The Martinez de Vara Law Firm represented Cameron County Republican Party Chair Morgan Graham in a suit for civil liability against Reynaldo Gonzalez, Jr., a candidate for Party Chair, who “failed to appoint a campaign treasurer with the Texas Ethics Commission upon becoming a candidate.” Gonzalez challenged the constitutionality of the civil liability statute based upon 1st amendment protection, 14th amendment protection and asserting the Texas Citizens Participation Act (TCPA) (Anti-SLAPP) statute.
The Court of Appeals for the Thirteenth District of Texas in Corpus Christi upheld the constitutionality of Texas Election Code Sec. 253.131, which provides civil liability for any person who knowingly makes or accepts a campaign contribution or makes a campaign expenditure in violation the Texas Election Code’s Restrictions on Contributions and Expenditures. In this case, the Court states that candidate Reynaldo Gonzales, Jr.
Below is an excerpt of the Court’s 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 at590.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 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 periodof 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 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 “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.
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).
UPDATE: A Petition for Review was filed with the Supreme Court of Texas. An amicus brief was submitted by the Republican Party of Texas. The Supreme Court denied the Petition for Review on Sept. 27, 2024, thereby upholding the 13th Court of Appeals Ruling.