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 LEHRMANN, concurring.

This case comes to us in its early stages and in a particular
procedural posture: we are asked to mandamus the court of appeals for
exceeding its authority under Texas Rule of Appellate Procedure 29.3 to
issue temporary orders while an interlocutory appeal is pending in that
court. Given Rule 29.3’s express limitations on the court of appeals’
authority to grant such relief—to preserve the parties’ rights until
disposition of the appeal—and the role played by the named defendants
in the actions about which the plaintiffs complain, I join the Court’s
partial grant of mandamus relief. I write separately to highlight the
narrow scope of what is before us in contrast to the broader underlying
dispute, lest we lose the forest for the trees.
 First, as the Court notes, this dispute began when DFPS issued a
statement indicating that it was implementing policy changes in
response to a letter from the Governor that closes with the instruction
that “DFPS and all other state agencies must follow the law as explained
in OAG Opinion No. KP-0401.” However, the issue before us is not
whether the plaintiffs’ claims challenging those actions are meritorious.
Rather, today the Court addresses only the narrow question of whether
the court of appeals abused its discretion by temporarily reinstating the
trial court’s temporary injunction under Rule 29.3 while the
interlocutory appeal of that injunction is pending. In this regard, the
Court: (1) denies mandamus relief as to the portion of the order that
applies to the named parties except to the extent that it enjoins the
Governor from engaging in enforcement actions that he has no authority
to undertake—and has not threatened or attempted to undertake—in
the first instance, as such an injunction would serve no purpose; and
(2) grants relief as to the portion of the order that applies to nonparties.
Neither the interlocutory appeal of the trial court’s temporary injunction
nor the merits of the plaintiffs’ underlying claims are affected by today’s
decision. Ante at 11 n.8.
Second, I find it helpful to take a step back and survey the bigger
picture of the underlying dispute. The plaintiffs allege that the
Governor’s February 22, 2022 letter and DFPS’s summary
implementation of the directive in that letter resulted in an immediate,
dramatic change in DFPS’s interpretation of its legal obligations with
respect to investigating child abuse in the context of adolescent minors
receiving medical treatment for gender dysphoria. The plaintiffs’

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petition references statements of numerous professional medical
associations condemning the change as a rejection of evidence-based
medical care for patients diagnosed with gender dysphoria that would
restrict access to such care for affected adolescents. 1 The plaintiffs
further allege that parents and families across the State are now fearful
of the consequences of following the recommendations of their medical
providers and equally fearful of the effect not following those
recommendations will have on their children’s health. Similarly, they
allege, professionals with the duty to report suspected child abuse are
faced with the dilemma of choosing between the possibility of referral
for prosecution for failing to report conduct that has now been deemed

1 In this Court, we received amicus briefs in opposition to the State’s
mandamus petition from numerous professional medical associations and child
advocacy organizations, including: the Texas Medical Association, the
American Medical Association, the Texas Pediatric Society, the American
Academy of Pediatrics, the Academic Pediatric Association, the American
Academy of Child and Adolescent Psychiatry, the American Academy of Family
Physicians, the Association of American Medical Colleges, the American
Association of Physicians for Human Rights, the American College of
Obstetrics and Gynecologists, the American College of Osteopathic
Pediatricians, American College of Physicians, the American Pediatric Society,
the American Psychiatric Association, the Association of Medical School
Pediatric Department Chairs, the Endocrine Society, the National Association
of Pediatric Nurse Practitioners, the Pediatric Endocrine Society, the Ray E.
Helfer Society, the Society for Adolescent Health and Medicine, the Society for
Pediatric Research, the Society of Pediatric Nurses, the Societies for Pediatric
Urology, the World Professional Association for Transgender Health, American
Professional Society on the Abuse of Children, Children’s Advocacy Institute,
Futures Without Violence, Social Current, The Kempe Center for the
Prevention and Treatment of Child Abuse and Neglect at the University of
Colorado, The National Association of Social Workers, First Focus on Children,
The National Foundation to End Child Abuse and Neglect, FosterClub, and
iFoster.

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abusive—along with the associated impact that could have on their
professional licenses and livelihoods—and violating their own
professional and ethical obligations.
The plaintiffs’ underlying causes of action premised on these
events include (1) a claim for a declaratory judgment that DFPS’s
statement regarding its implementation of the Governor’s directive
amounts to an invalid rule under the Administrative Procedures Act
(APA), (2) a claim for a declaratory judgment that the Governor and the
Commissioner engaged in ultra vires conduct, and (3) claims of various
constitutional violations. Again, the merits of those claims are not
before us and are not affected by our narrow decision today, which
addresses only the propriety of the court of appeals’ temporary order.
Third, I feel compelled to discuss an argument made by the State
that the Court need not and does not address. Specifically, in seeking
mandamus relief from the court of appeals’ order, the State argues that
it lacks an adequate appellate remedy because the order “prohibit[s]
DFPS from even investigating possible child abuse” in cases involving
gender dysphoria. 2 The dissent appears to agree with this reading of
the order, which would indeed risk the irreparable harm to children that
the State fears. As the Court explains, DFPS bears the responsibility of
investigating reports of child abuse or neglect, which necessarily
includes “assess[ing] whether a report it receives is actually ‘a report of
child abuse or neglect.’” Ante at 6. A proper judicial remedy cannot go
so far as to curb that discretion beyond legislative and constitutional

2 The Court’s holding that the State lacks such a remedy is based on
other grounds. Ante at 10 n.7.

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limits. That is, the remedy for an allegedly improper limitation on
DFPS’s investigatory discretion cannot be the placement of a different
but equally improper limitation on DFPS’s investigatory discretion;
either amounts to a change in the status quo that the court is seeking to
preserve.
However, in my view, neither the State nor the dissent properly
construes the scope of the court of appeals’ order. The reinstated
injunction prohibits DFPS from investigating reports “based solely
on . . . facilitating or providing gender-affirming care . . . where the only
grounds for the purported abuse” are “facilitation or provision of gender-
affirming medical treatment.” (Emphases added). The order further
makes clear that the injunction is intended to restrain enforcement of
“the Governor’s directive and DFPS rule, both issued February 22,
2022.”
In other words, the order temporarily reinstates DFPS’s policies
as they were prior to the February 22 directive, leaving DFPS free to
screen and investigate reports based on its preexisting policies
regarding medical abuse and neglect. Although the order exceeds the
permissible bounds of Rule 29.3 by applying to nonparties and is
erroneous on that basis, it does not, as the State implies, create entirely
new restrictions on DFPS’s authority to carry out its statutory
obligations. That is, it does not preclude DFPS from investigating
reports that a child diagnosed with gender dysphoria is receiving
treatment that is medically unnecessary or inappropriate. To the
contrary, it requires DFPS, as has always been its responsibility, to
investigate reports of child abuse or neglect allegedly committed by a

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person responsible for a child’s care, custody, or welfare. TEX. FAM.
CODE § 261.301(a). And DFPS has a detailed process for screening
reports and initiating and conducting those investigations. See TEX.
ADMIN. CODE §§ 707.447–.517. These standards apply regardless of a
child’s diagnosis with gender dysphoria. The order would simply bar
DFPS from initiating investigations and making referrals based solely
on the new grounds set out in the Governor’s directive.
DFPS’s own statements support this reading of the reach of the
order. As the plaintiffs note, after the court of appeals issued the order,
DFPS employees were informed that it did not prevent them from
assessing intakes and beginning investigations when “independent
grounds that warrant an investigation are reported.” Accordingly,
DFPS itself recognizes that the court of appeals’ order—even if it were
not deficient under Rule 29.3—does not bar it from investigating child
abuse and neglect associated with inappropriate or medically
unnecessary treatment for gender dysphoria; it simply must use
preexisting criteria and procedures in determining whether a particular
case justifies intervention.
By contrast, DFPS’s summary change in policy pursuant to the
Governor’s directive—whether or not based on an erroneous view of the
Governor’s authority to issue it and whether or not it amounts to an
invalid rule under the APA—actually served to narrow the discretion of
DFPS employees with respect to screening reports and conducting such
investigations. For example, the plaintiffs presented evidence that after
the directive and agency statement were issued, employees were told
that they no longer had the authority to “Priority None” cases in which

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allegations were made that minors were receiving medical care for
gender dysphoria, meaning they had no discretion to determine that
such cases could be closed without further investigation even if a
treating physician determined that such treatment was medically
appropriate. See TEX. FAM. CODE § 261.3015 (authorizing DFPS, except
in certain exigent circumstances, to “conduct an alternate response” to
a report of abuse and to “administratively close a reported case of abuse
or neglect without completing the investigation or alternative response
and without providing services or making a referral to another entity for
assistance if the department determines, after contacting a professional
or other credible source, that the child’s safety can be assured without
further investigation, response, services, or assistance”). 3 Yet there is
absolutely no indication that DFPS’s preexisting criteria and policies for

3 The State appears to assert that every allegation that a minor is
receiving treatment for gender dysphoria must be fully investigated in order
to evaluate whether that treatment falls within a category that could amount
to abuse. For example, the OAG Opinion discusses surgical procedures that
could fall within the Health and Safety Code’s definition of “female genital
mutilation,” an independently criminal act, which clearly could be
investigated. And in their discussion of the protocols governing medically
accepted treatment for gender dysphoria, the plaintiffs cite evidence that such
treatment includes no pharmaceutical or surgical intervention before puberty
and no genital surgery before the age of majority. There is no plausible
argument that DFPS is foreclosed from investigating these types of
nonmedically approved procedures as possible child abuse, either before or
after the injunction. This is in stark contrast to medically accepted treatments
like the administration of puberty-suppression drugs prescribed by a treating
physician. By essentially equating treatments that are medically accepted and
those that are not, the OAG Opinion raises the specter of abuse every time a
bare allegation is made that a minor is receiving treatment of any kind for
gender dysphoria. In my view, a parent’s reliance on a professional medical
doctor for medically accepted treatment simply would not amount to child
abuse.

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investigating abuse were insufficient to address allegations of medically
inappropriate treatment. See TEX. ADMIN. CODE § 707.489 (DFPS
responses to a report of abuse or neglect, depending on the
circumstances, range from “administrative closure” to “an abbreviated
investigation” to “a thorough investigation” to “an alternative
response”).
With these additional thoughts, I join the Court’s opinion and
concur in the partial denial and partial grant of mandamus relief.

Debra H. Lehrmann
Justice

OPINION DELIVERED: May 13, 2022

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