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SCOTx issues mixed ruling on transgender child abuse investigations injunction

We’ll just have to see what happens next.

Texas’ child welfare agency remains blocked from investigating the family of a transgender teen that sued the state in March, but can once again investigate other families that provide gender-affirming care after the Supreme Court of Texas struck down a statewide injunction Friday.

Though it overturned the injunction on procedural grounds, the high court raised questions about why the Department of Family and Protective Services opened these investigations in the first place. The court affirmed in Friday’s ruling that neither Attorney General Ken Paxton nor Gov. Greg Abbott had any grounds to direct the agency’s actions.


“The Governor and the Attorney General were certainly well within their rights to state their legal and policy views on this topic, but DFPS was not compelled by law to follow them,” Friday’s ruling reads. “DFPS’s press statement, however, suggests that DFPS may have considered itself bound by either the Governor’s letter, the Attorney General’s Opinion, or both. Again, nothing before this Court supports the notion that DFPS is so bound.”

The ruling does note the myriad “informal mechanisms” through which elected officials can influence a state agency, but “ultimately, however, one department or another has the final say.”


In this case, the ruling said, DFPS was responsible for deciding whether these investigations aligned with current state regulations — and will now have to decide whether to continue these investigations and allow new ones to be opened.

DFPS employees have told The Texas Tribune that agency leadership has acknowledged that these investigations do not meet the current requirements for child abuse and have said policy would need to be generated to match the governor’s directives.

In March, a district judge granted an injunction blocking the state from continuing these investigations or opening new ones. Paxton appealed that decision to the Third Court of Appeals, which reinstated the statewide temporary injunction.

He then petitioned the Supreme Court of Texas to review that appeal. In Friday’s ruling, the high court agreed with Paxton that the appeals court overstepped — while the appeals court can reinstate an injunction if it “preserves the parties’ rights,” they cannot reinstate a temporary injunction of any nature.

In this case, the justices ruled, the “parties” are the family that sued the state initially — not all parents of all transgender children.

Ian Pittman, an Austin attorney representing two families of transgender children that are under investigation for child abuse, said the injunction had allowed his clients to “breathe a sigh of relief” while their investigations were paused. Although the investigations can resume, he’s hopeful that DFPS will now close out the cases.

“This ruling reaffirms that [DFPS Commissioner Jaime Masters] acted improperly when she acknowledged the directive and said they would follow it,” he said. “She was abdicating her responsibilities as commissioner to a political stunt that has no legal authority.”

If DFPS does not close out the cases, he expects other families may consider bringing suits to get any investigations against them similarly blocked.

See here and here for the most recent entries. There were multiple written opinions plus some concurrences and dissents, so just go here and look for case 22-0229 if you want to slog through them. I’ve seen varying reactions to the ruling and will link to them, but this Daily Kos piece is the closest to my own feelings.

Now, some folks are celebrating Friday’s ruling as a win, as the court does explicitly say the governor does not have the “authority to investigate, prosecute, or impose reporting requirements regarding child abuse allegations.” The court also pointed out that neither Abbott nor Paxton could “bind” the Department of Family and Protective Services’ (DFPS) “investigative authority.”

This all sounds encouraging, but again, the court didn’t rule on the ethics of the situation, but whether or not the lower courts were overstepping with the injunction holds. So … What happens now?

DFPS will decide whether or not to continue investigations, as well as whether or not they will open new ones. According to this ruling, the agency was responsible for determining if the investigations met state regulations, to begin with. Per The New York Times, it is not clear whether the ruling will cause the agency to resume investigations right away (or at all) or not.

If the department closes the cases, we can breathe a sigh of relief. If it doesn’t close the cases? It’s likely many more parents will sue the state.

For me? I’m taking it as a cautious win, but I’m not outright celebrating until the agency confirms those cases are closed and that more aren’t on the way.

I’m open to persuasion on this, but until and unless someone changes my mind, I’m waiting to see what DFPS does next, and hoping that as many parents of trans kids are preparing to file their own suits as possible, just in case. Here are statements from the ACLU and Harris County Attorney Christian Menefee, and the Chron, the Texas Signal, and the Texas Observer have more.

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  1. Donovan says:

    Does anyone know how DFPS Commissioner Jaime Masters got the job? I am assuming there is a governor appointment process somewhere in this. Do we know if there are term limits or does this commissioner serve at the pleasure of the governor? If this commissioner has a spine and decides to close the cases, what stops Abbott replacing the commissioner with someone who lines up with his anti-trans crazy?

  2. Kibitzer says:

    Jaime Masters is the Commissioner of the Department of Family and Protective Services (DFPS). She was appointed by Governor Greg Abbott effective December 2, 2019, for a term set to expire September 1, 2021.

  3. Kibitzer says:

    FOLLOW-UP: Note the 2021 expiration date for Masters’ term as DFPS Commissioner. Kibitzer couldn’t find any reappointment announcement.

    Now Emiritus Law Prof and Attorney Ron Beal offers this:

    “Commissioner Jamie Masters was appointed by Governor Abbott and duly
    approved by the Senate for a two-year term that commenced on December 2,
    2019, and that expired either on September 1, 2021, (states her website) or
    December 1, 2021 (states the statute). Governor Abbott has not reappointed her
    nor has he appointed any other person to assume her office. However, he has
    allowed her, upon his own authority, to illegally continue to hold the office of
    Commissioner and invalidly exercise all the statutory powers of the office. He
    labels these officers as “Holdover Officers.” (For a full analysis of this subject, see
    Beal, “Texas: A Weak Governor State or Is It?”, 52 St. Mary’s L.J. 263, 277-83

    See full amicus letter brief on the docket here (first one of 2 filed May 16, 2022):

  4. Donovan says:

    Yikes. That’s an even worse setup than I expected, though very on-brand from Abbott. Thanks, Kibitzer.

  5. […] here for the previous entry. The initial litigation is still ongoing – as is so often the case in […]