How Texas Law Lets the State Get Around Injunctions

Since the beginning of August, trial courts in Texas have issued four major rulings about the constitutionality of state statutes, only to have each of those decisions immediately undone by the state’s attorney general. To do that, as recently reported in the Texas Tribune, the Texas attorney general, Ken Paxton, has capitalized on a quirk in the state’s civil procedure that automatically suspends orders if the attorney general files a notice of appeal. 

The Tribune highlights the attorney general’s rapid-fire use of this appellate ability in the last two months to block temporary injunctions against state restrictions on abortion for emergent medical conditions, gender-affirming healthcare for transgender youth, and control of elections by Texas’s most populous county, as well as a final judgment declaring unconstitutional a new rollback of local home-rule powers. 

An analysis of how the attorney general has used this tool beyond that recent period underscores its impact and distinguishes Texas even from the few other states with similar rules. Notably, since the start of 2020, the attorney general has taken immediate interlocutory appeals, sometimes within a matter of hours, to undo temporary injunctions in over 20 significant cases. 

What is Texas’s procedure?

The state’s option to sidestep a trial court’s temporary injunction by immediate appeal derives from a complex and unusual set of appellate rules and code provisions. Read together, they provide that, when the state, a state agency, or an agency’s head files a notice of appeal from an injunction or declaratory judgment, enforcement of that order is suspended automatically pending appeal. 

The state attorney general was granted this power intentionally. After the Texas Supreme Court interpreted an earlier iteration of the rules to give trial courts discretion to decline to permit a state defendant to supersede, the legislature in 2017 directed the court to adopt rules curbing that discretion. As a result, the Texas Supreme Court amended the appellate rules to mandate that trial courts permit injunctions or declaratory judgments to be superseded by a state appeal, except in certain administrative matters. Appellate courts do retain “limited authority to ‘preserve the parties’ rights’” during an appeal, but the Texas Supreme Court has cautioned that this rule does not grant “general authority to reinstate temporary injunctions of any nature,” and such relief is regularly denied in whole or part. For example, a Texas appeals court in August denied the requests of plaintiffs to preserve injunctions related to transgender healthcare and election administration in Harris County pending appeal by the state attorney general.

How has the Texas attorney general used this procedure?

The attorney general has opted immediately to appeal to block temporary injunctions in at least 22 cases since the start of 2020, affecting residents of the state on a broad range of issues. Of these cases, three challenge state efforts to target transgender medical care (including Loe v. Texas, appealed in August). One case seeks to clarify the scope of exceptions to the state’s abortion bans (Zurawski v. Texas, also appealed in August). Three cases oppose or seek to clarify laws governing elections, including limits on early voting drop-off locations. Three cases dispute state decisions related to education, including an announced takeover of Houston’s public schools. Eight cases allege other state incursions into local control, including over mask mandates and aid for Houstonians impacted by Hurricane Harvey. Finally, four cases challenge other state regulatory actions, such as bans on smokable hemp.

The Republican attorney general’s appeals also have disproportionately occurred in cases from Travis County, which includes Austin and whose predominately Democratic voters elect the county’s trial court judges in partisan elections. In 17 of the 22 cases discussed above, the state trial court that issued the temporary injunction against the state defendants was located in Travis County. Texas’s intermediate courts of appeals cover a significantly larger area than any trial court, and so the Texas attorney general is likely to be in a relatively more conservative forum on appeal of the temporary injunction. 

Even more beneficially, when a trial court enjoins a state statute on the ground that it is likely unconstitutional, the attorney general can take a direct appeal to the Texas Supreme Court, to which a Democratic justice has not been elected in the statewide partisan elections that determine the court’s seats since 1994. Although experts have observed that it used to be rare for the state to avail itself of this option, in all three appeals of temporary injunctions since the start of August, the attorney general has opted for that direct route, leapfrogging the courts of appeals.

And sometimes the Texas attorney general has gone further. On seven occasions since the start of 2020, when appellees have moved for — and the courts of appeals have granted — reinstatement of temporary injunctions to preserve appellees’ rights on appeal, the attorney general has immediately sought stays of those rulings from the Texas Supreme Court. The high court granted five of the requested stays, effectively re-undoing the injunctions pending future rulings. Additionally, in a few key election cases, where the state was not a party or was dismissed as a party, the Texas attorney general has actually intervened before the trial court, thereby securing the option to supersede adverse temporary injunctions. 

Why is this Texas procedure notable?

Texas’s rules permitting automatic suspension of preliminary injunctions by the state upon appeal are at odds with federal procedural rules, which require all appellants to obtain court approval before an injunction is stayed, and with the rules of the vast majority of states. 

Pennsylvania, Florida, New York, and South Dakota do also provide an automatic right to suspend injunctions for state and other government appellants, but not appellants generally. However, Texas is notable even among this group. First, the special status that state — as compared to municipal or other public — appellants have under Texas’s rules following the 2017 directive from the state legislature is unique among those states. Second, the Texas attorney general has used this power with unmatched zeal, as demonstrated by a comparison of the attorney general’s recent press releases with those issued by the other states’ attorneys general, and by the sheer number of consequential trial court rulings that have been impacted in Texas in the last few years. 

As reported in the Texas Tribune, practitioners and scholars in Texas have explained the recent frequency of interlocutory appeals by the state attorney general as a consequence of the sweeping laws being passed by the Texas legislature and the “numerous” constitutional challenges to those statutes being pursued in state, as compared to federal, court. Against this backdrop, they express concern that the state’s ability to undo court orders temporarily enjoining laws that themselves alter Texans’ rights is inconsistent with the intended purpose of Texas’s procedure to preserve the status quo until a case is fully litigated. They also express worry that this ability intrudes on the power of the state trial courts to provide relief against the government. 

Given current legislative trends, there is reason to believe the Texas attorney general will continue regularly sidestepping temporary injunctions for the foreseeable future, impacting many facets of citizens’ daily lives, as well as the balance of power among the branches of state government in Texas.

Sarah Kessler is an attorney and a contributing writer for the State Court Report.