O'Rourke v. Warren

673 S.W.3d 671

Robert Francis O'ROURKE, Appellant

v.Kelcy WARREN, Appellee

NO. 03-22-00416-CV

Court of Appeals of Texas, Austin.

Filed: June 9, 2023

Constantine Z. Pamphilis, Kasowitz Benson Torres LLP, 1415 Louisiana Street Suite 2100, Houston, TX 77002-7344, Richard T. Miller, Law Office of Richard T. Miller, 414 E. Wallace St., San Saba, TX 76877-3528, for Appellee.

Chad W. Dunn, Brazil & Dunn LLP, 1900 Pearl Street, Austin, TX 78705, K. Scott Brazil, Brazil & Dunn LLP, 4407 Bee Caves Road, Bldg 2, Suite 11, Austin, TX 78746, for Appellant.

Before Chief Justice Byrne, Justices Triana and Smith

OPINION

Darlene Byrne, Chief Justice

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 damages¹ —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 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. 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 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 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

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