IN THE SUPREME COURT OF TEXAS
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NO. 20-0404
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IN RE THE TEXAS EDUCATION AGENCY; MIKE MORATH, COMMISSIONER OF
EDUCATION IN HIS OFFICIAL CAPACITY; AND DORIS DELANEY, IN HER OFFICIAL
CAPACITY, RELATORS
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ON PETITION FOR WRIT OF MANDAMUS
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CHIEF JUSTICE HECHT, dissenting.
After years-long investigations, the Texas Commissioner of Education has found serious,
longstanding, and ongoing deficiencies in the quality of education provided by several schools in
the Houston Independent School District, as well as violations of law in the District’s operations.
The Commissioner has proposed measures for improvement, including appointing a conservator
for the District and installing a board of managers to oversee its operations. The District sued,
contesting the findings and the process used to reach them and challenging the remedial measures
as unlawful.
The trial court took just three weeks to temporarily enjoin the Commissioner’s remedial
measures. By statute and Rule of Appellate Procedure, 1 the Commissioner was entitled to suspend,
1
All references to rules are to the Texas Rules of Appellate Procedure.
or supersede, enforcement of the temporary injunction by appealing it.2 The trial court could not
allow the District to counter-supersede—to reinstate enforcement by posting security. 3 The Court
evades these clear statutory and rule-based provisions by holding that the court of appeals could
simply reissue the trial court’s exact same order as its own. In other words, using one Rule to give
the District the very relief another Rule expressly denies, and not calling the effect “counter-
supersedeas”, even though it is. This not only creates a conflict in the Rules; it directly violates
state law. Even if it did not, the delay cannot be justified under the Rules. This case has been on
appeal for more than a year, with the wellbeing of school children in limbo. And the end is not in
sight.
The result flaunts the Legislature’s will. I respectfully dissent.
I
For years, several District schools have underperformed academically—which means,
translating from bureaucratese to plain English, that students were denied the education promised
by state law, dimming their futures and injuring society. In 2016, the Commissioner appointed a
conservator for one school campus. While that helped a little, it was not enough. A statutory
Special Accreditation Investigation4 of the District turned up multiple violations of state and
federal laws. Not only were schools failing to educate students to acceptable standards, and
officials allegedly violating the law, but racial tensions and chaotic outbursts among the District’s
Board of Trustees, which Houston’s Mayor called “destabilizing and unacceptable”, were playing
2
See TEX. CIV. PRAC. & REM. CODE § 6.001(a); TEX. R. APP. P. 24.2(a)(3); In re State Bd. for Educator
Cert., 452 S.W.3d 802, 804 (Tex. 2014); In re Long, 984 S.W.2d 623, 625 (Tex. 1999).
3
TEX. GOV’T CODE § 22.004(i); TEX. R. APP. P. 24.2(a)(3).
4
See TEX. EDUC. CODE § 39.057 (providing for Special Accreditation Investigations).
2
out in the media too. In November 2019, the Commissioner issued his proposed decision to enlarge
the conservator’s responsibilities to cover the entire District and to suspend the Board and appoint
a board of managers to oversee the District.
While that proposed decision was pending final review by the Commissioner, the District
sued on June 27, 2019, to enjoin the Commissioner from taking any of the proposed regulatory
actions against it. Defendants5 immediately removed the case to United States District Court. In
December, the federal court issued its final judgment, dismissing the District’s federal-law claims
and remanding the state-law claims to the state district court. On January 8, the trial court issued a
temporary injunction prohibiting the Commissioner “from appointing a board of managers to
oversee operations” of the District and “from imposing any sanctions or interventions on [the
District] based on [the] Special Accreditation Investigation”. The trial court also enjoined the
conservator “from acting outside her lawful authority to ensure and oversee district-level support
to low-performing campuses and the implementation of the updated targeted improvement plan on
those campuses”.
The next day the Commissioner appealed.
II
Rule 24 governs, as its title states, “suspension of enforcement of judgment pending appeal
in civil cases”6—that is, supersedeas.7 If the judgment is for money or property, the judgment
5
The District also sued the Texas Education Agency and later added the conservator. I refer to all of them
collectively as “the Commissioner”.
6
TEX. R. APP. P. 24.1.
7
Id. R. 24.1(f).
3
debtor must post a bond, deposit, or other security in an amount determined by the trial court. 8 If
the judgment is for something other than money or property, the trial court still sets the amount
and type of security the judgment debtor must post to “adequately protect the judgment creditor
against loss or damage that the appeal might cause.” 9 But Rule 24.2(a)(3) provides that even if that
security is posted, a trial court has discretion to deny supersedeas if the judgment creditor counter-
supersedes—that is, posts security against any loss to the judgment debtor if he wins on appeal. 10
Section 6.001 of the Texas Civil Practice and Remedies Code exempts certain
governmental entities and officers from filing a bond for an appeal in a civil case. 11 Such an entity’s
notice of appeal automatically supersedes a judgment against it.12 But does a trial court have
discretion under Rule 24.2(a)(3) to deny the governmental entity supersedeas, as it would a private
entity, if the judgment creditor counter-supersedes? In In re State Board for Educator Certification
we answered yes.13 The Legislature promptly countermanded our decision as it applied to three of
8
Id. R. 24.1(a), 24.2(a)–(b).
9
Id. R. 24.2(a)(3).
10
Id.
11
TEX. CIV. PRAC. & REM. CODE § 6.001. The statute exempts from bond:
(1) this state; (2) a department of this state; (3) the head of a department of this state; (4) a county
of this state; (5) the Federal Housing Administration; (6) the Federal National Mortgage
Association; (7) the Government National Mortgage Association; (8) the Veterans’ Administration;
(9) the administrator of veterans affairs; (10) any national mortgage savings and loan insurance
corporation created by an act of congress as a national relief organization that operates on a statewide
basis; and (11) the Federal Deposit Insurance Corporation in its capacity as receiver or in its
corporate capacity.
Id. § 6.001(b).
12
In re State Bd. for Educator Cert., 452 S.W.3d 802, 804 (Tex. 2014); In re Long, 984 S.W.2d 623, 625
(Tex. 1999).
13
Educator Cert., 452 S.W.3d at 809.
4
the governmental entities covered by Section 6.001: the State, a department of the State, or a
department head. It did so by enacting Section 22.004(i) of the Texas Government Code, which
states: “The supreme court shall adopt rules to provide that the right of [those three entities] to
supersede a judgment or order on appeal is not subject to being counter-superseded under
Rule 24.2(a)(3) . . . or any other rule.”14 The Court complied by adding this sentence to
Rule 24.2(a)(3): “When the judgment debtor is the state, a department of this state, or the head of
a department of this state, the trial court must permit a judgment to be superseded”. 15
Accordingly, the Commissioner’s appeal superseded the temporary injunction. But despite
the clear language of Section 22.004(i) and amended Rule 24.2(a)(3), the trial court allowed the
District to counter-supersede the suspension. The court found “that the $200.00, previously
deposited by Plaintiff with the Travis County District Clerk, constitutes sufficient security, in lieu
of bond, for any foreseeable harm or compensable damages that may result from the granting of
this Temporary Injunction”. The court of appeals granted the Commissioner’s motion to vacate
the counter-suspension but at the same time “order[ed] that the trial court’s temporary injunction
remain[] in effect to preserve the parties’ rights until the disposition of this appeal.” 16 The court
relied in part17 on Rule 29.3, which states: “When an appeal from an interlocutory order is
14
Act of May 24, 2017, 85th Leg., R.S., ch. 868, § 1, 2017 Tex. Gen. Laws 3586 (codified at TEX. GOV’T
CODE § 22.004(i)). The statute excepted matters arising from a contested case in an administrative enforcement action.
Id.
15
Order Adopting Amendments to Texas Rule of Appellate Procedure 24.2, Misc. Docket No. 18-9061 (Tex.
Apr. 12, 2018).
16
609 S.W.3d 569, 578 (Tex. App.—Austin 2020) (per curiam).
17
The court of appeals also asserted inherent power to protect its jurisdiction and the rights of the parties on
appeal. Id. The Court today does not address those arguments, and neither do I.
5
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.” 18
The Commissioner seeks mandamus relief directing the court of appeals to withdraw its
reissuance of the temporary injunction. The Court denies relief.
III
The Court reasons thusly: True, the court of appeals’ order “may have the same practical
effect” as counter-supersedeas,19 but it is “a materially different process with materially different
inquiries and objectives.”20 For one thing, the court of appeals’ order is not labeled “counter-
supersedeas”, which is a “term[] of art”.21 For another, the court of appeals’ order is issued, well,
by the court of appeals, while counter-supersedeas is ordered by the trial court. And besides, the
court of appeals’ order and counter-supersedeas “are neither procedurally nor functionally
equivalent” because the trial court and the court of appeals could both enforce a counter-
superseded temporary injunction, while only the court of appeals can enforce its order. 22 Also, the
court of appeals’ order is governed by Rule 29.3, while counter-supersedeas is governed by Rule
24.2(a)(3). “While we cannot ignore the legislative prohibition [in Section 22.004(i)] against
counter-supersedeas under ‘any other rule,’ that phrase cannot be read in isolation.”23 It is
18
TEX. R. APP. P. 29.3.
19
Ante at ___.
20
Ante at ___.
21
Ante at ___.
22
Ante at ___.
23
Ante at ___.
6
“textually limited”.24 “Construed in connection with the linguistically precedent context, the
phrase refers to rules applicable to the supersedeas process.” 25 Actually, “[t]he distinction between
supersedeas and temporary orders suspending enforcement of a judgment may seem a fine
one”26—okay, “punctilious”,27 even. But “reading [Section 22.004(i)] exactly as it is written in
this case has the salutary effect of a reasonable result”.28 Otherwise,
a single judge could stymie the state from exercising its lawful powers and from
representing the public as it sees fit during the course of an appellate process that
might take years to conclude. Such a concern is less acute when a multi-judge panel,
subject to mandamus review by this Court, issues temporary relief. 29
The flaws in the Court’s explanations are glaring. The practical effects of counter-
supersedeas and Rule 29.3 “unsupersedeas”, let’s call it, are identical. The court of appeals simply
“order[ed] that the trial court’s temporary injunction remain[] in effect”. 30 The “inquiry and
objective” of the two are also identical: to determine and alleviate the effects of appellate delay.
The process of making that determination is essentially the same whether conducted in the trial
court or in the court of appeals, as it was here. Each court issued its order to prevent the District
from being, in the court’s view, irreparably injured. Enforcement of each order is practically the
24
Ante at ___.
25
Ante at ___.
26
Ante at ___.
27
Ante at ___.
28
Ante at ___.
29
Ante at ___.
30
609 S.W.3d 569, 578 (Tex. App.—Austin 2020) (per curiam).
7
same in either court. The distinction between counter-supersedeas and unsupersedeas is not merely
“fine” or even “punctilious”; it is nonexistent.
The Court says it must read Section 22.004(i) exactly as written, but “any other rule”,
exactly as written, does not mean “any other counter-supersedeas rule”. A phrase cannot be read
exactly as written by changing it. The Court explains that it must add a word here because the
phrase “any other rule” is “textually limited”. Giving meaning to a statute based on its textually
limited language channels the Court’s recent decision in In re Xerox Corp.31 There we used a
similar phrase, “textually constrained”, to mean that the Legislature used a word in one statutory
subchapter but not in another.32 The Court uses its canon today to mean that “any other rule” must
be “[c]onstrued in connection with the linguistically precedent context”. 33 If that means text must
always be read in context, then of course. But what the Court means is that because “any other
rule” is used in a statute about counter-supersedeas, it is limited to any other counter-supersedeas
rule. Even if that interpretation of the statute were reasonable, and it is not, it makes the statute
nonsensical because there is no other counter-supersedeas rule. By reading an additional word
into “any other rule”, the Court reads the entire phrase out of the statute. It refers to nothing.
Section 22.004(i) has exactly the same effect under the Court’s reading, with or without “any other
rule”. Lacking the Court’s expertise in the Rules but intending to ensure that its statute completely
31
555 S.W.3d 518, 528–529 (Tex. 2018).
32
Id. (“But the ‘damages’ references are textually constrained to subchapter C, while Section 36.052 is found
in subchapter B.”).
33
Ante at ___.
8
achieved its goal, the Legislature directed its mandate to a specific Rule and then to “any other
rule”. The Court’s interpretation flaunts that intent.
While not a mainstay canon for interpreting statutes, recent legal literature has described
courts’ finding language textually constrained or limited as the “new purposivism” theory of
statutory construction, or what one writer has labeled “backdoor purposivism”. 34 The point of this
new theory is that meaning is not dictated by text. Instead, courts merely consider text as perhaps
helpful, though nonbinding, while still deciding the case on purposivist grounds. 35 The Court’s
description of Section 22.004(i)’s “any other rule” language as “textually limited” is consistent
with new purposivism.
The Court concludes that its reading of Section 22.004(i) “has the salutary effect” of putting
the decision whether to “stymie the state from exercising lawful powers and from representing the
public as it sees fit during the course of an appellate process that might take years to conclude” in
three pairs of judicial hands on the court of appeals under Rule 29.3 rather than one on the trial
court under Rule 24(a)(3).36 But Rule 29.3 applies only, by its terms, “[w]hen an appeal from an
interlocutory order is” pending.37 When the appeal is from a final judgment, Rule 25.1(h) provides
34
Anita S. Krishnakumar, Backdoor Purposivism, 69 DUKE L.J. 1275, 1278 (2020).
35
Id. at 1278 (arguing that while justices may pay “significant attention to statutory text”, they do so merely
to supplement, rather than supplant, a traditional purposivist analysis); see also John F. Manning, The New
Purposivism, 2011 SUP. CT. REV. 113, 115–116 (discussing courts’ role in discerning an “implemental purpose” from
a legislature’s word choices); Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 3 (2006)
(“[W]hen one considers how modern textualists go about identifying textual meaning and how purposivists go about
identifying statutory purposes, the differences between textualism and purposivism begin to fade. . . . [T]extualists
themselves will consider a statute’s context as well as its text.”); Michael C. Mikulic, Note, The Emergence of
Contextually Constrained Purposivism, 91 NOTRE DAME L. REV. ONLINE 128, 128 (2016) (“After years of the [Federal
Supreme] Court’s drift towards new textualism, King v. Burwell reaffirms that purposivism still has relevancy;
contextually constrained purposivism is the new trend.” (citing 576 U.S. 473 (2015))).
36
Ante at ___.
37
TEX. R. APP. P. 29.3 (emphasis added).
9
that “[e]nforcement of the judgment may proceed unless . . . the appellant is entitled to supersede
the judgment without security by filing a notice of appeal.” 38 As already discussed, that exception
applies to the governmental entities listed in Section 6.001. And Rule 24.2(a)(3) precludes counter-
supersedeas. So the Court’s “salutary effect” applies only in interlocutory appeals, not final
appeals, which casts doubt on the Court’s hypothesized three-judges-instead-of-one rationale it
ascribes to the Legislature.
The Court certainly has the power to refuse to read Section 22.004(i) exactly as written.
What it should not do is claim to read text exactly as written and then blatantly do the opposite.
And what the Court cannot do is read Section 22.004(i) exactly as written and reach the conclusion
it does.
IV
The Court denies that it reached a conclusion exactly the opposite of the one it reaches
today in another petition for mandamus that, coincidentally, was filed on the very same day as the
Commissioner’s.39
On March 7, 2020, the Texas Democratic Party and others sued for a declaration that fear
of contracting COVID-19 was reason enough to apply for a mail-in ballot and injunctive relief to
compel election officials to count those mail-in ballots. 40 On April 17, after a hearing, the trial
court issued a temporary injunction that enjoined the State from taking any actions preventing
38
Id. R. 25.1(h).
39
Ante at ___.
40
In re State, 602 S.W.3d 549, 551–552 (Tex. 2020) (orig. proceeding).
10
counties from accepting and tabulating such ballots.41 The State immediately appealed,
superseding the temporary injunction. The appellees moved for an order under Rule 29.3 for the
court of appeals to reinstate the temporary injunction.42 On May 14, a divided court of appeals
granted the motion, citing as indistinguishable and binding the court of appeals’ order in the present
case that had issued 20 days earlier.43 Dissenting Chief Justice Frost argued that the relief sought
under Rule 29.3 “conflicts with the Legislature’s determination that the State automatically
supersedes an order or judgment by filing a notice of appeal and that courts cannot countermand
the State’s ability to supersede”.44
The next day, the State petitioned this Court for mandamus relief and moved to stay the
court of appeals’ order. The State made exactly the same argument the Commissioner does here,
which is hardly surprising since the Solicitor General filed both petitions, on the same day, from
indistinguishable orders. After reviewing the response of the real parties in interest, we granted the
State’s motion a few hours after it was filed. 45
On May 13, the day before the court of appeals issued its Rule 29.3 order, the State
petitioned this Court for mandamus relief prohibiting various election officials from misinforming
voters that fear of COVID-19 was sufficient reason to request a mail-in ballot. While the appeal
41
Id.
42
Id. at 552.
43
Temporary Order, State v. Texas Democratic Party, No. 14-20-00358-CV, 2020 WL 3022949, at *1 (Tex.
App.—Houston [14th Dist.] May 14, 2020).
44
Id. at *2 (Frost, C.J., dissenting).
45
Stay at 1, In re State, 602 S.W.3d 549 (Tex. 2020) (No. 20-0401),
https://www.txcourts.gov/media/1447091/supreme-court-orders-pronounced-05-15-2020-special-order-
orders-on-cases-granted.pdf.
11
from the temporary injunction granting contrary relief against the State remained pending in the
court of appeals, we conducted oral argument in the State’s mandamus proceeding and decided the
issue. Our opinion issued in In re State on May 20.46 The court of appeals later dismissed the
appeal from the temporary injunction as moot.
Despite the Court’s denial, the order, arguments, and authorities in the mandamus before
us in connection with State were substantively the same as the Commissioner’s here.
V
Section 22.004(i) and Rule 24.2(a)(3) prohibit the court of appeals from effectively
imposing counter-supersedeas under Rule 29.3, but they do not foreclose all relief under that rule.
The court here could unquestionably have expedited proceedings. The mail-in voting issue
in State was critical to the election process. This Court finally decided the issue, after merits
briefing and oral argument, seventy-four days after it was first raised in the trial court, five days
after the petition was filed here, and more than five months before voting started. We stayed the
court of appeals’ Rule 29.3 order after considering the opponents’ response, about six hours after
the motion was filed. By contrast, the present case was filed more than twenty months ago. Not
quite six of those months were in the court of appeals, with only three weeks in the trial court.
Every day this case pends affects the lives and futures of thousands of public-school children.
The Court faults the Commissioner for not moving for expedited consideration. 47 But a
court of appeals that undertakes to effectively counter-supersede a temporary injunction against a
state official in the face of stated legislative policy to the contrary—or in the Court’s words, to
46
602 S.W.3d 549 (Tex. 2020).
47
Ante at ___.
12
“stymie the state from exercising its lawful powers and from representing the public as it sees fit
during the course of an appellate process that might take years to conclude” 48—ought to expedite
its decision without being asked. No motion to expedite was filed in State.
A court of appeals can certainly consider other interim actions. It could issue stays for
specific reasons and limited times. Or it could require that parties notify each other before certain
actions are taken. But it cannot grant statutorily prohibited relief by renaming it.
* * * * *
For all these reasons, I respectfully dissent.
_________________________________
Nathan L. Hecht
Chief Justice
OPINION DELIVERED: March 19, 2021
48
Ante at ___.
13