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 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

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00126-CV

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

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

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)

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(confirming authority to reinstate injunction under Rule 29.3 but denying relief under

circumstances); Texas Ass’n of Bus. v. City of Austin, No. 03-18-00445-CV, 2018 WL 3967045,

at *1 (Tex. App.—Austin Aug. 17, 2018, order) (reinstating injunction under Rule 29.3 after

finding injunction “necessary to preserve the parties’ rights until disposition of the appeal”).

A litigant’s request for injunctive relief is predicated upon that party’s assertion

that irreparable harm will result from the challenged act or action. See Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 204 (Tex. 2002) (“To obtain a temporary injunction, the applicant must

plead and prove three elements: (1) a cause of action against the defendant; (2) a probable right

to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.”

(citations omitted)). In this case, the trial court reviewed the evidence and concluded that

appellees had established a probable right to recovery on their claims. It further concluded that

the appellees had made a sufficient showing that allowing appellants to follow the Governor’s

directive pending the outcome of this litigation would result in irreparable harm. Having

reviewed the record, we conclude that reinstating the temporary injunction is necessary to

maintain the status quo and preserve the rights of all parties. Therefore, without regard to the

merits of the issues on appeal, which are not yet briefed to this Court, we exercise our discretion

under Rule 29.3 to reinstate the injunction as issued by the district court on March 11, 2022.

It is ordered on March 21, 2022.

Before Chief Justice Byrne, Justices Kelly and Smith

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