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Is that statewide injunction against investigations into the families of trans kids in effect?

Ken Paxton wants you to think it isn’t, but it’s not really up to him.

When a judge ruled Friday that Texas could not investigate parents for child abuse simply for providing gender-affirming care, it was immediately clear that the legal fight was far from over.

That same night, Attorney General Ken Paxton filed an appeal and then announced on Twitter that the “Democrat judge’s order permitting child abuse is frozen.”

He said that “[m]uch-needed investigations [will] proceed as they should,” and noted that his “fight will continue up to the Supreme Court.”

Lawyers representing the families of transgender children said they don’t believe the appeal should affect the injunction.

Legal experts say this case falls into a complicated corner of the law until the appeals court weighs in.

[…]

The appeal Paxton filed relies on an argument that would allow for an automatic stay in all trial court proceedings. In a statement, a spokesperson for the Attorney General said that there is “therefore no [temporary injunction] in place until the Third Court reinstates it. Investigations into child abuse may thus continue.”

“It’s up to the court of appeals to decide whether to reinstate the impact of the injunction,” said South Texas College of Law Houston professor Rocky Rhodes. “It’s not automatic, but I think that [the ACLU and Lambda Legal] will have a very strong case to have it reinstated.”

But lawyers have challenged these automatic stays before, claiming the state should not be able to overturn an injunction simply by filing an appeal. Attorney Chad Dunn represented the Texas Democratic Party in a case on mail-in voting in which Paxton made a similar argument.

“That would be an extraordinary rule,” Dunn said. “That is not the rule in federal court or other states that I’m familiar with, that you get an injunction against the state and they can just effectively ignore it until there’s been an appeal completed.”

Dunn said he has seen this argument appear only in recent years, and neither the state’s courts appeals courts or the Texas Supreme Court has definitively affirmed that the state has a right to overturn these injunctions.

“In the cases I’m familiar with, the Court of Appeals has either just glossed over this question or they just say … we’re empowered to issue injunctions, so we’re going to issue the same injunction and keep it in place until such time as we decide the appeal,” he said.

If the Court of Appeals grants similar relief, Rhodes said, that will remain in effect even if the case is appealed to the Texas Supreme Court, as Paxton has said it will be.

See here for the background. The plaintiffs’ lawyers have advised their clients that the injunction is in effect and to not participate in any further investigations, if they happen. DFPS itself issued a statement that says they are “following the law” without specifying what that means, which is entirely the question at hand. The Third Court of Appeals had previously denied Paxton’s appeal of the initial restraining order for wonky legal reasons. It seems likely to me that they will rule that the injunction remains in effect while the matter is being litigated, but it’s not clear to me when such an order from them might be forthcoming. There’s no case information on the Third Court’s website beyond the fact that a notice of appeal has been filed. We’ll just have to wait and see.

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4 Comments

  1. Kibitzer Curiae says:

    It’s the automatic supersedeas issue again (as in the multiple cases and ensuing interlocutory appeals involving the Governor’s mask mandate ban.

    Really a peculiarity of Texas state law and rules, so why would the federal appellate rules & practices be relevant? Further, the Fifth Circuit can be counted on to grant instant procedural relief requested by the AG (stay pending appeal if the district court ruling is unfavorable to the State) it would seem, based on recent experience, so that’s the functional equivalent to an automatic stay in the state appellate system. But the Third Court of Appeal is much for Dems-friendly, so they could presumably reinstate the trial court injunction, assuming that the proposition that the state defendants’ notice of appeal triggered a suspension of the trial court order is correct.

    RE: “If the Court of Appeals grants similar relief, Rhodes said, that will remain in effect even if the case is appealed to the Texas Supreme Court, as Paxton has said it will be.”

    Paxton might seek immediate high-court relief against the Austin Court of Appeals in the SCOTX if the latter issues a rule 29.3 motion for temporary relief coterminous with the trial court injunction, such as by petition for writ of mandamus and accompanying emergency stay motion. It’s happened before, e.g. against Houston COA in the vote-by-mail litigation under COVID conditions, and against the San Antonio COA regarding Abbott’s mask-mandate prohibition (GA-38) against local governments and school districts.

    As for appellate case status, emeritus law prof Ron Beal, and expert in administrative law, has submitted an amicus letter brief (though not so labeled on the docket). Nothing else is yet posted (as of today, March 16), except the initial docketing letter.

    Beal is adamant that the “rule” adopted by Commissioner Masters was and is a legal nullity, void and legally ineffective for failure to comply with the rulemaking process required by the Administrative Procedures Act (APA).

    “I believe that Governor Abbott, the Attorney General and Commissioner
    Masters must immediately withdraw this purported, but legally defective rule and
    commence, if at all, a bona fide notice and comment process to discuss and
    consider all evidence related to the issues involved and engage in a rational,
    word-based analysis of the relevant statutory provisions to determine the correct
    legislative intent. This appeal is simply legally worthless and must be withdrawn
    immediately.”

    See the entire piece here: https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=a6cbbd53-f83d-4649-a4d2-713288805444&coa=coa03&DT=Other&MediaID=ef5c7db1-4627-4f5b-a33a-8f1848cd7171

  2. Kibitzer Curiae says:

    Speaking of the Fifth Circuit, today this sequel to the 2020 election litigation:

    20-40643 03/16/2022 TX Alli for Retd Amer v. Scott
    20-50654 03/16/2022 Lewis v. Hughs
    20-50774 03/16/2022 Flores v. TX Secy of State

    Texas Alliance for Retired Americans v. John Scott, Texas Secretary of State, No. 40643 (5th Cir. Mar. 16, 2022):

    Shortly before the November 2020 election, Plaintiffs challenged
    Texas’s elimination of straight-ticket voting. Agreeing with Plaintiffs’ claims
    that this change unconstitutionally burdened the right to vote, the district
    court enjoined the Texas Secretary of State. A motions panel of our court
    stayed the injunction. We now reverse the district court’s order, vacate the
    injunction, and remand for further proceedings. Because the Secretary of
    State does not enforce the law that ended straight-ticket voting, Plaintiffs’
    constitutional claims are barred by sovereign immunity

    Lewis et al [Voto Latino; Texas State Conference of the NAACP; Texas Alliance for
    Retired Americans] v. John Scott [Texas SOS], originally docketed as Lewis v. Ruth Hughes, No. 20-50654 (5th Cir. Mar. 16, 2022):

    Plaintiffs challenged as unconstitutional various provisions of the Texas Election Code regulating mail-in balloting and sued the Texas Secretary of State. We conclude that the Plaintiffs’ suit is barred by sovereign immunity because the Secretary does not enforce the challenged provisions.
    We reverse and remand.

    Dr. George Richardson et al [MOVE Texas Civic Fund; League of Women Voters of Texas; Austin Justice Coalition; Coalition of Texans with Disabilities] v. John Scott [Texas SOS], No. 20-50774 (5th Cir. March 16, 2022):

    Plaintiffs challenged Texas’s system for verifying the signatures on
    mail-in ballots. Based on purported constitutional defects in that system, the
    district court issued a detailed injunction against the Texas Secretary of
    State. But the Secretary does not verify mail-in ballots; that is the job of local
    election officials. Sovereign immunity therefore bars the injunction. We
    reverse the district court’s order, vacate the injunction, and remand for
    further proceedings.

    Current-only link to voting-wars trifecta of opinions here:
    https://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions

  3. Kibitzer Curiae says:

    MARCH 22, 2022 UPDATE ON TEMPORARY INJUNCTION APPEAL

    Austin Court of Appeals agrees that AG’s appeal automatically suspends Meachum temp. injunction, but reinstates it under its own authority under appellate rule 29.3 to preserve status quo [sic], which should logically be referred to as status quo *ante*, i.e., before the governmental act/policy change that is being challenged.

    TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

    NO. 03-22-00126-CV

    Greg Abbott in his Official Capacity as Governor of the State of Texas; Jaime Masters in her Official Capacity of Commissioner of the Department of Family and Protective Services; and the Texas Department of Family and Protective Services, Appellants
    v.
    Jane Doe, individually and as parent and next friend of Mary Doe, a minor; John Doe, individually and as parent and next friend of Mary Doe, a minor; and Dr. Megan Mooney, Appellees

    FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY
    NO. D-1-GN-22-000977, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

    ORDER

    PER CURIAM

    Before the Court is a pre-submission challenge to a district court’s order enjoining The Department of Family and Protective Services and its Commissioner from complying with the terms of a letter issued by Governor Greg Abbott on February 22, 2022. That letter requires the Department to “conduct a prompt and thorough investigation of any reported instances” of “gender-transitioning procedures” being performed on minors and classifies the use of those procedures as “child abuse.” The letter further requires the Department to coordinate with other agencies in pursuing “criminal penalties” against any parent allowing such procedures and against any professional or member of “the general public” that suspects but fails to report this purported abuse to appropriate authorities.
    Following an evidentiary hearing, the district court temporarily enjoined appellants from abiding by the directives within the letter pending the outcome of the litigation. That injunction is currently suspended pending the resolution of this appeal. See Tex. Civ. Prac. & Rem. Code § 6.001(b); Texas R. App. P. 29.1(b).

    Appellees now seek emergency relief, pursuant to Rule of Appellate Procedure 29.3, asking this Court to reinstate the temporary injunction for the duration of this appeal. Appellants oppose the motion, arguing that Rule 29.3 does not afford this Court with discretion to award the relief requested.

    As we recently observed, “Rule 29.3 gives us ‘great flexibility in preserving the status quo based on the unique facts and circumstances presented.’” Texas Educ. Agency v. Houston Indep. Sch. Dist., 609 S.W.3d 569, 578 (Tex. App.—Austin 2020, order [mand. denied]) (quoting In re Geomet Recycling LLC, 578 S.W.3d 82, 89 (Tex. 2019)). See also In re Texas Educ. Agency, 619 S.W.3d 679, 686–87 (Tex. 2021) (holding that statute precluding trial court counter-supersedeas orders in cases against state agencies did not limit appellate court’s authority to issue appropriate temporary orders under Rule 29.3 where statute did not reflect an intent to limit appellate rights).

    The “status quo” is “the last, actual, peaceable, non-contested status which preceded the pending controversy.” In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding) (citing Janus Films, Inc. v. City of Fort Worth, 358 S.W.2d 589 (Tex. 1962)). In addition, “Rule 29.3 provides a mechanism by which we may . . . prevent irreparable harm to parties properly before us pursuant to our appellate jurisdiction in an interlocutory appeal.” Texas Educ. Agency, 609 S.W.3d at 578 (citing Geomet, 578 S.W.3d at 90). One of the orders we may issue under Rule 29.3 to maintain the status quo and prevent irreparable harm is an order reinstating a suspended injunction. See Hughs v. Move Tex. Action Fund, No. 03-20-00497-CV, 2020 WL 6265520, at *1 (Tex. App.—Austin Oct. 23, 2020, order)
    (confirming authority to reinstate injunction under Rule 29.3 but denying relief under circumstances); Texas Ass’n of Bus. v. City of Austin, No. 03-18-00445-CV, 2018 WL 3967045, at *1 (Tex. App.—Austin Aug. 17, 2018, order) (reinstating injunction under Rule 29.3 after finding injunction “necessary to preserve the parties’ rights until disposition of the appeal”).

    A litigant’s request for injunctive relief is predicated upon that party’s assertion that irreparable harm will result from the challenged act or action. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (“To obtain a temporary injunction, the applicant must plead and prove three elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.” (citations omitted)). In this case, the trial court reviewed the evidence and concluded that appellees had established a probable right to recovery on their claims. It further concluded that the appellees had made a sufficient showing that allowing appellants to follow the Governor’s directive pending the outcome of this litigation would result in irreparable harm.

    Having reviewed the record, we conclude that reinstating the temporary injunction is necessary to maintain the status quo and preserve the rights of all parties. Therefore, without regard to the merits of the issues on appeal, which are not yet briefed to this Court, we exercise our discretion under Rule 29.3 to reinstate the injunction as issued by the district court on March 11, 2022.

    It is ordered on March 21, 2022.
    Before Chief Justice Byrne, Justices Kelly and Smith

    Docket here:
    https://search.txcourts.gov/Case.aspx?cn=03-22-00126-CV&coa=coa03 (3 more amicus curiae briefs now posted, following Ron Beal’s amicus letter of 3/15, but no party briefs yet).


    TRAP 29.3: Temporary Orders of Appellate Court

    When an appeal from an interlocutory order is
    perfected, the appellate court may make any
    temporary orders necessary to preserve the parties’
    rights until disposition of the appeal and may require
    appropriate security. But the appellate court must not
    suspend the trial court’s order if the appellant’s rights
    would be adequately protected by supersedeas or
    another order made under Rule 24.

    Tex. R. App. P. 29.3

  4. […] here and here for the background, and here for a copy of the Third Court’s order. Note that none of this is […]