                                                                                      ACCEPTED
                                                                                  03-15-00078-CV
                                                                                          5673814
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                            6/15/2015 11:38:21 AM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK

                         No. 03-15-00078-CV
__________________________________________________________________
                                                       FILED IN
                                                  3rd COURT OF APPEALS
            IN THE THIRD DISTRICT COURT OF APPEALSAUSTIN, TEXAS
                                                  6/15/2015 11:38:21 AM
                          AUSTIN, TEXAS
                                                      JEFFREY D. KYLE
__________________________________________________________________
                                                           Clerk


                               CHRIS BELL,
                                Appellant

                                   v.

             REPUBLICAN GOVERNORS ASSOCIATION
                             Appellee
__________________________________________________________________

        On appeal from the 261st Judicial District Court, Travis County
                      Honorable John Dietz Presiding
__________________________________________________________________

                   REPLY BRIEF OF APPELLANT
__________________________________________________________________

                                  ELIZABETH G. BLOCH
                                  State Bar No. 02495500
                                  Heidi.bloch@huschblackwell.com
                                  THOMAS H. WATKINS
                                  State Bar No. 20928000
                                  Tom.watkins@huschblackwell.com
                                  Husch Blackwell LLP
                                  111 Congress, Suite 1400
                                  Austin, Texas 78701
                                  (512) 472-5456
                                  (512) 479-1101 (fax)

                                  Attorneys for Appellant Chris Bell

                         ORAL ARGUMENT REQUESTED



AUS-6115934-1 523389/1
                         INTERESTED PARTIES

APPELLANT                              ATTORNEYS FOR APPELLANTS

Chris Bell                             Trial Counsel
                                       Randall B. Wood
                                       Doug W. Ray
                                       Ray & Wood
                                       2700 Bee Caves Rd. #200
                                       Austin, Texas 78746

                                       Counsel on Appeal
                                       Elizabeth G. Bloch
                                       Thomas H. Watkins
                                       Husch Blackwell LLP
                                       111 Congress, Suite 1400
                                       Austin, Texas 78701

APPELLEE                               ATTORNEYS FOR APPELLEE

Republican Governors Association       Trial Counsel and Counsel on Appeal
                                       Terry L. Scarborough
                                       Hance Scarborough, LLP
                                       111 Congress, Suite 500
                                       Austin, Texas 78701




                                   i
AUS-6115934-1 523389/1
                                        TABLE OF CONTENTS
INTERESTED PARTIES .......................................................................................... i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATUTORY AUTHORITIES .............................................................................. iii
ARGUMENTS AND AUTHORITIES .....................................................................1
         I.       The fact that the amount of attorneys’ fees is reasonable does
                  not mean there has been no abuse of discretion.. ..................................1
         II.      Section 253.151 of the Election Code is designed to deter
                  violations and encourage private enforcement by candidates;
                  the award of fees in this case will discourage private
                  enforcement.. .........................................................................................2
CONCLUSION ..........................................................................................................4
CERTIFICATE OF COMPLIANCE .........................................................................5
CERTIFICATE OF SERVICE ..................................................................................6




                                                           ii
                                     INDEX OF AUTHORITIES
                                            FEDERAL CASES
Buckley v. Valeo,
   424 U.S 1 (1976) ..................................................................................................3


                                               STATE CASES
Mercedes-Benz Credit Corp. v. Rhyne,
   925 S.W.2d 664 (Tex. 1996) ...............................................................................2
Osterberg v. Peca,
   12 S.W.3d 31 (Tex. 2000)....................................................................................2
Ragsdale v. Progressive Voters League,
   790 S.W.2d 77 (Tex. App.—Dallas), aff’d in part and rev’d in part on
  other grounds, 881 (Tex. 1990)).......................................................................2, 3
Samlowski v. Wooten,
   332 S.W.3d 404 (Tex. 2011) ...............................................................................1


                                   STATUTORY AUTHORITIES
TEX. ELEC. CODE § 253.131 .......................................................................... 1, 2, 3, 4
TEX. GOV’T CODE § 311.021 ......................................................................................4




                                                          iii
                              ARGUMENTS AND AUTHORITIES
I.        The fact that the amount of attorneys’ fees is reasonable does not mean
          there has been no abuse of discretion.
          The RGA asserts that “if the award of fees was reasonable then there has

been no abuse of discretion.”1 That is simply wrong. Bell has not challenged the

reasonableness of the amount of fees incurred by the RGA. The cases cited by the

RGA are not helpful to this case since the issue here is not whether the amount of

fees awarded was a reasonable amount incurred for this type of case.

          Instead, Bell argues the award of any fees was an abuse of discretion as the

ruling did not take into consideration the underlying principles of the Election

Code and § 253.131. Since this section of the Election Code provides no guidance

regarding whether and when to award attorney’s fees, that “[g]uidance must come

instead from the broader purposes of the [statute], of which [that section] is a part.”

See, Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011) (analyzing what

principles must guide a trial court’s discretion to allow an extension to file an

expert affidavit under the Texas Medical Liability Act).

          The RGA insists that consideration of the guiding principles requires reading

“additional language” into the statutes concerning the discretion of a trial court.2

But as stated above, the Texas Supreme Court has held a trial court’s exercise of

discretion must be made with reference to guiding principles underlying the statute
1
    Appellee’s Brief p. 11.
2
    Appellee’s Brief at 13.


                                            1
AUS-6115934-1 523389/1
as a whole. Rhyne, 925 S.W.2d at 666. Doing so does not require reading

additional words into the statute.

II.       Section 253.151 of the Election Code is designed to deter violations and
          encourage private enforcement by candidates; the award of fees in this
          case will discourage private enforcement.
          The Texas Election Code was “designed to ‘deter violators and encourage

enforcement by candidates and others directly participating in the process, rather

than placing the entire enforcement burden on the government.” Osterberg v. Peca,

12 S.W.3d 31, 49 (Tex. 2000) (quoting Ragsdales v. Progressive Voters League,

790 S.W.2d 77, 84-85 (Tex. App.—Dallas), aff’d in part and rev’d in part on other

grounds, 801 S.W.2d 880, 881 (Tex. 1990)).

          The RGA attempts to distract the Court’s attention from the purpose of

section 253.131 by only partially quoting one sentence in the Osterberg opinion—

“[t]he public interest is preventing campaign finance corruption and ‘[preventing

evasion of . . . important campaign finance provisions.” 3 This quote, however,

must be read in the context in which it was written, which emphasizes the

importance of private enforcement of the campaign finance statute. In Osterberg,

the Texas Supreme Court stated:

                 We disagree with the Osterbergs’ contention that section
                 253.131 does not advance a sufficient state interest.
                 When an individual breaks Texas’s campaign finance
                 laws, this section allows a candidate to enforce those

3
    Appellee’s Brief at 19.



                                            2
              laws by seeking civil damages as a penalty. We agree
              with the Fifth Court of Appeals, which recognized that
              section 253.131 is designed to “deter violators and
              encourage enforcement by candidates and others directly
              participating in the process, rather than placing the entire
              enforcement burden on the government.” 4 Because state
              resources for policing election laws are necessarily
              limited, in many cases [private enforcement under]
              section 253.131 is likely to provide the only viable
              means of enforcing reporting requirements.
              Preventing evasion of these important campaign finance
              provisions is a legitimate and substantial state interest. 5

Osterberg, 12 S.W.3d at 49.

       If the trial court’s award of attorney’s fees to the RGA is allowed to stand, it

will have the counter effect of discouraging private enforcement and, therefore,

greatly reduce, if not eliminate, the likely “only viable means of enforcing

reporting requirements.”

                                     CONCLUSION
       In sum, an award of fees to the RGA under the facts and circumstances of

this case would defeat the purpose of the statute by discouraging colorable claims

in the future. It would also further the private financial interest of one political

entity over the public’s interest in maintaining the integrity of the electoral process,

in violation of TEX. GOV’T CODE § 311.021. The only just, equitable, and


4
  Citing Ragsdale v. Progressive Voters League, 790 S.W.2d 77, 84-85 (Tex. App.—Dallas)
(construing an earlier version of section 253.131), aff’d in part and rev’d in part on other
grounds, 801 S.D.2d 880, 881 (Tex. 1990).
5
  Cf. Buckley v. Valeo, 424 U.S. 1, 66-68, 76 (1976) (preventing evasion of valid contribution
limits is a substantial interest).



                                              3
reasonable exercise of discretion in this case, and the only one that is consistent

with the applicable guiding rules and principles, is to deny the RGA its attorney’s

fees. The trial court abused its discretion by not abiding by the important guiding

principles underlying the private enforcement provisions of the Election Code.

      Bell therefore requests that this Court reverse the judgment below and render

judgment that the RGA take nothing on its claim for attorney’s fees. In the

alternative, Bell requests that the case be remanded for the trial court to reconsider

its decision in light of, and being guided by, the important public policy concerns

of the Texas Election Code and section 253.131.


                                         Respectfully submitted,

                                         HUSCH BLACKWELL, L.L.P

                                         BY:/s/ Elizabeth G. Bloch
                                            ELIZABETH G. BLOCH
                                            Texas Bar No. 02495500
                                            Heidi.bloch@huschblackwell.com
                                            THOMAS H. WATKINS
                                            Texas Bar No. 20928000
                                            tom.watkins@huschblackwell.com
                                            111 Congress Avenue, Suite 1400
                                            Austin, Texas 78701
                                            (512) 472-5456
                                            (512) 479-1101 (facsimile)

                                              Attorneys for Appellant Chris Bell




                                          4
                     CERTIFICATE OF COMPLIANCE
       I hereby certify that the foregoing document contains 863 words, according
to the word count of the computer program used to prepare it, in compliance with
Rule 9.4(i)(2).


                                            /s/ Elizabeth G. Bloch
                                            Elizabeth G. Bloch




                        CERTIFICATE OF SERVICE
      I certify that a true and correct copy of the foregoing instrument has been
served upon the following counsel of record via electronic filing and/or facsimile
on the 15th day of June, 2015:


      Terry L. Scarborough
      Hance Scarborough, LLP
      111 Congress, Suite 500
      Austin, Texas 78701
      (512) 482-6891 (facsimile)

                                                  /s/ Elizabeth G. Bloch
                                                  Elizabeth G. Bloch




                                        5
