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Beto O’Rourke takes defamation fight to Texas appeals court

The Democratic nominee for governor says the oil tycoon suing him “has no right to abuse the judicial system” as retaliation for exercising First Amendment rights.

AUSTIN, Texas (CN) — Texas gubernatorial candidate Beto O’Rourke argued that statements he made which are now the subject of a $1 million defamation lawsuit all concern a matter of immense public importance, and that the claim against him is nothing more than an attempt “to silence political debate.”

In a filing Wednesday to the Austin-based Third Court of Appeals, O’Rourke said that his statements critical of energy executive Kelcy Warren and corporate influence over Texas energy policy aimed at Republican Governor Greg Abbott are covered speech under the Texas Citizens Participation Act, and not clearly defamatory.

“The court should order the case dismissed and award O’Rourke his attorneys’ fees,” attorneys for the one-time 2020 presidential candidate wrote in the Aug. 17 appeal.

Warren, a billionaire Republican donor and chairman of Energy Transfer, accused O’Rourke in February of defaming him on the campaign trail over the former congressman’s claims that Warren paid off Abbott to not fix the grid. The allegations relate to a $1 million political donation Warren made to the two-term Republican governor months after the state’s deadly February 2021 winter storm that O’Rourke latched onto.

“Looks like a bribe to me,” O’Rourke said in one reference to Warren's donation in a Facebook live video earlier this year.

Warren claims in his lawsuit that O’Rourke mounted a “relentless and malicious attack” that accused him of committing the felonies of extortion, bribery and corruption so that his company could profit in the event the state’s electrical grid were to again fail.

O’Rourke, who has made Abbott’s handling of last year’s electrical grid collapse a core piece of his campaign, has called the lawsuit “frivolous,” but a judge in San Saba County, where the lawsuit was filed, declined to dismiss it in July.

In his appeal, O’Rourke cites several social media posts that he says cannot be defamatory because they are either about Abbott – his political opponent – or truthfully report Warren’s $1 million contribution. Warren, the appeal says, has not proven his allegations, or that he suffered any damages arising from the claims.

“O’Rourke’s political speech about Warren’s $1 million contribution to Abbott and its effect on Abbott’s policy positions is quintessential speech on a matter of public concern,” the appeal states, adding that the Democratic candidate’s political speech is protected by the First Amendment and “nondefamatory as a matter of law.”

O’Rourke and Abbott remain locked in a head-to-head matchup for the governor’s mansion as candidates across the country ramp up their campaigns with the 2022 midterm elections just 82 days away.

On Thursday, O’Rourke’s campaign said it made its first TV ad buy with reservations in major markets across the state next week that “will hold Greg Abbott accountable for failing the people of Texas with his extreme agenda.”

Abbott, seeking a third term, continues to poll ahead of O’Rourke in new polling from the Dallas Morning News and UT Tyler that shows respondents favoring Abbott 46% to O’Rourke’s 39%. But the same poll also found a majority of respondents believe the state is headed in the wrong direction.

Six justices sit on the Third Court of Appeals, which hears cases from 24 counties, including San Saba County where Warren spends some holidays on a ranch owned by an LLC of his. O'Rourke also appealed the San Saba County judge's refusal to transfer venue to O'Rourke's home county of El Paso.

Warren has until Sept. 6 to file a reply brief.

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