Appeals court dismisses Kelcy Warren’s lawsuit against Beto O’Rourke

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A state appeals court dismissed Republican megadonor Kelcy Warren’s defamation lawsuit against Beto O’Rourke, ruling Friday that statements by the 2022 Democratic nominee for governor were protected by the First Amendment.

The Austin-based 3rd Court of Appeals said a district court judge in San Saba County mistakenly denied O’Rourke’s motion to dismiss in July 2022. Warren, a Dallas pipeline billionaire, had sued O’Rourke for defamation after the candidate repeatedly invoked Warren while criticizing Gov. Greg Abbott for the 2021 power-grid collapse.

“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,” a three-judge panel said in its ruling.

Friday’s ruling came seven months after oral arguments on the motion to dismiss and can be appealed to the Texas Supreme Court.

The legal journey kicked off more than a year ago, when O’Rourke opened his campaign with intense criticism over Abbott’s handling of the grid failure amid a severe winter storm. Warren’s pipeline company made a huge profit as demand for gas spiked, and O’Rourke seized on a $1 million donation Warren later made to Abbott, arguing it was effectively a bribe to go easy on Warren’s industry after the storm.

Warren sued O’Rourke for defamation in San Saba County, where O’Rourke then filed motions to dismiss the lawsuit and separately sought a change of venue. The San Saba judge denied both motions, and O’Rourke appealed to the 3rd Court of Appeals, where all six justices are currently Democrats. The appeals court rejected O’Rourke’s move to change venue but agreed to consider the motion to dismiss.

At the oral arguments in December, O’Rourke’s lawyer argued O’Rourke’s criticism of Warren was protected by the First Amendment. Warren’s attorney argued his client, as a private citizen, was afforded greater protection from defamatory statements.

The case has long outlived O’Rourke’s campaign for governor. He lost to Abbott by 11 percentage points in November and has since kept a low profile in Texas politics.

Abbott’s campaign said when Warren filed his lawsuit that it was “in no way involved.”

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