Abbott v. Doe

691 S.W.3d 55

Greg ABBOTT in his Official Capacity as Governor of the State of Texas, Stephanie Muth 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, Austin.

Filed: March 29, 2024

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

Andre Segura, Brian Klosterboer, ACLU Foundation of Texas, Inc., Houston, TX, Camilla B. Taylor, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Derek McDonald, Maddy R. Dwertman, Baker Botts LLP, Austin, TX, Chase Sfrangio, Kathleen L. Xu, James D. Esseks, Anjana Samant, American Civil Liberties Union Foundation, New York, NY, Omar Gonzalez-Pagan, M. Currey Cook, Lambda Legal Defense and Education Fund, Inc., New York, NY, Shelly L. Skeen, Paul Castillo, Lambda Legal Defense and Education Fund, Inc., Dallas, TX, Karen L. Loewy, Lambda Legal Defense and Education Fund, Inc., Washington, DC, Nischay Bhan, Baker Botts LLP, New York, NY, for Appellee.

Natalie D. Thompson, Office of the Attorney General, Austin, TX, for Appellant.

Before Chief Justice Byrne, Justices Triana and Smith

OPINION

Edward Smith, Justice

This appeal arose after Appellees—the married parents of a transgender adolescent diagnosed with gender dysphoria and a psychologist who treats transgender children—filed suit to enjoin the appellants from initiating child abuse investigations based upon appellants’ announcement that providing gender-affirming medical c are to minors constitutes child abuse.

Appellants Greg Abbott, in his official capacity as the Governor of the State of Texas; Stephanie Muth, in her official capacity as the Commissioner of the Texas Department of Family and Protective Services; and the Texas Department of Family and Protective Services (collectively, State Appellants) challenge the trial court’s denial of their plea to the jurisdiction in this interlocutory appeal.¹ The State Appellants also challenge the trial court’s grant of a temporary injunction prohibiting the Department from implementing or enforcing an allegedly invalid rule that expanded the definition of "child abuse" and mandated child abuse investigations into every report that an adolescent was receiving gender-affirming medical care.²

We affirm the part of the trial court’s order denying the plea to the jurisdiction as to all claims asserted against the Department and the Commissioner and affirm the part of the order granting a temporary injunction against the Department and the Commissioner. We reverse the part of the order denying the plea to the jurisdiction as to all claims asserted against the Governor and render judgment dismissing all claims against the Governor. We vacate the part of the trial court’s order granting a temporary injunction against the Governor.

BACKGROUND

On February 18, 2022, the Attorney General released an opinion that concludes that performing certain medical procedures and providing certain drugs to children diagnosed with gender dysphoria "can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code."³ See Tex. Att’y Gen. Op. No. KP-0401 (2022), 2022 WL 579379, at *1. The Attorney General’s opinion states that puberty-blocking medications and hormone therapy used to treat gender dysphoria are not medically necessary and violate the child’s constitutional right to procreate. Id. at *4–6, 9. The Attorney General’s opinion explained that it "does not address or apply to medically necessary procedures." Id. at *1.

On February 22, 2022, the Governor sent a letter (Governor’s Directive) to the Commissioner, enclosing the Attorney General’s opinion and stating that the opinion "makes clear" that the "administration of puberty-blocking drugs or supraphysiologic doses of testosterone or estrogen" constitutes child abuse under Texas Family Code Section 261.001(A)–(D). The Governor directed the Depart- ment to "follow the law as explained in" the Attorney General’s opinion and "conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas," without regard for medical necessity. (Emphasis added). The Governor announced that "Texas law also imposes a duty on [the Department] to investigate the parents of a child who is subject to these abusive gender-transitioning procedures[.]" The Governor also emphasized that "Texas law imposes reporting requirements upon all licensed professionals who have direct contact with children" "and provides criminal penalties for failure to report such child abuse." Lastly, the Governor instructed that members of the general public are subject to similar reporting requirements and criminal penalties.

That same day, the Department 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.

At this time, there are no pending investigations of child abuse involving the procedures described in that opinion. If any such allegations are reported to us, they will be investigated under existing policies of Child Protective Investigations.

Texas Dept. of Family & Protective Servs., Statement on Governor’s Letter/AG Opinion (Feb. 22, 2022) (Department Statement).⁴ When the Department issued the statement on February 22, 2022, there were no pending child abuse investigations based on allegations of the procedures described in the Attorney General’s opinion.

Appellees Jane and John Doe (Doe Parents) are the married parents of Mary Doe, a then-16-year-old adolescent diagnosed with gender dysphoria and prescribed gender-affirming medical care.⁵ Appellees allege in their petition that, as a Department employee, Jane Doe asked her supervisor on February 23, 2022, about the impact of the Attorney General’s opinion and the Governor’s Directive on Department policy. Within hours of her inquiry, the Department placed Jane on paid administrative leave because she has a transgender daughter who is prescribed gender-affirming medical care.⁶ The following day a Department investigator informed Jane that she and John were being investigated for child abuse in accordance with the Governor’s Directive because Mary was receiving gender-affirming medical care. A Department investigator subsequently visited the Does’ home and conducted separate interviews of the Doe Parents and Mary in the presence of each party’s counsel.

Shortly thereafter, the Doe Parents and Dr. Mooney, a Texas-licensed clinical psychologist who treats transgender adolescents, sued the State Appellants. In their petition, Appellees assert (1) that the Department Statement promulgates a new rule and the rule is invalid under the Administrative Procedure Act ("APA"), Tex. Gov’t Code Ch. 2001; see also id. § 2001.038(a); (2) claims that the Governor and the Commissioner engaged in ultra vires conduct; (3) that the Commissioner and the Governor violated the separation of powers established by Article II of the Texas Constitution, see Tex. Const. art. II, § 1; (4) that the Governor’s Directive and new rule promulgated in the Department Statement are unconstitutionally vague, see Tex. Const. art. I, § 19; (5) that the Commissioner and the Governor are depriving the Doe Parents of their fundamental right to care for Mary and provide Mary with prescribed medical treatment that is available and accepted in the medical community; and (6) that the Commissioner and the Governor are interfering with Mary’s rights to equal protection under law and equality under the law, see Tex. Const. art. I, §§ 3, 3a.⁷ Appellees also sought a temporary injunction restraining the State Appellants with respect to Appellees’ APA rulemaking, ultra vires, and separation of powers claims, and permanent injunctive relief prohibiting the State Appellants from enforcing the Governor’s Directive and the Department Statement. After the State Appellants filed a plea to the jurisdiction and response to Appellees’ application for temporary injunction, the trial court conducted an evidentiary hearing.⁸

Trial Court Evidentiary Hearing

Appellees first called Department Investigator Supervisor Randa Mulanax, who testified that after an investigation opens, the Department communicates with parents via telephone, email, and text, and conducts in-person interviews with the child. Mulanax explained that shortly after the Department Statement, upper management conducted a virtual leadership meeting. During that meeting, the Department provided special instructions for gender-affirming medical care cases that included not to record anything about the cases in emails or text messages and not to write anything specific in an email that could be pulled by media. Mulanax stated that this was the first time in her six years of working for the Department that she was instructed not to put information about a case in writing. She was also instructed that for gender-affirming medical care cases, an investigation must be initiated and a disposition must be assigned.

Mulanax testified that she was further instructed by management that, unlike other cases in the Department, investigatore were not permitted to designate gender-affirming medical care cases as "priority none," and the cases were not eligible for "alternative response." Mulanax explained that the only other cases investigatore were not permitted to "priority none" were child death cases and cases with an open conservatorship. Mulanax described that a "priority none" designation means either that the investigator has gathered credible information demonstrating that it is not likely the child is...