Do the rules for Texas’ film production incentives violate the US constitution? That’s what one of the production companies behind 2013 action-comedy Machete Kills argue in their lawsuit against five current and former Texas Film Commissioners. However, director Robert Rodriguez is actively distancing himself from their claim.
On March 11, Machete Productions LLC filed a request with Judge Scott Jenkins of the 53rd District Court 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 commissioner Heather Page as defendants. No date has yet been set for a hearing.
Established in 2005 and revised heavily in 2007, the Texas program offers incentives worth between 5% and 22.5% of a film’s budget for qualified expense, including salaries and receipts, for any project that shoots a minimum of 60% in Texas, with a 70% Texan cast and crew. Unlike most states, the program uses cash grants upon completion, rather than tax credits.
Machete Productions argues that their film, shot in Austin by 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 the portions of the rules used to block its application are unconstitutional, and requests a permanent injunction against their use.
There are several reasons that an otherwise qualifying production would not be eligible: Porn, news, sports, awards shows, and student films are all barred from applying. However, the rules give leeway to negate an application based purely on content. They state that "Texas is also not required to make payments to projects that include inappropriate content or content that portrays Texas or Texans in a negative fashion." That latter portion was added to the language in 2007 by then-Senate Finance Chair Steve Ogden, R-Bryan.
The company contends that this section violates both federal and state law. They argue that both the nebulously defined "inappropriate material" and the restrictions on the portrayal of Texas violate the First, Fifth and 14th Amendments of the US 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." The suit requests a permanent injunction barring any further application of these rules.
In the filing, Machete Production’s attorney Eric Storm writes that, some months before filming began, the producers were invited to a meeting with Morales, then Gov. Rick Perry’s legal counsel. In the meeting, "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 2009’s bloody Friday the 13th reboot as appropriate when they were awarded $488,314.43 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 the SXSW 2014 opening night film, Jon Favreau’s Chef.
However, neither Rodriguez nor his production firm Troublemaker are participating in the suit, and the director has issued a statement distancing himself from Machete Productions. He wrote:
"I've been a supporter of the Texas Film Commission since well before the inception of the film production incentive program. This law suit has been filed by a financier of Machete Kills who put up a portion of the financing of that film however I am in no way affiliated with this this company, nor do they represent my interests in any way.
"This financier was made well aware at the outset of production of Machete Kills that this film would not qualify for a production incentive. Knowing this, the financier had abundant opportunity to choose not to finance the film, however they chose to move forward, knowing full well that the film would not receive money from the state. This is why I will not be cooperating with this financier and do not approve of this law suit in any way, shape or form. The Texas film community is a diverse and thriving part of the fabric of Texas which I have helped support and nurture through the years. I have shot nearly all my films and now television projects in Texas, with Texas crews, something I look forward to continuing well into the future. As always, I stand with Texas."
This is the second time that Rodriguez’s Machete franchise had its finances cut away by the state (and there's no small dramatic irony in that, considering he allowed his studios to serve as the background for Perry's 2009 signing of the incentive bill.) In 2010, local conspiracy crank/doomsday-prepper enabler Alex Jones spurred a letter writing campaign against the original Machete after he claimed (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 language 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 rejected told the producers of Branch Davidian docu-drama Waco that, on reading its script, he found 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 their application was 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."
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