in Re Greg Abbott in His Official Capacity as Governor of the State of Texas Jaime Masters in Her Official Capacity as Commissioner of the Department of Family and Protective Services And the Texas Department of Family and Protective Services

Supreme Court of Texas
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No. 22-0229
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In re Greg Abbott in His Official Capacity as Governor of the
State of Texas; Jaime Masters in Her Official Capacity as
Commissioner of the Department of Family and Protective
Services; and the Texas Department of Family and Protective
Services,
Relators
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On Petition for Writ of Mandamus
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JUSTICE BLACKLOCK delivered the opinion for a unanimous Court
as to Parts I and II. JUSTICE BLAND delivered the opinion of the Court
as to Part III, in which Chief Justice Hecht, Justice Lehrmann, Justice
Busby, and Justice Huddle joined.

JUSTICE LEHRMANN filed a concurring opinion.

JUSTICE BLACKLOCK filed an opinion dissenting as to Part III, in
which Justice Boyd and Justice Devine joined.

JUSTICE YOUNG did not participate in the decision.

On February 18, 2022, the Attorney General issued Opinion No.
KP-0401, which concludes that certain “‘sex change’ procedures and
treatments . . . when performed on children, can legally constitute child
abuse under several provisions of chapter 261 of the Texas Family
Code.” Relying on this opinion, the Governor sent a letter to the
Commissioner of the Department of Family and Protective Services
(DFPS) expressing his view that “a number of so-called ‘sex change’
procedures constitute child abuse under existing Texas law.” The letter
closes with the instruction that “DFPS and all other state agencies must
follow the law as explained in OAG Opinion No. KP-0401.” DFPS then
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.”
This lawsuit followed. The plaintiffs are a married couple who
are the parents of a child diagnosed with gender dysphoria and a doctor
who treats such children. They sued the Governor, the DFPS
Commissioner, and DFPS, challenging the Governor’s “directive” and
the statement made by DFPS to the media. The plaintiffs contend that
DFPS’s press statement improperly announces a new agency rule
without the notice-and-comment procedure required by law. See TEX.
GOV’T CODE §§ 2001.023, .029, .033. They also challenge DFPS’s
authority to investigate their use of medical treatments deemed
unlawful by the Governor’s letter.
The district court issued a temporary injunction that “restrains
the following actions by the Defendants”:
(1) taking any actions against Plaintiffs based on the
Governor’s directive and DFPS rule, both issued February
22, 2022, as well as Attorney General Paxton’s Opinion No.
KP-0401 which they reference and incorporate;
(2) investigating reports in the State of Texas against any
and all persons based solely on alleged child abuse by
persons, providers or organizations in facilitating or
providing gender-affirming care to transgender minors
where the only grounds for the purported abuse or neglect
are either the facilitation or provision of gender-affirming
medical treatment or the fact that the minors are

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 transgender, gender transitioning, or receiving or being
prescribed gender-affirming medical treatment;
(3) prosecuting or referring for prosecution such reports;
and (4) imposing reporting requirements on persons in the
State of Texas who are aware of others who facilitate or
provide gender-affirming care to transgender minors solely
based on the fact that the minors are transgender, gender
transitioning, or receiving or being prescribed
gender-affirming medical treatment.
The State took an interlocutory appeal, which automatically
superseded the district court’s injunction. See TEX. R. APP. P. 29.1(b);
TEX. CIV. PRAC. & REM. CODE § 6.001(b). The court of appeals then
issued a Rule 29.3 temporary order reinstating the temporary injunction
in its entirety. See TEX. R. APP. P. 29.3
The State now petitions this Court for a writ of mandamus
directing the court of appeals to vacate its Rule 29.3 order. As explained
below, we conditionally grant the State’s petition as to the portions of
the court of appeals’ order that purport to have statewide application.
The court of appeals lacked any authority under Rule 29.3 to afford relief
to nonparties throughout the state. We also conditionally grant relief
with respect to the order’s injunction against the Governor, as there is
no allegation that he is taking, or has authority to take, the enforcement
actions the order enjoins. Finally, the Court concludes that the State
has not established its entitlement to mandamus relief as to the other
parts of the court of appeals’ order applicable to the plaintiffs in this
case. Mandamus relief is denied as to those parts of the order.
I.
Neither the courts nor the public can properly assess our
government’s decisions without first correctly identifying which actors

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within the government are responsible for those decisions. In litigation,
we see this principle reflected in the requirement that plaintiffs who
want the courts to pass judgment on the legality of government action
must seek relief against the particular government official or agency
responsible for the challenged action. In politics, the people of Texas—
by whose authority and for whose benefit our government exists—
cannot allocate political responsibility for the government’s decisions
unless they understand which government officials have the lawful
authority to make or to change those decisions.
Although this case comes to us in its early stages, it appears
already to have been infected by a misapprehension of the proper roles
played by the various government actors involved. Before resolving the
State’s mandamus petition, we first must clarify who within the
government is responsible for the decisions complained of by the
plaintiffs. We address this preliminary, but essential, question without
regard to the merits of the underlying case.
Unlike the federal constitution, the Texas Constitution does not
vest the executive power solely in one chief executive. Instead, the
executive power is spread across several distinct elected offices, and the
Legislature has over the years created a wide variety of state agencies—
including DFPS—whose animating statutes do not subject their
decisions to the Governor’s direct control.1

1 The Governor frequently appoints these officers, but the state
agencies’ enabling statutes rarely give the Governor formal control over the
officers’ decisions once appointed.

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 The State does not contend in this Court that the Governor’s
letter formally changed the legal obligations of DFPS, of parents in
Texas, or of medical professionals in Texas. Nor does it contend that the
Attorney General’s opinion did so. Unlike some executive orders of the
Governor that are afforded binding legal effect by statute, the
Governor’s letter cites no legal authority that would empower the
Governor to bind state agencies with the instruction contained in the
letter’s final sentence, and we are directed to none.
Likewise, it is well-settled that an Attorney General opinion
interpreting the law cannot alter the pre-existing legal obligations of
state agencies or private citizens.2 See Holmes v. Morales, 924 S.W.2d
920, 924 (Tex. 1996) (stating Attorney General opinions are “not
controlling”). Nor does the Attorney General have any formal legal
authority to direct the investigatory decisions of DFPS. In sum, we are
directed to no source of law obligating DFPS to base its investigatory
decisions on the Governor’s letter or the Attorney General’s Opinion.
The Governor and the Attorney General were certainly well within their

2 AG Opinions have been understood to provide a shield against liability
in certain circumstances, and we make no comment in that regard. See, e.g.,
Weaver v. Head, 984 S.W.2d 744, 746 (Tex. App.—Texarkana 1999, no pet.)
(“[AG opinions] sometimes become important for use by a public official to
avoid personal liability for official acts by a showing of good faith in acting in
reliance on an attorney general’s opinion.”). The pertinent question for now is
whether AG Opinions create or change legal obligations, as opposed to
explaining them. They do not.

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rights to state their legal and policy views on this topic, but DFPS was
not compelled by law to follow them.3
DFPS’s press statement, however, suggests that DFPS may have
considered itself bound by either the Governor’s letter, the Attorney
General’s Opinion, or both. Again, nothing before this Court supports
the notion that DFPS is so bound. Instead, the Legislature has granted
to DFPS, not to the Governor or the Attorney General, the statutory
responsibility to “make a prompt and thorough investigation of a report
of child abuse or neglect.” TEX. FAM. CODE § 261.301(a). And, when
deciding whether and how to exercise that authority, DFPS—not the
Governor or the Attorney General—naturally must assess whether a
report it receives is actually “a report of child abuse or neglect.” Id. Of
course, the Legislature, by statute, may constrain DFPS’s discretion in
this regard (subject to constitutional limitations),4 but neither the
Governor nor the Attorney General has statutory authority to directly
control DFPS’s investigatory decisions. They have every right to express
their views on DFPS’s decisions and to seek, within the law, to influence
those decisions—but DFPS alone bears legal responsibility for its
decisions.

3 We are not blind to the many informal mechanisms by which a
governor or an attorney general may validly seek to influence the behavior of
state agencies as part of the normal give-and-take between departments of
state government. Ultimately, however, one department or another has the
final say, and a court must correctly identify the true decision-maker before
assessing the decision.
4During the most recent regular session, the Legislature considered,
but did not pass, proposed legislation that would have amended the Family
Code to add certain treatments for gender dysphoria to the definition of “child
abuse.” Tex. S.B. 1646, 87th Leg., R.S. (2021).

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 The central role played by courts in the child-welfare system
should also be clarified. DFPS’s preliminary authority to investigate
allegations does not entail the ultimate authority to interfere with
parents’ decisions about their children, decisions which enjoy some
measure of constitutional protection whether the government agrees
with them or not. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976).
Before it can impose consequences on a family beyond an investigation,
DFPS generally must seek court orders authorizing it to intervene.5 See
generally TEX. FAM. CODE § 262.001 et seq. In other words, DFPS does
not need permission from courts to investigate, but it needs permission
from courts to take action on the basis of an investigation. At that stage,
before issuing orders, a court would have to decide whether the child
abuse investigated and alleged by DFPS qualifies as such under Texas
law. The normal judicial role in this process is to act as the gatekeeper
against unlawful interference in the parent–child relationship, not to
act as overseer of DFPS’s initial, executive-branch decision to
investigate whether allegations of abuse may justify the pursuit of court
orders.
With these preliminary observations in mind, we turn to the
State’s petition for writ of mandamus.
II.
The State’s petition seeks relief from an order issued by the court
of appeals under the authority afforded to that court by Rule 29.3 of the

5DFPS has limited authority in extreme, emergency situations to take
temporary custody of children before obtaining a court order. See TEX. FAM.
CODE § 262.104. The plaintiffs do not allege that they face a credible threat of
such action.

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Texas Rules of Appellate Procedure. “Mandamus relief is appropriate
when a petitioner demonstrates a clear abuse of discretion and has no
adequate remedy by appeal.” In re Geomet Recycling LLC, 578 S.W.3d
82, 91 (Tex. 2019). A court clearly abuses its discretion when it makes
an error of law. Id.
As noted above, the trial court’s temporary injunction was
superseded by operation of law when the State appealed it. See TEX. R.
APP. P. 29.1(b); TEX. CIV. PRAC. & REM. CODE § 6.001(b). However, Rule
29.3 authorizes courts of appeals, during an interlocutory appeal, to
“make any temporary orders necessary to preserve the parties’ rights
until disposition of the appeal.” TEX. R. APP. P. 29.3. We have
recognized that, depending on the circumstances, this rule may
authorize a court of appeals “to preserve the status quo and prevent
irreparable harm” to the parties during the pendency of the appeal, even
if the temporary order has “the same practical effect as denying
supersedeas of the trial court’s injunction.” In re Tex. Educ. Agency, 619
S.W.3d 679, 680 (Tex. 2021); see also Geomet, 578 S.W.3d at 90.6

6 The State contends that, under an 1880 decision of this Court, courts
of appeals exercising appellate jurisdiction lack any authority to “protect the
parties from damage during the pendency of the appeal.” City of Laredo v.
Martin, 52 Tex. 548, 554 (1880). As we observed in Geomet, in which no party
raised Martin, such a line of argument “amounts to a constitutional attack on
Rule 29.3.” 578 S.W.3d at 89–90. We further noted in Geomet that a state of
affairs in which no court can protect parties’ rights during an interlocutory
appeal would raise constitutional questions about the automatic stay of trial
court proceedings afforded by section 51.014(b) of the Civil Practice and
Remedies Code. Id. at 90. Likewise, the limitation on appellate courts’ Rule
29.3 authority suggested by the State would raise constitutional questions
about the State’s statutory right to automatically supersede injunctions on
appeal. We do not purport to resolve any of these questions in this expedited
mandamus posture.

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 The text of Rule 29.3 plainly limits the scope of the available relief
to that which is necessary to preserve the parties’ rights. Part (1) of the
court of appeals’ order protects only the plaintiffs and therefore does not,
in terms of its scope, exceed the appellate court’s Rule 29.3 power.
However, parts (2), (3), and (4) of the order exceed the court of appeals’
authority because they apply broadly to “any and all persons” who are
not parties to this lawsuit. This affords relief not to the parties, but to
“any and all” nonparties who may find themselves in circumstances
similar to the plaintiffs’. Rule 29.3 does not provide authority for such
an order.
The plaintiffs respond that the nature of their Administrative
Procedure Act challenge to DFPS’s press statement expands the relief
that should be available under Rule 29.3. They contend that a district
court could enjoin an invalid rule’s application on a statewide basis, so
it follows that a court of appeals must have the same authority.
Whether or not the plaintiffs are right about the scope of a district
court’s power to enjoin an administrative rule, that question is beside
the point. The issue is the court of appeals’ power under Rule 29.3,
which provides only the limited authority to “preserve the parties’
rights,” not the general authority to reinstate temporary injunctions of
any nature. The plaintiffs make no effort to grapple with the
party-specific language of Rule 29.3, which forecloses their position
regardless of the nature of their claims in the district court. Just as the
Governor lacks authority to issue a binding “directive” to DFPS, the
court of appeals lacks authority to afford statewide relief to nonparties.

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 The court of appeals abused its discretion by using Rule 29.3 to
issue a statewide order. The State lacks an adequate appellate remedy
by which to avoid this invalid aspect of the court of appeals’ order.
Mandamus relief is appropriate as to the order’s application to “any and
all” nonparties.7
III.
The remaining question is whether the State is entitled to
mandamus relief from the court of appeals’ order as it applies to the
plaintiffs in this case. As discussed in Part II above, we have recognized
appellate courts’ authority to preserve the status quo and prevent
irreparable harm to the parties during the pendency of an appeal. See
also In re State, __ S.W.3d __, 2021 WL 4785741, at *1 (Tex. Oct. 14,
2021) (per curiam) (granting stay to preserve status quo without
comment on merits of request for temporary injunction). But none of
the State’s argument in this Court focuses on the circumstances of this
child. Without commenting on the merits of any party’s claims or
defenses, the Court denies mandamus relief from the order’s application
insofar as it governs conduct among these parties while the appeal
proceeds, with one exception. Ordering the Governor not to
“investigat[e] reports” of abuse, “prosecut[e]” such reports, or “impos[e]

7We need not address the State’s additional arguments for the
invalidity of the statewide order. The plaintiffs contend that, even if the order
is invalid, the State has an adequate remedy by the appeal of the district
court’s temporary injunction. But the whole purpose of the State’s mandamus
petition is to establish its rights during the pendency of the interlocutory
appeal. The fact that an improper judicial imposition on the executive branch’s
prerogatives may only be temporary does not make it any less improper. The
State has no adequate remedy, other than mandamus relief, by which to
remedy the effects of the court of appeals’ order.

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reporting requirements” was improper because, as we hold above, the
Governor does not have authority to do any of those things with respect
to these plaintiffs. Nor have the plaintiffs alleged that the Governor is
engaging or threatening to engage in such conduct. Because the
Governor lacks the authority to investigate or prosecute the plaintiffs,
and no party alleges that he has threatened to do so, an order
prohibiting him from engaging in such conduct has no support in this
record. In all other respects, the Court denies mandamus relief as to the
order’s application to the defendants’ conduct with respect to these
plaintiffs, while the appeal is pending.8
With relief partially denied and partially granted, we are left with
(1) a court of appeals order that protects only the plaintiffs as against
DFPS and its Commissioner’s actions, and not as against the Governor;
(2) a nonbinding Attorney General Opinion; (3) a nonbinding statement
by the Governor; and (4) a state agency, DFPS, with the same discretion

8 We express no opinion on the pending interlocutory appeal of the
district court’s temporary injunction or on the merits of the plaintiffs’
underlying claims seeking various forms of declaratory and injunctive relief
against the Governor, the Commissioner, and DFPS, which remain pending in
the district court.

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to investigate reports of child abuse that it had before issuance of OAG
Opinion No. KP-0401 and the Governor’s letter.9

James D. Blacklock
Justice

Jane N. Bland
Justice

OPINION DELIVERED: May 13, 2022

9 The State’s Emergency Motion for Temporary Relief, which
accompanied its mandamus petition, is dismissed as moot.

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