Texas HD 128: Lawsuit Seeks Videos for Use in Campaign

Smith Video 1
Photo: Screenshot from Texas Legislature Video

HOUSTON, Texas — A Republican candidate for state representative filed a lawsuit seeking the right to use legislative videos taken during proceedings of the Texas House of Representatives in his campaign advertising. He claims that the videos highlight votes and positions that his opponent incumbent Wayne Smith (R-Baytown) has taken that are inconsistent with what Smith tells constituents.

Smith’s challenger, and the plaintiff, urges in his lawsuit that these videos will show that Smith has taken votes and positions which he believes “are out-of-step with the views of residents in House District 128 and inconsistent with statements Smith has made during his reelection campaign.” The petition filed in Harris County on Thursday is attached below.

The candidate, Briscoe Cain, is running against the incumbent State Representative Wayne Smith. Both are Republicans.

Cain’s petition states that he will suffer irreparable injury if the Court does not issue temporary injunctive relief for use of these videos during the campaign because it involves “the loss of First Amendment freedoms.” Both men are in a runoff and early voting begins on May 16. Election Day is Tuesday, May 24.

The lawsuit petition states that “Smith presents himself to voters as a strong conservative. However, Smith consistently rates poorly with grassroots conservative organizations. Cain has successfully criticized Smith for taking votes that are inconsistent with his campaign rhetoric.”

Cain filed the lawsuit seeking a temporary restraining order, asks for declaratory relief that the provision of the Texas Government Code preventing use of these materials in campaign materials is unconstitutional on its face, and asks for temporary and permanent injunctive relief enjoining the enforcement of this provision of the Texas Government Code.

The named defendants in the lawsuit are Charles G. Untermeyer, in his official capacity as commisioner of the Texas Ethics Commission. Untermeyer is currently serving as chairman. Natalia Luna Ashley, the executive director of the Texas Ethics Commission has also been sued in her official capacity.

The Texas Ethics Commission (TEC) is the governmental agency responsible for administering the provision of the Texas Government Code that Cain is challenging as unconstitutional, section 306.005. This provision states that:

A person may not use audio or visual materials produced by or under the direction of the legislature or of a house, committee, or agency of the legislature in political advertising.

This section of the Government Code provides that the civil penalty for the use of these materials can be up to $5,000 for each violation.

Professor Charles “Rocky” Rhodes of South Texas College of Law in Houston told Breitbart Texas, “This statute violates one of the fundamental cores of the First Amendment by restricting the people’s access to needed information for meaningful political participation. The very idea that these videos can be used for commercial purposes, but not political purposes, demonstrates that this is merely illegitimate legislative protectionism that contravenes our longstanding expressive traditions.”

“Political speech restrictions are a disservice to the public because they keep people in the dark about those who serve them,” said Mat Staver, founder and chairman of Liberty Counsel, and former dean and tenured professor of Liberty University School of Law. He added, “Important decisions can only be made when you have all the facts. It is time to set aside political speech restrictions. The more we know about those who seek our vote the better.”

“Too many lawmakers have long understood that if citizens back home knew what they were doing in Austin, there would be outrage. It’s no wonder they want to shield themselves from the consequences of their behavior by making it illegal for too many people to see what really goes on on the floor of the Texas House,” Michael Quinn Sullivan, president of Empower Texans and Texans for Fiscal Responsibility told Breitbart Texas.

Just before the last Texas Legislative session in 2015, the Texas Ethics Commission asked legislators to change the law because it was subject to legal attack. No action was taken.

Members of the Ethics Commission asked that the law be repealed, or amended to make it apply only to “A member, officer, or employee of a house, committee, or agency of the legislature.” The TEC members specifically suggested that if not repealed, the word “person” should be struck from the statute and the provision should apply only to a current member, officer, or employee of the legislature.

Rep. Wayne Smith has represented House District 128 since 2002. The District covers Baytown, Deer Park, La Porte, Morgan’s Point, Pasadena and parts of unincorporated areas of East Harris County.

During the March Republican primary election, Cain finished in first place with 47.83 percent in a field of three, almost making a runoff election unnecessary. Smith finished in second place with 43.75 percent of the vote. Melody McDaniel, the third candidate in the race, garnered 8.42 percent of the vote. McDaniel has endorsed Cain in the runoff.

Former state representative Joseph M. Nixon and Trey Trainor, former general counsel to the Texas Secretary of State, and chief committee clerk to a major committee in the Texas House, represent Cain. Although he is a lawyer himself, Cain is represented by these two partners at the high-powered firm of Beirne, Maynard, and Parsons, L.L.P.

Cain’s lawyers have both represented the pro-life organization Texas Right to Life and Empower Texans. Empower Texans describes its organization as “assist[ing] Texans in creating and sustaining a system of strong fiscal stewardship within all levels of government, ensuring the greatest amounts of economic and personal liberty, and promoting public policies that provide individuals with the freedom to use their strengths and talents in pursuit of greater opportunities. For liberty to flourish, we believe citizens must be empowered to hold their elected officials accountable,” its website states.

The ancillary court judge, Judge Patricia Kerrigan of the 190th District Court in Houston denied temporary emergency relief on Thursday but set a hearing for May 13 at 11:00 a.m. The hearing will be held before Brent Gamble, judge of the 270th Judicial District Court.

According to a spokesman at the Office of the Texas Attorney General (OAG), the OAG has taken the unusual step and declined to represent the TEC in this case. Further comment was not available. The OAG represents state agencies and officials when they are sued. The state’s top lawyer can decide to not provide legal representation where the OAG cannot in good conscience defend the client’s position.

Breitbart Texas spoke with Allen Blakemore, campaign spokesman for Rep. Smith who provided a statement. “It is not surprising Wayne Smith’s opponent has run to [the] courthouse to file a lawsuit. This stunt is the latest in his effort to misrepresent the facts in the HD 128 Run-off.” He also provided, “Fortunately, the voters in HD 128 know Representative Smith and his principles and record are clear. The opponent’s attacks on Smith’s are a desperate attempt for traction in race that is slipping away. As a State Representative, Rep. Smith has always stood on principle.”

As it relates to the judge’s ruling, “It’s no surprise the Court denied Mr. Cain’s motion for injunctive relief,” the statement provided.

Lana Shadwick is a writer and legal analyst for Breitbart Texas. She has served as a prosecutor and an associate judge in Texas. Follow her on Twitter @LanaShadwick2

Cain v. Untermeyer, Plaintiff’s Original Verified Petition and Application for Temp Restraining Order


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