By John Council
Texas Lawyer
Originally published Dec. 31, 2015
Texas officials did not forbid the producers of a B-grade action movie from filming inside the Lone Star State but “merely opted not to subsidize the film with Texas taxpayer funds,” according to Judge Catharina Haynes.
In a ruling certain to disappoint those who want to film B-grade action movies in Texas on the cheap, the U.S. Court of Appeals for the Fifth Circuit has ruled that the producers of “Machete Kills” don’t have a First Amendment right to an incentive grant from the Texas Film Commission.
The background to the court’s ruling in Machete Productions v. Page is as follows.
“Machete Kills” is the sequel to “Machete,” an over-the-top action movie by Texas filmmaker Robert Rodriguez about the exploits of a renegade ex-Mexican Federal assassin portrayed by actor Danny Trejo.
Machete Productions, the film company that produced “Machete Kills,” sought a grant from the Texas Film Commission, whose aimed is to lure filmmakers to the Lone Star State to boost both jobs and tourism.
In 2009, producers of the original “Machete” film had tried to get a grant from the commission, but were denied after a political controversy broke out over their application. The commission denied the grant due to the film’s “inappropriate content” that allegedly portrays “Texas or Texans in a negative fashion.” (In “Machete,” the protagonist is offered $150,000 to kill a corrupt Texas state senator, among other plot points.)
Machete Productions tried again to get a grant from the commission for the sequel. But they were told by then-Gov. Rick Perry’s general counsel David Morales, who was leading the film commission at the time, that the movie would never receive a grant due to its perceived political nature and content. Morales was later replaced as head of the commission by Heather Page, who also denied the grant.
“Machete Kills” was filmed in Texas anyway. But Machete Productions later sued Morales and Page, claiming their denials of the grant was a violation of the company’s free speech rights under both the U.S. and Texas Constitutions.
A trial court dismissed the claims for lack of subject matter jurisdiction and failure to state a claim. The film company appealed to the Fifth Circuit.
And in her Dec. 28 decision, Judge Catharina Haynes wrote that the trial court was correct to dismiss the film company’s First Amendment claims.
“Here, Morales did not forbid Machete from filming, producing or releasing Machete Kills, but merely opted not to subsidize the film with Texas taxpayer funds,” Haynes wrote. “Accordingly, the district court did not err in dismissing this claim on the pleadings.”