Empower Texans sues to stop potential criminal probe of its controversial primary ad

Empower Texans, a Tea Party group known for waging aggressive campaigns against establishment Republicans, is suing in federal court to prohibit three district attorneys and the attorney general from launching any criminal investigations into the strategy it used to attack state Rep. Charlie Geren, R-Fort Worth, in the GOP primary.

At issue: An advertisement that Empower Texans mailed out, using an assumed name — the ad indicated it was from the "Texas Ethics Disclosure Board" — that was used against Geren. Critics said it confused voters into thinking that Geren was in hot water with an actual government agency like the Texas Ethics Commission.

In a civil rights lawsuit filed Feb. 28 in federal court in Midland, Empower Texans seeks an injunction against the district attorneys of Travis County [Austin], Tarrant County [Fort Worth] and Midland County, plus Attorney General Ken Paxton. A hearing to consider Empower's motion seeking a temporary restraining order is scheduled in federal court on Wednesday.

In court filings, Empower Texans noted that the office of Travis County District Attorney Margaret Moore had received a Fort Worth-area voter’s criminal complaint against the group related to its mailed advertisement against Geren. The complaint alleged that the mailer ran afoul of a law that prohibits people from posing as government authorities.

Moore’s office subsequently told The Texas Tribune that the complaint it received was “under review.”

The lawsuit says Empower Texans plans to keep using the “Texas Ethics Disclosure Board” name for "appropriate publications" but now has a “credible fear” that it will be prosecuted for doing so.

“This fear of prosecution has had a chilling effect on [Empower’s] speech, causing Plaintiff damages,” the lawsuit says.

Joe Nixon, attorney for Empower Texans, said he was "pleased the court gave us a quick hearing" but said it would not be appropriate to offer any other comment.

Don Clemmer, director of special prosecutions in the Travis County DA’s office, said the office had received the lawsuit complaint and was “formulating what an appropriate response would be." 

“Beyond that, I can’t comment,” Clemmer said.

Messages left with the district attorneys office in Midland County, where Empower Texans’ principal office is located, and the attorney general's office were not immediately returned. The district attorney's office in Tarrant County, where the mailers were used against Geren, declined comment.