Abbott v. Doe

1

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

No. 03-22-00126-CV

Court of Appeals of Texas, Third District, Austin

March 21, 2022

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

Before Chief Justice Byrne, Justices Kelly and Smith

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...