The Waco Court of Appeals has reversed a trial court denial of an out-of-state political action committee’s TCPA motion to dismiss a lawsuit brought by a member of the Texas House of Representatives.
Courageous Conservatives PAC v. Hon. Pat Curry, State Representative for House District 56 and Curry for Texas (A Campaign) (No. 10-25-00228-CV; December 11, 2025) arose from a dispute between an independent PAC and a newly-elected member of the Texas House of Representatives over text messages to GOP voters in the member’s district concerning the 2025 election for Speaker of the House. The PAC urged voters to contact their representatives and tell them to vote against Rep. Burrows. The text messages contained a photo of the House member and referred to him as a “turncoat” who betrayed Republicans by voting for a “closet-Democrat speaker” (clearly one of the most ludicrous characterizations in the history of Texas politics, and that’s saying a lot). The same thing was posted on the PAC’s Facebook page. The member sued the PAC for Election Code violations and requested a declaration that the messages constituted political advertising requiring disclosure of the PAC authorizing the advertisement. He also requested the court to order the PAC to remove hims personal phone number from future advocacy, to find that the messages constituted illegal contributions to a speaker’s race, and to withdraw the advertisements altogether. The PAC filed a TCPA motion to dismiss, which was overruled by operation of law. The member appealed.
In an opinion by Justice Smith, the court of appeals reversed. First, the PAC contended that the member’s claims invoked the TCPA’s protection of its right of free speech made in connection with a matter of public concern, as well as its right of association and right to petition. Observing that a lawsuit is a legal action as defined by the TCPA and that the texts and post concerned a legislative vote for a public official, the court had no trouble determining that the member’s lawsuit was in response to the PAC’s exercise of its speech rights on a matter of public concern. Second, the court determined that the TCPA’s commercial speech exemption didn’t apply. After all, the PAC was “not engaged in the business of selling or leasing goods or services,” did not “send out the text messages or post the Facebook bpage in the capacity of a seller or lessor of goods or services,” and there was no commercial transaction involving any goods or services. Additionally, the “intended audience was not actual or potential customers of the PAC for goods or services.” The texts and post thus didn’t at all fit into the exemption.
The PAC further argued that because it was an out-of-state PAC, Texas Election Code requirements didn’t apply to it. Under pertinent provisions of the Code, an out-of-state PAC may become subject to Texas law if it conducts a certain amount of qualifying political activity in the state in the 12 months immediately preceding the making of a political expenditure in Texas (subject to exceptions for federal campaigns or de minimis expenditures in Texas elections). Looking to the PAC’s FEC reports, the court found that the vast majority (more than the statutory 80%) of the PAC’s expenditures were made in elections in other states. It was thus not subject to the Texas Election Code treasurer designation or reporting requirements. The member argued further that the PAC didn’t comply with reporting requirements for political advertising. In fact, the advertisements carried the ordinary “Pol. Adv. Paid for” disclosure. Finally, since there are no private causes of action for Penal Code violations, the member’s claims of such violations were not cognizable. The court sent the case back to the trial court for consideration of the PAC’s claim for attorney’s fees under the TCPA.
Though the decision doesn’t plow any new ground, we always like to report on the 99.95% of intermediate appellate court decisions showing those courts applying the law as it is written. This is exactly the type of case the TCPA was designed to get rid of as quickly as possible, as distasteful as we may find the tactics used against this honorable member. We’re glad that the electorate knew their man better than this foreign outfit did.
