Electronically Filed

3/7/2017 3:17:24 PM
Hidalgo County District Clerks
Reviewed By: Juan Cavazos

Cause No. C-4762-16-G

A. C. CUELLAR IN THE DISTRICT COURT

Plaintiff

v. 370th JUDICIAL DISTRICT

DAVID FUENTES

Defendant HIDALGO COUNTY, TEXAS

MOTION BY EZEQUIEL REYNA, Jr. TO DISMISS BASELESS CAUSE OF ACTION

COMES NOW, EZEQUIEL REYNA, Jr., ("Reyna") and files this motion to dismiss

plaintiffs baseless cause of action, pursuant to Texas Rule of Civil Procedure 91a. In support

thereof, Reyna respectfully shows the Court as follows.

1. A.C. Cuellar (Cueller) has sued David Fuentes (Fuentes) who fairly defeated

him in the election for the Hidalgo County Commissioners Court. Cuellar does not contest the

result of the lawful election, nor the fact that he lost. Rather than accept defeat graciously,

however, Cuellar seeks a consolation prize of sizeable monetary damages, claiming that Fuentes

allegedly violated certain reporting provisions of the Texas Election Code, including failing to

report loans made to him by his uncle, Ezequiel Reyna, Jr.

2. Fuentes is separately represented, and has answered Cuellars groundless

allegations.

3. Cuellar has now sued Ezequiel Reyna, Jr. (Reyna) for allegedly conspiring with

Fuentes (his sisters son) to violate the Texas Election Code. Cuellars unfounded accusations

against Reyna include pseudo-legal charges that Reyna conspired with Fuentes by laundering

cold cash through Fuentes personal checking account.

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4. Reyna denies these defamatory accusations - which Cuellar has contrived solely

to draw media attention.

5. Cuellars claims against Reyna have no basis in law because the allegations, even

if taken as true, together with inferences reasonably drawn from them, do not entitle Cuellar to

the relief sought:

6. Cuellar sues under 254.231 of the Texas Election Code, which says:

254.231. LIABILITY TO CANDIDATES. (a) A candidate or campaign treasurer or

assistant campaign treasurer of a political committee who fails to report in whole or in
part a campaign contribution or campaign expenditure as required by this chapter is liable
for damages as provided by this section.

7. 254.231 is clear and unambiguous as written. Hence, extrinsic aids and canons

of construction are inappropriate, and the statute should be given its common, everyday meaning.

In re Smith, 333 S.W.3d 582, 586 (Tex. 2011); City of Rockwell v. Hughes, 246 S.W.3d 621 629

(Tex. 2008).

8. Not satisfied with the statute as written, Cuellar wants to re-write the clear and

unambiguous statute to include words which are not there, and which would drastically alter the

statute. The words Cuellar wants to insert in the statute are shown in BOLD:

254.231. LIABILITY TO CANDIDATES. (a) A candidate or campaign treasurer or

assistant campaign treasurer of a political committee (or anyone acting in concert with
any of them) who fails to report in whole or in part a campaign contribution or campaign
expenditure or loan as required by this chapter is liable for damages as provided by this
section.

9. Cuellars proposed revisions make three drastic changes to the statute:

First, 254.231 allows an election loser such as Cuellar to sue the winner only if the

winner fails to report (1) campaign contributions, or (2) campaign expenditures. Cuellars

proposed revision to 254.231 expands the statute to also allow the loser to sue the winner based

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Hidalgo County District Clerks
Reviewed By: Juan Cavazos

on the winners alleged failure to report loans to his campaign. If the Texas Legislature had

wanted the statute to allow that kind of claim to include loans, however, it could and would have

written the statute to say so. After all, as seen below in the next paragraph, the Texas legislature

knows how to use the word loans when it chooses to do so.

Second, by contrast to 254.231 above, which does not include the word loans,

254.031 of the Texas Elections Code requires candidates to file reports relating to (1) political

contributions, (2) loans, (3) expenditures, and so forth. This statute clearly differentiates

between loans and contributions. To avoid the fact that 254.231 does not allow Cuellar to

sue Fuentes based on Fuentes alleged failure to report loans by Reyna, Cuellar attempts

characterize loans by Reyna to Fuentes as contributions or in-kind contributions to his

campaign. In other words, Cuellar wants to change or expand the definition of contributions to

include loans. A loan is not a contribution, or the distinction in the statute would be

superfluous. If the Texas Legislature had intended to allow the result Cuellar wants, it could

and would have written the statute to specifically say what he wants it to say.

Third, 245.231 allows losers such as Cuellar to sue only three entities: (1) his opposing

candidate, (2) the candidates campaign treasurer, and (3) the candidates assistant campaign

treasurer. This statute does not provide a right of action against a candidates uncle, nor against

a third-party making a loan to a candidate. Cuellars proposed statutory revision dramatically

expands the scope of the statute to allow Cuellar and other losers to sue innocent third persons

(such as Reyna) who in good faith contribute to their opponents campaign, loan their opponent

money, or who allow their opponent to use real or personal property in a successful campaign. A

list of campaign donors or supporters could potentially include tens of thousands of people,

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particularly in a statewide election. Cuellars proposed revision would make the scope of the

stature virtually limitless, and allow him and other losers to sue thousands of innocent people

who contribute to a campaign or provide loans to candidates. In the unlikely event the Texas

Legislature had intended that absurd result, it would have written the statute to say so.

10. Regarding statutory construction, the Texas Supreme Court instructs us that,

It is a rule of statutory construction that every word of a statute must be presumed to

have been used for a purpose. Likewise, we believe that every word excluded from a
statute must also be presumed to have been excluded for a purpose.

In re Bell, 91 S.W.3d 784, 790 (Tex. 2002).

When the legislature includes a right or remedy in one part of a code, but omits in

another, the court must presume the omission was intentional. PPG Industries v. JMB/Houston

Centers Partners, 146 S.W.3d 79, 84 (Tex. 2004). Meritor Auto., Inc. v. Ruan Leasing Co., 44

S.W.3d 86, 90 (Tex. 2001); Smith v. Baldwin, 611 S.W.2d 611, 616 (Tex. 1980).

In other words, a court must presume that the legislature had a reason for excluding the

provision. Firemans Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex. 2000);

Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995); Baldwin, 611 S.W.2d at

616.

The Texas Supreme Court informs us that there are two significant benefits to reading a

statutes language literally, and not reading additional language into the statute: (1) a literal

reading does not involve roving the line between judicial and legislative powers of government;

and (2) a literal reading affirms the principle that ordinary citizens [should be] able to rely on

the plain language of a statute to mean what it says. Hughes, supra, 246 S.W.3d at 628.

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11. There is no legal basis for any court to re-write the clear and unambiguous

language of 254.231 to say what Cuellar wants, which is dramatically different from what it

actually says. Texas courts have rejected similar efforts by sore losers such as Cuellar to re-write

the Texas Election Code to say what it specifically omits. Sylvester v. Texas Association of

Business, 453 S.W.3d 519, 531 (Tex. App.Austin 2014) (Given the plain language of former

section 253.062, we decline to expand the meaning of individual to subject a corporation to

liability for failing to report direct campaign expenditures in 2002.).

12. Cuellar doesnt allege that Reynas loans to Fuentes were unlawful, nor does he

make a claim against Reyna for loaning his nephew money. To establish Reynas liability for

conspiracy with Fuentes, Cuellar must show that he has a claim against Fuentes for failing to

report the loans. See PJC 109.1 (2016) comment (A defendants liability for conspiracy is

based on participation in the statutory violation or underlying tort (other than negligence) that

would have been actionable against at least one of the conspirators individually), citing Tilton v.

Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (A defendants liability for conspiracy depends on

participation in some underlying tort for which the plaintiff seeks to hold at least one of the

named defendants liable.).

Cuellars claim against Fuentes, and his derivative claim against Reyna, both are

premised on Cuellar re-writing the Texas Election Code to: (1) allow his claim against Fuentes

for allegedly failing to report Reynas loans, and (2) allow his claim against an innocent third

person such as Reyna, who was not Fuentes campaign treasurer or assistant treasurer. The

Texas Election Code allows neither claim. Hence, Cuellar has no claim for conspiracy against

Reyna (or Fuentes).

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Reviewed By: Juan Cavazos

13. Cuellars claims against Reyna have no basis in law, and do not entitle Cuellar to

the relief he seeks.

WHEREFORE, Reyna prays that the court dismiss Cuellars baseless claims, and award

Reyna his attorneys fees, costs, and such other relief to which he may be entitled.

Respectfully submitted this 7th day of March 2017.

/S/Mikal Watts
Mikal Watts
State Bar ID No. 20981820
WATTS GUERRA LLP
4 Dominion Dr., Bldg. 3, Suite 100
San Antonio, TX 78257-1391
(210) 447-0500
mcwatts@wattsguerra.com

CERTIFICATE OF SERVICE

I certify that on this 7th day of March 2017, I served a true and correct copy of the
foregoing to the below persons in the manner indicated.

S/Mikal Watts
Mikal Watts

Cris Feldman Via email: cris.feldman@feldman.law

Feldman & Feldman, P.C.
3355 West Alabama, Suite 1220
Houston, TX 77908

Edmundo Ramirez Via email: dall@ekattorneys.com

Ellis, Koeneke & Ramirez, L.L.P.
1101 Chicago Ave.
McAllen, TX 78501-4822

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