Let me start this whole thing off by saying that I am not a lawyer. If I were a lawyer, I would lawyer all day long in my lawyer office doing lawyer things, making lawyer money and occasionally saying things in Latin that aren’t hexes or prayers.
Now that we’ve gotten that out of our way, let me alert you to the fact that apparently there has been some movement in the defamation suit filed by noted energy titan, park namer, and Preston Hollow resident Kelcy Warren against Beto O’Rourke, who is the Democratic nominee for governor and faces heavy war-chested incumbent Greg Abbott.
In short, Warren’s case stays alive for now, thanks in part to where he filed it—San Saba County, which is pretty much right in the center of the state, and about three-and-a-half hours from Warren’s Dallas house.
If you do not remember the particulars of this case (because, let’s face it, there are so many notable court things going on right now), let me explain what’s going on.
Remember Winter Storm Uri when you, me, most of the state, and Snowflake sat in the cold, dark confines of our homes because the grid failed? People died. Elected officials all the way up to the governor said something would be done about fixing our electric grid. Days like yesterday have happened since, as we all watched the ERCOT website like it was our jobs. (In my case it was my job, but you get the idea.)
A year after the freeze, O’Rourke lit into Abbott on the campaign trail and laid the whole mess with the grid at his feet, saying that “We are all paying the price for this guy’s corruption and his incompetence.”
He then told a crowd that despite Abbott and Texas legislators vowing to fix the grid, their efforts were not enough. O’Rourke said they actually passed some of those costs associated with the storm on to the consumer. Abbott got millions in campaign donations from energy companies and people who own and/or work from energy companies, O’Rourke said, which was “pretty close to a bribe.”
On a few occasions, documented in campaign videos, O’Rourke referenced Warren’s $1 million donation to Abbott’s campaign as a bribe or as some sort of quid pro quo following the $2.4 billion windfall that his Energy Transfer Partners earned during the storm, alleges the lawsuit (which was filed in the 424th District Court in San Saba County). Warren stepped down as CEO of the company in 2020, but remains the chairman of its board.
O’Rourke’s legal team at Brazil & Dunn in Houston filed for a change of venue to El Paso in March, arguing that Warren’s primary residence is Dallas, and that the billionaire was looking for a friendlier court.
O’Rourke’s lawyers also asked for a jury trial, provided the change of venue is granted.
However, in April, O’Rourke’s lawyers also filed a motion for dismissal, which the Texas Tribune’s Patrick Svitek reported was denied last week. O’Rourke’s legal team is expected to appeal that, taking the matter to the 3rd District Court of Appeals in Austin, which will likely be friendlier to the Democratic gubernatorial candidate considering there are five Democrats on its bench.
All that being said, I’ve talked to a few lawyers today, and many of them still have doubts as to whether the case is winnable. They question whether it’s really worth it for Warren. After all, in a civil procedure, it’s up to the plaintiff to make their case. That means that, ostensibly, Warren would have to prove that he didn’t hand the governor a nice big check after making big profits during a statewide disaster that many feel could’ve been avoided if the grid had been ready for that kind of weather.
Discovery could be a bit of a bear, too. O’Rourke’s lawyers can poke around quite a bit while asking Warren and other witnesses about the timeline leading up to the donation, and Warren’s knowledge and actions during and prior to the grid failure.
Then there’s also the state’s anti-SLAPP (Strategic Lawsuits Against Public Participation) laws themselves. Thanks to the 2011 addition of the Texas Citizens Participation Act, which was aimed at preventing “frivolous” lawsuits from shutting down free speech activities and other constitutional rights, the burden of proof falls heavily on the plaintiff to argue their way out of an outright dismissal. The lawyers I spoke to speculate that this is why Warren looked for the friendliest court he could.
“Kelcy Warren is far from the first billionaire to file a lawsuit against someone who says something they don’t like. … And even though they’re highly unlikely to succeed on the merits, they file them anyway,” Evan Mascagni, policy director for the anti-SLAPP advocacy group Public Participation Project, told the Texas Observer in March.
Odessa-based attorney Lane Haygood, who has experience with free speech cases, told the Observer that some of O’Rourke’s statements could be taken as accusing Warren of a crime, but that that doesn’t mean the court will ultimately see it that way.
“There are a couple of times that O’Rourke uses words like extortion or bribery, which are defined crimes under the Texas Penal Code,” he said. “But they are also rhetorical shorthand and hyperbolic, and so in context, Texas courts are generally likely to hold that such language is not specific enough to be actionable defamation. It is the difference between saying ‘John Smith assaulted me on September 4, 2021,’ and ‘John Smith is a bully who beat me up.’”
But for now, it looks like Warren’s strategy in filing in San Saba County has paid off. However, it’s likely that before we actually hear a case (or anyone does any discovery), it will bounce around the appellate courts before actually going to trial. If it goes to trial.
That, of course, means this case probably won’t be settled until way after we’ve all hit the voting booth.