they were “operating a misleading financial-influence scheme” that supported the Texas House Democrats who fled the state in August to delay a vote on congressional redistricting maps.
Paxton initially won a lower court ruling that placed a restraining order on O’Rourke and his group to keep them from raising or spending money as Paxton sought to revoke Powered By People’s ability to operate in the state. But the Fifteenth Court of Appeals late Friday sided with O’Rourke’s group that the restraining order had infringed on their free speech under the Texas Constitution and the U.S. Constitution.
“We agree,” the three-judge panel, appointed by Gov. Greg Abbott, stated in their order.
“Tools, whether legal or political, for eliminating quorum breaks may exist. But our Texan founding fathers — like our American founding fathers — took prior restraints on political speech out of the tool kit when they enshrined the right to free speech in our Constitution,” the judges wrote in their 23-page ruling.
O’Rourke has acknowledged that his group sent more than $1 million to Democratic groups in the Texas House. But he’s said the money had no strings attached and didn’t demand any actions as Paxton has claimed. He said they simply were supporting Democrats like any other political action committee is allowed to do in the name of supporting free speech.
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Paxton may still be winning a larger battle against O’Rourke by forcing him and Powered By People into court, where they’ve now had to spend nearly $400,000 in legal fees on the case, according O’Rourke. And until Friday’s ruling, the group’s accounts were frozen, making it unable to do any of its usual activities.
Powered by People has become a major voter registration organization, helping train people to register voters and sign up voters in advance of the next election cycle.
“It is because Powered by People and I are fighting so fiercely that Paxton is trying to silence me, destroy our organization and put me behind bars,” O’Rourke said on his Substack social media account last month. “He fears our successful voter registration and turnout programs as well as our strong support of the Texas Democratic legislators.”
See here for the previous update, in which Ken Paxton threw a hissy fit, and here for the court’s opinion. The key bit is right up front:
The unusual facts here raise unusual questions. The First Amendment guarantees a right to make and receive political contributions supporting an officeholder, candidate, or political party, subject to statutory limits of various types. One of those limits prohibits officeholders from using political contributions to pay personal expenses. It is a novel question whether expenses for food, transportation, and lodging outside Texas by officeholders who should be on duty in Texas when the Legislature is in session are legitimate political expenses or illegitimate personal ones. But the question today is not whether such activities can be punished after the fact by the remedies in the Texas Election or Penal Codes, but whether they can be prohibited before they occur based on a suspicion that they might.
At this stage, where little evidence has been offered, the latter would constitute an unconstitutional prior restraint of political activity that may or may not prove to be lawful. Tools, whether legal or political, for eliminating quorum breaks may exist. But our Texan founding fathers—like our American founding fathers—took prior restraints on political speech out of the tool kit when they enshrined the right to free speech in our Constitution.
For the following reasons, we GRANT Relators’ motion in part. We stay the August 15, 2025 Temporary Restraining Order. We deny emergency relief as to the August 25, 2025 Temporary Restraining Order.
In other words, the original temporary restraining order by Tarrant County Judge Megan Fahey, which forbade Powered by People from raising money while the case was being litigated, remains on pause by the 15th. The motion to dismiss the case, which would have removed it from Tarrant County and sent it instead to the court in El Paso, where Powered by People had filed their own lawsuit against Paxton, was denied. That means that – barring intervention by SCOTx – the Tarrant County case will continue to be litigated. The other case in El Paso is presumably also still to be litigated. At some point, the 15th Court – and presumably the Supreme Court – will settle the question once and for all about who did and did not have jurisdiction.
(The 15th ruled that the Tarrant court did have jurisdiction to issue injunctive relief under the Deceptive Trade Practices Act if it were warranted, but they said the question of whether that claim by the AG has merit has not yet been determined, so it’s too soon for them to rule on it. Isn’t appellate law fun?)
As for Powered by People’s ability to keep doing what they’re doing, this mess has been a hindrance to them, but at least they can keep up the fundraising, and they sure have a compelling story to tell to donors. I think they may be able to get at least some of their court costs back if they ultimately prevail, but that’s a question that a real lawyer should answer. I hope I’m right about that, but don’t place a bet on it.