king-street-patriots-catherine-engelbrecht-bryan-engelbrecht-and-diane ( 2014 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    ON MOTION FOR REHEARING
    NO. 03-12-00255-CV
    King Street Patriots, Catherine Engelbrecht, Bryan Engelbrecht and Diane Josephs,
    Appellants
    v.
    Texas Democratic Party; Gilberto Hinojosa, Successor to Boyd Richie, in His Capacity as
    Chairman of the Texas Democratic Party; John Warren, in His Capacity as Democratic
    Nominee for Dallas County Clerk; and Ann Bennett, in her Capacity as the Democratic
    Nominee for Harris County Clerk, 55th Judicial District, Appellees
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
    NO. D-1-GN-11-002363, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
    OPINION
    We withdraw our opinion issued on October 8, 2014, and substitute this one in its
    place. We overrule appellants’ motion for rehearing.
    This appeal is limited to facial challenges to the constitutionality of various Election
    Code provisions. See Tex. Elec. Code §§ 251.001, 253.003, 253.031, 253.037, 253.091, 253.094,
    253.095, 253.101, 253.102, 253.103, 253.104, 253.131, 253.132, 273.081; Act of June 19, 1987,
    70th Leg., R.S., ch. 899, § 1, 1987 Tex. Gen. Laws 2995, 3009 (former sections 253.062 and
    253.097, repealed 2011). Facing cross-motions for summary judgment, the trial court ruled against
    appellants King Street Patriots (KSP), Catherine Engelbrecht, Bryan Engelbrecht, and Diane Josephs,
    the parties facially challenging the constitutionality of the Election Code provisions. The trial court
    concluded that it did not have jurisdiction to consider some of appellants’ constitutional challenges
    and, as to the remaining challenges, the trial court upheld the constitutionality of the Election Code
    provisions at issue. For the reasons that follow, we affirm the trial court’s judgment.1
    BACKGROUND
    The Texas Democratic Party, Boyd Richie,2 in his capacity as Chairman of the Texas
    Democratic Party, John Warren, in his capacity as Democratic nominee for Dallas County Clerk, and
    Ann Bennett, in her capacity as the Democratic nominee for Harris County Clerk, 55th Judicial
    District (collectively “TDP”), brought suit against appellants seeking damages and injunctive relief
    based upon alleged Election Code violations. See Tex. Elec. Code §§ 253.131, 253.132, 273.081.
    Their allegations included that KSP made unlawful political contributions to the Texas Republican
    Party and its candidates (collectively “TRP”) with regard to the 2010 general election by training poll
    watchers in coordination with the TRP and then offering the poll watchers’ services only to the TRP.
    TDP also alleged that, based upon its political activities, KSP was “a sham domestic nonprofit
    corporation” and “an unregistered and illegal political committee.” TDP asserted claims against KSP
    1
    To the extent appellants assert as-applied constitutional challenges in the severed suit, we
    express no opinion as to the merits of those challenges. See Combs v. STP Nuclear Operating Co.,
    
    239 S.W.3d 264
    , 272 (Tex. App.—Austin 2007, pet. denied) (noting that “party making an
    as-applied challenge need only show that the statute is unconstitutional because of the manner in
    which it was applied in a particular case” and that as-applied challenge is “fact specific”); see also
    Catholic Leadership Coal. of Tex. v. Reisman, 
    764 F.3d 409
    , 426 (5th Cir. 2014) (noting that facial
    and as-applied challenges “have different substantive requirements” and comparing as-applied and
    facial constitutional challenges in context of challenges to Texas Election Code).
    2
    Gilberto Hinojosa replaced Boyd Richie as the Chairman of the Texas Democratic Party
    following Hinojosa’s election at the Texas Democratic Party State Convention.
    2
    for Election Code violations based upon KSP’s status as a political committee and its status as
    a corporation.
    Appellants answered and filed a counterclaim. They asserted that KSP was formed
    as a non-profit Texas corporation on December 30, 2009, to “provide education and awareness” to
    the “general public on important civic and patriotic duties.” They stated that they “decided that a
    good way to participate was to help ensure that elections are free and fair” and that they “assisted
    anyone who was interested in this project in becoming a poll watcher.” Their counterclaim sought
    declaratory relief challenging the constitutionality of Election Code provisions. Appellants claimed
    that the Election Code provisions at issue violated the First, Fourth, Eighth, and/or Fourteenth
    Amendments to the United States Constitution. See U.S. Const. amends. I, IV, VIII, XIV, § 1.
    The parties entered into a rule 11 agreement to sever appellants’ counterclaim
    challenging the facial constitutionality of the Election Code provisions into a separate cause number
    by agreed order and to abate the remaining claims until the new cause was resolved. Per that
    agreement, the trial court severed KSP’s counterclaim into this cause and realigned the parties. The
    parties then filed cross-motions for summary judgment. See Tex. R. Civ. P. 166a.
    In their motion for summary judgment, TDP urged that the applicable provisions of
    the Election Code were facially constitutional. See Tex. Elec. Code §§ 251.001, 253.031, 253.094,
    253.104, 253.131, 253.132, 273.081. Among the grounds asserted to support summary judgment,
    TDP argued that sections 251.001, 253.094, and 253.131 had already been determined constitutional.
    To support this ground, TDP cited the opinions in Ex parte Ellis, 
    309 S.W.3d 71
    (Tex. Crim. App.
    3
    2010), Osterberg v. Peca, 
    12 S.W.3d 31
    (Tex. 2000), and Castillo v. State, 
    59 S.W.3d 357
    (Tex.
    App.—Dallas 2001, pet. ref’d).
    Appellants countered in their motion for summary judgment that the applicable
    Election Code provisions were facially unconstitutional. Among the grounds asserted to support
    summary judgment in their favor, appellants urged that: (i) the sections creating private rights of
    action for Election Code violations, see Tex. Elec. Code §§ 253.131, 253.132, 273.081, violated the
    First, Fourth, and Fourteenth Amendments; (ii) the sections prohibiting corporate contributions and
    expenditures, see 
    id. §§ 253.091,
    .094, were unconstitutional under Citizens United v. Federal
    Election Commission, 
    558 U.S. 310
    (2010), and violated the First and Fourteenth Amendments;
    (iii) the definitions of contributions and expenditures, see Tex. Elec. Code § 251.001(2)–(10), were
    unconstitutionally overbroad and vague; (iv) the definitions of political committees, see 
    id. § 251.001(12),
    (14), were unconstitutionally overbroad and vague and violated the First Amendment;
    (v) the direct expenditure sections, see 
    id. former §§
    253.062, .097, violated the First Amendment;
    (vi) the sections with “thirty and sixty day blackout periods,” see 
    id. §§ 253.031(c),
    .037(a), violated
    the First Amendment; and (vii) the sections providing criminal penalties, see 
    id. §§ 253.003,
    .094,
    .101, .102, .103, .104, violated the Eighth Amendment.
    Appellants did not offer summary judgment evidence to support their motion. TDP’s
    evidence included affidavits, documents, and videos concerning KSP’s recruitment and training of
    poll watchers.3 The parties also stipulated to the following facts:
    3
    TDP presented affidavits from the Chair of the Harris County Democratic Party, the Deputy
    Executive Director for the Texas Democratic Party, and Bennett. They testified regarding KSP’s
    “assistance” and “support” of the TRP during the 2010 general election cycle and KSP’s poll watcher
    4
    a.      King Street Patriots, during and in advance of the 2010 General Election for
    State and County Officers, conducted, at its own expense, a training and
    recruitment program for poll watchers. Many of these KSP located and
    trained poll watchers were subsequently appointed to serve under Texas
    Election Code §§ 32.002–.003 by the Harris County Republican Party
    Chairman and/or Republican Nominees with regard to the 2010 General
    Election for State and County Officers.
    b.      Plaintiffs, the Texas Democratic Party, Boyd Richie, John Warren, and Ann
    Bennett, using the private right of action found in Tex. Elec. Code §§ 273.081,
    253.131, and 253.132, intend to enforce Texas Election Code sections
    251.001(2), (3), (4), (5), (6), (7), (8), (9), (10), (12), (14), 253.031(c),
    253.037(a)(1) and (b), 253.062, 253.094, 253.097, and 253.104 against
    Defendants-Counterclaimants, King Street Patriots, Catherine Engelbrecht,
    Bryan Engelbrecht and Diane Josephs, based on alleged political speech the
    Defendants-Counterclaimants have engaged in, and intend to continue to
    engage in, in the future.
    The trial court granted summary judgment against appellants and in favor of TDP. The
    trial court declared that Election Code sections 251.001(2), (3), (5), (6), (7), (8), (10), (12), and (14),
    253.031, 253.037, 253.094, 253.104, 253.131, 253.132, and 273.081 and former sections 253.062 and
    253.097 were facially constitutional. The trial court also concluded that it did not have jurisdiction
    to grant declaratory relief with respect to sections 251.001(4) and (9), the officeholder definitions,
    sections 253.031(c) and 253.037(a), the “blackout” periods, and the criminal penalties contained in
    program. The Chair of the Harris County Democratic Party testified:
    The poll watchers recruited and trained by KSP for service in Harris County were all
    appointed by Republican nominees or the Harris County Republican Party. The KSP
    never offered to provide poll watchers for or on behalf of the Harris County
    Democratic Party. I attended at least one meeting at the Harris County Attorney
    General’s Office at which the representative of the Harris County Republican Party
    discussed and acknowledged the coordinated efforts between the KSP and the Harris
    County Republican Party in connection with training and assigning poll watchers.
    5
    sections 253.094(c), 253.003(e), 253.101, 253.102, 253.103, and 253.104. The trial court concluded
    that it did not have jurisdiction with respect to those provisions because they were not at issue in the
    case. This appeal followed.
    ANALYSIS
    Appellants bring six issues on appeal, primarily tracking the grounds raised in their
    motion for summary judgment. Appellants challenge the constitutionality of the sections of the
    Election Code that create a private right of action, the sections that allegedly “ban” corporate
    contributions and expenditures, the section defining various terms, the sections allegedly creating
    “blackout” periods, and the sections containing criminal penalties for violations of the Election Code.
    Appellants contend that the trial court erred by concluding that it did not have jurisdiction with
    respect to some of these challenged Election Code provisions and that it erred by declaring the
    remaining Election Code provisions facially constitutional.
    Standards of Review
    We review a trial court’s summary judgment rulings de novo. Valence Operating Co.
    v. Dorsett, 
    164 S.W.3d 656
    , 661 (Tex. 2005). To prevail on a traditional motion for summary
    judgment, the movant must show that there are no genuine issues of material fact and that it is entitled
    to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott,
    
    128 S.W.3d 211
    , 215–16 (Tex. 2003). When, as is the case here, both parties move for summary
    judgment and the trial court grants one motion and denies the other, we review the
    summary-judgment evidence presented by both sides, determine all questions presented, and render
    6
    the judgment the trial court should have rendered. Texas Workers’ Comp. Comm’n v. Patient
    Advocates of Tex., 
    136 S.W.3d 643
    , 648 (Tex. 2004).
    We also review matters of statutory construction de novo. See Texas Mun. Power
    Agency v. Public Util. Comm’n of Tex., 
    253 S.W.3d 184
    , 192 (Tex. 2007). Of primary concern in
    construing a statute is the express statutory language. See Galbraith Eng’g Consultants, Inc.
    v. Pochucha, 
    290 S.W.3d 863
    , 867 (Tex. 2009); 
    Osterberg, 12 S.W.3d at 38
    . “We thus construe the
    text according to its plain and common meaning unless a contrary intention is apparent from the
    context or unless such a construction leads to absurd results.” Presidio Indep. Sch. Dist. v. Scott,
    
    309 S.W.3d 927
    , 930 (Tex. 2010) (citing City of Rockwall v. Hughes, 
    246 S.W.3d 621
    , 625–26 (Tex.
    2008)). We consider the entire act, not isolated portions. 20801, Inc. v. Parker, 
    249 S.W.3d 392
    , 396
    (Tex. 2008).
    We also interpret statutes, if possible, in a way that makes them constitutional. See
    City of Pasadena v. Smith, 
    292 S.W.3d 14
    , 19 (Tex. 2009).                “A statute is presumptively
    constitutional.” Brooks v. Northglen Ass’n, 
    141 S.W.3d 158
    , 170 (Tex. 2004) (citing Barshop
    v. Medina Cnty. Underground Water Conservation Dist., 
    925 S.W.2d 618
    , 625 (Tex. 1996)); see also
    Tex. Gov’t Code § 311.021(1).
    Declarations Addressing Constitutionality of Statutes
    Declaratory relief is available to resolve constitutional challenges to statutes. See Tex.
    Civ. Prac. & Rem. Code §§ 37.001–.011 (“UDJA”). The separation of powers article of the Texas
    Constitution, however, prohibits courts from issuing advisory opinions. Tex. Const. art. II, § 1; see
    Brown v. Todd, 
    53 S.W.3d 297
    , 302 (Tex. 2001) (advisory opinion decides “abstract questions of law
    7
    without binding the parties”). An advisory opinion addresses a “theoretical dispute,” a dispute that
    does not involve “a real and substantial controversy involving a genuine conflict of tangible interests.”
    Texas Health Care Info. Council v. Seton Health Plan, Inc., 
    94 S.W.3d 841
    , 846 (Tex. App.—Austin
    2002, pet. denied). Accordingly, the UDJA has been interpreted “to be merely a procedural device
    for deciding cases already within a court’s jurisdiction rather than a legislative enlargement of a
    court’s power, permitting the rendition of advisory opinions.” Texas Ass’n of Bus. v. Texas Air
    Control Bd., 
    852 S.W.2d 440
    , 444 (Tex. 1993); see also Texas Health Care Info. 
    Council, 94 S.W.3d at 846
    (“A declaratory judgment action does not vest a court with the power to pass upon hypothetical
    or contingent situations, or to determine questions not then essential to the decision of an actual
    controversy, although such questions may in the future require adjudication.”). As such, a party
    seeking declaratory relief must show that a requested declaration will resolve a live controversy
    between the parties. See Texas Health Care Info. 
    Council, 94 S.W.3d at 846
    .
    The constitutional challenges at issue here are limited to facial challenges. To sustain
    a facial challenge, a party generally “‘must establish that the statute, by its terms, always operates
    unconstitutionally.’” City of Corpus Christi v. Public Util. Comm’n of Tex., 
    51 S.W.3d 231
    , 240–41
    (Tex. 2001) (citing 
    Barshop, 925 S.W.2d at 627
    (citing Texas Workers’ Comp. Comm’n v. Garcia,
    
    893 S.W.2d 504
    , 518 (Tex. 1995))); see Combs v. STP Nuclear Operating Co., 
    239 S.W.3d 264
    , 272
    (Tex. App.—Austin 2007, pet. denied) (comparing facial and as-applied constitutional challenges and
    noting that “[a] party seeking to invalidate a statute ‘on its face’ bears a heavy burden of showing that
    the statute is unconstitutional in all of its applications”).
    8
    Among their constitutional challenges, appellants claim that the Election Code
    provisions at issue violate their free speech and associational rights under the First and Fourteenth
    Amendments. See U.S. Const. amends. I, XIV, § 1. In a facial challenge to a statute based on the
    First Amendment, even if the challenged statute is constitutional in some of its applications, a
    plaintiff may prevail by establishing “‘that the statute lacks any plainly legitimate sweep.’” Catholic
    Leadership Coal. of Tex. v. Reisman, 
    764 F.3d 409
    , 426 (5th Cir. 2014) (quoting United States
    v. Stevens, 
    559 U.S. 460
    , 472 (2010) (internal quotation marks and citation omitted)). “Plaintiffs may
    also invalidate a statute as overbroad if they demonstrate that ‘a substantial number of [the law’s]
    applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” 
    Id. (quoting Stevens,
    559 U.S. at 473 (internal citations omitted)).
    The United States Supreme Court has stated the importance of First Amendment rights
    in the electoral context on many occasions. In Citizens United, the Supreme Court explained:
    Speech is an essential mechanism of democracy, for it is the means to hold officials
    accountable to the people. . . . The right of citizens to inquire, to hear, to speak, and
    to use information to reach consensus is a precondition to enlightened
    self-government and a necessary means to protect it. The First Amendment “‘has its
    fullest and most urgent application’ to speech uttered during a campaign for political
    office.” . . . For these reasons, political speech must prevail against laws that would
    suppress it, whether by design or 
    inadvertence. 558 U.S. at 339
    –40 (internal citations omitted).
    The Supreme Court, however, has applied differing standards in the electoral context
    depending on whether the statute at issue addresses political expenditures, contributions, or disclosure
    requirements.    For example, when reviewing statutes governing corporate contributions and
    9
    disclosure requirements, the Supreme Court has articulated the test as whether the statute is closely
    drawn to match a sufficiently important governmental interest. See Doe v. Reed, 
    561 U.S. 186
    , 196
    (2010) (noting that “exacting scrutiny” review applies when considering First Amendment challenges
    to disclosure requirements in the electoral context); Citizens 
    United, 558 U.S. at 366
    –67 (noting that
    disclosure requirements are subject to “‘exacting scrutiny,’ which requires a ‘substantial relation’
    between the disclosure requirement and a ‘sufficiently important’ governmental interest” (quoting
    Buckley v. Valeo, 
    424 U.S. 1
    , 64, 66 (1976))); Federal Election Comm’n v. Beaumont, 
    539 U.S. 146
    ,
    161 (2003) (noting that challenges to limits on corporate contributions pass constitutional muster if
    “‘closely drawn’ to match a ‘sufficiently important interest’” (citation omitted)).
    In contrast, when reviewing statutes governing corporate independent expenditures
    in the electoral context, the Supreme Court used a strict-scrutiny review. See Citizens 
    United, 558 U.S. at 340
    (“Laws that burden political speech are ‘subject to strict scrutiny.’”). Strict-scrutiny
    review “requires the Government to prove that the restriction ‘furthers a compelling interest and is
    narrowly tailored to achieve that interest.’” 
    Id. (quoting Federal
    Election Comm’n v. Wisconsin
    Right to Life, Inc., 
    551 U.S. 449
    , 464 (2007)); 
    Buckley, 424 U.S. at 39
    (noting that restrictions on
    political expenditures “limit political expression ‘at the core of our electoral process and of the First
    Amendment freedoms’” (quoting Williams v. Rhodes, 
    393 U.S. 23
    , 32 (1968))); see also McCutcheon
    v. Federal Election Comm’n, 
    134 S. Ct. 1434
    , 1444–45 (2014) (plurality op.) (declining to revisit
    distinction in Buckley between contributions and expenditures and corollary distinction in applicable
    standards of review). Within this framework, we turn to appellants’ issues.
    10
    Private Right of Action
    In their first issue, appellants challenge the constitutionality of the sections creating
    a private right of action for Election Code violations. See Tex. Elec. Code §§ 253.131, 253.132,
    273.081. Appellants contend that these provisions on their face violate the First Amendment, the
    Fourth Amendment, and the Due Process Clause of the Fourteenth Amendment. See U.S. Const.
    amends. I, IV, XIV, § 1. They assert that the provisions infringe upon speech and associational rights:
    that they “lack guidelines regarding what showing is necessary to initiate an investigation,” “lack
    sufficient standards to protect discovery abuse,” and have “enormous potential for abuse.” They also
    urge that the injunction section, section 273.081, is an improper prior restraint on speech.
    a)      Sections 253.131 and 253.132
    Section 253.131 creates a private right of action for opposing candidates, and section
    253.132 creates a private right of action for political committees, to bring actions against a
    corporation or labor organization to recover statutory damages for violations of the Election Code.
    See Tex. Elec. Code §§ 253.131, .132. Sections 253.131 and 253.132 state:
    § 253.131. Liability to Candidates
    (a)     A person who knowingly makes or accepts a campaign contribution or makes
    a campaign expenditure in violation of this chapter is liable for damages as
    provided by this section.
    (b)     If the contribution or expenditure is in support of a candidate, each opposing
    candidate whose name appears on the ballot is entitled to recover damages
    under this section.
    (c)     If the contribution or expenditure is in opposition to a candidate, the candidate
    is entitled to recover damages under this section.
    11
    (d)     In this section, “damages” means:
    (1)     twice the value of the unlawful contribution or expenditure; and
    (2)     reasonable attorney’s fees incurred in the suit.
    (e)     Reasonable attorney’s fees incurred in the suit may be awarded to the
    defendant if judgment is rendered in the defendant’s favor.
    § 253.132. Liability to Political Committees
    (a)     A corporation or labor organization that knowingly makes a campaign
    contribution to a political committee or a direct campaign expenditure in
    violation of Subchapter D is liable for damages as provided by this section to
    each political committee of opposing interest in the election in connection
    with which the contribution or expenditure is made.
    (b)     In this section, “damages” means:
    (1)     twice the value of the unlawful contribution or expenditure; and
    (2)     reasonable attorney’s fees incurred in the suit.
    (c)     Reasonable attorney’s fees incurred in the suit may be awarded to the
    defendant if judgment is rendered in the defendant’s favor.
    
    Id. §§ 253.131,
    .132. Appellants focus on the lack of standards within the private-right-of-action
    sections regarding what showing is necessary to initiate investigation or discovery and what is
    discoverable, arguing that discoverable evidence must satisfy a heightened showing of relevance in
    the context of the First Amendment.
    The trial court upheld the constitutionality of these sections based in part on the Texas
    Supreme Court’s opinion in Osterberg.         In that opinion, the Texas Supreme Court faced a
    constitutional challenge to section 253.131 based on the First Amendment’s free speech and
    associational 
    rights. 12 S.W.3d at 48
    . The supreme court held that the private right of action created
    12
    in section 253.131 was constitutional, reasoning that private enforcement advanced a “sufficient
    state interest”:
    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.” . . . Because state resources for
    policing election laws are necessarily limited, in many cases 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. . . . Furthermore, that the person enforcing the law and receiving
    damages can be a private party rather than the State does not mean that section
    253.131 adds additional restrictions on First Amendment rights.
    
    Id. at 49
    (internal citations omitted). Although the court did not address section 253.132, the rationale
    for concluding that section 253.131 does not violate First Amendment rights applies equally to
    section 253.132.
    Appellants urge that Osterberg does not control here. They distinguish the issue
    before this Court from the one addressed in Osterberg because, in that case, the challenge concerned
    who could recover damages and only one opposing candidate brought the suit. Appellants argue that
    the issue here is different because their focus is on the language in sections 253.131 and 253.132 that
    allows multiple parties to seek damages for the same Election Code violation. For example, they urge
    that multiple candidates may sue and recover damages when the challenged speech is about issues.
    However, the dispute here concerns alleged improper contributions by KSP to the TRP and its
    candidates, not issue advocacy by KSP. Declaratory relief is only available if the declaration will
    resolve a live controversy that binds the parties, Texas Ass’n of 
    Bus., 852 S.W.2d at 444
    , therefore,
    we decline to consider appellants’ constitutional challenge based upon speech concerning issues.
    13
    Further, whether the statute is unconstitutional as-applied to a particular circumstance, such as
    multiple candidates suing to recover damages for the same speech about issues, is not the dispositive
    question before us, given that appellants’ facial challenge requires them to prove the statute is
    unconstitutional in all circumstances or, in the First Amendment context, “that the statute lacks any
    plainly legitimate sweep.” See 
    Reisman, 764 F.3d at 426
    .
    Appellants urge that the private-right-of-action sections do not provide necessary
    safeguards to avoid chilling the First Amendment fundamental right of privacy in association,
    “particularly where one must divulge such information to political opponents.” In the context of
    as-applied challenges, courts have found that the constitution provides protection from disclosure of
    a person’s identity in the context of associational rights if there is a “reasonable probability” that the
    disclosure will subject the person to “threats, harassment, or reprisals from either Government
    officials or private parties.” Citizens 
    United, 558 U.S. at 367
    ; 
    Buckley, 424 U.S. at 74
    ; In re Bay Area
    Citizens Against Lawsuit Abuse, 
    982 S.W.2d 371
    , 376, 380–82 (Tex. 1998) (orig. proceeding). But
    appellants only bring a facial challenge to the statutes at issue. See Citizens 
    United, 558 U.S. at 367
    (acknowledging as-applied challenge may be available based upon showing that there was reasonable
    probability that disclosure would subject persons to threats, harassment, or reprisals). Appellants also
    did not offer summary judgment evidence that would support a finding that there is a “reasonable
    probability” that disclosure via discovery would subject them to “threats, harassment, or reprisals.”
    See 
    id. As such,
    precedent does not support appellants’ argument that subjecting a person to suit and
    discovery under the Election Code facially violates First Amendment associational rights.
    14
    Appellants’ arguments also focus on the lack of standards for discovery and initiating
    a suit within the private-right-of-action provisions to support their position that the provisions violate
    the Due Process Clause and the Fourth Amendment. See U.S. Const. amends. IV, XIV, § 1. They
    urge that the private-right-of-action provisions violate the Fourth Amendment because they do not
    require a showing of probable cause prior to allowing discovery. They contend that discovery
    initiated by a person acting under color of state law is a Fourth Amendment search and, therefore, that
    probable cause is required. Otherwise, they urge, the government could circumvent probable cause
    requirements by awaiting discovery in a civil proceeding. As to the Due Process Clause, appellants
    urge that the sections fail to provide the necessary “procedural safeguards” to prevent “‘unbridled
    discretion’ via discovery to seize constitutionally protected documents and communications, even if
    the private enforcers lose on their claims.”
    The Due Process guarantees, however, only provide protection against state action.
    See Tulsa Prof’l Collection Servs., Inc. v. Pope, 
    485 U.S. 478
    , 485 (1988); Jackson v. Metropolitan
    Edison Co., 
    419 U.S. 345
    , 349 (1974); Blum v. Yaretsky, 
    457 U.S. 991
    , 1002 (1982) (noting that since
    1883, “principle has become firmly embedded in our constitutional law that the action inhibited by
    the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of
    the States” and that the Fourteenth Amendment “erects no shield against merely private conduct,
    however discriminatory or wrong”).4 Similarly, the Fourth Amendment protections generally only
    4
    We also are not persuaded by the cases cited by appellants to support their position that the
    private-right-of-action provisions violate the Due Process Clause. Unlike the statutes at issue here,
    those cases involved laws that delegated legislative power to private citizens. See, e.g., Eubank
    v. City of Richmond, 
    226 U.S. 137
    , 141–44 (1912); General Elec. Co. v. New York Dep’t of Labor,
    
    936 F.2d 1448
    , 1454–55 (2d Cir. 1991) (collecting similar cases). For example, an ordinance
    15
    apply to state action. Skinner v. Railway Labor Executives’ Ass’n, 
    489 U.S. 602
    , 614 (1989).
    Although the Fourth Amendment provides protection against a search or seizure by a private party
    if the private party is acting as an instrument or agent of the government, there was no evidence that
    TDP was acting as an agent or instrument of the government here, see 
    id., and, even
    if there were such
    evidence, that would not satisfy appellants’ burden to show that the statute is facially unconstitutional.
    See City of Corpus 
    Christi, 51 S.W.3d at 240
    –41.
    In any case, a private suit brought under the Election Code has procedural safeguards
    in place to protect defendants from unnecessary or overly intrusive discovery. Such suits are subject
    to the laws that apply to civil suits generally, such as the Texas Rules of Civil Procedure and the
    Texas Rules of Evidence. The Texas Rules of Civil Procedure provide guidelines for discovery and
    allow trial courts to limit discovery to protect confidential information. See Tex. R. Civ. P. 192.6.
    The rules, as well as statutes, also allow trial courts to award sanctions for discovery abuse and
    remedies for frivolous suits. See, e.g., Tex. Civ. Prac. & Rem. Code §§ 10.001–.006; Tex. R. Civ.
    P. 13, 215. And sections 253.131 and 253.132 allow the recovery of attorney’s fees for a successful
    defendant. See Tex. Elec. Code §§ 253.131(e), .132(c).
    We conclude that the trial court did not err by granting summary judgment in
    favor of TDP with respect to sections 253.131 and 253.132 and by declaring those sections
    facially constitutional.
    allowing boundaries to be fixed by a vote of two thirds of a particular group of property owners was
    found to be unconstitutional because it allowed a majority of private citizens to determine the rights
    of the minority without fixing a standard under which the decision was made. 
    Eubank, 226 U.S. at 141
    –44.
    16
    b)      Section 273.081
    Section 273.081 states that “[a] person who is being harmed or is in danger of being
    harmed by a violation or threatened violation of this code is entitled to appropriate injunctive relief
    to prevent the violation from continuing or occurring.” 
    Id. § 273.081.
    Appellants argue that section
    273.081 is “a prior restraint” on speech. See Alexander v. United States, 
    509 U.S. 544
    , 550 (1993);
    Amalgamated Acme Affiliates, Inc. v. Minton, 
    33 S.W.3d 387
    , 393 (Tex. App.—Austin 2000, no pet.).
    “A prior restraint is an administrative or judicial order forbidding certain communications when
    issued in advance of the time that such communications are to occur.” 
    Minton, 33 S.W.3d at 393
    .
    Appellants also argue that the section fails strict-scrutiny review and that it is not narrowly tailored
    to an important governmental interest. Appellants focus on the language in section 273.081 that
    allows injunctive relief to a “person,” not just a political opponent, based upon “threatened” harm.
    Appellants argue that no compelling interest justifies enjoining political speech.
    The plain language of section 273.081, however, does not support appellants’ assertion
    that the section on its face violates the prohibition on prior restraints. See 
    Scott, 309 S.W.3d at 930
    .
    The section applies to the entire Election Code, allowing injunctions in many different contexts. See
    Tex. Elec. Code § 273.081; In re Gamble, 
    71 S.W.3d 313
    , 318 (Tex. 2002) (orig. proceeding)
    (discussing injunctive relief provided by section 273.081 in context of violation of section 141.032
    by party chair); Cook v. Tom Brown Ministries, No. 08-11-00367-CV, 2012 Tex. App. LEXIS 1318,
    at *43–45 (Tex. App.—El Paso Feb. 17, 2012, pet. denied) (mem. op.) (reversing trial court’s denial
    of injunctive relief for Election Code violation and ordering city clerk to decertify and return recall
    petitions); Ramirez v. Quintanilla, Nos. 13-10-00449-CV, 13-10-00450-CV, 13-10-00454-CV,
    17
    2010 Tex. App. LEXIS 6861, at *43–44 (Tex. App.—Corpus Christi Aug. 20, 2010, pet. denied)
    (mem. op.) (affirming temporary injunction enjoining special election). The section also limits the
    scope of injunctive relief to “appropriate injunctive relief.” Tex. Elec. Code § 273.081. And an order
    granting a temporary injunction is subject to interlocutory appeal. See Tex. Civ. Prac. & Rem. Code
    § 51.014(4). Given the scope and limits of the injunctive relief available under section 273.081, we
    conclude that this section is not facially unconstitutional or a “prior restraint” on speech. See 
    Minton, 33 S.W.3d at 393
    .
    We conclude that the trial court did not err by granting summary judgment in favor
    of TDP with respect to section 273.081 and by declaring the section facially constitutional. We
    overrule appellants’ first issue.
    Corporate Contributions and Expenditures
    In their second issue, appellants argue that sections 253.091 and 253.094 are
    unconstitutional because they “ban” corporate contributions and expenditures. See Tex. Elec. Code
    §§ 253.091, .094. They argue that the corporate “ban” on contributions and expenditures fails
    strict-scrutiny review under Citizens United. As part of this issue, appellants also argue that the
    restrictions are content based and violate the equal protection clause and that speech restrictions that
    differentiate among speakers are subject to strict scrutiny. Content-based restrictions have been held
    to raise equal protection concerns “because, in the course of regulating speech, such restrictions
    differentiate between types of speech.” Burson v. Freeman, 
    504 U.S. 191
    , 197 n.3 (1992). “Under
    either a free speech or equal protection theory, a content based regulation of political speech in a
    public forum is valid only if it can survive strict scrutiny.” 
    Id. 18 Section
    253.091 sets forth the types of entities that are subject to subchapter D, the
    subchapter addressing corporations and labor organizations. Tex. Elec. Code § 253.091. The section
    includes non-profit corporations—such as KSP—as entities subject to subchapter D. See 
    id. Prior to
    its amendment in 2011, section 253.094(a) limited corporate political contributions and
    expenditures to those expressly allowed in the subchapter. See Act of June 19, 1987, 1987 Tex. Gen.
    Laws at 3009. In 2011, section 253.094(a) was amended to delete corporate political expenditures.
    It now reads:
    A corporation or labor organization may not make a political contribution that is not
    authorized by this subchapter.
    Tex. Elec. Code § 253.094(a). Section 253.094 was amended after the Citizens United opinion in
    which the Supreme Court held that the government may not prohibit corporate independent political
    
    expenditures. 558 U.S. at 365
    .5
    At this stage of the parties’ dispute, TDP’s claim as to section 253.094 is not based
    on alleged political expenditures by KSP, but alleged contributions made by KSP.6 As to the
    contribution limitations that section 253.094 places on the entities specified in section 253.091,
    appellants ask this Court to expand the holding in Citizens United. We decline to do so. The
    5
    We disagree with appellants’ contention that the trial court failed to address the expenditure
    component of former section 253.094. In the final summary judgment, the trial court expressly
    referenced the 2011 amendment to section 253.094 that removed expenditures.
    6
    TDP’s counsel confirmed at oral argument that TDP’s claim for statutory damages based
    upon a violation of section 253.094 was limited to alleged political contributions made by KSP. See
    Tex. Elec. Code § 253.094. Their fourth amended original petition conforms with counsel’s
    statements at oral argument.
    19
    Supreme Court in Citizens United continued to distinguish between expenditures and contributions
    and expressly stated that it was not reconsidering corporate contribution 
    limits. 558 U.S. at 358
    –60;
    see 
    McCutcheon, 134 S. Ct. at 1444
    –45 (discussing Buckley and reasons for distinguishing between
    political expenditures and contributions in context of First Amendment). Further, we are guided by
    the Supreme Court’s analysis in Beaumont and the Texas Court of Criminal Appeals’ analysis in
    Ex parte Ellis. In Beaumont, the Supreme Court rejected an as-applied challenge to corporate
    contribution 
    limitations. 539 U.S. at 163
    . Upholding the constitutionality of the corporate
    contribution regulation at issue, the Supreme Court found that the regulation served compelling
    governmental interests, preventing “war chest” corruption and serving to prevent individuals from
    using the corporate form to circumvent contribution limits. 
    Id. at 154–55.
    The Texas Court of
    Criminal Appeals in Ex parte Ellis concluded that the opinion in Citizens United did not have any
    effect on its jurisprudence relating to corporate contributions and upheld section 253.094 as facially
    constitutional, guided in part by the Beaumont 
    opinion. 309 S.W.3d at 83
    –85, 92.
    Appellants also urge that section 253.094 violates the equal protection clause because
    it bans contributions by corporations but not labor unions. But, as previously stated, section 253.094
    also applies to labor organizations. See Tex. Elec. Code § 253.094. Guided by the directives in
    Beaumont and Ex parte Ellis, we conclude that the trial court did not err by granting summary
    judgment in favor of TDP with respect to appellants’ constitutional challenges to the corporate
    contribution limitations and by declaring section 253.094 facially constitutional. We overrule
    appellants’ second issue.
    20
    Contribution and Expenditure Definitions
    In their third issue, appellants argue that the definitions of contribution, campaign
    contribution, officeholder contribution, political contribution, expenditure, campaign expenditure,
    direct campaign expenditure, officeholder expenditure, and political expenditure are
    unconstitutionally vague. See Tex. Elec. Code § 251.001(2)–(10).
    A law is unconstitutionally vague if it fails to give those affected by it a reasonable
    opportunity to know what is required or when it is so indefinite that any enforcement is necessarily
    arbitrary or discriminatory. City of Chicago v. Morales, 
    527 U.S. 41
    , 52 (1999); Commission for
    Lawyer Discipline v. Benton, 
    980 S.W.2d 425
    , 437–38 (Tex. 1998). In the context of statutes that
    impose criminal penalties and impact First Amendment interests, “[c]lose examination of the
    specificity of [a] statutory limitation is required.”       
    Buckley, 424 U.S. at 40
    –41.         “In such
    circumstances, vague laws may not only ‘trap the innocent by not providing fair warning’ or foster
    ‘arbitrary and discriminatory application’ but also operate to inhibit protected expression by inducing
    ‘citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were
    clearly marked.’” 
    Id. at 41
    n.48 (internal citation omitted). “Because First Amendment freedoms
    need breathing space to survive, government may regulate in the area only with narrow specificity.”
    National Ass’n for Advancement of Colored People v. Button, 
    371 U.S. 415
    , 433 (1963).
    Appellants focus on the words “direct” and “indirect” and the phrase “any other thing
    of value” in the definitions of contribution and the phrase “any other thing of value” in the definitions
    of expenditure to support their position that the general definitions are unconstitutionally vague. See
    Tex. Elec. Code § 251.001(2), (6). For purposes of this appeal, the Election Code defines a
    21
    contribution to mean “a direct or indirect transfer of money, goods, services, or any other thing of
    value” and an expenditure to mean “a payment of money or any other thing of value.” 
    Id. § 251.001(2),
    (6). Appellants also raise additional concerns with the definitions of the different types
    of contributions and expenditures. Focusing on the phrases “contribution,” “political committee,”
    “the intent,” and “in connection with . . . a measure,” they contend that the definition of campaign
    contribution is circular and vague. Section 251.001(3) defines a “campaign contribution” to mean
    “a contribution to a candidate or political committee that is offered or given with the intent that it be
    used in connection with a campaign for elective office or on a measure.” See 
    id. § 251.001(3).
    Appellants argue that “in connection with a campaign . . . on a measure” cannot be construed to
    exclude “general issue advocacy” and, therefore, is vague and unconstitutional.
    Appellants make similar arguments as to the definition of an officeholder contribution.
    Section 251.001(4) defines an “officeholder contribution” to mean a “contribution to an officeholder
    or political committee that is offered or given with the intent that it be used to defray expenses that:
    (A) are incurred by the officeholder in performing a duty or engaging in an activity in connection with
    the office; and (B) are not reimbursable with public money.” See 
    id. § 251.001(4).
    Appellants make
    the same argument and address intent, as well as contending that the words “defray” and “in
    connection with” are vague. Finally, because a “political contribution” is defined as a “campaign
    contribution” or an “officeholder contribution,” appellants urge that this definition is also vague for
    the reasons stated above. See 
    id. § 251.001(5).
    Turning to the definitions of different types of expenditures, the Election Code defines
    a “campaign expenditure” to mean “an expenditure made by any person in connection with a
    22
    campaign for an elective office or on a measure. Whether an expenditure is made before, during, or
    after an election does not affect its status as a campaign expenditure.” 
    Id. § 251.001(7).
    “A ‘direct
    campaign expenditure’ means a campaign expenditure that does not constitute a campaign
    contribution by the person making the expenditure.” 
    Id. § 251.001(8).
    Appellants contend that the
    words “in connection with” are vague when considering their impact on political speech about a
    measure, especially because the definition includes political speech after an election. Appellants
    further urge that the definitions include “general issue advocacy” and, therefore, are unconstitutional.
    Appellants make the same vagueness argument as to the definition of “officeholder expenditure” as
    they make as to the definition of “officeholder contribution.” See 
    id. § 251.001(9).
    The definition
    of officeholder expenditure also includes the word “defray” and the phrase “in connection with.”
    Finally, appellants urge that the definition of political expenditure is vague because it uses the terms
    “campaign expenditure” and “officeholder expenditure.” See 
    id. § 251.001(10).
    As an initial matter, the trial court concluded that it did not have jurisdiction to
    consider the challenged officeholder definitions. See 
    id. § 251.001(4),
    (9). We agree. Because the
    officeholder definitions were not at issue between these parties, any declaratory relief as to their
    constitutionality would be advisory. See 
    Todd, 53 S.W.3d at 302
    (noting that courts do not have
    jurisdiction to render advisory opinions). For the same reason, we decline to address appellants’
    arguments addressing the word “measure” in the various definitions. See 
    id. The parties’
    dispute
    concerns KSP’s activities in connection with campaigns for elective office, not their activities in
    connection with a measure. See 
    id. 23 Appellants’
    remaining arguments challenging the definitions are controlled by the
    analysis and reasoning in Ex parte Ellis. In the context of alleged improper corporate contributions
    and a criminal prosecution, the Texas Court of Criminal Appeals considered vagueness and
    overbreadth challenges to the contribution definitions and found the definitions to be facially
    constitutional. 
    See 309 S.W.3d at 82
    –92. The Ellis court found that the definitions were “sufficiently
    clear to afford a person of ordinary intelligence a reasonable opportunity to know what [was]
    prohibited” and that the definitions provided appropriate guidelines for enforcement. 
    Id. Although the
    Ellis court did not address the expenditure definitions, the same rationale for concluding that the
    contribution definitions are facially constitutional applies to the expenditure definitions. Following
    the Ellis court’s analysis, we conclude that appellants failed to establish that the definitions at issue
    are facially unconstitutional and that the trial court did not err in its summary judgment rulings as to
    these definitions. We overrule appellants’ third issue.7
    7
    On rehearing, appellants focus on the overbreadth doctrine. To the extent appellants
    challenge the definitions based upon this doctrine, we also reject that challenge. “An overbroad
    statute ‘sweeps within its scope a wide range of both protected and non-protected expressive
    activity.’” Commission for Lawyer Discipline v. Benton, 
    980 S.W.2d 425
    , 435 (Tex. 1998) (citation
    omitted). “To vindicate First Amendment interests and prevent a chilling effect on the exercise of
    First Amendment freedoms, the overbreadth doctrine allows a statute to be invalidated on its face
    even if it has legitimate application, and even if the parties before the court have suffered no
    constitutional violation.” Ex parte Ellis, 
    309 S.W.3d 71
    , 90–91 (Tex. Crim. App. 2010) (citing
    Broadrick v. Oklahoma, 
    413 U.S. 601
    , 612 (1973)). “The overbreadth doctrine is ‘strong medicine’
    that should be employed ‘sparingly’ and ‘only as a last resort.’” 
    Id. (quoting Broadrick,
    413 U.S.
    at 613). “‘[T]he overbreadth of a statute must not only be real, but substantial as well, judged in
    relation to the statute’s plainly legitimate sweep.’” 
    Id. (quoting Broadrick,
    413 U.S. at 615). “Only
    if the statute ‘reaches a substantial amount of constitutionally protected conduct’ may it be struck
    down for overbreadth.” 
    Benton, 980 S.W.2d at 436
    (quoting City of Houston v. Hill, 
    482 U.S. 451
    ,
    458 (1987)). On this record, we decline to strike down the challenged definitions as
    facially unconstitutional based on the overbreadth doctrine. See id.; see also Clements v. Fashing,
    
    457 U.S. 957
    , 972 n.6 (1982) (overbreadth exception to traditional requirement of standing may not
    24
    Political Committee Definitions
    In their fourth issue, appellants contend that the definitions of political committee,
    specific-purpose committee, general-purpose committee, and the now-repealed direct expenditure
    sections are facially unconstitutional because they violate the First Amendment and are
    unconstitutionally vague. See Tex. Elec. Code §§ 251.001(12), (13), (14), 253.062, 253.097; Act of
    June 19, 1987, 1987 Tex. Gen. Laws at 3009.
    a)      Political Committee Definitions
    The Election Code defines a political committee to mean “a group of persons that has
    as a principal purpose accepting political contributions or making political expenditures.” Tex. Elec.
    Code § 251.001(12). A specific-purpose political committee supports or opposes identified
    candidates or measures, 
    id. § 251.001(13),
    and a general-purpose political committee “has among its
    principal purposes . . . supporting or opposing” two or more unidentified candidates or one or more
    unidentified measures or “assisting two or more officeholders who are unidentified.”                   
    Id. § 251.001(14).
    Appellants focus on the phrases “supporting or opposing” and “assisting two or more
    officeholders” and the inclusion of “unidentified” measures, candidates, and officeholders and
    “unknown” offices in the general-purpose committee definition. See 
    id. Appellants argue
    that strict scrutiny applies, but that, even if exacting scrutiny applies,
    the statutes are facially unconstitutional. Appellants focus on the analysis by the Supreme Court in
    Citizens United and Buckley concerning regulation of political committees. The Supreme Court in
    apply where First Amendment rights may be litigated on a case by case basis).
    25
    Citizens United observed that political committee status is “burdensome,” “onerous,” “expensive to
    administer and subject to extensive regulation.” 
    See 558 U.S. at 337
    . In Buckley, the Supreme Court
    construed the federal definition of “political committee” to encompass only organizations “under the
    control of a candidate[s]” or organizations with the “major purpose” to nominate or elect 
    candidates. 424 U.S. at 79
    ; see Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 
    479 U.S. 238
    ,
    253 n.6 (1986).
    Appellants argue that because the definitions of political committee in the Election
    Code do not have a “major purpose” or “under the control of a candidate” test that they are facially
    unconstitutional. Appellants urge that allowing an organization to speak only if it becomes a political
    committee equates with banning the organization’s speech when the organization decides that the
    speech is “simply not worth it.” See Massachusetts Citizens for Life, 
    Inc., 479 U.S. at 255
    . They also
    urge that the political committee definitions are unconstitutional because they have a zero-dollar
    threshold and that they are unconstitutionally vague because “[a] speaker cannot know when it has
    this ‘principal purpose.’” They urge that the definitions do not provide fair warning and subject
    speakers to “arbitrary and discriminatory application,” thereby chilling speech. See 
    Buckley, 424 U.S. at 41
    n.48.
    Mindful that appellants’ challenge to the definitions is a facial challenge, we cannot
    conclude that these definitions violate the First Amendment, that they are unconstitutionally vague,
    or that they lack any plainly legitimate sweep. See 
    Morales, 527 U.S. at 52
    ; 
    Reisman, 764 F.3d at 426
    ; compare Massachusetts Citizens for Life, 
    Inc., 479 U.S. at 263
    –65 (holding that federal statute
    prohibiting corporate expenditures “as applied” to newsletter by nonprofit, nonstock corporation
    26
    formed to promote “pro life” causes was unconstitutional as a violation of First Amendment). The
    plain language of section 251.001(12) limits “political committee” status to groups with “a principal
    purpose of accepting political contributions or making political expenditures.” The Election Code
    does not define the words “principal purpose” so we apply their common meaning. “Purpose” means
    “[t]he object toward which one strives or for which something exists; goal; aim.” American Heritage
    Dictionary of the English Language 1062 (1973). “Principal” means “[f]irst, highest, or foremost in
    importance, rank, worth, or degree; chief.” 
    Id. at 1041.
    Applying the phrase’s common meaning
    limits the reach of the definition, and the definition also expressly encompasses the definitions of
    political contributions and expenditures, further defining and narrowing the classification. See Tex.
    Elec. Code § 251.001(5), (10). The definitions of specific-purpose and general-purpose also
    distinguish between and narrow the different types of political committees on the basis of whether
    the measure or candidates at issue are identified and known or unidentified and unknown.
    Viewing the definitions as a whole and in context with each other, they are
    “sufficiently clear to afford a person of ordinary intelligence a reasonable opportunity to know what
    [was] prohibited” and provide appropriate guidelines for enforcement.            See Ex parte 
    Ellis, 309 S.W.3d at 82
    –92; see also 
    Buckley, 424 U.S. at 41
    n.48; 
    Parker, 249 S.W.3d at 396
    . We
    therefore conclude that the challenged definitions are not unconstitutionally vague or facially
    unconstitutional under the First Amendment.
    b)      Former Sections Addressing Direct Expenditures
    As part of their fourth issue, appellants argue that the direct expenditure requirements
    contained in former sections 253.062 and 253.097 are unconstitutional because they force political
    27
    committee burdens on individuals. See Act of June 19, 1987, 1987 Tex. Gen. Laws at 3009. Former
    section 253.062 required an individual to comply with reporting requirements when the individual
    made a direct campaign expenditure exceeding $100, and former section 253.097 required a
    corporation or labor organization to comply with former section 253.062 as an individual when the
    corporation or labor organization made direct expenditures in connection with an election on a
    measure. See 
    id. As previously
    stated above, the parties’ dispute concerns KSP’s activities in
    connection with campaigns for elective office, not its activities in connection with a measure, and
    TDP’s claim concerns alleged contributions by KSP, not expenditures. See 
    id. We therefore
    decline
    to address appellants’ arguments addressing these two sections. See 
    Todd, 53 S.W.3d at 302
    . We
    overrule appellants’ fourth issue.
    30 and 60 day periods
    In their fifth issue, appellants argue that the 30 and 60 day “blackout” periods in
    sections 253.031 and 253.037 are unconstitutional. See Tex. Elec. Code §§ 253.031(c), .037(a).
    Section 253.031(c) prohibits a political committee from making a campaign contribution or
    expenditure supporting or opposing specified candidates unless its campaign treasurer appointment
    has been on file for at least 30 days. 
    Id. § 253.031(c).
    Section 253.037(a) prohibits a general-purpose
    committee from making a political contribution or expenditure unless its campaign treasurer
    appointment has been on file for at least 60 days and it has accepted political contributions from at
    least 10 persons. 
    Id. § 253.037(a).
    Appellants argue that the State does not have an interest in
    prohibiting speech for a period of time after a group is formed or in prohibiting expenditures and
    contributions by groups of fewer than 10 people. They contend that the 10-person minimum is
    28
    unconstitutional because the government has no interest in ensuring that political speech has a base
    of support and violates the right of association of any group of persons smaller than 10 persons.
    The trial court concluded that it did not have jurisdiction to grant declaratory relief
    with respect to these provisions because they were not at issue in this case and, therefore, any relief
    would be advisory. See 
    Todd, 53 S.W.3d at 305
    . Appellants argue that the trial court’s conclusion
    that it did not have jurisdiction was in error because appellants must abide by the deadlines in these
    provisions to engage in political speech. The parties also stipulated that TDP “intended to enforce”
    sections 253.031(c) and 253.037(a) against appellants. TDP’s petition, however, does not raise
    section 253.037, and limits the alleged violation of section 253.031 to the failure to appoint a
    campaign treasurer at all. We therefore agree with the trial court that it did not have jurisdiction to
    consider appellants’ constitutional challenges to these provisions. On this basis, we overrule
    appellants’ fifth issue.
    Criminal Penalties
    In their sixth issue, appellants argue that the criminal penalties in the Election Code
    violate the Eighth Amendment. See Tex. Elec. Code §§ 253.003(e), 253.094(c), 253.095, 253.101(b),
    253.102(c), 253.103(c), 253.104(c). The specified offenses under the Election Code are third-degree
    felonies and subject to punishment by imprisonment “not more than 10 years or less then 2 years.”
    Tex. Penal Code § 12.34. In addition to imprisonment, a corporate officer “may be punished by a fine
    not to exceed $10,000.” 
    Id. The Eighth
    Amendment states that “[e]xcessive bail shall not be
    required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.
    amend. VIII.
    29
    The trial court did not address appellants’ constitutional challenges to the criminal
    penalties in the Election Code because it concluded that it did not have jurisdiction to do so. In its
    order, the trial court reasoned that the State is not a party and that TDP was not entitled to seek
    criminal penalties and, therefore, that any ruling would be an improper advisory opinion. See 
    Todd, 53 S.W.3d at 305
    . We agree and, on this basis, overrule appellants’ sixth issue.
    CONCLUSION
    Having overruled appellants’ issues, we affirm the trial court’s final
    summary judgment.
    __________________________________________
    Melissa Goodwin, Justice
    Before Chief Justice Jones, Justices Rose and Goodwin
    Affirmed on Motion for Rehearing
    Filed: December 8, 2014
    30