Court dismisses Empower Texans' lawsuit

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A federal judge on Friday tossed out a civil rights lawsuit filed by Empower Texans, saying the prominent Tea Party group had not demonstrated a credible fear of prosecution stemming from tactics it used in a closely watched Texas House race. 

The group had asked for a temporary restraining order to stop three state DAs and the attorney general from launching any criminal probes into the strategy it used to attack state Rep. Charlie Geren, R-Fort Worth, in his GOP primary against businessman Bo French. A voter who filed a complaint with the Travis County District Attorney’s Office claimed the advertisement may have violated a law prohibiting people from posing as government officials, under Section 37.11 of the Texas Penal Code.

In his ruling Friday from Midland, U.S. District Judge David Counts said no party to the lawsuit could demonstrate that the provision had ever been used against political groups. And in this case, he said, Empower Texans had not shown that the Travis County DA’s office has done anything more than review the voter's complaint. 

“To argue that a district attorney’s review of a citizen’s complaint is indicative of a threat of enforcement is nothing more than speculation,” Counts wrote. “Such speculation does not create an irreparable injury that is both great and immediate.”

Counts said the Court “can only identify one person who suggests that [Empower Texans'] intended future conduct is proscribed by § 37.11 — the Tarrant County voter who filed the complaint with the Travis County District Attorney’s Office,” Counts said. “No party suggested that [Empower Texans’] intended future conduct could arguably be” against the impersonation law.

Empower Texans lawyer Joe Nixon said his read from the opinion is that “we did not violate the statute.” He said there’s “absolutely no thought or discussion” about appealing the ruling.

“Look, it’s a victory. I have a federal judge saying the statute wasn’t violated,” Nixon said. “That’s a victory.”

Empower Texans president and CEO Michael Quinn Sullivan called the ruling a win in a Friday tweet: "Federal Court says #TxLege @charliegeren and his cronies are wrong. Of course we didn’t violate any statute and there is no threat of prosecution for our use of the Texas Ethics Disclosure Board brand to distribute ethics information about public officials."