# Robert Francis O'Rourke v. Kelcy Warren

> Texas Court of Appeals, 3rd District (Austin) · June 9, 2023

URL: https://www.frixlaw.com/law-library/cases/9401428

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** June 9, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9401428

## How later opinions describe it (automated extraction)

- explaining that calling party “corrupt” may be “merely epithetic in the context of amorphous criticism”
- explaining public matters include subjects of legitimate news interest

## Opinion text

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00416-CV

Robert Francis O’Rourke, Appellant

v.

Kelcy Warren, Appellee

FROM THE 424TH DISTRICT COURT OF SAN SABA COUNTY
NO. 10,204, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING

OPINION

In the underlying proceeding, appellee Kelcy Warren sued appellant Robert

Francis O’Rourke for defamation, alleging that O’Rourke legally defamed him by making

statements during O’Rourke’s gubernatorial campaign that equated Warren’s political donations

to Governor Greg Abbott with crimes. O’Rourke responded that the statements were not about

Warren, and insofar as they mention Warren, were opinions that colloquially used the terms

“bribery” and “corruption” consistent with the sharp language used in political campaigns. After

the trial court denied O’Rourke’s motion to dismiss under the Texas Citizens Participation Act

(TCPA), O’Rourke filed this appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(12)

(permitting interlocutory appeal from denial of TCPA motion to dismiss).

We hold that an examination of the statements and their context from the position

of a reasonable person shows they are non-actionable opinions and fall within the bounds of

protected speech. Because O’Rourke properly invoked the TCPA and Warren failed to adduce
evidence of defamation in response, the trial court erred in failing to grant O’Rourke’s motion

to dismiss.

BACKGROUND

This defamation lawsuit arose out of a series of statements made by O’Rourke on

Twitter, at press conferences, and at rallies during his campaign as the Democratic nominee in

the 2022 Texas gubernatorial election. After Winter Storm Uri brought extreme winter weather

to Texas in February 2021—knocking out power for millions and causing the deaths of at least

210 people and more than $80 million estimated damages 1—Governor Abbott’s response to the

electrical grid vulnerabilities and the campaign contributions he received from the energy

industry after the legislative session became major issues of contention between the candidates in

the gubernatorial campaign.

Relevant to this appeal, Warren alleges that O’Rourke made a series of

defamatory campaign statements about him between December 30, 2021, and March 7, 2022.

Warren contributed $1 million toward Governor Abbott’s re-election campaign in June 2021,

and Warren averred in his pleadings that O’Rourke defamed him by falsely stating that he

committed the crimes of extortion, bribery, and corrupt influence relating to that campaign

contribution. The statements referenced in Warren’s pleading are summarized below:

• December 30, 2021: In response to a tweet by Governor Abbott that “Texas
power plants have made the upgrades needed to protect against cold weather” and
that “They are good to go,” O’Rourke responded that “We won’t be ‘good to go’
until gas supply companies are ready for cold weather. But you let them off the
hook b/c gas CEOs like Kelcy Warren donated millions to your reelection

1 Jess Donald, Winter Storm Uri 2021: The Economic Impact of the Storm, Texas
Comptroller of Pub. Accounts (Oct. 2021), https://comptroller.texas.gov/economy/fiscal-
notes/2021/oct/winter-storm-impact.php.
2
campaign after the grid failure. We need a governor who looks out for Texans,
not corporate donors.” 2

• January 4, 2022: In a tweet thread, O’Rourke stated that the Texans who lost
their lives in Winter Storm Uri “were killed by the incompetence and corruption
of Abbott who was warned repeatedly about the grid’s vulnerabilities but did
nothing. And after the grid failed and hundreds died, he STILL did nothing. We
could see more tragedy the next time Texas experiences extreme weather.” 3

In a subsequent tweet O’Rourke expanded that “Recent reports show the gas
sector (#1 contributor to the grid failure) is just as unprepared for extreme weather
now as it was in February. Abbott hasn’t required gas supply CEOs to do
anything, perhaps because they’ve donated millions to his campaign since the
grid collapsed.” 4

• January 20: Replying to a tweet by the Texas Tribune that “[a] pipeline company
threatened to cut off natural gas” because of a financial dispute, which “could
impact the electric supply of hundreds of thousands of Texans,” O’Rourke stated
that “Gas supply companies made $11B when the grid failed. Abbott put their
profits over our lives. Why? Because they bought him off. Looks like they’re
trying to do it again. We’ve got to make a change in Texas.” 5

Replying to a Bloomberg tweet linking an article about the plunging natural gas
supply during the winter months, O’Rourke tweeted “The grid won’t be fixed
until Abbott requires gas supply companies to prepare for cold weather. Why
hasn’t he? The CEOs of those companies are his largest campaign contributors.

2 Beto O’Rourke (@BetoORourke), Twitter (Dec. 30, 2021, 3:27 PM),
https://twitter.com/BetoORourke/status/1476666390635495436.
3 Beto O’Rourke (@BetoORourke), Twitter (Jan 4, 2022, 3:54 PM),
https://twitter.com/BetoORourke/status/1478485133485391877.
4 Beto O’Rourke (@BetoORourke), Twitter (Jan 4, 2022, 3:54 PM),
https://twitter.com/BetoORourke/status/1478485135049777157.
5 Beto O’Rourke (@BetoORourke), Twitter (Jan 20, 2022, 9:46 AM),
https://twitter.com/BetoORourke/status/1484190554275692546.

3
They win. He wins. Texans lose.” 6

Later that same day, WFAA, a Dallas television station, tweeted about “power to
400,000 homes is being used as leverage” in a fight between “two Texas energy
giants,” and O’Rourke responded that “Gas company Energy Transfer Partners
says: ‘give us $22M or we cut the power for Texans.’ That’s extortion. Abbott
isn’t stopping them because their CEO bought him off with a $1M check. That’s
corrupt. I will fix the grid & hold extortionists and corrupt officials to account.” 7

• February 1: O’Rourke appeared on a cable news program to discuss another
approaching winter storm and the preparedness of the electrical grid. During that
interview, he stated “[Governor Greg Abbott] has done nothing to fix the major
culprit in the power outage last year, which was the lack of winterization of the
gas supply. That might have something to do with the fact that those in that
industry have given him millions of dollars since the February freeze, including
Kelcy Warren, whose company made $2.4 billion dollars in February [2021] off
the suffering of our fellow Texans and wrote Greg Abbott a $1 million dollar
campaign contribution check. That explains the otherwise inexplicable, as to why
we haven’t fixed the grid as we head into another winter.” 8

• February 4: At a 20-minute press conference where O’Rourke discussed his
policy goals for improving the electrical grid, O’Rourke stated “The Governor,
again, despite every warning and guidance from the energy experts that we
needed to winterize the gas supply, failed to do that. And this is the explanation
for the otherwise inexplicable—why wouldn’t he do that? Given how many
people lost their lives, how badly this hurt the state of Texas. It’s because he was
paid not to. Kelcy Warren’s company, Energy Transfer Partners, made $2.4
billion dollars over those five days that people were dying and suffering in the
State of Texas. $2.4 billion dollars. Right at the end of the regular legislative
session following that winter storm, he wrote Greg Abbott a $1 million dollar
check. Looks a lot like a bribe to me. And the consequence was, Greg Abbott did
not force him or anyone else to weatherize their facilities, or the gas supply, to

6 Beto O’Rourke (@BetoORourke), Twitter (Jan 20, 2022, 11:28 AM),
https://twitter.com/BetoORourke/status/1484216295361060867.
7 Beto O’Rourke (@BetoORourke), Twitter (Jan 20, 2022, 1:08 PM),
https://twitter.com/BetoORourke/status/1484241368595763201.
8 MSNBC, Beto O’Rourke Rips Abbott’s Texas Freeze Failure—And Inaction to
Prevent Another, YouTube (Feb. 1, 2022), https://www.youtube.com/watch?v=PvBODr3Mh40.

4
protect the people of Texas going forward.” 9

O’Rourke separately tweeted “When I’m governor, we’ll fix the power grid and
never allow energy companies to steal from us again. The corruption stops here.”
Included in the tweet was a clip from the same press conference where he listed
his priorities as the future governor, including “Point number four. We’ve gotta
make sure that there is justice. That $11 billion dollars in profit was highway
robbery. [Energy companies] took that money from the people of Texas and they
broke the law in the process. There is a state statute that specifically prohibits
charging exorbitant prices on gas and fuel during a declared disaster or
emergency. That’s exactly what these companies—who paid off Greg Abbott
after the fact—did. When I’m governor, I’m going to get that money back for the
people of Texas and return it to the people of Texas.” 10

Later that same day, O’Rourke tweeted “Energy executives robbed us while
Texans froze to death. Abbott let it happen because they gave him a cut. Now
each of us will pay $20-$50 more a month on our utility bills because of it. That’s
the #AbbottTax.” He also included a clip from a campaign rally where he
reiterated that $11 billion was made by energy companies during the 2021 winter
storm, that ratepayers now have to pay higher rates because of it, and that “all of
the ratepayers, millions of us, spread out across the state, are paying back into
those energy companies, and energy traders, and gas supply CEOs, so they can
have extraordinary wealth at the expense of the people of this state.” 11

• February 5: O’Rourke tweeted “Why hasn’t Abbott done everything in his power
to fix the power grid? Corruption.” That tweet contained a clip of another
campaign rally, where he stated “Why didn’t the Legislature – Or the Governor –
require the gas suppliers to weatherize their equipment? It’s interesting. When
they’re in session, the legislators and the governor cannot take campaign
contributions. It’s almost as though we acknowledge that contributions could
affect what the legislators and the governor might do when they’re in session. So
we wait until they are safe, out of harm’s way, for them to start taking the cash.
Within 10 days of the end of the first session of that legislature, Greg Abbott takes
more than $4.6 million dollars from the energy industry—the same people who

9 Beto O’Rourke, Kicking off the Drive for a brighter Texas!, Facebook (Feb. 4, 2022),
https://www.facebook.com/betoorourke/videos/498764985011316.
10 Beto O’Rourke (@BetoORourke), Twitter (Feb 4, 2022, 12:28 PM),
https://twitter.com/BetoORourke/status/1489667156631511043.
11 Beto O’Rourke (@BetoORourke), Twitter (Feb 4, 2022, 8:31 PM),
https://twitter.com/BetoORourke/status/1489788837240975360.
5
did not want their equipment weatherized because they’d have to invest in it and
pay for it. I don’t know what the legal term for that is – it looks a lot like a bribe
to me. When you consider that those same gas supply companies and energy
traders over a five-day period in February made $11 billion dollars in profit.
While you were freezing in your homes, while [a person] was dying in his, you
might understand the connection between the money made – the money paid out
in political contributions – and the inaction of the governor and those in a position
of power and public trust in this State.” 12

• February 6: O’Rourke tweeted “Abbott got paid off not to fix the grid — and the
lights turned off because of it,” and attached a video from a Wichita Falls
campaign rally where he stated “And then, in the days following the legislative
session where the Governor, and the Republican majority, did nothing to protect
this grid, they turned around and gave Greg Abbott $4.6 million dollars in
campaign contributions over just 10 days. So why did, why did Greg Abbott not
fix the grid? They paid him not to fix the grid.” 13

• February 7: O’Rourke tweeted “For Abbott’s top donors, the grid failure meant
getting rich. For the people of Texas, it meant losing light, limbs, and lives. As
governor, I will fix the grid and put people over profits EVERY single time,” and
included a video clip from a campaign rally discussing a man who had both legs
amputated because of injuries sustained from Winter Storm Uri and stated “This
didn’t have to be our fate, this didn’t have to be our fortune. This was no act of
God or Mother Nature. This was the failing of the person in the highest position
of power and public trust in this state. Someone who we could not count on to
deliver the power to the people when we needed it the most. But he didn’t trust
the experts, he didn’t trust the people. Instead, he looked to his donors in the gas
industry, the energy traders who filled his campaign coffers, and ignored the rest
of us. Hundreds of our fellow Texans lost their lives. And for no good reason.
Let’s make sure that there is justice, and consequences for those who broke the
law, and let’s make sure that law is never broken again.” 14

• February 10: O’Rourke’s campaign posted a video of a San Antonio campaign

12 Beto O’Rourke (@BetoORourke), Twitter (Feb 5, 2022, 3:06 PM),
https://twitter.com/BetoORourke/status/1490069303089106946.
13 Beto O’Rourke (@BetoORourke), Twitter (Feb 6, 2022, 4:40 PM),
https://twitter.com/BetoORourke/status/1490455331239079943.
14 Beto O’Rourke (@BetoORourke), Twitter (Feb 7, 2022, 9:31 AM),
https://twitter.com/BetoORourke/status/1490709700932943872.

6
rally, where during the course of his discussion about Governor Abbott’s actions,
O’Rourke stated “Those energy CEOs, those people who over the course of five
days last February—while people were literally dying in their homes . . . these
energy companies, and energy traders, these donors to Greg Abbott, made $11
billion dollars in profit over the course of five days. And when the Legislative
session wrapped up without a single action taken to require them to weatherize
the grid or prevent that kind of destruction and death again. They turned around
and gave him $4.6 million dollars in just the first ten days after that legislative
session. One man, whose company made $2.4 billion dollars in February, literally
wrote Greg Abbott a $1 million dollar check. So when you ask yourself, how in
the world can he have failed to protect us going forward into the next extreme
weather event, it’s because they paid him not to. That’s pretty close to a bribe, by
any definition I’m familiar with. And so those who robbed us, because they
controlled the gas supply, and literally the ways in which we were going to heat
our homes and keep one another alive. When they made that extraordinary
obscene profit, and then turned around and paid Abbott to do nothing, we, all of
us, are paying the price.” 15

• February 14: O’Rourke tweeted “Abbott’s big donors got billions while families
froze. Abbott got millions in campaign checks. What’d we get? The Abbott Tax”
and embedded a campaign advertisement featuring a collection of local news
coverage about the higher utility bills for Texans after the winter storm. The ad
included a clip from O’Rourke’s February 6, 2022 campaign rally where he stated
“why did Greg Abbott not fix the grid? They paid him not to fix the grid.” 16

Warren filed suit on February 22, 2022, alleging that O’Rourke’s statements

during the campaign were defamation, slander, and libel. On March 7, 2022, O’Rourke held a

press conference during which he discussed the defamation lawsuit brought by Warren and “the

15 Beto O’Rourke, Back in San Antonio for Keeping the Lights On: A Statewide Drive for
a Brighter Texas - San Antonio, Facebook (Feb. 10, 2022), https://www.facebook.com/beto
orourke/videos/4389568934482152/. Warren also referenced a tweet by a political reporter that
quoted O’Rourke’s statement at the campaign rally. See Jeremy Wallace (@JeremySWallace),
Twitter (Feb 10, 2022, 1:08 PM), https://twitter.com/JeremySWallace/status/149
1851477207375872.
16 Beto O’Rourke (@BetoORourke), Twitter (Feb 14, 2022, 8:33 AM),
https://twitter.com/BetoORourke/status/1493232016359403520.
7
facts around the power grid failure.” 17 During the press conference, O’Rourke referenced

numerous statements by Governor Abbott, cited statistics about the loss of life and economic

damages caused by Winter Storm Uri, and presented a demonstrative that “while Texans froze to

death, energy corporations made billions.” O’Rourke also made the following statements

relevant to the present appeal:

So, to connect the dots. Abbott does nothing, including failing to require the gas
companies to weatherize ahead of the winter storm. The winter storm happens,
and kills hundreds of people, costs us more than $300 billion, and he requires
them to do nothing, and does not get those illegal profits back. They turn around
and give him $4.6 million dollars in campaign contributions within the first ten
days of the open season of political donations. “For some energy experts,” this is
a quote from the Texas Tribune, “For some energy experts, the increase in
donations for the officials at the close of the session looks like a reward for not
passing more stringent regulations.” That’s not Beto O’Rourke saying that, that is
reported in the Texas Tribune.

Energy Transfer Partners, Kelcy Warren’s company, made $2.4 billion dollars
during those five days of the freeze. And, this is the Houston Chronicle headline:
“We froze, and Abbott got paid $1 million dollars from the billionaire profiteer of
Texas’ deadly storm.” A $1 million campaign check with Abbott’s name on it.
So again, Kelcy Warren’s company, made extraordinary windfall profits—$2.4
billion dollars—far more than they had ever made, probably ever dreamed of
making before, he turns around, and as soon as he is able to, writes a $ 1 million
campaign contribution check to Greg Abbott.

....

Everything that I’ve shared with you is factual, and has been reported by either
yourselves or your colleagues in the press here in the State of Texas. All I have
done today, and all I have done over the course of the campaign, is to share these
facts with the electorate that will decide the outcome of this next election.

17 Beto O’Rourke (@BetoORourke), Twitter (Mar. 7, 2022, 1:32 PM)
https://twitter.com/BetoORourke/status/1500917314761355274.
8
....

But I want you to know this is happening. Not only is [Warren] trying to
influence the political process through the campaign donations he is making. Not
only did he make illegal windfall profits off the suffering and misery and death of
our fellow Texans, he’s now trying to shut us down in the courts through a
frivolous lawsuit.

....

So what Greg Abbott did, and this was the corrupt deal that I’m trying to call
everyone’s attention to, is, he gave Kelcy Warren and others free license to charge
as much as they wanted to. . . . He was clearly looking out for the energy
companies, and the CEOs, and his political donors, instead of the people of Texas,
and the consequences fell to the people of Texas.

....

[In response to a reporter’s question about O’Rourke’s statement that Governor
Abbott “effectively killed Texas residents”] I do, absolutely. . . . Greg Abbott
chose his donors and political contributors over the people of Texas, and the
people of Texas paid the price. 18

On March 7, O’Rourke also tweeted that “While Abbott and his big corporate

donors look out for one another, we are looking out for the people of Texas.” He also included a

clip from a College Station campaign rally where he made the following statement:

I would argue they have paid [Governor Abbott] to look the other way, to not fix
the problem, and also, to not claw back the $11 billion dollars in illegal profits
that they made while people were freezing to death in the State of Texas. Your
question, what are we going to do differently going forward? . . . We’re going to
make sure we hold those accountable . . . not just the $11 billion that they stole
from us, but let’s go after double or treble damages . . . . You [the attendees] are
paying for the profits of the energy company CEOs who stole from us and our

18 Id.

9
fellow Texans. 19

Finally, news coverage of a March 21, 2022 campaign rally in Lubbock described O’Rourke as

“question[ing] Abbott’s connections to electric companies and utility providers that recorded

large profits during the storm” and quoted O’Rourke as saying: “If that is not corruption, I don’t

know what is.” 20

Warren amended his petition to include these additional comments, and thereafter

O’Rourke timely moved to dismiss pursuant to the TCPA. See Tex. Civ. Prac. & Rem. Code

§ 27.003(b). The trial court held a hearing on June 16, 2022, and then summarily denied the

TCPA motion on July 5, 2022. This timely appeal followed. See id. § 51.014(12); Tex. R.

App. P. 28.1(a).

STANDARD OF REVIEW

We review de novo a trial court’s ruling on a TCPA motion to dismiss, including

whether each party has carried its respective burden under the TCPA. See Long Canyon Phase II

& III Homeowners Ass’n v. Cashion, 517 S.W.3d 212, 217 (Tex. App.—Austin 2017, no pet.);

see also Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.]

2017, no pet.). To determine whether the dismissal of a legal action is warranted, we “consider

the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure,

and supporting and opposing affidavits stating the facts on which the liability or defense is

based.” Tex. Civ. Prac. & Rem. Code § 27.006(a). We review the pleadings and evidence in the

19 Beto O’Rourke (@BetoORourke), Twitter (Mar. 8, 2022, 3:20 PM)
https://twitter.com/BetoORourke/status/1501306847881576451.
20 Hannah Holtz, Beto O’Rourke makes campaign stop in Lubbock, talks public
education, healthcare, jobs, KCBD11 (Mar. 21, 2022), https://www.kcbd.com/2022/03/21/beto-
orourke-makes-campaign-stop-lubbock-talks-public-education-healthcare-jobs/.
10
light most favorable to the nonmovant. Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781, 801

(Tex. App.—Austin 2017), aff’d, 611 S.W.3d 1 (Tex. 2020).

DISCUSSION

The TCPA “protects citizens from retaliatory lawsuits that seek to intimidate or

silence them on matters of public concern.” In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015)

(orig. proceeding). “The TCPA was designed to protect both a defendant’s rights of speech,

petition, and association and a claimant’s right to pursue valid legal claims for injuries the

defendant caused.” Montelongo v. Abrea, 622 S.W.3d 290, 295 (Tex. 2021); see also Tex. Civ.

Prac. & Rem. Code § 27.002 (explaining purpose includes “encourag[ing] and safeguard[ing] the

constitutional rights of persons to petition, speak freely, associate freely, and otherwise

participate in government to the maximum extent permitted by law”). “The Legislature has

instructed that the TCPA ‘shall be construed liberally to effectuate its purpose and intent fully.’”

ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (quoting Tex. Civ. Prac.

& Rem. Code § 27.011(b)).

Our review of a trial court’s ruling on a TCPA motion to dismiss requires a

three-step analysis. Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018) (describing three-step

analysis under prior version of TCPA). First, a party seeking dismissal bears the burden of

showing that the TCPA applies to the non-movant’s “legal action”; that is, the movant must

demonstrate that the non-movant’s legal action “is based on or is in response to the party’s

exercise of the right of free speech; right to petition; or right of association.” Tex. Civ. Prac. &

Rem. Code §§ 27.003(a),.005(b). If the movant meets that burden, the trial court must dismiss

the action unless the nonmovant “establishes by clear and specific evidence a prima facie case

11
for each essential element of [his] claim.” Id. § 27.005(c); see also In re Lipsky, 460 S.W.3d at

586. If the nonmovant establishes a prima facie case, the court must still “dismiss a legal action

against the moving party if the moving party establishes an affirmative defense or other grounds

on which the moving party is entitled to judgment as a matter of law.” Tex. Civ. Prac. & Rem.

Code § 27.005(d).

Whether the TCPA applies to the defamation cause of action

We first address whether O’Rourke demonstrated that the lawsuit “is based on or

is in response to” his “exercise of the right of free speech; right to petition; or right of

association.” Id. § 27.005(b). O’Rourke argues that his statements were political speech “made

in connection with a matter of public concern,” id. § 27.001(3), and therefore constituted the

“exercise of [his] right of free speech,” id. §§ 27.003(a), .005(b). Warren counters that

O’Rourke’s statements did not relate to a “matter of public concern” because Warren is a private

citizen and the political contributions were not part of a pre-existing public debate. We agree

with O’Rourke.

A party exercises its right of free speech when it makes “a communication made

in connection with a matter of public concern.” Id. § 27.001(3). A “communication” includes

“the making or submitting of a statement or document in any form or medium, including oral,

visual, written, audiovisual, or electronic.” Id. § 27.001(1). In analyzing whether the TCPA

applies to Warren’s lawsuit, we focus on Warren’s pleadings as the “best and all-sufficient

evidence of the nature of the action,” see Crossroads Cattle Co. v. AGEX Trading, LLC,

607 S.W.3d 98, 102 (Tex. App.—Austin 2020, no pet.) (quoting Hersh v. Tatum, 526 S.W.3d

12
462, 467 (Tex. 2017)), but also consider the pleadings and other evidence “in the light most

favorable to the nonmovant and prevailing party below,” id.

Warren’s amended petition clearly demonstrates that his defamation claim is

based on or in response to communications made by O’Rourke during the gubernatorial

campaign. See LMP Austin Eng. Aire, LLC v. Lafayette Eng. Apartments, LP, 654 S.W.3d 265,

283–84 (Tex. App.—Austin 2022, no pet.) (explaining that, “[a]t a minimum,” former statutory

phrase “‘based on, relates to, or is in response to’ . . . encompasses a ‘legal action’ that is

factually predicated on the alleged conduct that falls within the scope of the TCPA’s definition

of the exercise” of protected constitutional rights (quoting former Tex. Civ. Prac. & Rem. Code

§ 27.005(b) (amended 2019))). Accordingly, the only dispute concerns whether O’Rourke’s

statements relate to a “matter of public concern.”

A “matter of public concern” includes a statement or activity regarding:

(A) a public official, public figure, or other person who has drawn substantial
public attention due to the person’s official acts, fame, notoriety, or celebrity;

(B) a matter of political, social, or other interest to the community; or

(C) a subject of concern to the public.

Tex. Civ. Prac. & Rem. Code § 27.001(7). “To be a matter of public concern, a claim must have

public relevance beyond the interests of the parties.” Szymonek v. Guzman, 641 S.W.3d 553, 565

(Tex. App.—Austin 2022, pet. denied) (quoting Morris v. Daniel, 615 S.W.3d 571, 576 (Tex.

App.—Houston [1st Dist.] 2020, no pet.)); accord Creative Oil & Gas, LLC v. Lona Hills Ranch,

LLC, 591 S.W.3d 127, 136 (Tex. 2019). Warren concedes that Winter Storm Uri and the failure

13
of the electricity grid resulting from that storm are matters of public concern. He argues,

however, that O’Rourke’s communications as far as they concern Warren and his political

contribution do not relate to matters of public concern. We disagree.

The statements by O’Rourke about Warren are embedded within, and relate to, his

broader public statements about Governor Abbott about Winter Storm Uri and the electrical grid.

See Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017) (explaining public matters include

subjects of legitimate news interest); see also Tex. Civ. Prac. & Rem. Code § 27.001(7)(A)

(including statements about “a public official”). We cannot consider the phrases and sentences

about him in isolation from the broader context in which they appear: political attacks on the

governor, a public official, on subjects that Warren concedes are matters of public concern. See

Brady, 515 S.W.3d at 884 (determining whether speech addresses matter of public concern based

on “content, form, and context . . . as revealed by the whole record” (quoting Dun & Bradstreet,

Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (plurality opinion)). Moreover, a

“logical nexus” exists between the references to Warren’s political contribution and the broader

issues discussed in the communications. See id. at 885 (explaining that details contained in

communications are “reasonably included as a matter of public concern” if logical nexus exists

between details and general subject matter of communications).

Even assuming we can excise the Warren-specific details and consider them in

isolation, campaign contributions are a form of political speech, see, e.g., Federal Election

Comm’n v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 440 (2001) (“Spending

for political ends and contributing to political candidates both fall within the First Amendment’s

protection of speech and political association.”), and campaign-finance disclosure requirements

are premised on the idea of exposing large contributions “to the light of publicity” so that the

14
public may be informed about the sources of election spending, see McCutcheon v. Federal

Election Comm’n, 572 U.S. 185, 223 (2014) (quoting Buckley v. Valeo, 424 U.S. 1, 67 (1976)

(per curiam)); see also Szymonek, 641 S.W.3d at 565 (explaining matters of public concern

include topics having public relevance beyond parties’ interests). We are not saying that every

campaign contribution, no matter the amount, qualifies as a matter of public concern; but in the

present case, Warren’s specific political contribution was already a matter of public concern,

having been discussed in news coverage for months before O’Rourke made his statements. See

Szymonek, 641 S.W.3d at 565; see also Editorial Board, We froze and Abbott got paid - $ 1

million from the billionaire profiteer of Texas’ deadly storm, Houston Chron. (Aug. 1, 2021),

https://www.houstonchronicle.com/opinion/editorials/article/Editorial-We-froze-and-Abbott-got-

paid-1-16354431.php (“It’s only fair to ask what the billionaire investor [Warren] got in return

for his million smackolas.”); Justin Miller, Abbott Received Massive Contribution from Texas

Blackout’s Biggest Profiteer, Texas Observer (July 20, 2021), https://www.texasobserver.org/

after-kelcy-warrens-energy-transfer-partners-made-billions-from-the-deadly-texas-blackouts-he-

gave-1-million-to-greg-abbott/ (“The unusually large contribution from the blackout’s biggest

profiteer raises questions about Warren’s influence over the governor and has prompted outrage

at what many see as a blatant political kickback for kowtowing to the powerful natural

gas industry.”).

The pleadings and record demonstrate that O’Rourke’s alleged communications

about Warren’s political contribution were made in connection with matters of public concern,

see Tex. Civ. Prac. & Rem. Code § 27.001(3), and therefore the TCPA applies to Warren’s

defamation lawsuit, id. § 27.005(b).

15
Whether Warren stated a prima facie case of defamation

Because O’Rourke demonstrated that the TCPA applies to Warren’s lawsuit, the

burden shifted to Warren to establish by clear and specific evidence a prima facie case for each

essential element of his defamation claim. See id. § 27.005(c). “Prima facie case” refers to

evidence that is “sufficient as a matter of law to establish a given fact if it is not rebutted or

contradicted.” Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 54 (Tex. 2021)

(quoting In re Lipsky, 460 S.W.3d at 590). “Clear and specific evidence” means that a “plaintiff

must provide enough detail to show the factual basis for its claim.” Id. (quoting Bedford

v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017)); see also Tex. Civ. Prac. & Rem. Code

§ 27.005(c). “To prevail on a claim of defamation, a plaintiff must prove ‘(1) the publication of

a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff,

(3) with the requisite degree of fault, and (4) damages, in some cases.’” Lilith Fund for Reprod.

Equity v. Dickson, 662 S.W.3d 355, 363 (Tex. 2023) (quoting In re Lipsky, 460 S.W.3d at 593). 21

We first consider whether O’Rourke’s statements in context are false statements

of fact or non-actionable opinions. “Whether a statement is an opinion is a question of law.”

Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 639 (Tex. 2018). We analyze the

statements “from the perspective of a reasonable person’s perception of the entirety of the

communication, not from isolated statements.” Lilith Fund, 662 S.W.3d at 363. Such a

reasonable person reads the communications “in their entirety[,] . . . is aware of relevant

21 The Supreme Court issued its decision in Lilith Fund after oral arguments were held in
the present appeal. See Bowen v. Aetna Cas. & Sur. Co., 837 S.W.2d 99, 100 (Tex. 1992) (per
curiam) (“A decision of the Supreme Court operates retroactively unless this Court exercises its
discretion to modify that application.”); see also Balderas-Ramirez v. Felder, 537 S.W.3d 625,
635–36 (Tex. App.—Austin 2017, pet. denied) (same).
16
contemporary events,” and “is also cognizant of the speaker’s method and style of

dissemination.” Id. at 363–64.

Ultimately, we consider whether “the overall language conveys a personal

viewpoint about the facts.” Id. at 364. A statement is not legally defamatory if either it cannot

be verifiably false, Tatum, 554 S.W.3d at 639 (citing Neely v. Wilson, 418 S.W.3d 52, 62 (Tex.

2013)), or if the statement may be verifiably false but “the context of those statements discloses

that they reflect an opinion,” Lilith Fund, 662 S.W.3d at 363. “Any limitation that defamation

law places on free speech . . . may not muzzle a speaker from asserting an opinion in an ongoing

debate about the law.” Id. at 362.

We first consider the context in which the statements were made. See id. at 364

(reviewing historical context before analyzing statements). 22 A reasonable reader would be well

acquainted with the 2022 gubernatorial campaign between O’Rourke and Governor Abbott,

during which the Texas electrical grid was one of the major political issues discussed by the

candidates. See, e.g., Niki Griswold, How the politics of the power grid failures could play into

the 2022 election, SpectrumNews (Dec. 8, 2021), https://spectrumlocalnews.com/tx/south-texas-

el-paso/news/2021/12/08/how-the-politics-of-the-power-grid-failures-could-play-into-the-2022-

election (“It’s a top issue on the campaign trail for Texas Democrats like Beto O’Rourke, who

22 The Texas Supreme Court does not specify the bounds of this contextual review. See
Lilith Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355, 364–67 (Tex. 2023). Normally, a
trial court reviews a TCPA motion based on the pleadings, their accompanying affidavits, and
any evidence that could be considered under Rule 166a of the Texas Rules of Civil Procedure.
See Tex. Civ. Prac. & Rem. Code § 27.006(a). The Supreme Court, however, undertook a
broader review when considering the historical context of the abortion debate in Lilith Fund.
See, e.g., 662 S.W.3d at 364–67 & n.58, 59, 61–64 (considering political-party platforms,
historical sources, newspaper articles, and social-media posts). This is unsurprising given a
reasonable reader is “aware of relevant contemporary events.” See id. at 363. Accordingly, we
follow the Supreme Court’s approach in considering the broader context that informs
O’Rourke’s statements during his gubernatorial campaign.
17
are pushing back against Gov. Greg Abbott’s claims that the grid’s problems have been

addressed.”). Moreover, a candidate’s speech concerning political issues made during the course

of a campaign for public office requires the “fullest and most urgent application” of the First

Amendment. See Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734

(2011) (“As a result, the First Amendment ‘has its fullest and most urgent application’ to speech

uttered during a campaign for political office.” (quoting Eu v. San Francisco Cnty. Democratic

Cent. Comm., 489 U.S. 214, 223 (1989))). As the Supreme Court has long-recognized, “[t]he

protection given speech and press was fashioned to assure unfettered interchange of ideas for the

bringing about of political and social changes desired by the people.” See Roth v. United States,

354 U.S. 476, 484 (1957).

The perceived vulnerabilities of the electrical grid, the preparations taken to

safeguard against future severe weather events, and the actions by then-elected officials relating

to those topics were all “[d]iscussions of public issues” that “‘are integral to the operation’ of our

system of government.” See Bennett, 564 U.S. at 734 (quoting Buckley, 424 U.S. at 14).

Similarly, those political issues were tied to another major event salient to the reasonable reader

at the time of the campaign: Winter Storm Uri. For approximately one week in February 2021,

Winter Storm Uri “subjected the state’s electrical grid to historically unprecedented stress” after

a “polar vortex” of super-chilled arctic air moved across Texas and the rest of the United States

because of a “perfect storm” of meteorological conditions in the arctic region. See Luminant

Energy Co. v. Public Util. Comm’n of Tex., 665 S.W.3d 166, 173 (Tex. App.—Austin 2023, pet.

filed). The cold weather “froze poorly winterized natural gas wellheads and gathering lines,

nearly halving the supply of the state’s predominant fuel for electric generation,” id. at 174, and

this and other consequences of the strain on the electrical grid system led to over two-thirds of all

18
Texans losing power, “at least 210 deaths,” and an estimated $80 to $130 billion in storm-related

financial losses. Donald, supra; see also World Class Cap. Grp. v. Gibson, Dunn & Crutcher

LLP, No. 03-21-00360-CV, 2023 WL 2697881, at *2 n.1 (Tex. App.—Austin Mar. 30, 2023, no

pet. h.) (mem. op.) (referencing Comptroller report and noting “power blackouts affected most of

Texas from February 15-18, 2021”). Winter Storm Uri and the blackouts that followed occurred

during the 87th regular legislative session of the Texas Legislature, see Luminant Energy,

665 S.W.3d at 175, and news coverage at the end of the legislative session focused extensively

on whether the Legislature and Governor Abbott adequately addressed the perceived causes of

the electrical-grid failures, see, e.g., David Blackmon, Will Texas Gov. Greg Abbott Keep His

Promise To Fix The Grid?, Forbes (May 31, 2021),

https://www.forbes.com/sites/davidblackmon/2021/05/31/texas-gov-greg-abbott-must-keep-his-

promise-to-fix-the-texas-grid/?sh=1db717d852a2; Ross Ramsey, Analysis: The Texas electric

grid and the improvements that didn’t come, Texas Tribune (June 7, 2021),

https://www.texastribune.org/2021/06/07/texas-ercot-power-grid-legislature/; Morgan O’Hanlon

& Robert T. Garrett, Gov. Greg Abbott signs into law Texas Legislature’s response to winter

storm, Dallas Morning News (June 8, 2021), https://www.dallasnews.com/news/politics

/2021/06/08/gov-greg-abbott-signs-into-law-texas-legislatures-response-to-winter-storm/; Mose

Buchele, Texas Lawmakers Passed Changes To Prevent Blackouts. Experts Say They’re Not

Enough, NPR (June 2, 2021), https://www.npr.org/2021/06/02/1002277720/texas-lawmakers-

passed-changes-to-prevent-more-blackouts-experts-say-its-not-eno. Moreover, O’Rourke’s

statements occurred during the first winter following Winter Storm Uri and the legislative

session, with many of the statements occurring while the state braced for more potentially severe

weather events. See, e.g., Nataly Keomoungkhoun et al., North Texas braces for impact as

19
winter storm moves into Dallas-Fort Worth, Dallas Morning News (Feb., 2, 2022),

https://www.dallasnews.com/news/weather/2022/02/02/north-texas-braces-for-impact-as-winter-

storm-moves-into-d-fw/ (“But even if the storm isn’t expected to be as severe as last year’s 139-

hour freeze . . . the forecast brought back painful memories to many North Texa[n]s . . . .”).

O’Rourke’s statements would therefore be understood by a reasonable reader who was well

acquainted with Winter Storm Uri, the electrical grid’s failure, and the broader discussion about

the Legislature’s and Governor Abbott’s response.

At the same time, a reasonable reader would also be well acquainted with the

“ongoing, highly publicized, and fervent debate” about campaign donations and the effect of

money in politics. Lilith Fund, 662 S.W.3d at 364. Federal law governing campaign

contributions “grew out of a ‘popular feeling’ in the late 19th century ‘that aggregated capital

unduly influenced politics, an influence not stopping short of corruption.’” Federal Election

Comm’n v. Beaumont, 539 U.S. 146, 152 (2003) (quoting United States v. Automobile Workers,

352 U.S. 567, 570 (1957)). The balance between protecting political speech through campaign

donations and implementing permissible restrictions on said speech has continued to shift

through the present day. See, e.g., Federal Election Comm’n v. Cruz, 142 S. Ct. 1638, 1652

(2022) (“This Court has recognized only one permissible ground for restricting political speech:

the prevention of ‘quid pro quo’ corruption or its appearance.”); Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377, 388–89 (2000) (explaining that avoiding appearance of corruption is critical “if

confidence in the system of representative Government is not to be eroded to a disastrous extent”

(quoting Buckley, 424 U.S. at 26–27)); Federal Election Comm’n v. National Conservative

Political Action Comm., 470 U.S. 480, 497 (1985) (“Corruption is a subversion of the political

process. Elected officials are influenced to act contrary to their obligations of office by the

20
prospect of financial gain to themselves or infusions of money into their campaigns.”). A

tailored version of that very debate was already occurring in the months preceding O’Rourke’s

statements, as others had already questioned whether the actions taken by Governor Abbott and

the Legislature on the energy infrastructure (or the perceived lack thereof) were because of the

influence of oil-and-gas-industry political donations. 23 See, e.g., Editorial Board, supra (opining

that “continued, gingerly treatment that the powerful natural gas industry traditionally enjoys

from the state government, including from the current governor” was “[t]he most obvious return”

received by Warren “in return for his million smackolas”); Miller, supra; Mitchell Ferman &

Carla Astudillo, Energy industry showers Gov. Greg Abbott, other Texas politicians with

campaign cash after they passed power grid bills, Texas Tribune (Aug. 4, 2021), https://www

.texastribune.org/2021/08/04/texas-energy-industry-donations-legislature/ (explaining elected

officials “showered in cash . . . even more than usual” by energy industry after end of legislative

session, discussing political contributions made to different officials, and noting some viewed

donations “like a reward for not passing more stringent regulations”); see also Nixon, 528 U.S. at

391 (explaining that past precedent “demonstrates that the dangers of large, corrupt contributions

and the suspicion that large contributions are corrupt are neither novel nor implausible” and that

evidence “described public revelations by the parties in question more than sufficient to show

why voters would tend to identify a big donation with a corrupt purpose”).

23 Although there are contribution limits for individuals in federal elections, Texas does
not have a contribution limit for individuals for the statewide gubernatorial election. See
generally Tex. Elec. Code §§ 253.001–.176 (setting individual contribution limits for statewide
elections only as to judicial office elections); see also Buckley v. Valeo, 424 U.S. 1, 28 (1976)
(“Congress was surely entitled to conclude that disclosure was only a partial measure, and that
contribution ceilings were a necessary legislative concomitant to deal with the reality or
appearance of corruption inherent in a system permitting unlimited financial contributions, even
when the identities of the contributors and the amounts of their contributions are
fully disclosed.”).
21
In this context, considering O’Rourke’s statements as a whole “from the

perspective of a reasonable person’s perception,” Lilith Fund, 662 S.W.3d at 363, his statements

about the governor—which include references to Warren—are the type of non-defamatory

opinions a reasonable person would expect during the course of a contentious, statewide political

campaign. As an initial matter, many of the statements referenced by Warren in his pleadings—

such as some of O’Rourke’s tweets on January 4, January 20, and public comments on February

5 and 6—do not refer to Warren at all, but instead identify only Governor Abbott, the energy

industry, or natural-gas companies, and are therefore not actionable by Warren. See id. at 368

(explaining that speaker’s statement was not actionable because it did not sufficiently

identify plaintiffs).

As for the statements that do identify Warren, we must consider them “against the

background of a profound national commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open.” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154

(Tex. 2004) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). All of the

statements in question were made during a political campaign—many of them at campaign

rallies—and clue the reader that O’Rourke’s purpose “is advocacy, not the dissemination of

facts.” Lilith Fund, 662 S.W.3d at 367. Many of the communications do use “vehement,

caustic, and sometimes unpleasantly sharp attacks” that often arise in political debates. Isaacks,

146 S.W.3d at 154 (quoting Sullivan, 376 U.S. at 270). But reasonable readers would understand

that claims about a political opponent being corrupt 24 or being beholden to campaign

24See, e.g., Emily Flitter, Seeking to regain ground, Trump calls Clinton corrupt and a
liar, Reuters (June 22, 2016), https://www.reuters.com/article/uk-usa-election-
idUKKCN0Z81LX (quoting then-Presidential candidate Donald Trump: “Hillary Clinton may be
the most corrupt person ever to seek the presidency of the United States”); Chandelis Duster &
22
contributors or special interests 25 are just the type of “rhetorical hyperbole” that is commonplace

and expected during contentious political campaigns. See Backes v. Misko, 486 S.W.3d 7, 26

(Tex. App.—Dallas 2015, pet. denied) (explaining that “rhetorical hyperbole” is “extravagant

exaggeration [that is] employed for rhetorical effect” and is not actionable as basis for

defamation (quoting American Broad. Cos. v. Gill, 6 S.W.3d 19, 30 (Tex. App.—San Antonio

1999, pet. denied))); see also Bentley v. Bunton, 94 S.W.3d 561, 578 (Tex. 2002) (“The

Constitution protects ‘statements that cannot reasonably [be] interpreted as stating actual facts

about an individual’ made in debate over public matters in order to ‘provide[ ] assurance that

public debate will not suffer from lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’

which has traditionally added much to the discourse of our Nation.’” (quotation marks omitted)

(quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990))). Given the political and temporal

context, a reasonable person could not understand O’Rourke as conveying verifiable facts about

the legality of Warren’s political donation. See Farias v. Garza, 426 S.W.3d 808, 818 (Tex.

App.—San Antonio 2014, pet. denied) (“Accusations of the use of political influence to gain

some benefit from government are not defamatory and do not constitute libel per se.”),

Jamie Ehrlich, Hillary Clinton says ‘corrupt human tornado’ Trump won’t win reelection, CNN
(Sept. 26, 2019), https://www.cnn.com/2019/09/26/politics/hillary-clinton-cbs-sunday-morning-
interview/index.html.
25 See Cruz, Ted, Campaign 2018: Texas Senate Debate (Sept. 21, 2018), available at
https://www.c-span.org/video/?451689-1/texas-senate-debate (“Representing Texas is being
there for Texans, but actually standing up fighting for Texans, not George Soros, not big liberal
interest, but fighting for the values of the people of Texas.”); Aman Batheja & Jay Root,
Lobbyists Provide Campaign Funding, Ammo for Cruz, Dewhurst, Texas Tribune (July 5, 2012),
https://www.texastribune.org/2012/07/05/cruz-hits-dewhurst-money-austin-lobbyists/ (quoting
spokesman for then-senate candidate David Dewhurst: “Washington special interests are
supporting Ted Cruz because they know he will be beholden to them and help carry out their
agenda, which has driven our country further to the brink of disaster”).

23
disapproved of on other grounds by In re Lipsky, 460 S.W.3d 579. 26 Rather, they would

understand that the gist of O’Rourke’s statements—even when using sharp language such as

“corrupt” and “like a bribe” 27—as reiterating his political advocacy that he would be a better

governor, couched in the oft-repeated argument that one’s political opponent is beholden to their

campaign contributors. See In re Lipsky, 460 S.W.3d at 594 (analyzing “gist” of collective

statements to determine meaning); see also Stephen Gardbaum, Due Process of Lawmaking

Revisited, 21 U. Pa. J. Const. L. 1, 12 (2018) (explaining that campaign-finance system “has

been characterized as ‘legalized bribery’”); Zephyr Teachout, Opinion, Legalized Bribery, N.Y.

Times (Jan. 26, 2015), https://www.nytimes.com/2015/01/26/opinion/zephyr-teachout-on-

sheldon-silver-corruption-and-new-york-politics.html (“But legal campaign contributions can be

as bad as bribes in creating obligations. The corruption that hides in plain sight is the real threat

to our democracy.”).

Warren cites Bentley, arguing that O’Rourke’s statements accuse Warren of

having committed the crimes of bribery and corrupt influence and are therefore defamatory per

se. See 94 S.W.3d at 582. The statements made in Bentley, however, are distinguishable.

Bentley concerned statements about the corruption of public officials. See id. Warren cannot

rely on statements directed at the governor, see Lilith Fund, 662 S.W.3d at 367 (“[A] statement

must concern the plaintiff to be defamatory.”), and the references to Warren, a non-official, that

use “corrupt” language do not mention any Penal Code statute, see id. at 368. That is, Warren

26 The Texas Supreme Court disapproved Farias insofar as that decision required a
heightened evidentiary standard for demonstrating a prima facie case under the former version of
the TCPA. See In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015).
27 Warren also alleged that O’Rourke had defamed him by saying Warren committed
extortion, but the only references to extortion in the cited communications are related to energy
companies, not Warren. See Lilith Fund, 662 S.W.3d at 368.
24
reads the statements as saying he violated a criminal statute, but the standard is how a reasonable

person would understand those statements in context. Id. at 364. A reasonable person would

understand such statements not as asserting that Warren had engaged in criminal conduct, but

instead as attacking a political opponent with just the type of rhetorical hyperbole that is

commonplace in political campaigns.

This case is also unlike Bentley where the radio host “repeatedly stated that his

accusations of corruption were based on actual fact”; cited specific cases and pointed to court

records and public documents; and claimed to have undertaken a lengthy investigation,

interviewed persons, and looked into the relevant laws. 94 S.W.3d at 583. The radio host

“constantly insisted that his charges were borne out by objective, provable facts” and that he had

evidence that “had not [been] disclosed support[ing] his assertions.” Id. at 583–84. O’Rourke,

in contrast, stated that he was not a lawyer, and he did not assert any lengthy investigation or

undisclosed evidence supporting his opinions. Warren points to O’Rourke’s press conference on

March 7 where he stated that “[e]verything I’ve shared with you is factual” and that he had

“share[d] these facts” over the course of the campaign. But the information shared by O’Rourke

immediately before those statements concerned the consequences of Winter Storm Uri, the

campaign contributions received by Governor Abbott, and selected quotations from newspaper

articles. It is clear from the context of the statements that those were the “facts” O’Rourke was

referencing, not the sharp attacks O’Rourke peppered in his political campaigning as part of his

advocacy for office. See Lilith Fund, 662 S.W.3d at 367 (explaining statements directed towards

advocacy distinguishable from statements disseminating facts).

The Supreme Court’s decision in Lilith Fund reinforces that O’Rourke’s

statements, even when using objectionable language, were opinions that could not be considered

25
defamatory. In Lilith Fund, the Supreme Court concluded that advocacy groups could not state a

prima facie case for defamation against a pro-life campaigner who identified the groups as

“criminal organizations” and said the groups “exist to help pregnant Mothers murder their

babies” and “murder innocent unborn children.” See id. at 359. The Supreme Court held that a

reasonable person, informed about the historical context of the political issue, would understand

the campaigner as using language of advocacy to express his opinion on the “legality and

morality of that conduct,” rather than disseminating false factual information about the advocacy

groups. Id. at 368. In distinguishing its prior holding in Bentley, the Lilith Fund court

emphasized that Bentley was distinguishable because the radio host relied on “undisclosed (and

nonexistent)” records “that never occurred to inform” his belief that his corruption accusations

were true, “making the statements actionable based on the falsity of the underlying facts.” Lilith

Fund, 662 S.W.3d at 368–69. The Lilith Fund court also explained that the campaigner “does

not refer to the Penal Code nor to any Texas criminal law”; did not indicate that the advocacy

groups had been arrested, prosecuted, or convicted of crimes based on specific conduct; and

invoked “a moral premise” to advocate for his beliefs on a political issue. Id. at 368.

Just like the pro-life campaigner sued in Lilith Fund, O’Rourke did not refer “to

the Penal Code nor to any Texas criminal law” when making his statements that mentioned

Warren. 28 And while the pro-life campaigner’s statements unequivocally ascribed criminality to

The only times O’Rourke referenced any statutory provision was when he discussed
28

his policy positions about trying to “claw back” profits made by energy companies during Winter
Storm Uri, opining that energy companies had violated state civil law prohibiting exorbitant
pricing of certain commodities during a disaster. See Tex. Bus. & Com. Code § 17.46(27)
(including “taking advantage of a disaster” by “demanding exorbitant or excessive price in
connection with the sale or lease of fuel . . . or another necessity” as “false, misleading, or
deceptive acts or practices” subject to Deceptive Trade Practices-Consumer Protection Act).

26
the plaintiffs without any qualifiers or clear demarcation that he was expressing an opinion, see

Dickson v. Lilith Fund for Reprod. Equity, 647 S.W.3d 410, 412 (Tex. App.—Amarillo 2021),

aff’d, 662 S.W.3d 355 (Tex. 2023), O’Rourke clearly qualified his statements as his subjective,

personal belief on a political issue—that the donation “looks a lot like a bribe to me,” or “[t]hat’s

pretty close to a bribe, by any definition I’m familiar with.” 29 Similarly, just as the statements

made by the speaker in Lilith Fund were understood as opinions in part because they

“advance[d] longstanding arguments” on a controversial political issue, 662 S.W.3d at 368, so

too must O’Rourke’s statements be understood and considered in light of the long-running

political debate about the influence (undue or otherwise) of money in politics and the oft-

repeated political arguments maligning opponents for being beholden to their campaign

contributors. See, e.g., Cruz, 142 S. Ct. at 1653 (explaining line between corruption and

influence “may seem vague at times” but line-drawing must “err on the side of protecting

political speech rather than suppressing it” (quoting McCutcheon, 572 U.S. at 209); McConnell

v. Federal Election Comm’n, 540 U.S. 93, 259 (2003) (Scalia, J., concurring in part and

dissenting in part), overruled by Citizens United v. Federal Election Comm’n, 558 U.S. 310

(2010) (“Evil corporate (and private affluent) influences are well enough checked (so long as

adequate campaign-expenditure disclosure rules exist) by the politician’s fear of being portrayed

as ‘in the pocket’ of so-called moneyed interests.”).

Furthermore, the statements in Lilith Fund are closer to those prohibited under

Bentley than the statements at issue here. Unlike the pro-life campaigner—who expressly

29 As mentioned above, allegations that O’Rourke’s political opponent is corrupt treads a
well-worn path in political speech. See Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002)
(explaining that calling party “corrupt” may be “merely epithetic in the context of
amorphous criticism”).

27
attested that he had personally studied the relevant criminal statutes, law-review articles, and

other legal authorities to support his opinions that the Lilith plaintiffs were “murderers,”

“criminal organizations,” and had violated criminal laws, see, e.g., Respondents’ Brief on the

Merits at 40–42 (May 2, 2022), Lilith Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355 (Tex.

2023)—O’Rourke does not claim he undertook any meaningful research, investigation, or

otherwise gathered specialized factual knowledge supporting his opinion, let alone that he had

additional undisclosed, secret factual information substantiating his opinions. See Bentley,

94 S.W.3d at 583–84. That is, the speaker in Lilith Fund explicitly premised his statements

about the advocacy groups on factual information derived from his review of publicly available

documents; the Supreme Court, however, determined the speaker still stated non-actionable

opinions because the statements themselves asserted the speaker’s subjective beliefs in the

context of the broader political debate on abortion. See 662 S.W.3d at 369.

Here, O’Rourke’s statements were premised not only on the factual information

that Warren had made a campaign donation but also on another opinion repeatedly asserted by

O’Rourke: that Governor Abbott did not take sufficient actions to ameliorate the vulnerabilities

of the electrical grid. See Paulsen v. Yarrell, 537 S.W.3d 224, 235 (Tex. App.—Houston [1st

Dist.] 2017, pet. denied) (“Subjective assertions are not actionable in defamation.”). O’Rourke

repeatedly stated that companies were “left off the hook” because Governor Abbott “did

nothing” to resolve grid vulnerabilities and “hasn’t required gas supply CEOs to do anything.”

But O’Rourke’s subjective beliefs about Governor Abbott’s performance post-Winter Storm Uri

are not objectively verifiable facts; they are his personal opinions about the success and extent of

the Governor’s actions used to advocate as part of a political campaign. See Bentley, 94 S.W.3d

at 585 (limiting defamation claims only to statements premised on objectively verifiable facts).

28
Warren has not directed us to any authority, nor have we located any, holding that a person can

assert a “verifiable fact” for purposes of a defamation claim when the context of those statements

makes clear that the “fact” is based on another subjective opinion of the speaker. See Lilith

Fund, 662 S.W.3d at 369 (explaining that, in Bentley, radio host’s statements were actionable

because they were premised “on the falsity of the underlying facts” (citing Bentley, 94 S.W.3d at

584)). At most, Warren demonstrates that O’Rourke has a “subjective belief” that Governor

Abbott did not do enough to address the electrical grid because of campaign donations, but such

beliefs are “not the standard for determining whether a statement of opinion is defamatory.” Id.

Accordingly, even if Lilith Fund marks the outer boundary of statements not

considered defamatory, the statements made by O’Rourke fall well short of crossing the Rubicon

into defamatory utterances. 30 The fact that these opinions arose during the course of a political

campaign as part of political speech advocating for a candidate only further cautions against

interpreting them as anything other than non-defamatory advocacy by O’Rourke in support of his

political aspirations. See Cruz, 142 S. Ct. at 1650 (“The First Amendment ‘has its fullest and

most urgent application precisely to the conduct of campaigns for political office.’” (quoting

Buckley, 424 U.S. at 14); see also Lilith Fund, 662 S.W.3d at 367 (explaining party’s opinions

about a political issue or governmental officials “right or wrong, are not about” plaintiff); id. at

369 (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil

by the processes of education, the remedy to be applied is more speech, not enforced silence.”

30 Warren also references a March 12, 2022 statement by O’Rourke at a SXSW panel
where O’Rourke referred to Governor Abbott as a “thug” and “authoritarian” and referred to
Warren as an “oligarch.” Those statements, however, amount “to little more than name calling”
and are not clear and specific evidence of anything more than an expression of opinion that
Warren finds objectionable. See Associated Press v. Cook, 17 S.W.3d 447, 454 (Tex. App.—
Houston [1st Dist.] 2000, no pet.).
29
(quoting Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring))).

Accordingly, we hold that the challenged statements are non-actionable opinions. Warren has

therefore failed to demonstrate “clear and specific evidence” of an essential element of his

defamation claim, and his legal action must be dismissed. See Tex. Civ. Prac. & Rem. Code

§ 27.005(c).

CONCLUSION

We reverse the judgment of the trial court and remand the cause for entry of a

judgment of dismissal and further proceedings under any applicable provisions of the TCPA.

__________________________________________
Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Triana and Smith

Reversed and Remanded

Filed: June 9, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9401428. Public record. Not legal advice.