in Re Greg Abbott in His Official Capacity as Governor of the State of Texas Jaime Masters in Her Official Capacity as Commissioner of the Department of Family and Protective Services And the Texas Department of Family and Protective Services

Supreme Court of Texas

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No. 22-0229

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In re Greg Abbott in His Official Capacity as Governor of the

State of Texas; Jaime Masters in Her Official Capacity as

Commissioner of the Department of Family and Protective

Services; and the Texas Department of Family and Protective

Services,

Relators

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On Petition for Writ of Mandamus

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JUSTICE BLACKLOCK delivered the opinion for a unanimous Court

as to Parts I and II. JUSTICE BLAND delivered the opinion of the Court

as to Part III, in which Chief Justice Hecht, Justice Lehrmann, Justice

Busby, and Justice Huddle joined.

JUSTICE LEHRMANN filed a concurring opinion.

JUSTICE BLACKLOCK filed an opinion dissenting as to Part III, in

which Justice Boyd and Justice Devine joined.

JUSTICE YOUNG did not participate in the decision.

On February 18, 2022, the Attorney General issued Opinion No.

KP-0401, which concludes that certain “‘sex change’ procedures and

treatments . . . when performed on children, can legally constitute child

abuse under several provisions of chapter 261 of the Texas Family

Code.” Relying on this opinion, the Governor sent a letter to the

Commissioner of the Department of Family and Protective Services

(DFPS) expressing his view that “a number of so-called ‘sex change’

procedures constitute child abuse under existing Texas law.” The letter

closes with the instruction that “DFPS and all other state agencies must

follow the law as explained in OAG Opinion No. KP-0401.” DFPS then

issued the following statement to the media: “In accordance with

Governor Abbott’s directive today to Commissioner Masters, we will

follow Texas law as explained in Attorney General opinion KP-0401.”

This lawsuit followed. The plaintiffs are a married couple who

are the parents of a child diagnosed with gender dysphoria and a doctor

who treats such children. They sued the Governor, the DFPS

Commissioner, and DFPS, challenging the Governor’s “directive” and

the statement made by DFPS to the media. The plaintiffs contend that

DFPS’s press statement improperly announces a new agency rule

without the notice-and-comment procedure required by law. See TEX.

GOV’T CODE §§ 2001.023, .029, .033. They also challenge DFPS’s

authority to investigate their use of medical treatments deemed

unlawful by the Governor’s letter.

The district court issued a temporary injunction that “restrains

the following actions by the Defendants”:

(1) taking any actions against Plaintiffs based on the

Governor’s directive and DFPS rule, both issued February

22, 2022, as well as Attorney General Paxton’s Opinion No.

KP-0401 which they reference and incorporate;

(2) investigating reports in the State of Texas against any

and all persons based solely on alleged child abuse by

persons, providers or organizations in facilitating or

providing gender-affirming care to transgender minors

where the only grounds for the purported abuse or neglect

are either the facilitation or provision of gender-affirming

medical treatment or the fact that the minors are

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transgender, gender transitioning, or receiving or being

prescribed gender-affirming medical treatment;

(3) prosecuting or referring for prosecution such reports;

and (4) imposing reporting requirements on persons in the

State of Texas who are aware of others who facilitate or

provide gender-affirming care to transgender minors solely

based on the fact that the minors are transgender, gender

transitioning, or receiving or being prescribed

gender-affirming medical treatment.

The State took an interlocutory appeal, which automatically

superseded the district court’s injunction. See TEX. R. APP. P. 29.1(b);

TEX. CIV. PRAC. & REM. CODE § 6.001(b). The court of appeals then

issued a Rule 29.3 temporary order reinstating the temporary injunction

in its entirety. See TEX. R. APP. P. 29.3

The State now petitions this Court for a writ of mandamus

directing the court of appeals to vacate its Rule 29.3 order. As explained

below, we conditionally grant the State’s petition as to the portions of

the court of appeals’ order that purport to have statewide application.

The court of appeals lacked any authority under Rule 29.3 to afford relief

to nonparties throughout the state. We also conditionally grant relief

with respect to the order’s injunction against the Governor, as there is

no allegation that he is taking, or has authority to take, the enforcement

actions the order enjoins. Finally, the Court concludes that the State

has not established its entitlement to mandamus relief as to the other

parts of the court of appeals’ order applicable to the plaintiffs in this

case. Mandamus relief is denied as to those parts of the order.

I.

Neither the courts nor the public can properly assess our

government’s decisions without first correctly identifying which actors

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within the government are responsible for those decisions. In litigation,

we see this principle reflected in the requirement that plaintiffs who

want the courts to pass judgment on the legality of government action

must seek relief against the particular government official or agency

responsible for the challenged action. In politics, the people of Texas—

by whose authority and for whose benefit our government exists—

cannot allocate political responsibility for the government’s decisions

unless they understand which government officials have the lawful

authority to make or to change those decisions.

Although this case comes to us in its early stages, it appears

already to have been infected by a misapprehension of the proper roles

played by the various government actors involved. Before resolving the

State’s mandamus petition, we first must clarify who within the

government is responsible for the decisions complained of by the

plaintiffs. We address this preliminary, but essential, question without

regard to the merits of the underlying case.

Unlike the federal constitution, the Texas Constitution does not

vest the executive power solely in one chief executive. Instead, the

executive power is spread across several distinct elected offices, and the

Legislature has over the years created a wide variety of state agencies—

including DFPS—whose animating statutes do not subject their

decisions to the Governor’s direct control.1

1 The Governor frequently appoints these officers, but the state

agencies’ enabling statutes rarely give the Governor formal control over the

officers’ decisions once appointed.

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The State does not contend in this Court that the Governor’s

letter formally changed the legal obligations of DFPS, of parents in

Texas, or of medical professionals in Texas. Nor does it contend that the

Attorney General’s opinion did so. Unlike some executive orders of the

Governor that are afforded binding legal effect by statute, the

Governor’s letter cites no legal authority that would empower the

Governor to bind state agencies with the instruction contained in the

letter’s final sentence, and we are directed to none.

Likewise, it is well-settled that an Attorney General opinion

interpreting the law cannot alter the pre-existing legal obligations of

state agencies or private citizens.2 See Holmes v. Morales, 924 S.W.2d

920, 924 (Tex. 1996) (stating Attorney General opinions are “not

controlling”). Nor does the Attorney General have any formal legal

authority to direct the investigatory decisions of DFPS. In sum, we are

directed to no source of law obligating DFPS to base its investigatory

decisions on the Governor’s letter or the Attorney General’s Opinion.

The Governor and the Attorney General were certainly well within their

2 AG Opinions have been understood to provide a shield against liability

in certain circumstances, and we make no comment in that regard. See, e.g.,

Weaver v. Head, 984 S.W.2d 744, 746 (Tex. App.—Texarkana 1999, no pet.)

(“[AG opinions] sometimes become important for use by a public official to

avoid personal liability for official acts by a showing of good faith in acting in

reliance on an attorney general’s opinion.”). The pertinent question for now is

whether AG Opinions create or change legal obligations, as opposed to

explaining them. They do not.

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rights to state their legal and policy views on this topic, but DFPS was

not compelled by law to follow them.3

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. Instead, the Legislature has granted

to DFPS, not to the Governor or the Attorney General, the statutory

responsibility to “make a prompt and thorough investigation of a report

of child abuse or neglect.” TEX. FAM. CODE § 261.301(a). And, when

deciding whether and how to exercise that authority, DFPS—not the

Governor or the Attorney General—naturally must assess whether a

report it receives is actually “a report of child abuse or neglect.” Id. Of

course, the Legislature, by statute, may constrain DFPS’s discretion in

this regard (subject to constitutional limitations),4 but neither the

Governor nor the Attorney General has statutory authority to directly

control DFPS’s investigatory decisions. They have every right to express

their views on DFPS’s decisions and to seek, within the law, to influence

those decisions—but DFPS alone bears legal responsibility for its

decisions.

3 We are not blind to the many informal mechanisms by which a

governor or an attorney general may validly seek to influence the behavior of

state agencies as part of the normal give-and-take between departments of

state government. Ultimately, however, one department or another has the

final say, and a court must correctly identify the true decision-maker before

assessing the decision.

4During the most recent regular session, the Legislature considered,

but did not pass, proposed legislation that would have amended the Family

Code to add certain treatments for gender dysphoria to the definition of “child

abuse.” Tex. S.B. 1646, 87th Leg., R.S. (2021).

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The central role played by courts in the child-welfare system

should also be clarified. DFPS’s preliminary authority to investigate

allegations does not entail the ultimate authority to interfere with

parents’ decisions about their children, decisions which enjoy some

measure of constitutional protection whether the government agrees

with them or not. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976).

Before it can impose consequences on a family beyond an investigation,

DFPS generally must seek court orders authorizing it to intervene.5 See

generally TEX. FAM. CODE § 262.001 et seq. In other words, DFPS does

not need permission from courts to investigate, but it needs permission

from courts to take action on the basis of an investigation. At that stage,

before issuing orders, a court would have to decide whether the child

abuse investigated and alleged by DFPS qualifies as such under Texas

law. The normal judicial role in this process is to act as the gatekeeper

against unlawful interference in the parent–child relationship, not to

act as overseer of DFPS’s initial, executive-branch decision to

investigate whether allegations of abuse may justify the pursuit of court

orders.

With these preliminary observations in mind, we turn to the

State’s petition for writ of mandamus.

II.

The State’s petition seeks relief from an order issued by the court

of appeals under the authority afforded to that court by Rule 29.3 of the

5DFPS has limited authority in extreme, emergency situations to take

temporary custody of children before obtaining a court order. See TEX. FAM.

CODE § 262.104. The plaintiffs do not allege that they face a credible threat of

such action.

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Texas Rules of Appellate Procedure. “Mandamus relief is appropriate

when a petitioner demonstrates a clear abuse of discretion and has no

adequate remedy by appeal.” In re Geomet Recycling LLC, 578 S.W.3d

82, 91 (Tex. 2019). A court clearly abuses its discretion when it makes

an error of law. Id.

As noted above, the trial court’s temporary injunction was

superseded by operation of law when the State appealed it. See TEX. R.

APP. P. 29.1(b); TEX. CIV. PRAC. & REM. CODE § 6.001(b). However, Rule

29.3 authorizes courts of appeals, during an interlocutory appeal, to

“make any temporary orders necessary to preserve the parties’ rights

until disposition of the appeal.” TEX. R. APP. P. 29.3. We have

recognized that, depending on the circumstances, this rule may

authorize a court of appeals “to preserve the status quo and prevent

irreparable harm” to the parties during the pendency of the appeal, even

if the temporary order has “the same practical effect as denying

supersedeas of the trial court’s injunction.” In re Tex. Educ. Agency, 619

S.W.3d 679, 680 (Tex. 2021); see also Geomet, 578 S.W.3d at 90.6

6 The State contends that, under an 1880 decision of this Court, courts

of appeals exercising appellate jurisdiction lack any authority to “protect the

parties from damage during the pendency of the appeal.” City of Laredo v.

Martin, 52 Tex. 548, 554 (1880). As we observed in Geomet, in which no party

raised Martin, such a line of argument “amounts to a constitutional attack on

Rule 29.3.” 578 S.W.3d at 89–90. We further noted in Geomet that a state of

affairs in which no court can protect parties’ rights during an interlocutory

appeal would raise constitutional questions about the automatic stay of trial

court proceedings afforded by section 51.014(b) of the Civil Practice and

Remedies Code. Id. at 90. Likewise, the limitation on appellate courts’ Rule

29.3 authority suggested by the State would raise constitutional questions

about the State’s statutory right to automatically supersede injunctions on

appeal. We do not purport to resolve any of these questions in this expedited

mandamus posture.

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The text of Rule 29.3 plainly limits the scope of the available relief

to that which is necessary to preserve the parties’ rights. Part (1) of the

court of appeals’ order protects only the plaintiffs and therefore does not,

in terms of its scope, exceed the appellate court’s Rule 29.3 power.

However, parts (2), (3), and (4) of the order exceed the court of appeals’

authority because they apply broadly to “any and all persons” who are

not parties to this lawsuit. This affords relief not to the parties, but to

“any and all” nonparties who may find themselves in circumstances

similar to the plaintiffs’. Rule 29.3 does not provide authority for such

an order.

The plaintiffs respond that the nature of their Administrative

Procedure Act challenge to DFPS’s press statement expands the relief

that should be available under Rule 29.3. They contend that a district

court could enjoin an invalid rule’s application on a statewide basis, so

it follows that a court of appeals must have the same authority.

Whether or not the plaintiffs are right about the scope of a district

court’s power to enjoin an administrative rule, that question is beside

the point. The issue is the court of appeals’ power under Rule 29.3,

which provides only the limited authority to “preserve the parties’

rights,” not the general authority to reinstate temporary injunctions of

any nature. The plaintiffs make no effort to grapple with the

party-specific language of Rule 29.3, which forecloses their position

regardless of the nature of their claims in the district court. Just as the

Governor lacks authority to issue a binding “directive” to DFPS, the

court of appeals lacks authority to afford statewide relief to nonparties.

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The court of appeals abused its discretion by using Rule 29.3 to

issue a statewide order. The State lacks an adequate appellate remedy

by which to avoid this invalid aspect of the court of appeals’ order.

Mandamus relief is appropriate as to the order’s application to “any and

all” nonparties.7

III.

The remaining question is whether the State is entitled to

mandamus relief from the court of appeals’ order as it applies to the

plaintiffs in this case. As discussed in Part II above, we have recognized

appellate courts’ authority to preserve the status quo and prevent

irreparable harm to the parties during the pendency of an appeal. See

also In re State, __ S.W.3d __, 2021 WL 4785741, at *1 (Tex. Oct. 14,

2021) (per curiam) (granting stay to preserve status quo without

comment on merits of request for temporary injunction). But none of

the State’s argument in this Court focuses on the circumstances of this

child. Without commenting on the merits of any party’s claims or

defenses, the Court denies mandamus relief from the order’s application

insofar as it governs conduct among these parties while the appeal

proceeds, with one exception. Ordering the Governor not to

“investigat[e] reports” of abuse, “prosecut[e]” such reports, or “impos[e]

7We need not address the State’s additional arguments for the

invalidity of the statewide order. The plaintiffs contend that, even if the order

is invalid, the State has an adequate remedy by the appeal of the district

court’s temporary injunction. But the whole purpose of the State’s mandamus

petition is to establish its rights during the pendency of the interlocutory

appeal. The fact that an improper judicial imposition on the executive branch’s

prerogatives may only be temporary does not make it any less improper. The

State has no adequate remedy, other than mandamus relief, by which to

remedy the effects of the court of appeals’ order.

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reporting requirements” was improper because, as we hold above, the

Governor does not have authority to do any of those things with respect

to these plaintiffs. Nor have the plaintiffs alleged that the Governor is

engaging or threatening to engage in such conduct. Because the

Governor lacks the authority to investigate or prosecute the plaintiffs,

and no party alleges that he has threatened to do so, an order

prohibiting him from engaging in such conduct has no support in this

record. In all other respects, the Court denies mandamus relief as to the

order’s application to the defendants’ conduct with respect to these

plaintiffs, while the appeal is pending.8

With relief partially denied and partially granted, we are left with

(1) a court of appeals order that protects only the plaintiffs as against

DFPS and its Commissioner’s actions, and not as against the Governor;

(2) a nonbinding Attorney General Opinion; (3) a nonbinding statement

by the Governor; and (4) a state agency, DFPS, with the same discretion

8 We express no opinion on the pending interlocutory appeal of the

district court’s temporary injunction or on the merits of the plaintiffs’

underlying claims seeking various forms of declaratory and injunctive relief

against the Governor, the Commissioner, and DFPS, which remain pending in

the district court.

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to investigate reports of child abuse that it had before issuance of OAG

Opinion No. KP-0401 and the Governor’s letter.9

James D. Blacklock

Justice

Jane N. Bland

Justice

OPINION DELIVERED: May 13, 2022

9 The State’s Emergency Motion for Temporary Relief, which

accompanied its mandamus petition, is dismissed as moot.

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