Texas Equal Access Fund v. Ashley Maxwell

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00347-CV
___________________________

TEXAS EQUAL ACCESS FUND, Appellant

V.

ASHLEY MAXWELL, Appellee

On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 22-2100-431

Before Birdwell, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Bassel
Concurring Memorandum Opinion by Justice Birdwell
 MEMORANDUM OPINION

I. Introduction

This appeal is one skirmish among the generations-long conflicts over Texas

abortion law. The skirmish that underlies this appeal is a challenge to what is known

colloquially as the Texas Heartbeat Act (the Act) or Senate Bill 8 (SB 8). See Tex.

Health & Safety Code Ann. §§ 171.201–.212. In the short time since its passage, the

Act has produced a unique and complex history of litigation. Though complex, that

history has not yielded what opponents of the Act, such as Appellant Texas Equal

Access Fund (the Fund), seek—a resolution of their host of challenges to the Act’s

private civil-enforcement remedy.

Below, Appellee Ashley Maxwell filed a Rule 202 petition to take the Fund’s

executive director’s deposition to investigate whether the Fund had violated the Act.

The Fund took this as an opening to raise its challenges and responded to the Rule

202 petition with a separate suit (the Declaratory-Judgment Petition) that sought

declarations to invalidate the Act and to enjoin Maxwell from filing suit under the Act.

Maxwell responded by filing a motion to dismiss (the Dismissal Motion), which

invoked the Texas Citizen Participation Act (TCPA) and Texas Rule of Civil

Procedure 91a. The trial court frustrated the Fund’s efforts by granting Maxwell’s

Dismissal Motion. The trial court properly dismissed the Fund’s suit under Texas

Rule of Civil Procedure 91a because the Fund’s declaratory-judgment requests

improperly preempt Maxwell’s ability to decide both whether she would follow

2
through with a suit under the Act and where she would file, should she decide to do

so. And because the trial court properly dismissed the Fund’s Declaratory-Judgment

Petition under Texas Rule of Civil Procedure 91a, we further hold that the trial court

did not err by awarding Maxwell attorney’s fees. Accordingly, we affirm.1

II. Background of the Heartbeat Act, the Case, and Texas Abortion Law

A. We set forth the general nature of the Heartbeat Act and the
history of challenges to it.

In grossly oversimplified terms, the Act prohibits abortion after a fetal

heartbeat is detected. To avoid pre-enforcement review of the Act by the federal

courts and to address the legal environment that existed before the overruling of Roe

v. Wade, Texas state officials are specifically not permitted to enforce its prohibition.

Instead, the Act provides that “the requirements of this subchapter shall be enforced

exclusively through the private civil actions described in Section 171.208.” Tex.

Health & Safety Code Ann. § 171.207(a). We will discuss the private civil-

enforcement mechanism more fully below.

Issues regarding the Act’s enforcement mechanism and whether the Act’s

provisions would be permitted to go into effect on its effective date of September 1,

2021, spawned litigation that traveled like lightning through the federal courts and

1
In an amicus brief, the Texas Civil Justice League urges us to address the
constitutional issues raised by SB 8 and pass over the procedural issues that may stand
in the way of reaching those questions. We appreciate the concerns expressed by the
amicus but conclude that the record in this matter makes resolution of those issues
inappropriate at this time.

3
generated an opinion on a certified question by the Texas Supreme Court. A concise

summary of that litigation’s path is found in an opinion from the federal district court

in which several suits challenging the Act were filed:

In July 2021, a group of abortion service providers and advocacy
organizations filed a pre-enforcement challenge, seeking injunctive relief
to stop S.B. 8 from taking effect. Whole Women’s Health v. Jackson, 556 F.
Supp. 3d 595 (W.D. Tex. . . . ) [(order)], aff’d in part, rev’d in part[,] 595
U.S. 30, 142 S. Ct. 522 . . . (2021). Defendants filed a motion to dismiss,
which this [c]ourt denied on August 25, 2021. Id. The Fifth Circuit then
issued a temporary administrative stay of proceedings in the case. Hours
before S.B. 8 took effect, Plaintiffs filed an emergency application for
injunctive relief or to vacate the stay with the Supreme Court. Whole
Woman’s Health v. Jackson, 595 U.S. 30, 141 S. Ct. 2494 . . . (2021). In a
brief opinion, the Supreme Court denied the emergency application, with
Justices Breyer, Kagan, [and] Sotomayor[] and Chief Justice Roberts each
filing a dissenting opinion. Id. In [his] dissent, Chief Justice Roberts
noted that “[t]he statutory scheme before the Court is not only unusual,
but unprecedented,” because “[t]he legislature has imposed a prohibition
on abortions after roughly six weeks, and then essentially delegated
enforcement of that prohibition to the populace at large[]” with the
“desired consequence appear[ing] to be to insulate the State from
responsibility for implementing and enforcing the regulatory regime.”
Id.

The Supreme Court then granted cert before judgment and, in an
opinion written by Justice Gorsuch, explained its reasoning at greater
length. Whole Woman’s Health . . . , [595] U.S. [at 35–51], 142 S. Ct. [at
529–39]. The Court held that Ex [p]arte Young barred suit against the
Attorney General [of Texas] but that Plaintiffs had sufficiently alleged
the enforcement authority of Texas executive officials with disciplinary
authority over medical licensees. Id. at [43–44, 142 S. Ct. at] 535. On
remand to the Fifth Circuit, the remaining defendants moved to certify a
question as to whether state officials could enforce any provision of S.B.
8. Whole Woman’s Health v. Jackson, 23 F.4th 380 (5th Cir.[ 2022]). The
Fifth Circuit granted the motion for certification. Id. On March 11,
2022, the Texas Supreme Court held that none of the remaining
defendants could enforce S.B. 8, effectively bringing the case to a halt.
Whole Woman’s Health v. Jackson, 642 S.W.3d 569 (Tex. 2022).

4
 Also during the fall of 2021 and pre-Dobbs, the United States filed
a separate action against the State of Texas, challenging S.B. 8 as being in
“open defiance of the Constitution.” United States v. Texas, 566 F. Supp.
3d 605 (W.D. Tex. 2021) [(order)]. This [c]ourt granted the United
States’ motion for a preliminary injunction and denied Texas’s motion to
dismiss. Id. In a per curiam, three-sentence order, the Fifth Circuit
granted a temporary stay of the case, and the Supreme Court later
dismissed the writ of cert. United States v. Texas, No. 21-50949, 2021 WL
4706452 (5th Cir. Oct. 8, 2021) [(per curiam) (not designated for
publication)] . . . .

Fund Tex. Choice v. Paxton, 658 F. Supp. 3d 377, 387–88 (W.D. Tex. 2023) (order).

Facing frustration from the federal courts in their challenges, opponents of the

Act shifted their attacks to the forum of Texas state courts. At this juncture, the pace

of the litigation slowed. None of the state-court litigation has yielded a definitive

answer to the attacks on the Act.

A host of the suits filed by opponents of the Act that involved the Texas Right

to Life organization were transferred to multidistrict litigation (MDL) court. See Tex.

Right to Life v. Van Stean, No. 03-21-00650-CV, 2023 WL 3687408, at *2 (Tex. App.—

Austin May 26, 2023, pet. filed) (mem. op.) (describing the procedural history of this

MDL proceeding). In December 2021, the MDL court rendered an order that

concluded several aspects of the Act’s private civil-enforcement remedy were

unconstitutional or invalid. But the order also denied a TCPA motion to dismiss filed

by Texas Right to Life. Id. (stating that “[o]n December 9, 2021, the MDL court

signed an order denying Texas Right to Life’s plea to the jurisdiction and granting in

part and denying in part the Planned Parenthood and Van Stean appellees’ summary-

5
judgment motions” and further stating that “[r]elevant to this appeal, the MDL court

in the same order denied Texas Right to Life’s TCPA motion to dismiss”).

The denial of Texas Right to Life’s TCPA motion enabled it to file an

interlocutory appeal challenging the MDL court’s denial order but which did not

include a review of the MDL court’s order concluding that various aspects of the Act

were unconstitutional. Id. at *3. The Austin Court of Appeals concluded that the

MDL court had properly denied the TCPA motion to dismiss by deciding that the suit

by the Act’s opponents was not a response to Texas Right to Life’s exercise of its

TCPA-protected constitutional rights but was instead a valid exercise of the

opponents’ rights under the Declaratory Judgments Act to determine whether their

constitutional rights were violated by the enactment of the Heartbeat Bill. Id. at *5. A

petition for review remains pending before the Texas Supreme Court. See generally

Tex. Right to Life v. Van Stean, No. 23-0468, available at

https://search.txcourts.gov/Case.aspx?cn=23-0468&coa=cossup (last visited Feb. 20,

2024).

Also, a district court in Bexar County dismissed a suit by a Heartbeat Act

plaintiff based on the plaintiff’s lack of standing. Specifically, the district court held

that a plaintiff could not bring suit under SB 8 unless he or she had suffered some

actual injury resulting from the law’s violation. See Gomez v. Braid, No. 2022CI08302

(45th Dist. Ct., Bexar County, Tex. Dec. 8, 2022). The San Antonio Court of

Appeals’s opinion reviewing the order dismissing the suit primarily addresses whether

6
the trial court should have provided the attorney general with notice of the underlying

suit pursuant to Section 402.010(a) of the Government Code and holds that the

failure to give notice was not error. See Gomez v. Baird, No. 04-22-00829-CV, 2024

WL 697105, at *3 (Tex. App.—San Antonio Feb. 21, 2024, no pet. h.) (mem. op.). In

a footnote, the opinion also affirms the trial court’s order dismissing the suit for lack

of standing based on the appellant’s failure to raise an issue challenging the ground of

lack of standing raised by the appellee’s plea to the jurisdiction. Id. at *3 n.4. Thus,

the opinion provides no substantive analysis of the Act or challenges to it. 2

2
Litigation has not stopped in federal courts. Opponents of the Act sued
Maxwell in the federal district court for the Western District of Texas. See Davis v.
Sharp, 656 F. Supp. 3d 687 (W.D. Tex. 2023) (order). The plaintiffs in this federal suit
claimed that Maxwell had violated their constitutional rights by “hav[ing] made
credible threats to enforce S.B. 8 against Texas abortion funds and their associates”
through actions such as Maxwell’s filing of the Rule 202 petition at issue in this
appeal. Id. at 688. Maxwell filed a declaration disavowing an intention to sue the
plaintiffs in the federal suit, and the court dismissed the suit for a lack of standing. Id.
at 690.

A suit was also filed in the federal district court for the District of Columbia by
the Fund against legal counsel that had once represented Maxwell; the suit claimed
that her counsel’s actions in attempting to foment Heartbeat Act lawsuits violated a
right to promote abortion rights. See N. Tex. Equal Access Fund v. Am. First Legal
Found., Civ. Action No. 22-0728 (ABJ), 2023 WL 7002675 (D.D.C. Oct. 24, 2023)
(mem. op.). That suit was dismissed on the basis that the plaintiffs lacked standing to
prosecute their claims. Id. at *10.

Another federal suit “concerns several Texas abortion advocacy groups that
seek to fund or support abortion[s] for Texans in states where it remains legal” and
was initially brought against the Attorney General of Texas and certain Austin-area
district attorneys. See Fund Tex. Choice v. Deski, No. 1:22-CV-859-RP, 2023 WL
8856052, at *1 (W.D. Tex. Dec. 21, 2023) (order). The plaintiffs sought a preliminary
injunction, and the federal court resolved that request as follows:

7
 B. We set forth the litigation that generated this appeal and the
course of the proceedings below.

To force an answer to their challenges to the Act, the opponents of the Act

also turned to the proceeding below and a declaratory-judgment action filed in

another county that is addressed in a separate appeal to this court 3 in an attempt to

create a forum for their challenges to the Act.

The [c]ourt issued its order on Plaintiffs’ motion for a preliminary
injunction and Paxton’s motion to dismiss on February 24, 2023. In its
order, the [c]ourt found that Paxton could only enforce Texas’s abortion
restrictions through H.B. 1280 (also known as the “Trigger Ban”). 2021
Tex. Sess. Law Serv. ch. 800 (H.B. 1280), Sec. 3 (West); Tex. Health &
Safety Code [Ann.] § 170A.001, et seq. However, it found that H.B.
1280 does not regulate out-of-state abortions, and therefore, Paxton
would have no authority to prosecute Plaintiffs for funding or assisting
out-of-state abortions. Accordingly, the [c]ourt granted Paxton’s motion
to dismiss.

As to the Austin[-]area prosecutors, the [c]ourt determined that
they did have enforcement power under the pre-Roe laws. Moreover, the
[c]ourt ruled that the language of the pre-Roe laws could be arguably
interpreted to cover out-of-state abortions, meaning that Plaintiffs could
viably claim a genuine threat of prosecution from the Austin[-]area
prosecutors. The [c]ourt found that it was bound by the Fifth Circuit’s
holding in McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), which held that
the pre-Roe laws had been repealed by implication. Accordingly, it
preliminarily enjoined the Austin[-]area prosecutors from enforcing the
pre-Roe laws against Plaintiffs. [Docket citations omitted.]

Id. at *3. These plaintiffs joined Maxwell in the suit, and the federal court recently
denied her objection to joinder in that suit and to venue. Id. at *9–13.
3
See Weldon v. Lilith Fund for Reproductive Equity, No. 02-22-00413-CV, available at
https://search.txcourts.gov/Case.aspx?cn=02-22-00413-CV&coa=coa02 (last visited
Feb. 20, 2024).

8
 The foundation of this appeal has its genesis from a sworn declaration filed by

Kamyon Conner, the executive director of the Fund in the MDL proceedings

described above. The declaration stated that during the period of the short-lived

injunction issued by the federal district court in United States v. Texas, the Fund had

engaged in conduct prohibited by the Act. Conner’s declaration stated,

Since September 1, 2021 [the effective date of the Heartbeat Act], [the]
Fund has engaged in conduct with the intent to assist pregnant Texans
[in] obtain[ing] abortions after the detection of cardiac activity.
Specifically, following the entry of an injunction by the Honorable
Robert Pitman on October 6, 2021, and while that injunction was still in
place, [the] Fund paid for at least one abortion after confirming the
gestational age of the fetus was beyond the time when cardiac activity is
usually detected. In doing so, it was [the] Fund’s intention to pay for the
abortion even if cardiac activity was detected.

The statements in the declaration prompted action by Maxwell. In Denton

County—the county where the Fund’s executive director claimed in her declaration

that she resided—Maxwell sought a pre-suit deposition of Conner under Texas Rule

of Civil Procedure 202 through the filing of a “Verified Petition to Take Deposition

to Investigate a Lawsuit” (hereinafter 202 Proceeding). The 202 Proceeding’s petition

stated the purpose of the discovery that Maxwell sought was

to investigate the possibilities for future civil actions brought under
[S]ection 171.208 of the Texas Health and Safety Code[] against
individuals and organizations that performed or aided or abetted
abortions in violation of the Texas Heartbeat Act, also known as Senate
Bill 8 or SB 8. In her capacity as executive director of the North Texas
Equal Access Fund ([the] Fund[]), Kamyon Conner has stated in a sworn
declaration that her organization knowingly and intentionally aided or

9
 abetted at least one post-heartbeat abortion in violation of the Texas
Heartbeat Act.[4]

The Fund’s immediate response to the 202 Proceeding was the filing of its

Declaratory-Judgment Petition, a separate lawsuit against Maxwell that was initiated

by its original petition, request for declaratory judgment, and application for

temporary injunction and anti-suit injunction. Relying on statements made by

Maxwell and the counsel that represented her at that time, the Fund stated that the

basis for its suit was as follows:

Maxwell’s Rule 202 [p]etition is even more chilling than the direct threats
that have given rise to previous SB8 litigation. [Maxwell’s] Rule 202
[p]etition demonstrates that [she] intends to sue [the] Fund (and others)[]
and is seeking information about exactly how broad that suit should be.
[Maxwell] necessarily presumes that SB8 is a valid exercise of
government authority, while [the] Fund believes that SB8 is
unconstitutional and void. A court’s intervention is necessary to resolve
that disagreement. And [Maxwell’s] present, imminent threat of
enforcement of the unconstitutional law against [the] Fund is a separate,
independent demonstration of the concrete injury [the] Fund will suffer
unless it is provided declaratory relief against [Maxwell] and [she] is
enjoined from any attempts to sue [the] Fund (and to obtain discovery
from it, or from Ms. Conner, its [e]xecutive [d]irector, by these means).

The trial court has deferred a ruling on the Rule 202 petition, stating at a
4

hearing on Maxwell’s Dismissal Motion that

I will postpone any decision on Rule 202. I think it needs to be a
separate hearing. And I will abate that to decide the scope of a
deposition that would be permitted in the event that the [Second] Court
[of Appeals] comes back and agrees with me as opposed to reverses me.
So we can decide that at that time.

10
The Declaratory-Judgment Petition noted the existence of the MDL proceeding

(which remains pending and subject to appeal) and the MDL court’s previous order,

which concluded that many aspects of the Act were invalid.

The Fund’s Declaratory-Judgment Petition raised its own host of constitutional

objections to the private civil-enforcement remedy and other aspects of the Act; those

objections were predicated on (1) the right to free speech, (2) the right to open courts,

(3) due-process rights, (4) the prohibition of retroactive statutes, (5) lack of standing

by Heartbeat Act plaintiffs, (6) separation of powers, and (7) vagueness. The

Declaratory-Judgment Petition relied on the Act’s alleged constitutional infirmities to

support a declaration “[t]hat any claims asserted by . . . Maxwell under any provision

of SB8 declared to be invalid are invalid and frivolous as a matter of law and have no

basis in law.” It continued that Maxwell should be enjoined because the Fund would

suffer irreparable harm if “Maxwell is not enjoined from organizing and planning to

bring lawsuits against it and others like [Conner] who speak about and provide funds

to organizations that help people access abortions and other reproductive health

services.”

The day after the filing of its Declaratory-Judgment Petition, the Fund filed a

“Notice of Transfer of Tag-Along Case to Multidistrict Pretrial Court” stating that its

suit was deemed transferred to the MDL court that had previously found the Act

constitutionally infirm. The attempt to transfer the case was ineffectual. The MDL

court subsequently ordered a remand of both Maxwell’s 202 Proceeding and the

11
Fund’s Declaratory-Judgment Petition to the Denton County District Court in which

they were filed, and the order noted that

[t]he panel consciously intended to limit the kinds of cases that may be
tagged into this pretrial court: First there must be the quoted [Texas Right
to Life] connection, and second there must be an enforcement case. A Rule 202
petition does not qualify as an enforcement case. Rule 202 allows pre-
suit investigation for “anticipated” and “potential” lawsuits. Such
investigations often do result in lawsuits that seek to enforce a legal duty.
But a Rule 202 investigation does not by itself go that far and therefore
is not within the specified limits of the panel’s order, which speaks of
cases “enforcing” SB 8.

The record also contains a later “Notice to Court of Filing of Motion to Transfer

Under Rule 13, Rules of Judicial Administration” by which the Fund sought to

expand the scope of the MDL proceeding and to stay proceedings initiated by its

Declaratory-Judgment Petition “and related cases.” The record contains no indication

of any action taken by the MDL court on this filing.

As the sparring continued over moving the litigation to the MDL court,

Maxwell filed her Dismissal Motion under the TCPA and Rule 91a and plea in

abatement. The Dismissal Motion offered Maxwell’s views of the current state of

Texas abortion law. The Dismissal Motion then invoked the TCPA and claimed that

the Declaratory-Judgment Petition was a response to Maxwell’s exercise of various

rights protected by the TCPA, including her rights to free speech, to petition, and of

association. In what was apparently an effort to preempt the Fund’s claim that it

could offer prima facie proof of the invalidity of the Act’s private civil-enforcement

12
remedy, the Dismissal Motion challenged each of the grounds attacking the Act that

were raised by the Fund in its Declaratory-Judgment Petition.

Maxwell’s Dismissal Motion also invoked Texas Rule of Civil Procedure 91a

and attacked the Declaratory-Judgment Petition because it was an effort (1) to raise

matters already put at issue by the filing of Maxwell’s 202 petition, (2) to deprive

Maxwell of her right to select the timing and venue of a suit brought under the Act,

and (3) to interfere with a previously filed suit that required the declaratory-judgment

proceeding to be abated. Because the Declaratory-Judgment Petition was subject to

dismissal, Maxwell also asserted that the Fund was not entitled to an anti-suit

injunction.

Maxwell attached her own declaration to the Dismissal Motion. That

declaration stated how tentative her decision was to bring a Heartbeat Act suit

because abortion law was in a state of flux pending the determination whether the

United States Supreme Court would overrule Roe in the Dobbs case. Maxwell stated,

4. I have filed a Rule 202 petition that seeks to depose Kamyon Conner,
the executive director of the North Texas Equal Access Fund, who has
admitted in a sworn declaration that the North Texas Equal Access
Fund has paid for “at least one” post-heartbeat abortion in October of
2021, in violation of Senate Bill 8.

5. I am attempting to discover information about this violation of
SB 8, as well as information about the North Texas Equal Access Fund’s
employees, volunteers, and donors—all of whom could be held liable
under SB 8 or prosecuted under [A]rticle 4512.2 of the Revised Civil
Statutes.

13
 6. I have not yet decided whether to file a private civil-
enforcement lawsuit under SB 8 against the North Texas Equal Access
Fund[] or its employees, volunteers, and donors.

7. I do not wish to sue under SB 8 at this time because the
Supreme Court has not yet overruled Roe v. Wade, 410 U.S. 113 (1973). I
want to wait and see what the Supreme Court says in Dobbs v. Jackson
Women’s Health Organization, No. 19-1392, before deciding whether to
follow through with an SB 8 enforcement lawsuit.

8. I have also not yet decided the venue in which I will sue, in the
event that I decide to sue the North Texas Equal Access Fund, or any of
its employees, volunteers, and donors, under SB 8’s private civil-
enforcement mechanism.

9. I will decide whether and where and whom to sue under SB 8
in consultation with my attorneys after Dobbs is announced and after we
take discovery from the North Texas Equal Access Fund in the Rule 202
proceedings.

Maxwell’s declaration triggered the Fund to file a motion for discovery under

the TCPA in an effort to depose her. In the Fund’s view,

[a]t the time her declaration was filed, . . . Maxwell testified that she had
no present intention to enforce SB8 because she wanted to see what
happened with the Dobbs v. Jackson Women’s Health Organization case. . . .
Maxwell cites to this testimony to support the argument in her
[Dismissal] Motion . . . that because she has not yet decided to file a
lawsuit under SB8, [the] Fund cannot preemptively seek a declaration
that such a suit would be improper, void, and unconstitutional. . . .
Maxwell’s current intention to sue and her immediate plans in the wake
of Dobbs, which she herself relies [upon] in support of her [Dismissal]
Motion . . . , are fact questions on which [the] Fund must be entitled to
examine her in order to respond to the argument she herself makes in
her [Dismissal] Motion . . . . [Citations to the Dismissal Motion
omitted.]

Maxwell responded that the Fund did not need a deposition for the trial court

to decide that the filing of the Fund’s Declaratory-Judgment Petition violated the rule

14
in Abor v. Black, holding that a declaratory-judgment action cannot be used to deprive

a plaintiff of the right to decide the time and place of filing certain suits. 695 S.W.2d

564 (Tex. 1985) (orig. proceeding), abrogated on other grounds by In re Prudential Ins. Co.,

148 S.W.3d 124 (Tex. 2004) (orig. proceeding). The response noted that

Maxwell’s argument does not in any way hinge on whether she has
decided to file suit against the . . . Fund. The problem with the . . .
Fund’s lawsuit—and the reason it violates Abor v. Black—is that it
deprives . . . Maxwell of the ability to decide when and where she will
litigate these issues against the . . . Fund, in the event that she decides to
sue at all. This argument holds regardless of whether . . . Maxwell has
already decided to sue the . . . Fund, has decided not to sue the . . . Fund,
or is still considering whether to do so.

After a non-evidentiary hearing, the trial court denied the Fund’s discovery motion.

After denial of its request for discovery, the Fund made the attempt to expand

the scope of the MDL proceeding that we have referenced previously and responded

to Maxwell’s Dismissal Motion. To justify the filing of the Declaratory-Judgment

Petition in response to Maxwell’s 202 Proceeding, the Fund’s response summarized

Maxwell’s actions and those of the counsel who had at one time represented her:

As alleged in the [Fund’s Declaratory-Judgment Petition], and [as]
confirmed by additional evidence attached to this [r]esponse, [Maxwell]
is among those private citizens deputized under SB8 to bring lawsuits.
Prior to the filing of [the] Fund’s [p]etition, [Maxwell] made clear that
she intended to enforce the law against [the] Fund, its staff, its
volunteers, its donors, and anyone else she perceived to be violating SB8.
[Maxwell] has not forsworn bringing a lawsuit under SB8, and her Rule
202 petition specifically indicates that is what she is seeking information
to do. [Maxwell]’s counsel has publicly stated unequivocally that
[Maxwell] intends to file lawsuits under SB8. As a self-identified SB8
enforcer who is investigating the possibility of filing an SB8 lawsuit or

15
lawsuits of her own, [Maxwell] is particularly interested in any judicial
determination about the validity of SB8. [Exhibit references omitted.]

With this preface in place, the response raised the following arguments:

• The TCPA did not protect Maxwell from the Fund’s suit.

• If the TCPA did apply, the Fund asserted that it had met its burdens to
avoid dismissal under either the TCPA or Texas Rule of Civil Procedure
91a. The Fund’s specific arguments were as follows:

o There was a controversy supporting the Fund’s declaratory-
judgment suit because Maxwell “believes SB8 is constitutional and
valid and that she will use its civil[-]enforcement provisions to
punish [the] Fund” and because there were the ripening seeds of a
controversy by virtue of Maxwell’s belief that SB 8 was
constitutional and the Fund’s view that it was not (with that view
supported by the MDL court).

o A temporary injunction was warranted based on the Fund’s
probable right of recovery formed by the MDL court’s view of
the unconstitutionality of the Act’s private civil remedy and the
harm that the Fund would suffer if Maxwell went forward with a
suit under the Act.

o An anti-suit injunction was warranted to protect the Fund and its
staff, volunteers, and donors from vexatious litigation.

o The Fund then outlined the host of constitutional infirmities that
it contended were present in the private civil-remedy provisions
of the Act.

• The Fund then argued that its constitutional claims could not be litigated
as part of Maxwell’s 202 Proceeding, arguing that

[Maxwell’]s 202 [Proceeding] does not afford [the] Fund
the opportunity to obtain relief against the threat [Maxwell]
has repeatedly posed. Resisting a Rule 202 [p]etition does
not and cannot provide the same relief as sought in this
lawsuit to protect [the] Fund’s constitutional rights to be

16
 free from the threat of repeated civil suits used to enforce
Texas law.

• The Fund next argued that Maxwell’s Rule 202 petition was mooted
because litigation was then occurring between the parties due to the
filing of the Fund’s Declaratory-Judgment Petition.

• In response to Maxwell’s assertion that the Fund’s suit was a preemptive
strike that deprived her of the right to choose the time and place of the
filing of her suit, should she decide to file one, the Fund argued that the
Abor case relied on by Maxwell did not apply outside a tort context and
that the Fund should not be delayed in its ability to challenge the civil-
enforcement provision of the Act.

• The Fund dismissed Maxwell’s argument that the Declaratory-Judgment
Petition should be abated by arguing that the 202 Proceeding could not
be considered as establishing dominant jurisdiction because both it and
the Fund’s Declaratory-Judgment Petition were filed in the same court.
Nor, in the Fund’s view, was a Rule 202 proceeding a suit on the merits
that could establish dominant jurisdiction.

• Finally, the Fund argued that it should be awarded its attorney’s fees and
costs.

Maxwell filed a reply to the Fund’s response that in many ways reiterated the

arguments made in her original Dismissal Motion. She began by arguing that the

MDL court’s order was of no legal effect and that it was the responsibility of the trial

judge who was going to hear the Fund’s Declaratory-Judgment Petition to decide the

constitutionality of the Act’s private civil-enforcement remedy. She challenged the

Fund’s arguments that the TCPA did not apply. Her reply also challenged the

premise of the Fund’s response that the 202 Proceeding was not a forum in which the

constitutionality of the private civil-enforcement remedy of the Act could be raised

17
and that the filing of the Fund’s Declaratory-Judgment Petition mooted the 202

Proceeding.

The reply then pivoted to the argument that the Fund’s Declaratory-Judgment

Petition improperly deprived Maxwell of her right to select the time and place of the

filing of her claims. Maxwell challenged the Fund’s contentions that its suit should

not be abated in favor of the 202 Proceeding. Maxwell also challenged the Fund’s

request for an anti-suit injunction by asking how a suit could be vexatious when the

Fund had admitted that it had violated Texas law, and even if Maxwell could not sue,

an anti-suit injunction would have no efficacy because other private plaintiffs could

file an action under the Act and a prosecutor could file criminal charges. Maxwell

concluded her rebuttal of the Fund’s response by contending that the constitutional

challenges raised by the Fund were meritless. She ended her reply by seeking her own

award of attorney’s fees.

The trial court conducted another non-evidentiary hearing on Maxwell’s

Dismissal Motion. Though the trial court stated on the record its belief that the

private civil-remedy provisions of the Act were constitutional, the trial court granted

in general terms Maxwell’s Dismissal Motion under the TCPA and Texas Rule of Civil

Procedure 91a. The trial court also concluded that Maxwell was entitled to recover

her attorney’s fees under the TCPA and Rule 91a.7. The trial court subsequently

signed an order awarding Maxwell $35,165.26 in fees in accordance with a Rule 11

agreement signed by the parties; the parties stipulated to the sum but not the propriety

18
of the fee award. In response to a motion to modify, correct, or reform the judgment,

the trial court later signed another order clarifying both the date that it had signed the

order awarding Maxwell a specific sum of fees and the date that the clerk had entered

the order. The Fund filed a motion for new trial that was overruled by operation of

law and also filed a notice of appeal and an amended notice of appeal.

C. We explain the changing landscape of Texas abortion law.

Obviously, the litigation below coincided with a sea change in abortion law.

The United States Supreme Court overruled Roe in Dobbs v. Jackson Women’s Health

Organization, 597 U.S. 215, 142 S. Ct. 2228 (2022). Within weeks of the trial court’s

signing its order of dismissal in this case, statutes imposing specific criminal and civil

penalties on those who perform abortions in Texas became effective under what is

known colloquially as the Trigger Ban—a ban that took effect after the overruling of

Roe. See Act of May 25, 2021, 87th Leg., R.S., ch. 800, § 3, 2021 Tex. Gen. Laws 1886,

1887 (H.B. 1280) (codified at Tex. Health & Safety Code § 170A); see also Tex. Health

& Safety Code Ann. § 170A.002(a)–(b); Fund Tex. Choice, 658 F. Supp. 3d at 385. The

performance of an abortion became at least a second-degree felony and was made

subject to a civil-penalty provision that can be enforced by the Texas Attorney

General. See Tex. Health & Safety Code Ann. §§ 170A.004, .005. Not unexpectedly,

more recent appeals addressing abortion have dealt with statutory provisions that

prohibit abortion rather than the Act. See In re State, No. 23-0994, 2023 WL 8540008,

at *1–3 (Tex. Dec. 11, 2023) (orig. proceeding) (addressing the medical-necessity

19
exception to the abortion prohibition in Texas Health and Safety Code Section

170A.002(b)(2)); Texas v. Zurawski, No. 23-0629, available at

https://search.txcourts.gov/Case.aspx?cn=23-0629&coa=cossup (last visited Feb. 20,

2024) (appeal of temporary injunction dealing with the medical-necessity exceptions in

Health and Safety Code Chapter 170A and the Act).

However, this change in the law does not repeal the Act’s civil-enforcement

provisions. The chapter of the Health and Safety Code containing the new criminal

and civil penalties also provides that “[t]he fact that conduct is subject to a civil or

criminal penalty under this chapter does not abolish or impair any remedy for the

conduct that is available in a civil suit.” Tex. Health & Safety Code Ann. § 170A.006.5

III. A Detailed Explanation of the Heartbeat Act

The Act prohibits conduct and then provides a remedy to penalize those who

engage in that conduct. It is a unique freestanding scheme that defines the legal duty

created by the Act, outlines the remedy available to enforce the Act, carefully

describes enforcement and defenses to the Act, and has a unique venue provision

integrated into it. As context for why we conclude that the Act should accord

5
Further, Texas officials have expressed the view that the pre-Roe statutory
scheme prohibiting abortion in Texas was never repealed and that Dobbs revitalized it.
See Fund Tex. Choice, 658 F. Supp. 3d at 386–87. But that conclusion is another area of
controversy. Relying on a Fifth Circuit opinion, the federal district court for the
Western District of Texas made a preliminary conclusion that the pre-Roe scheme was
repealed by implication. Id. at 411–12 (citing McCorvey, 385 F.3d at 849).

20
Maxwell the autonomy to decided when and if she will file suit under the Act, we

detail the Act’s unique statutory scheme.

A. We set forth the conduct that is prohibited by the Heartbeat Act.

The Act establishes a preliminary determination that a physician must make

before performing an abortion: “a physician may not knowingly perform or induce

an abortion on a pregnant woman unless the physician has determined, in accordance

with this section, whether the woman’s unborn child has a detectable fetal heartbeat.”

Id. § 171.203(b). In turn, “a physician may not knowingly perform or induce an

abortion on a pregnant woman if the physician detected a fetal heartbeat for the

unborn child as required by Section 171.203 or failed to perform a test to detect a

fetal heartbeat.” Id. § 171.204(a).

A physician is freed from the strictures of the Act only “if a physician believes a

medical emergency exists that prevents compliance with” the Act. Id. § 171.205(a).

The Act also imposes recordkeeping requirements on a physician to document the

performance of required testing and the reason(s) why a physician believes a medical

emergency prevents compliance with the Act. Id. §§ 171.203(d), .205(b), (c).6

6
In anticipation of the changing landscape regarding abortion, the Act
specifically noted that it did “not create or recognize a right to abortion before a fetal
heartbeat is detected.” Id. § 171.206(a). It also specified that it created no cause of
action against a woman upon whom an abortion is performed, that it did not repeal
“any other statute that regulates or prohibits abortion,” and that it did not “restrict a
political subdivision from regulating or prohibiting abortion in a manner that is at
least as stringent as the laws of this state.” Id. § 171.206(b).

21
 B. We set forth the remedy that the Heartbeat Act provides for its
violation.

As we noted in the background section, the Act has a unique enforcement

mechanism. The Act is explicit as to who may not seek to enforce it:

Notwithstanding Section 171.005 or any other law, the requirements of
this subchapter shall be enforced exclusively through the private civil
actions described in Section 171.208. No enforcement of this
subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in
response to violations of this subchapter, may be taken or threatened by
this state, a political subdivision, a district or county attorney, or an
executive or administrative officer or employee of this state or a political
subdivision against any person, except as provided in Section 171.208.

Id. § 171.207(a). In a subsequent provision, the Act reinforces this prohibition by

providing that “[n]otwithstanding any other law, this state, a state official, or a district

or county attorney may not intervene in an action brought under this section.” Id.

§ 171.208(h).

Next, the Act provides who may sue for its violation:

(a) Any person, other than an officer or employee of a state or local
governmental entity in this state, may bring a civil action against any
person who:

(1) performs or induces an abortion in violation of this
subchapter;

(2) knowingly engages in conduct that aids or abets the
performance or inducement of an abortion, including paying for
or reimbursing the costs of an abortion through insurance or
otherwise, if the abortion is performed or induced in violation of
this subchapter, regardless of whether the person knew or should
have known that the abortion would be performed or induced in
violation of this subchapter; or

22
 (3) intends to engage in the conduct described by
Subdivision (1) or (2).

Id. § 171.208(a).

The person who brings a civil action may obtain injunctive relief; “statutory

damages in an amount of not less than $10,000 for each abortion that the defendant

performed or induced in violation of this subchapter, and for each abortion

performed or induced in violation of this subchapter that the defendant aided or

abetted”; and costs and attorney’s fees. Id. § 171.208(b).

The Act then deals with various aspects of its enforcement and defenses to the

liability it creates by providing as follows:

• A court may not award relief if a defendant has “previously paid the full
amount of statutory damages under Subsection (b)(2) [of Section
171.208] in a previous action for that particular abortion performed or
induced in violation of this subchapter, or for the particular conduct that
aided or abetted an abortion performed or induced in violation of this
subchapter.” Id. § 171.208(c).

• “[A] person may bring an action under this section not later than the
fourth anniversary of the date the cause of action accrues.” Id.
§ 171.208(d).

• The Act enumerates a number of actions that “are not a defense to an
action brought under this section,” including

o ignorance of the law;

o belief the Act is unconstitutional;

o reliance on an overruled court decision, even if the decision had
not been overruled when the defendant engaged in conduct that
violated the Act;

23
 o “reliance on any state or federal court decision that is not binding
on the court in which the action has been brought”;

o “non-mutual issue preclusion or non-mutual claim preclusion”;

o “the consent of the unborn child’s mother to the abortion”; and

o “any claim that the enforcement of this subchapter or the
imposition of civil liability against the defendant will violate the
constitutional rights of third parties.” Id. § 171.208(e)(1)–(7).

• The Act provides an affirmative defense, which must be proved by a
preponderance of the evidence, if a person sued under the Act
“reasonably believed, after conducting a reasonable investigation, that
the physician performing or inducing the abortion had complied or
would comply” with the Act. Id. § 171.208(f), (f–1).

• The Act prohibits the imposition of liability under the Act “on any
speech or conduct protected by” the First Amendment to the United
States Constitution and Article I, Section 8 of the Texas Constitution.
Id. § 171.208(g).

• The Act prohibits an award to a defendant of attorney’s fees under the
Rules of Civil Procedure or a rule adopted by the Texas Supreme Court
under its rule-making power. Id. § 171.208(i).

• The Act prohibits “a person who impregnated the abortion patient
through an act of rape, sexual assault, incest, or any other act prohibited
by Sections 22.011, 22.021, or 25.02, Penal Code” from bringing a civil
action under the Act. Id. § 171.208(j).

The Act then controls the mechanics of if and how a person sued under the

Act may have standing to assert an affirmative defense that the relief sought will

impose an undue burden. Id. § 171.209(a)–(c). This defense was abrogated because

this section of the Act goes on to state that the defense “is not available if the United

States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973)[,] or Planned

24
Parenthood v. Casey, 505 U.S. 833 (1992).” Tex. Health & Safety Code Ann.

§ 171.209(e). The section concludes, “Nothing in this section shall in any way limit or

preclude a defendant from asserting the defendant’s personal constitutional rights as a

defense to liability” under the Act. Id. § 171.209(f).

Proper venue of an action is specified to be as follows:

(a) Notwithstanding any other law, including Section 15.002, Civil
Practice and Remedies Code, a civil action brought under Section
171.208 shall be brought in:

(1) the county in which all or a substantial part of the
events or omissions giving rise to the claim occurred;

(2) the county of residence for any one of the natural
person defendants at the time the cause of action accrued;

(3) the county of the principal office in this state of any one
of the defendants that is not a natural person; or

(4) the county of residence for the claimant if the claimant
is a natural person residing in this state.

(b) If a civil action is brought under Section 171.208 in any one of the
venues described by Subsection (a), the action may not be transferred to
a different venue without the written consent of all parties.

Id. § 171.210.

Next, the Act provides that it “prevails over any conflicting law, including[]

(1) the Uniform Declaratory Judgments Act[ (UDJA)]; and (2) Chapter 37, Civil

Practice and Remedies Code.” Id. § 171.211(a). And the section containing this

provision also preserves governmental immunity for “any action, claim, or

counterclaim or any type of legal or equitable action that challenges the validity of any

25
provision or application of this chapter, on constitutional grounds or otherwise.” Id.

§ 171.211(b).

Finally, the Act addresses severability to narrow the effect of a decision that

finds a section of the Act is invalid or unconstitutional. Id. § 171.212.

Outside the provisions of the Act, the Civil Practice and Remedies Code

expands the list of parties from whom attorney’s fees may be recovered for a violation

of the Act and other laws regulating abortion by providing that

[n]otwithstanding any other law, any person, including an entity,
attorney, or law firm, who seeks declaratory or injunctive relief to
prevent this state, a political subdivision, any governmental entity or
public official in this state, or any person in this state from enforcing any
statute, ordinance, rule, regulation, or any other type of law that regulates
or restricts abortion or that limits taxpayer funding for individuals or
entities that perform or promote abortions, in any state or federal court,
or that represents any litigant seeking such relief in any state or federal
court, is jointly and severally liable to pay the costs and attorney’s fees of
the prevailing party.

Tex. Civ. Prac. & Rem. Code Ann. § 30.022(a). That section permits the recovery of

fees by a prevailing party if the case is dismissed “regardless of the reason for

dismissal” or by judgment, provides an extension of the time to recover fees of three

years after judgment or the time for appellate review for a prevailing party that did not

seek to recover them in the underlying action, and limits the defenses that may be

raised to the fee claim. Id. § 30.022(b), (c), (d).

26
 IV. Analysis

As part of its first issue, the Fund challenges whether the trial court properly

granted Maxwell’s Rule 91a Dismissal Motion. One basis for Maxwell’s Rule 91a

Dismissal Motion was that a declaratory-judgment action should not be used as a

vehicle to deprive her of the ability to decide where and if she would file suit under

the Act. The rule invoked by Maxwell has its origin in the Texas Supreme Court

opinion in Abor, and for ease of reference, we will refer to the principle in question as

the Abor rule. 695 S.W.2d at 566. Undoubtedly, the Fund’s Declaratory-Judgment

Petition preempted Maxwell’s decision regarding whether she would file an action

under the Act and, if so, where she would file it. The Fund, however, argues that no

matter this effect, the Abor rule is of such limited application that it holds no sway.

The fact remains that the Act accords the decision regarding where to file suit to

Maxwell as a plaintiff who may invoke its remedy. Indeed, Maxwell averred that

because of the flux in the legal status of abortion, she had not decided whether to file

a suit against the Fund. Thus, as explained in more detail below, we conclude that the

Abor rule provides protection to Maxwell’s ability to control the destiny of her

litigation decisions that should not be thwarted by the Fund’s Declaratory-Judgment

Petition. We conclude that the trial court was correct in concluding that the Abor rule

warranted granting Maxwell’s Rule 91a Dismissal Motion.

A. We set forth the standard of review.

We recently set out the standard of review of a Rule 91a ruling as follows:

27
 Rule 91a allows a party to move to dismiss a claim brought against it if
the claim has “no basis in law or fact.” Tex. R. Civ. P. 91a.1. “A cause
of action has no basis in law if the allegations, taken as true, together
with inferences reasonably drawn from them, do not entitle the claimant
to the relief sought.” Id. “A cause of action has no basis in fact if no
reasonable person could believe the facts pleaded.” Id. We review the
merits of a Rule 91a ruling de novo. In re Farmers Tex. Cnty. Mut. Ins.,
621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding).

Quinn v. State Farm Lloyds, No. 02-22-00191-CV, 2023 WL 3749932, at *9 (Tex.

App.—Fort Worth June 1, 2023, no pet.) (mem. op.). The Texas Supreme Court has

applied the Abor rule in the context of a Rule 91a motion to dismiss. See In re Hous.

Specialty Ins. Co., 569 S.W.3d 138, 140–41 (Tex. 2019) (per curiam) (orig. proceeding).

B. We set forth the types of cases to which the Abor rule applies and
why we conclude that it should apply here.

The supreme court has explained the rationale of the Abor rule, its opinions

applying the rule, and an exception to it as follows:

The issue [in Abor] was “whether a potential defendant in a negligence
action can choose the time and forum for trial by beating the potential
plaintiff to the courthouse and filing suit seeking a declaration of non-
liability under [the UDJA].” . . . 695 S.W.2d at 565. After her daughter
died from being injected with the wrong drug during a chemotherapy
session, Abor filed a wrongful[-]death action in Harris County district
court against the drug’s manufacturer, the hospital where the injection
occurred, and several hospital staff members. Id. The case was removed
to federal court but then remanded for lack of diversity jurisdiction. Id.
Before the case was redocketed in Harris County, the defendants filed a
declaratory[-]judgment action in Bell County seeking a declaration of
nonliability. Id. Abor filed a plea in abatement in the Bell County suit,
arguing that the defendants’ claims were improper under the UDJA. Id.
The Bell County trial court denied the plea. Id.

We stated that “[b]ecause [the UDJA] appears to give the courts
jurisdiction over declarations of non-liability of a potential defendant in a

28
 tort action, . . . the Bell County District Court had jurisdiction over the
suit.” Id. at 566. But we went on to hold—in no uncertain terms and
consistent with the rule in other jurisdictions—“that the trial court
should have declined to exercise such jurisdiction because it deprived the
real plaintiff of the traditional right to choose the time and place of suit.”
Id.

Five years later, in BHP Petroleum Co. v. Millard, 800 S.W.2d 838
(Tex. 1990) (orig. proceeding), we commented on Abor’s significance,
explaining that we had “eschewed use of a declaratory[-]judgment action
to ‘deprive the real plaintiff of the traditional right to [choose] the time
and place of suit.’” Id. at 841 (quoting Abor, 695 S.W.2d at 566). In the
years since, we have never recognized any exception or nuance to the
rule that a potential tort defendant may not seek a declaration of
nonliability in tort. Cf. MBM Fin. Corp. v. Woodlands Operating Co., 292
S.W.3d 660, 668 (Tex. 2009) (declining to extend the rule of Abor to
breach-of-contract cases and explaining that “[t]he ‘real’ plaintiff in a tort
action is the injured party,” whereas in a contract case, “each party
[usually] claims the other breached”).

Id. at 140.

On appeal, the Fund tries to cabin the rule of Abor, arguing that it applies only

to a tort defendant’s effort to use a declaratory-judgment action to obtain a

declaration of non-liability in tort and noting that the supreme court itself has held

that the rule does not apply in a contract action. As the Fund argues, “The language

of four supreme court cases consistently limiting the rule to tort cases and the absence

of any cases to the contrary is sufficient to establish” the limitation that it cannot

apply to a “non-tort” case. But the Fund does not explain why the underlying

principle of Abor has no application in this case.

29
 First, a suit under the Act shares the central characteristic of a tort suit; it is a

suit for violation of a duty under the law. As the Fifth Circuit noted, a tort action in

Texas is usually defined by the source that creates the duty at issue:

Texas courts characterize actions as tort or contract by focusing on the
source of liability and the nature of the plaintiff’s loss:

As one prominent authority has explained[,] “Tort
obligations are in general obligations that are imposed by
law—apart from and independent of promises made and
therefore apart from the manifested intention of the
parties—to avoid injury to others.” If the defendant’s
conduct—such as negligently burning down a house—
would give rise to liability independent of the fact that a
contract exists between the parties, the plaintiff’s claim may
also sound in tort. Conversely, if the defendant’s
conduct—such as failing to publish an advertisement—
would give rise to liability only because it breaches the
parties’ agreement, the plaintiff’s claim ordinarily sounds
only in contract.

In determining whether the plaintiff may recover on a tort
theory, it is also instructive to examine the nature of the
plaintiff’s loss. When the only loss or damage is to the
subject matter of the contract, the plaintiff’s action is
ordinarily on the contract.

Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494–95 & n.2 (Tex. 1991)
(citing W. Keeton et al., Prosser and Keeton on the Law of Torts § 92, at
655 (5th ed. 1984)); see Formosa Plastics Corp. USA v. Presidio Eng’rs &
Contractors, Inc., 960 S.W.2d 41, 45 (Tex. 1998) [(op. on reh’g)]; Int’l
Printing Pressmen & Assistants’ Union of N. Am. v. Smith, . . . 198 S.W.2d
729, 735 ([Tex.] 194[6]); see also Hyundai Motor Co. v. Rodriguez ex rel.
Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999) (“Liability for personal
injuries caused by a product’s defective design can be imposed under
several legal theories, among them negligence, breach of warranty, and
strict products liability.”); Am. Nat’l Petroleum Co. v. Transcon[t’l] Gas Pipe
Line Corp., 798 S.W.2d 274, 283 (Tex. 1990) (“[W]hether a purchaser may
sue for breach of warranty or strict liability for a defective product

30
 depends on whether the product merely did not perform as promised
(contract) or whether it caused physical harm to person or property
(tort).”). But of course, “[t]he difficulty in determining whether the
action is in tort or in contract is in the application of the rule,” Int’l
Printing Pressmen, 198 S.W.2d at 735, and thus the process of
characterization resists rigid categories in favor of an analysis that
accounts for all of a claim’s particular contours.

Century Sur. Co. v. Hardscape Constr. Specialties, Inc., 578 F.3d 262, 267–68 (5th Cir.

2009).

The Fund’s argument turns a blind eye to whether the Abor rule extends to

protect a plaintiff’s autonomy regarding whether and where to file a claim that has the

earmarks of a tort claim. The autonomy to decide whether and where to file suit is as

clearly vested in a plaintiff’s seeking to recover for a violation of the legal duty created

by the Act as it is for the plaintiff in a tort suit. Thus, we are unpersuaded by the

Fund’s argument that the application of the Abor rule to tort cases means that it has

no application to the facts presented here.

Nor do the limitations that the Fund invokes and that the supreme court has

placed on the Abor rule apply to the situation before us. The Abor rule is not applied

in contract cases because the nature of the cause of action makes it difficult to decide

who should be accorded the status of the real plaintiff. In MBM Financial, the Texas

Supreme Court explained,

[T]he “real plaintiff” and the “traditional right to choose the time and
place of suit” are materially different in contract and tort cases. The
“real” plaintiff in a tort action is the injured party, yet both parties often
suffer injury if a contract collapses. When each party claims the other
breached (as is usually the case), it is hard to say who ought to be the

31
 “real” plaintiff. Here, for example, why should [appellant] get to choose
the time and place of suit rather than [appellee]? The [UDJA] itself
specifically contemplates declarations that are negative (non-liability) as
well as affirmative (liability). And historically, declarations of non-
liability under a contract have been among the most common suits filed
under the [UDJA] . . . .”

292 S.W.3d at 668 (footnotes omitted). Though the Fund argues against the

conclusion, there is no conceptual challenge in determining who the real plaintiff is in

a Heartbeat Act suit. The legislature has made that status clear.

We are also not persuaded by the Fund’s argument that attempts to turn the

tables on Maxwell by arguing that in our context it is difficult to determine who the

“real” plaintiff is and that the Fund, rather than Maxwell, should occupy that status:

Maxwell argues that the essence of the Abor rule is to prevent an “effort
to deprive the ‘real plaintiff’ of his traditional right to choose the time
and place of suit.” She also notes that “the ‘real’ party in a tort case is
the injured party.” But her inability to apply that logic to this situation
demonstrates why Abor is limited to tort cases and has not been
extended to cases where “it is difficult to determine who the ‘real’
plaintiff is.” Here, . . . Maxwell has suffered no injury, and, therefore,
can make no claim to the favored “real plaintiff” status, by her own test.
Just because the drafters of SB8 took the unprecedented and
unconstitutional step of allowing “any person” to sue to enforce SB8,
that does not make that person an “injured party.”

On the other hand, if SB8 is unconstitutional, as at least two
state[-]court judges and one federal judge have held, then [the Fund] will
be injured by submitting to Rule 202 depositions, being sued, and
possibly being subject to judgments in unlimited amounts. By . . .
Maxwell’s test, [the Fund] is, or will be, the injured party and is the “real
plaintiff” in a suit challenging the constitutionality of SB8. Although
SB8 creates several venue options for people suing to enforce SB8, [the
Fund] did not sue to enforce SB8[] but to challenge its constitutionality.
There is no reason why it, as the “real plaintiff” in that action, should be
deprived of its right to choose where and when to sue by a Rule 202

32
 petitioner who has not yet decided whether to file suit. [Briefing
references and footnote omitted.]

Again, at this point, the Texas Legislature has made it clear who the “real” plaintiff is

in a Heartbeat Act case and has also made it clear in its venue provision that such a

plaintiff has the autonomy to decide where to file suit. Tex. Health & Safety Code

Ann. § 171.210. The Fund may well have a defense to a suit, but the questions remain

(1) why the Abor rule does not forestall the assertion of the defense until litigation is

actually filed and (2) why a plaintiff invoking the Act should not have the ability to

decide whether it wants to go to the expense of litigating the claims and, if so, to

select the venue where it will be litigated.7

Also, as noted in the quote, the Fund argues that it should not have to wait for

Maxwell’s decisions because “if SB8 is unconstitutional, as at least two state[-]court

judges and one federal judge have held, then [the Fund] will be injured by submitting

to Rule 202 depositions, being sued, and possibly being subject to judgments in

The Fund also argues that
7

Maxwell attempts to establish a link to Abor by inaccurately claiming that
“[the] Fund is suing . . . Maxwell for a declaration of non-liability for
past conduct.” That is demonstrably false. [The Fund’s] suit for
declaratory and injunctive relief lists specific declarations that it is
seeking. There is no requested declaration that [the Fund] is not liable
for past conduct. In fact, neither “[the Fund]” nor any form of the word
“liability” appears anywhere in the requested declarations. [Briefing and
record references omitted.]

This is a distinction without a difference. The obvious effect of the Fund’s
Declaratory-Judgment Petition is to free it and others of liability under the Act.

33
unlimited amounts.” [Footnote omitted.] Simply, the decision of the state district

courts and the federal court are not definitive on the constitutionality of the Act, and

it appears that much litigation is ahead on that question. Nor is there certainty that

the parade of horribles that the Fund lists will come to pass. We do not know if the

Fund will actually be sued by Maxwell or, should that possibility come to pass, how

the court hearing that suit would resolve the Fund’s claims that the Act is

unconstitutional. Again, Maxwell may not want to take on the burden of responding

to what she now knows will be the full-throated defense that the Fund will raise and

the attendant expense and travail to herself of such a suit. And indeed, her calculus in

whether to file suit may well be different in a post-Dobbs world than it was when

Texas law was controlled by Roe. The Abor rule gives Maxwell the ability to make that

choice. Further, though Maxwell has never sued anyone under the Act and has only

sought to determine whether she might file suit, the Fund seeks to hold her liable for

the attorney’s fees it incurs for the prosecution of its Declaratory-Judgment Petition,

whether its challenge is successful or not. 8

Admittedly, Maxwell started the ball rolling by filing her 202 Proceeding but

did not do so based on the venue provision of the Act; instead, she filed the petition

in the county where the Fund’s executive director claimed to reside. The Fund did

In its petition, the Fund “specifically requests the recovery of reasonable
8

attorneys’ fees in advancing this action under Tex. Civ. Prac. & Rem. Code § 37.009.”
Section 37.009 provides that “[i]n any proceeding under this chapter, the court may
award costs and reasonable and necessary attorney’s fees as are equitable and just.”
Tex. Civ. Prac. & Rem. Code Ann. § 37.009.

34
not file a counterclaim in the 202 Proceeding, presumably because the rules that we

cite below demonstrate that a Rule 202 proceeding cannot be a basis for substantive

claims. Even so, the Fund is using that proceeding as the anchor for its substantive

claims against Maxwell. The question is whether the filing of an ancillary proceeding

that may never result in a lawsuit should subject Maxwell to the Fund’s Declaratory-

Judgment Petition, deprive her of the right to both decide whether to file a civil action

under the Act and to exercise her broad choice of the venue where to file the action,

and potentially make her liable for the fees incurred in litigating the Act’s validity. We

conclude that it should not.

For example, the Corpus Christi–Edinburg Court of Appeals dealt with

whether an intervention could be filed to litigate substantive claims in a Rule 202

proceeding. See Rodriguez v. Cantu, 581 S.W.3d 859, 869 (Tex. App.—Corpus Christi–

Edinburg 2019, orig. proceeding) (“Cantu has improperly attempted to use a pending

Rule 202 proceeding to institute substantive claims for relief regarding the removal of

an elected official from office.”). To support its holding, the court in Rodriguez

explained the limited purpose that a Rule 202 proceeding serves and how it does not

place unfiled claims before the trial court:

A Rule 202 proceeding “is not a separate independent lawsuit” but is
instead “in aid of and incident to an anticipated suit.” Lee v. GST Transp.
Sys., LP, 334 S.W.3d 16, 19 (Tex. App.—Dallas 2008, pet. denied); see
Office Emps. Int’l Union Loc[.] 277 v. Sw. Drug Corp., 391 S.W.2d 404, 406
(Tex. 1965) (interpreting the predecessor rule to Rule 202); Combs[ v. Tex.
Civil Rights Project], 410 S.W.3d [529,] 534 [(Tex. App.—Austin 2013, pet.
denied)] (concluding that a Rule 202 petition is not a “suit”); see also

35
 Patton Boggs LLP[ v. Moseley], 394 S.W.3d [565,] 571 [(Tex. App.—Dallas
2011, no pet.)] (concluding that the trial court lacked jurisdiction to grant
a motion to compel arbitration filed in a Rule 202 proceeding). Stated
differently, a Rule 202 proceeding is an ancillary proceeding. In re Wolfe,
341 S.W.3d [932,] 932[ (Tex. 2011) (per curiam) (orig. proceeding)]. A
Rule 202 petition “asserts no substantive claim or cause of action upon
which relief can be granted.” Combs, 410 S.W.3d at 534; see Hughes v.
Giammanco, . . . 579 S.W.3d 672, 678–79 . . . (Tex. App.—Houston [1st
Dist.] . . . , no pet.[), judgment set aside without vacating op., 2019 WL
3331124 (Tex. App.—Houston [1st Dist.] July 25, 2019, no pet.) (mem.
op.)]. Therefore, “a Rule 202 petition does not place unfiled claims
before the trial court for adjudication on the merits.” Caress v. Fortier, . . .
576 S.W.3d 778, 782 . . . (Tex. App.—Houston [1st Dist.] . . . 2019, [pet.
denied]). Instead, a successful Rule 202 petitioner “simply acquires the
right to obtain discovery—discovery that may or may not lead to a claim
or cause of action” upon which relief can be granted. Combs, 410 S.W.3d
at 534; see Hughes, 579 S.W.3d at 678–79 . . . .

Id. at 868–69; see also In re ASICS Am. Corp., No. 05-22-00994-CV, 2023 WL 333711,

at *5 (Tex. App.—Dallas Jan. 20, 2023, orig. proceeding) (mem. op.) (holding that an

attempt to assert a substantive claim in an ancillary discovery proceeding is

improper).9

9
We acknowledge the split of authority regarding whether a Rule 202
proceeding is a legal action under the TCPA. The El Paso Court of Appeals recently
summarized the split as follows:

The TCPA defines “legal action” as a “lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim[,] or any other judicial pleading
or filing that requests legal or equitable relief.” See Tex. Civ. Prac. &
Rem. Code Ann. § 27.001(6). Because Rule 202 specifically states, “A
person may petition the court for an order authorizing the taking of a
deposition . . . ,” it appears that a Rule 202 petition meets the plain-
language definition of “legal action” established by the [Texas]
Legislature in the TCPA. See Tex. R. Civ. P. 202.1; Tex. Civ. Prac. &
Rem. Code Ann. § 27.001(6). Three intermediate courts of appeals in
Texas have held a Rule 202 petition was a “legal action” subject to

36
 possible dismissal under the TCPA. See In re Krause Landscape Contractors,
Inc., 595 S.W.3d 831, 836 (Tex. App.—Amarillo 2020, no pet.); DeAngelis
v. Protective Parents Coal[.], 556 S.W.3d 836, 848–49 (Tex. App.—Fort
Worth 2018, no pet.); In re Elliott, 504 S.W.3d 455, 463 (Tex. App.—
Austin 2016, [orig. proceeding]). However, our two sister courts in
Houston held otherwise, determining [that] “Rule 202 petition[s] do[ ]
not assert a substantive claim or cause of action[]” and to require Rule
202 petitioners to present prima facie evidence of a claim which they
hope to investigate via pre-suit deposition in order to survive a TCPA
motion to dismiss “would render Rule 202 a nullity.” Hous[.] Tennis
Assoc., Inc. v. Thibodeaux, 602 S.W.3d 712, 718 (Tex. App.—Houston
[14th Dist.] 2020, no pet.) (citing Hughes, 579 S.W.3d at 685).

The Austin Court of Appeals undertook a thorough analysis of
the applicability of the TCPA’s definition of “legal action” to Rule 202
petitions in . . . Elliott, 504 S.W.3d at 464–65. We will not rehash their
entire examination here. Suffice to say, in addition to the plain language
of the statutory definition including “petition,” which is the method
described in the Rules of Civil Procedure for obtaining a pre-suit
deposition, see Tex. R. Civ. P. 202.1, a Rule 202 petition seeks equitable
relief. See [Elliott, 504 S.W.3d] at 464–65; see also . . . Krause, 595 S.W.3d
at 836 (noting that Rule 202 petitions seek an equitable remedy and
holding they, therefore, meet the TCPA definition of “legal action”). It
therefore squarely falls within the statute’s definition of “legal action.”
See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6) (definition of “legal
action” includes a “petition . . . or any other judicial pleading or filing
that requests legal or equitable relief[]”); see . . . Elliott, 504 S.W.3d at
464–65. We decline to follow the narrower definition adopted by our
sister courts in Houston. See Hous[.] Tennis, 602 S.W.3d at 718 (limiting
the TCPA definition of “legal action” to assertions of “substantive
claim[s] or cause[s] of action”); Hughes, 579 S.W.3d at 685 (same).

We, therefore, hold Appellee’s Rule 202 petition to depose
Appellants is a “legal action” for purposes of determining applicability of
the TCPA.

Florez v. Olibas, 657 S.W.3d 31, 38–39 (Tex. App.—El Paso 2022, pet. denied). As
noted by a concurrence to that opinion, a TCPA motion directed at a Rule 202
petition is limited as follows:

37
 Indeed, when it suits its argument, the Fund invokes the limited nature of a

Rule 202 proceeding to argue that “a Rule 202 petition can result in nothing more

than an order compelling a pre-suit deposition. It does not adjudicate claims, cannot

result in a final judgment, has no preclusive effect, and is not considered a lawsuit.”

[Footnote omitted.] As noted, when the Fund attempted to use the 202 Proceeding

to transfer this controversy to the MDL court, that court viewed the limited nature of

the proceeding as not providing the basis for the transfer and concluded that

Maxwell’s 202 Proceeding was not an attempt to enforce the Act.

At bottom, we are dealing with a venue provision by which the legislature has

not only specified the venue but has also specified that the plaintiff’s choice of venue

may not be overridden without the consent of all the parties. See Tex. Health &

Safety Code Ann. § 171.210. We see no logical reason why the Abor rule would not as

a general principle prevent the use of a declaratory-judgment action to deprive a

plaintiff of the right to choose the time and place for bringing a civil action to enforce

As our decision makes clear, the “essential elements of the claim” are
not the elements of the potential legal action that the Rule 202 movant
proposes to investigate. Otherwise, the TCPA would require the rather
absurd result that a party must have clear and specific evidence for a
claim that they may never file. At the Rule 202 stage, the movant is only
investigating whether they do have a basis in fact to bring a claim. So,
the “essential elements of the claim” in this context would be limited to
the predicates for a Rule 202 action.

Id. at 44 (Alley, J., concurring). Thus, the fact that a Rule 202 petition may prompt a
TCPA motion to dismiss does not alter the rule that such a petition does not put
substantive claims before the court.

38
the legal duty created by the Act. Maxwell did file her 202 Proceeding, but such a

proceeding is not an anchor for substantive claims. Contrary to that rule, the Fund is

using that proceeding as the anchor for its substantive claims. Indeed, the trial court

has not ruled regarding whether Maxwell will be permitted to take the deposition that

she sought in the 202 Proceeding. A host of contingencies stand between the current

state of affairs and the filing of a suit against the Fund under the Act or even having

its executive director sit for a deposition. We conclude that the rationale of the Abor

rule forestalls the burden placed on Maxwell by way of the Fund’s Declaratory-

Judgment Petition—a burden that she may or may not assume by going forward with

a suit under the Act.

We hold that the trial court properly granted Maxwell’s Rule 91a 10 Dismissal

Motion and overrule the portion of the Fund’s first issue challenging that ruling.11

10
Our holding that the Fund’s declaratory-judgment suit was properly dismissed
obviates the need to discuss the Fund’s request for a temporary and anti-suit
injunction. The Fund describes its request for injunctive relief as ancillary to its
Declaratory-Judgment Petition: “Its request for injunctive relief prohibiting . . .
Maxwell from enforcing SB8 is ‘ancillary,’ as it is based on the declaratory[-]judgment
claim.” The Fund also states, “The anti-suit injunction that [the] Fund seeks is
ancillary to its request for a prospective temporary injunction prohibiting . . . Maxwell
from enforcing SB8 against it.” Thus, the request for injunctive relief stands on the
shoulders of the underlying claim and falls when the underlying claim falls. See Frey v.
DeCordova Bend Ests. Owners Ass’n, 632 S.W.2d 877, 881 (Tex. App.—Fort Worth
1982) (holding that in order to be entitled to injunctive relief, an applicant must
demonstrate “the existence of a wrongful act,” and “[w]ithout unlawful conduct or
proof of intent to commit such conduct, any remedy is improper”), aff’d, 647 S.W.2d
246 (Tex. 1983).

39
 V. Conclusion

Having overruled the portion of the Fund’s first issue challenging the trial

court’s granting of Maxwell’s Dismissal Motion and denying discovery under the

TCPA and having overruled the Fund’s second issue challenging the trial court’s fee

award to Maxwell, we affirm the trial court’s “Order Awarding Defendant Attorneys’

Fees Under the Texas Citizens Participation Act and Rule 91a of the Texas Rules of

Civil Procedure,” which was signed on August 16, 2022; which was entered and

recorded on August 17, 2022; and which was initially referenced in the trial court’s

order signed August 11, 2022.

/s/ Dabney Bassel

Dabney Bassel
Justice

Delivered: February 29, 2024

Further, the Fund’s argument that the 202 Proceeding is moot feels
contradictory. The Fund argues that the 202 Proceeding triggers its ability to subject
Maxwell to its Declaratory-Judgment Petition but then argues that the proceeding has
evaporated. But whether now moot or not, we remain unconvinced that the 202
Proceeding deprives Maxwell of the autonomy to decide whether she would file an
SB 8 suit and, if so, where.
11
This resolution obviates the need to discuss the arguments raised by the Fund
in its first issue challenging the basis for the order granting dismissal under the TCPA.
It also obviates the need to address the Fund’s argument under its first issue that it
was entitled to take Maxwell’s deposition under the TCPA. See Tex. Civ. Prac. &
Rem. Code Ann. § 27.006(b). The Fund argues under its second issue that the trial
court erred by granting Maxwell fees and by denying it a fee award because the trial
court should not have granted Maxwell’s Rule 91a Dismissal Motion. We disagree
and thus overrule the Fund’s second issue.

40