Do the rules for Texas' film production incentives violate the U.S. Constitution? That's what one of the production companies behind 2013 action-comedy Machete Kills argues in its lawsuit against the current and four former Texas Film Commissioners.
On March 11, Machete Productions, LLC filed a request with Travis County District Judge Scott Jenkins for an injunction against the current rules regarding applications for the Texas Moving Image Industry Incentive Program. In it, they cite four former Texas Film Commission heads – Bob Hudgins, Evan Fitzmaurice, David Morales, and Carol Pirie – and current director Heather Page as defendants.
Established in 2007, the state program offers incentives worth 5-20% of a film's budget for qualified expenses for any project that shoots at least 60% in Texas, with a 70% Texas-based cast and crew. Machete Productions argues that its film, shot in Austin by director Robert Rodriguez at his East Austin Troublemaker Studios and the neighboring Austin Studios, met all reasonable criteria for the fund, and that it should be eligible for a reimbursement from the state for the $10 million in qualified spending, including $6 million in wages. The suit contends that the portions of the rules used to block its application are unconstitutional, and requests a permanent injunction against their use.
In the filing, Machete Productions' attorney Eric Storm writes that some months before production began, the producers were invited to a meeting with Gov. Rick Perry's legal counsel, David Morales, where "Morales told the producer that Machete Productions should not apply for a grant, regardless of whether the film qualified under the statute and the rules." The producers filed their application anyway. Then on June 26, 2012, Morales – who would later replace Fitzmaurice as interim film commissioner – issued a letter saying that the application would be denied due to "inappropriate content." That's interesting, the plaintiffs dryly note, since the state seemingly deemed the bloody Friday the 13th reboot as appropriate when they awarded it $488,314 from the fund.
Machete Productions is a limited liability company based out of Encino, Calif., formed in 2012. According to its incorporation filings with the California secretary of state, it has the same address as film financier Aldamisa Entertainment, which is also involved with Rodriguez's upcoming Sin City: A Dame to Kill for and Jon Favreau's Chef. However, neither Rodriguez nor his production firm Troublemaker are participating in the suit, and the director has issued a statement that he is "in no way affiliated with [Machete Productions], nor do they represent my interests in any way."
Rodriguez's Machete franchise had been denied state money once before. In 2010, local conspiracy crank/doomsday-prepper enabler Alex Jones spurred a letter-writing campaign against the original Machete, claiming (without seeing it) that it would "trigger racial riots and racial killings in the United States." The commission buckled and refused to incentivize the film (see "Is That a Wrap for Incentives?," Jan. 28, 2011). The logic used then was a clause in the statute that allows the commission to reject applications for "content that portrays Texas or Texans in a negative fashion."
That language had only been used on one other occasion: In 2009, then-commissioner Hudgins told the producers of Branch Davidian docu-drama Waco that the script contained too many glaring factual errors. The film is still unmade, but there was speculation that Jones' 2010 campaign was revenge for the failure of the anti-federal government project.
Machete Productions argues that the refusal of its application had nothing to do with inappropriate content. Instead, the producers claim Morales had "indicated that because of the perceived political nature of the content of Machete, the Film Commission would never award a grant to Machete Kills."
The company argues that the current rules regarding both the nebulously defined "inappropriate material" and the portrayal of Texas violate the First, Fifth, and 14th Amendments of the Constitution, as well as Article 1, Section 8 of the Texas Constitution, as they lead to the denial of funds due to a perceived political message. It also argues a further First Amendment violation because the rules represent "content-based criteria for determination of entitlement to a grant of public moneys." No date has yet been set for a hearing.
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