Texas Film Commission Does Flip Flop On Grant For The Film “Machete”
March 21, 2016
by Jerry Glover
Like many states, Texas offers incentives to film and television makers to produce projects in Texas. The program in Texas is called the Moving Image Industry Incentive Program and is administered by the Music, Film, Television and Multimedia Office. Tex. Civl; Prac. & Rem. Code Seces. 37.001-.011 (UDJA). A production company qualifies for a grant if it meets certain minimum levels of in-state spending, in-state filming and employment of Texas residents.
The film office, however, can deny a project grant—even if it otherwise qualifies—if the project contains “inappropriate content or content that portrays Texas or Texans in a negative fashion as determined by the [film office].” That determination is made based on “general standards of decency and respect for the diverse beliefs of the citizens of Texas.” But the grant program also allows the film office to determine that a grant should not be approved after the project is completed, even if the grant was approved before start of production, “for reasons such as obscene or inappropriate content, failure to meet minimum qualification requirements, failure to provide requested documentation, providing false information or inability to complete the project.”
In 2009 the Texas film office approved the feature film “Machete” for a grant. In the award letter the office reminded the producers that the grant could be revoked under the rules described above. After the film was released in 2010, the head of the film office resigned and another person was appointed. That new director sent a letter to the producers stating that the final cut of the film did not qualify for a grant because of “inappropriate content or content that portrays Texas or Texans in a negetaive fashion.”
The producers sued the film office claiming, among other things, that the statutory provisions that allowed a grant to be revoked were impermissibly vague. The state moved to dismiss the suit claiming sovereign immunity noting that the film office is an agency whose decisions were not subject to judicial review. The trial court granted the state’s request for dismissal.
On appeal, the court noted that state officials acting in their official capacity were immune from suit. Machete’s Chop Shop, Inc. v. The Texas Film Commission, 2016 WL 368534 (Tex. App. January 29, 2016). The one exception to the general rule: the government office acted without legal authority or failed to perform a purely ministerial act. But to escape the sovereign immunity claim, the lawsuit must not complain of an official simply exercising discretion; instead, the plaintiff must allege and prove that the officer acted without legal authority.
In this case the production company alleged that after the film office approved the grant the office could not later deny the grant unless the final cut of the film contained substantial changes to the content (the final script deviated from the initial script). The producers pointed to a provision of the law that said before a final decision on a grant could be made a final script had to be submitted to the film office and the office had to determine if any substantial changes occurred during production to include inappropriate content. Tex Gov’t Code Sec. 485.022(f).
The producer argued that there were no changes in the final script compared to the initial script so the film office had no authority to deny the grant based on the film’s content. The appellate court, however, noted that the statutes do not limit the film office’s authority or discretion if an initial grant has been approved. Those statutes grant to the film office full discretion to determine whether a provisional grant should be permanent. The court added that those provisions which require a final script to be submitted do not speak to the office’s authority to deny an application; instead “it ensures the [office] reviews the final version of the film’s script before awarding a Program grant.”
Going beyond the language of the applicable statutes, the appellate court looked at what it considered the production company’s real complaint: that the film office should not be authorized to advise a grant applicant that a project’s content does not exclude it from the grant program and that once the project has been made to deny the grant on the basis of its content if that content has not changed. The court explained that this complaint ignored the possibility that events occurring between the initial grant application and final completion of a production may cause certain content deemed appropriate at the outset to become inappropriate at a later date. The court added that content includes more than just the final script; it includes “the manner in which the words were spoken and the locations and costumes used by the actors.” Therefore a negative decision about a grant application after the project is completed is not an about-face or reversal of a previous determination.
Nothing in the appellate court opinion, however, indicated that any such changes occurred between submission of the initial grant application and production of the film. So the reader is left with the impression that the new film office commissioner simply didn’t like the project. So if you are applying for a film grant in Texas, don’t be mislead by an initial approval of that application. Unfortunately, you are taking a chance that that grant will be overturned for reasons having nothing to do with the film’s content—like the political views of the head of the film office.