Stephanie Muth, in Her Official Capacity as Commissioner of the Texas Department of Family and Protective Services, and the Texas Department of Family and Protective Services v. PFLAG, Inc. and Adam Briggle and Amber Briggle, Individually and as Parents and Next Friends of M.B., a Minor
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00420-CV
Stephanie Muth, in Her Official Capacity as Commissioner of the Texas Department of
Family and Protective Services, and the Texas Department of Family and Protective
Services, Appellants
v.
Mirabel Voe, Individually and as Parent and Next Friend of Antonio Voe, a Minor, and
Wanda Roe, Individually and as Parent and Next Friend of Tommy Roe, a Minor, Appellees
NO. 03-22-00587-CV
Stephanie Muth, in Her Official Capacity as Commissioner of the Texas Department of
Family and Protective Services, and the Texas Department of Family and Protective
Services, Appellants
v.
PFLAG, Inc. and Adam Briggle and Amber Briggle, individually and as parents and next
friends of M.B., a minor, Appellees
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-22-002569, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
OPINION
This appeal arises out of the appellees’ suit to enjoin appellants from investigating
appellees for child abuse after appellants announced that providing gender-affirming medical care
to minors constitutes child abuse.1
The individual appellees are Mirabel Voe, individually and as parent and next friend
of Antonio Voe, a minor; Wanda Roe, individually and as parent and next friend of Tommy Roe, a
minor; and Adam Briggle and Amber Briggle, individually and as parents and next friends of M.B.,
a minor (collectively, “Individual Appellees”). 2 We refer to Mirabel Voe, Wanda Roe, Adam
Briggle, and Amber Briggle collectively as the “Parents”; and to Antonio Voe, Tommy Roe, and
M.B. collectively as the “Minors.” Appellee PFLAG, Inc. was founded in 1973 by a mother and
her gay son and is the first and largest organization dedicated to supporting, educating, and
advocating for lesbian, gay, bisexual, transgender, and queer (LGBTQ+) people, their parents and
families, and allies. PFLAG is a network of over 250 local chapters throughout the United States;
there are 17 chapters in Texas. Individuals who identify as LGBTQ+ and their parents, families,
and allies join PFLAG directly or through one of its local chapters. Out of the approximately
250,000 members and supporters nationwide, over 600 members are in Texas. PFLAG asserts its
1
In this opinion, “gender-affirming medical care” refers to the use of puberty blockers and
hormone therapy for the treatment of diagnosed gender dysphoria. As explained in more detail
later in this opinion, “gender dysphoria,” as recognized by the Diagnostic and Statistical Manual
of Mental Disorders, Fifth Edition (DSM-5), refers to the condition experienced by some
transgender people of clinically significant distress resulting from the lack of congruence between
their gender identity and the sex assigned to them at birth. Under current clinical guidelines, only
transgender adolescents and adults are provided gender-affirming medical care; no medical
treatment is recommended or necessary before the onset of puberty.
2
All appellees except Adam Briggle and Amber Briggle are proceeding under pseudonyms
to protect their privacy. See Tex. R. Civ. P. 21c(a)(3), (b); Tex. R. App. P. 9.9 (a)(3), (b); cf. Tex.
R. App. P. 9.8 (requiring identification of minors by aliases in parental-rights termination cases).
2
claims in the lawsuit on behalf of its members. We refer to the Individual Appellees and PFLAG
collectively as the “Families.”
Appellants, Stephanie Muth, in her official capacity as Commissioner of the Texas
Department of Family and Protective Services, and the Texas Department of Family and Protective
Services (individually, “Commissioner” and “DFPS”; collectively, “Department”), challenge the
trial court’s grant of two temporary injunctions prohibiting them from implementing or enforcing
“a new rule” that “expand[ed] the definition of ‘child abuse’” and mandated an investigation of
caregivers who are providing gender-affirming medical care (which the trial court defined as the
“DFPS Rule”). 3 For the reasons explained below, we conclude that the trial court has jurisdiction
and properly exercised its discretion in issuing the temporary injunctions. Consequently, we affirm
the trial court’s grant of those injunctions.
BACKGROUND
The Department Issues a Statement
The underlying dispute arises from actions taken by the Department after the
Attorney General issued an opinion on February 18, 2022, concluding that dispensing certain drugs
to children with gender dysphoria could constitute “child abuse,” as defined by the Texas Family
Code. See Tex. Att’y Gen. Op. No. KP-0401 (2022), 2022 WL 579379. On February 22, 2022,
3
When these appeals were filed, Jaime Masters, in her official capacity as Commissioner
of the Texas Department of Family and Protective Services, was an appellant. Effective January
2, 2023, Stephanie Muth became the Commissioner. We have substituted Commissioner Muth as
an appellant in the appeals, as required by Texas Rule of Appellate Procedure 7.2. See Tex. R.
App. P. 7.2 (requiring that “public officer’s successor is automatically substituted as a party if
appropriate” when public officer ceases to hold office while appeal is proceeding if public officer
is party to appeal in official capacity).
3
the Governor wrote a letter to the Commissioner (“Governor’s Directive”), enclosing the Attorney
General’s opinion, which he described as confirming that the “administration of puberty-blocking
drugs or supraphysiologic[al] doses of testosterone and estrogen” constitutes child abuse under
existing Texas law, citing the definition of “abuse” found in Texas Family Code Section
261.001(1)(A)-(D).
The Governor directed the Department “to conduct a prompt and thorough
investigation of any reported instances of these abusive procedures in the State of Texas.” The
Governor emphasized that “Texas law imposes reporting requirements upon all licensed
professionals who have direct contact with children who may be subject to such abuse, including
doctors, nurses, and teachers, and provides criminal penalties for failure to report such child abuse”
and that members of the general public have similar reporting requirements and are subject to
similar criminal penalties. The Governor further instructed the Department that it “must follow
the law as explained in OAG Opinion No. KP-0401” by investigating parents whose children are
“subjected to these abusive gender-transitioning procedures.” 4 That same day, the Department
issued the following statement to the media:
4
In August 2021, the Governor had sent a letter to the Commissioner, requesting that she
“issue a determination whether genital mutilation of a child for purposes of gender transitioning
through reassignment surgery constitutes child abuse.” The Governor pointed out that classifying
reassignment surgery as child abuse would also impose a duty on the Department to conduct
prompt and thorough investigations of the child’s parents and that other state agencies would be
obliged to investigate the facilities they license. As requested, the Commissioner responded with
a letter declaring that “[g]enital mutilation of a child through reassignment surgery is child abuse,
subject to all rules and procedures pertaining to child abuse.” The letter explained the reporting
requirements for licensed professionals who have direct contact with children through their job, as
well as the penalties for failure to report. The letter closed by stating that “allegations involving
genital mutilation of a child through reassignment surgery will be promptly and thoroughly
investigated and any appropriate actions will be taken.”
The record reflects that the Department had not been notified of any allegations related to
reassignment surgery, and thus, it had never opened any investigations of child abuse based on
4
In accordance with Governor Abbott’s directive today to Commissioner Masters,
we will follow Texas law as explained in Attorney General opinion KP-0401.
At this time, there are no pending investigations of child abuse involving the
procedures described in that opinion. If any such allegations are reported to us,
they will be investigated under existing policies of Child Protective Investigations.
(“Department Statement”). 5 As noted in the Department’s Statement, at that time there were no
pending investigations of child abuse based on allegations involving the procedures described in
the Attorney General’s opinion.
The Department Begins Investigating Families Based on Reports Alleging Administration of
Puberty Blockers or Hormone Therapy
Chapter 261 of the Texas Family Code governs investigations of reports of child
abuse or neglect. See generally Tex. Fam. Code §§ 261.001-505. The Texas Legislature has tasked
the Department with making “a prompt and thorough investigation of a report of child abuse or
neglect allegedly committed by a person responsible for a child’s care, custody, or welfare.” Id.
allegations of reassignment surgery as of July 5, 2022. The Court notes that the Families’ expert
attested in her declaration that “[g]ender affirming surgeries that can result in sterilization as a side
effect are not recommended for and are not typical practice in minors with gender dysphoria. As
per the current guidelines of care, transgender individuals must be over the age of majority to make
this decision in consultation with their medical providers.” As discussed in more detail below, the
Department’s investigations at issue here involve reports that parents are providing their children
with gender-affirming medical care for diagnosed gender dysphoria.
5
For simplicity, we will refer to the Department’s February 22, 2022 statement and
subsequent implementation of policies related to the expanded definition of “child abuse” as the
“Department Statement,” and we will analyze below the Families’ contention that the Department
Statement announced a new rule implementing the Governor’s Directive and the Department
subsequently adopted procedures implementing that new rule without following the rulemaking
provisions of the Administrative Procedures Act. Our references to the Department Statement
refer to what the trial court defined as the DFPS Rule in its orders—the Department’s “new rule
expanding the definition of ‘child abuse’ to presumptively treat the provision of gender-affirming
medical care . . . as necessitating an investigation.”
5
§ 261.301(a). The Family Code requires the Commissioner to “by rule assign priorities and
prescribe investigative procedures for investigations based on the severity and immediacy of the
alleged harm to the child.” Id. § 261.301(d).
The Department assigns investigations of reported abuse a priority designation
based on the severity of the alleged harm to the child and the immediacy of the risk. 40 Tex.
Admin. Code § 707.485 (2020) (Dep’t of Fam. & Prot. Serv., Timeframe for Response). The
Department’s priority designations are Priority 1 (P1), Priority 2 (P2), and Priority None (PN).
According to the Department’s Child Protective Services (CPS) Handbook, the Department
usually assigns a P1 designation when the following circumstances are present:
(1) a report that a child appears to face an immediate threat to his or her safety or
is in immediate risk of abuse or neglect that could result in death or serious
harm;
(2) any report alleging abuse or neglect that is received within 12 months after a
previous investigation was closed as “Unable to Complete”; or
(3) a report involving a child’s death that has never been investigated, and there is
a clear allegation that the death was the result of alleged abuse or neglect, even
if no other children are in the home.
According to Rule 707.485, the Department usually assigns a P2 designation when the case
involves allegations of abuse or neglect that do not involve an immediate risk of serious harm and
does not otherwise meet the criteria for P1 assignment. Id. According to the CPS Handbook,
P2-designated cases in which the youngest victim is age six or older must be formally screened.
The CPS Handbook states that a report may be classified as PN in three situations: (1) “[a]n
incident of abuse or neglect may have met legal definitions when the past incident occurred, but
at the time of the new report, no current dangers exist, and there is no known risk of recurrence”;
6
(2) “[e]ssential information is needed from a specific collateral or principal to determine whether
an allegation of abuse or neglect is assignable [for investigation]”; (3) a child death has been
reported and “[n]o allegations pertain to other children in the home” and “[t]he child fatality has
already been investigated and dispositioned by [the Child Protective Investigations division of
DFPS (CPI)].” A report may be classified as PN by a CPI screener when the report “[d]oes not
meet the criteria for an investigation” and “intervention by DFPS is not needed.”
After the Department issued its Statement to the media, it subsequently began
receiving reports involving the alleged administration of gender-affirming medical care.
According to Marta Talbert, DFPS’s Director of Field Investigations, who supervises the regional
directors throughout Texas, the Department instructed staff not to PN these cases. 6 Randa
Mulanax, a former CPS investigation supervisor, testified about how the Department instructed its
employees to treat these cases after the Department Statement was issued, and she corroborated
that employees were told that “these cases were not eligible for priority none status or a PN if it fit
the current policy and that they were also not eligible for administrative closure if it fit the current
policy.” Mulanax testified that this instruction was a change from prior policy “because the only
other cases prioritized that way were child death investigations or cases involving children in
conservatorship.” 7
Talbert testified that normally an investigation begins with contacting the reporter
of the alleged child abuse first to gather any additional information, checking criminal and CPS
6
Talbert testified at the temporary-injunction hearing.
7
Mulanax also testified that employees “were instructed not to put anything about these
cases in writing via email or text message through our work devices, and we were only to staff
them through phone calls or in person or through Teams and that we were to refer to them as
specific cases I believe was the verbiage.”
7
history to see if there is any information available on the alleged perpetrator of the abuse, and then
attempting to see and interview the alleged victim child before speaking to the parents or alerting
them of the allegations against them. In gender-affirming-care cases, the Department also tries to
find out who the child’s medical providers are and to contact them to gather information about the
child’s medical treatment.
Talbert testified that the potential dispositions of a Department investigation are the
following: “rule out,” which means the Department does not find “any preponderance of evidence
of abuse or neglect”; “reason to believe,” which means the Department does find evidence of abuse
or neglect; “UTD” or “unable to determine,” which means the Department knows abuse occurred
but does not know who the perpetrator is; and “UTC” or “unable to complete,” which usually
means the family left and the Department cannot find them. Talbert further testified that after an
investigation is complete, and the disposition is anything other than “unable to complete,” if “the
exact same complaint c[a]me back in,” the Department would not investigate the case again.
The Department Investigates Reports of Gender-Affirming Medical Care to Determine Whether
the Care Is Medically Necessary or Otherwise Harmful
The Attorney General’s opinion specified that it “does not address or apply to
medically necessary procedures,” Op. at *1 (emphasis added), and it characterizes the provision
of puberty blockers and hormone therapy for gender dysphoria as not medically necessary and
infringing upon a minor child’s constitutional right to procreate. Id. at *4-6. The Attorney General
further opined:
Even where the procedure or treatment does not involve the physical removal or
alteration of a child’s reproductive organs (i.e. puberty blockers), these procedures
and treatments can cause “mental or emotional injury to a child that results in an
observable and material impairment in the child’s growth, development, or
8
psychological functioning” by subjecting a child to the mental and emotional injury
associated with lifelong sterilization—an impairment to one’s growth and
development.
Id. at *9. Thus, the Attorney General concluded that a court could find these procedures and
treatments to be child abuse under Family Code Section 261.001(1)(A)-(D) where they are not
medically necessary or are otherwise harmful. Id. As the Department stated in its response to the
Families’ application for temporary injunction, after receiving this guidance from the Attorney
General and the Governor, the Department “made the determination that it would investigate
reports involving allegations of . . . the use of pubertal blockers and hormone therapy (PBHT) on
a child where such medication may not be medically necessary or [is] otherwise harmful.”
The Families allege in their petition that the Attorney General’s opinion “did not
take into account the medical consensus that certain procedures described in the [opinion]—
including puberty blockers and hormone therapy—are medically necessary when prescribed to
treat gender dysphoria” and that as a result, the Department began investigating families “for child
abuse based on reports that the families have followed doctor-recommended treatments for their
adolescent children.”
The Lawsuit
After the Department opened investigations into the Parents based solely on reports
that their minor children have been prescribed medical care for their diagnosed gender dysphoria,
the Individual Appellees, along with PFLAG, sued the Commissioner, DFPS, and the Governor on
June 8, 2022. In their petition, the Families asserted six claims: (1) a declaratory-judgment claim
that the new rule announced in the Department Statement is an invalid rule under the Texas
Administrative Procedure Act (APA), Tex. Gov’t Code Ch. 2001, see also id. § 2001.038(a); (2) a
9
declaratory-judgment claim that the Governor’s and Commissioner’s actions are ultra vires; and
constitutional claims that (3) the Governor’s and Commissioner’s actions violate the separation of
powers established by Article II of the Texas Constitution, see Tex. Const. art. II, § 1; (4) the
Governor’s Directive and the new rule announced in the Department’s Statement are
unconstitutionally vague, see Tex. Const. art. I, § 19; (5) the Governor and the Commissioner are
depriving the Parents and PFLAG members of their fundamental parental rights; and (6) the
Governor and the Commissioner are violating the guarantee of equal rights and equality under the
law for the Minors and the children of PFLAG members. 8 The Families sought temporary
injunctive relief against the Commissioner and DFPS solely on the ground that the Department’s
Rule violates the APA both procedurally and substantively. The Families sought permanent
injunctive relief against the Commissioner and DFPS on all grounds asserted in the petition.
The Commissioner and the Department filed a response to the Families’ application
for temporary injunction, in which the Commissioner and the Department challenged both the trial
court’s jurisdiction and the merits of the Families’ claims. On July 6, 2022, the trial court
conducted a one-day evidentiary hearing, which included testimony from the parties’ fact
witnesses and experts. 9
8
The Families attached to their petition the following exhibits: declaration of Samantha
Poe (a PFLAG member); affidavit of Lisa Stanton (a PFLAG member); expert declaration of
Cassandra C. Brady, M.D.; declaration of Brian K. Bond (PFLAG’s executive director);
declaration of Mirabel Voe; declaration of Wanda Roe; declaration of Tommy Roe; and affidavit
of Adam Briggle.
9
The trial court heard testimony from two of the Individual Appellees, Mirabel Voe and
Wanda Roe, and from Brian Bond, the executive director of PFLAG. In addition, Randa Mulanax
and Cassandra Brady, M.D., testified on behalf of the Families. Mulanax is a former DFPS
investigation supervisor for CPS who was employed there at the time of the Department Statement.
Dr. Brady is a Board-certified general pediatrician and pediatric endocrinologist, who is an
assistant professor of general pediatrics at the Vanderbilt University Medical Center and the
10
The trial court signed an order granting the Voes’ and Roes’ applications for
temporary injunction on July 8, 2022 (“Voe Injunction”). The trial court signed an order granting
PFLAG’s and the Briggles’ applications for temporary injunction on September 16, 2022
(“PFLAG Injunction”). In both orders, the trial court determined that the Families stated a valid
cause of action against the Commissioner and DFPS and that they presented evidence that satisfied
their burden to show a probable right to the declaratory and permanent injunctive relief they seek.
Specifically, the court stated that “there is a substantial likelihood that [the Families] will prevail
after a trial on the merits” because the “DFPS Rule was adopted without following the necessary
procedures under the APA, is contrary to DFPS’s enabling statute, is beyond the authority provided
to the Commissioner and DFPS, and is otherwise contrary to law.”
The trial court found that “gender-affirming medical care . . . was not investigated
as child abuse by DFPS until after February 22, 2022.” Thus, the trial court found, “[t]he DFPS
Rule changed the status quo for transgender children and their families,” and “[t]he DFPS Rule
was given the effect of a new law or new agency rule, despite no new legislation, regulation or
even valid agency policy.”
By finding that the Families had stated valid causes of action, the trial court
necessarily determined that, based on the evidence presented, it has subject-matter jurisdiction
over their claims. The court made its finding that it has subject-matter jurisdiction explicit by
clinical director of two clinics, the Differences of Sex Clinic and a gender-dysphoria clinic for
adolescents; she also provided an expert declaration with the Families’ petition. The Department
offered testimony from James Cantor, Ph.D, a clinical psychologist in Canada, and Marta Talbert,
DFPS’s Director of Field Investigations. The trial court excluded Cantor’s report that the
Department offered into evidence. The trial court also excluded an expert declaration and report
from Michael K. Laidlaw, M.D., and the declaration of Stephen Black, a DFPS employee, on
hearsay grounds.
11
concluding in the PFLAG Injunction that PFLAG has standing and the Briggles’ claims are ripe.
The trial court also held that, absent injunctive relief, the Families would “suffer probable,
imminent, and irreparable injury,” including but not limited to:
• being subjected to an unlawful and unwarranted child abuse investigation;
• intrusion and interference with parental decision-making;
• the deprivation or disruption of medically necessary care for the parents’
adolescent children;
• the chilling of the exercise of the right of Texas parents to make medical
decisions for their children relying upon the advice and recommendation of
their health care providers acting consistent with prevailing medical
guidelines;
• intrusion into the relationship between patients and their health care
providers;
• gross invasions of privacy in the home and school, and the resulting trauma
felt by parents, siblings, and other household members;
• outing an adolescent as transgender;
• adverse effects on grades and participation in school activities;
• fear and anxiety associated with the threat of having a child removed from
the home;
• increased incidence of depression and risk of self-harm or suicide;
• having to uproot their lives and their families to seek medically necessary
care in another state;
• being placed on the child abuse registry and the consequences that result
therefrom; and
• criminal prosecution and the threat thereof.
(Bullet points added.)
12
The temporary injunctions enjoin the Department from “implementing or
enforcing” the DFPS Rule (as defined by the trial court) against the Families, including PFLAG
members who are not parties to the suit. The Department is specifically restrained from
(1) investigating the Families “for possible child abuse or neglect solely based on allegations that
they have a minor child or are a minor child who is gender transitioning or alleged to be receiving
or being prescribed medical treatment for gender dysphoria;” and (2) from taking any investigatory
or adverse actions against the Families with investigations that have already been opened on this
basis other than to administratively close them.
The Department filed separate appeals from the Voe Injunction and the PFLAG
Injunction, which automatically superseded the injunctions. See Tex. Civ. Prac. & Rem. Code
§ 6.001(a)-(b); Tex. R. App. P. 29.1(b). The Voes and Roes requested emergency relief from this
Court, seeking reinstatement of the Voe Injunction during the appeal, which we granted. Masters
v. Voe, No. 03-22-00420-CV, 2022 WL 4359561, at *3 (Tex. App.—Austin, Sept. 20, 2022, order)
(per curiam). PFLAG and the Briggles also requested emergency relief, seeking reinstatement of
the PFLAG Injunction, which this Court provisionally granted while considering the emergency
motion, ultimately leaving the reinstatement of the temporary injunction in place for the pendency
of this appeal. Masters v. PFLAG, Inc., No. 03-22-00587-CV, 2022 WL 4473903, at *1 (Tex.
App.—Austin Sept. 26, 2022, order) (per curiam).
On the Department’s unopposed motion, the Court consolidated the two appeals for
briefing and consideration.
13
ANALYSIS
Although the Department identifies five “issues presented,” we will group and
address its issues consistent with the manner in which it presented those issues (and others) in the
argument section of its brief: (1) whether the Families have standing to bring their APA challenge
to the Department Statement; (2) whether the Families’ claims are ripe; (3) whether the Roe and
Briggle Appellees’ claims are moot; (4) whether sovereign immunity is waived for the Families’
APA challenge to the Department Statement; (5) whether the Families satisfied the requirements
for a temporary injunction by demonstrating (i) a probable right to the relief sought, (ii) that the
injunctions preserve the status quo, and (iii) that the injunctions prevent a probable, imminent, and
irreparable injury.10
There are two preliminary matters that affect our analysis of all of the Department’s
appellate issues. First, we address a recurring theme in the Department’s presentation of its issues
and the Families’ response to those issues. Throughout its briefing, the Department characterizes
the Families’ allegations as only alleging injuries from the Department’s investigations of each of
their individual families. The Families, however, allege a much broader scope of injury arising
10
The Department identifies the following five “issues presented” in its brief: (1) the
Department’s investigations do not cause a cognizable injury sufficient to confer standing to sue
on the Families; (2) the APA’s waiver of sovereign immunity for challenges to the validity or
applicability of agency rules should not apply to (a) communications between the Governor and
an executive agency or (b) an executive agency’s statement to the press about the agency’s internal
operations; (3) the Commissioner was not acting ultra vires but instead was exercising discretion
conferred upon her by statute when she agreed with the Governor’s and Attorney General’s
interpretation of the law and decided to initiate investigations based on that interpretation; (4) the
temporary injunction changes the status quo rather than maintaining it, and thus constitutes an
abuse of discretion, because DFPS has the statutory authority to assess and investigate reports of
child abuse; (5) a trial court abuses its discretion by issuing a temporary injunction that protects
against harm that is speculative and not imminent.
14
from the Department Statement, as well as from the Department’s subsequent investigations.
While the Families do allege a myriad of serious harms resulting from the investigations (see the
trial court’s list above of probable, imminent, and irreparable injuries), the heart of their suit is the
injury to their fundamental constitutional rights—the injury to the Parents’ fundamental right to
direct their children’s medical care and the Minors’ right to receive equal medical treatment—as
we discuss in more detail below. 11 The Families assert that the allegedly invalid rule impairs their
rights because the Department’s policy of mandatory investigations means that parents must
choose whether to follow the course of care prescribed by their children’s doctors and thus subject
themselves to investigation for child abuse or to stop following their doctors’ prescribed course of
care and risk harm to their children.
Second, when addressing its various jurisdictional challenges to the Families’ suit,
the Department frequently addresses claims alleged by the Families that are not relevant to its
interlocutory appeal of the temporary injunctions. The Families moved for the temporary
injunctions solely on their APA claims. Therefore, we address only the Department’s arguments
that are relevant to the Families’ APA claims and only to the extent necessary to address the
Department’s jurisdictional arguments and the propriety of the temporary injunctions. 12
11
The Families allege that these harms are also suffered by all PFLAG members with
transgender children and those children.
12
For this reason, to the extent that the Department makes jurisdictional or other arguments
about the Governor’s conduct, we need not address those in this appeal. See Tex. R. App. P. 47.1.
15
I. Standing
We first consider the threshold issue of whether the Individual Appellees have
standing to sue. “Standing is a constitutional prerequisite to maintaining suit.” Texas Dep’t of
Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004); see also Texas Ass’n of Bus.
v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993) (explaining standing requirement
stems from two constitutional limitations on subject-matter jurisdiction—separation-of-powers
doctrine, which prohibits advisory opinions, and open-courts provision, which contemplates
access to courts only for litigants suffering injury). Standing requires plaintiffs to demonstrate that
they possess an interest in a conflict distinct from that of the general public, such that the actions
complained of have caused them some particular injury. 13 See Williams v. Lara, 52 S.W.3d 171,
178-79 (Tex. 2001) (citing Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984) (“Standing consists of
some interest peculiar to persons individually and not as members of the general public.”)).
“Generally, standing involves a threshold determination of whether a plaintiff has
a sufficient ‘justiciable interest’ in the suit’s outcome to be entitled to a judicial determination.”
In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). Absent standing, a court lacks subject-matter
jurisdiction over the suit, “and the merits of the plaintiff’s claims thus cannot be litigated or
decided.” Id.; see also Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) (“The standing doctrine
13
“Constitutional standing requires that at least one plaintiff demonstrate they have
suffered a concrete and particularized injury that is fairly traceable to the challenged action and is
likely to be redressed by a court ruling in the plaintiff’s favor.” Brandt ex rel. Brandt v. Rutledge,
47 F.4th 661, 668 (8th Cir. 2022) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)); see also, e.g., Heckman v. Williamson County, 369 S.W.3d 137, 153 (Tex. 2012)
(concluding that only one plaintiff need have standing when “there are multiple plaintiffs in a case,
who seek injunctive or declaratory relief (or both), who sue individually, and who all seek the same
relief” because “if that plaintiff prevails on the merits, the same prospective relief would issue
regardless of the standing of the other plaintiffs”).
16
identifies those suits appropriate for judicial resolution.”). Thus, our analysis of whether the
Individual Appellees have standing is not a decision about whether they “will prevail in their suit;
it is about whether they may bring it in the first place.” In re H.S., 550 S.W.3d at 155.
Standing, like other issues implicating a court’s subject-matter jurisdiction (such as
ripeness and mootness), is a question of law that we review de novo. Id.; see also Mayhew v. Town
of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (addressing ripeness). “In evaluating standing, we
construe the pleadings in the plaintiff’s favor, but we also consider relevant evidence offered by
the parties.” In re H.S., 550 S.W.3d at 155 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
555 (Tex. 2000); Texas Ass’n of Bus., 852 S.W.2d at 446).
In their first issue, the Department contends that (1) the Individual Appellees lack
standing because they did not show an actual or imminent injury and (2) PFLAG lacks
associational standing because it cannot satisfy any of the requirements.
In their petition, the Families seek declaratory relief under Section 2001.038(a) of
the APA. Section 2001.038(a) establishes that
[t]he validity or applicability of a rule, including an emergency rule adopted under
Section 2001.034, may be determined in an action for declaratory judgment if it is
alleged that the rule or its threatened application interferes with or impairs, or
threatens to interfere with or impair, a legal right or privilege of the plaintiff.
Tex. Gov’t Code § 2001.038(a). “An agency rule is invalid if (1) the agency had no statutory
authority to promulgate it; (2) it was not promulgated pursuant to proper procedure; or (3) it is
unconstitutional.” Williams v. Texas State Bd. of Orthotics & Prosthetics, 150 S.W.3d 563, 568
(Tex. App.—Austin 2004, no pet.) (quoting Railroad Comm’n v. ARCO Oil & Gas Co., 876 S.W.2d
473, 477 (Tex. App.—Austin 1994, writ denied), superseded by statute on other grounds as stated
17
in Lower Laguna Madre Found., Inc. v. Texas Nat. Res. Conservation Comm’n, 4 S.W.3d 419, 425
(Tex. App.—Austin 1999, no pet.)).
The Families challenge the validity or applicability of the Department Statement
for three reasons. First, the Families allege that the Department Statement constitutes a “rule”
under the APA, and that the Commissioner bypassed mandatory APA procedures for rule
promulgation. Second, they allege that the Department Statement conflicts with the Department’s
enabling statute, exceeding the Department’s authority and rendering the Department Statement a
facially invalid rule. Third, they allege that the Department Statement is an invalid rule because
its application interferes with their fundamental parental rights and other equality and due-process
guarantees of the Texas Constitution. With the Families’ claims about the invalidity of the alleged
Department rule in mind, we consider the Individual Appellees’ standing to sue the Department.
A. Individual Appellees’ Standing
The Department contends that the Individual Appellees cannot satisfy the
requirement for standing that “a plaintiff must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Texas
Propane Gas Ass’n v. City of Houston, 622 S.W.3d 791, 799 (Tex. 2021) (quoting In re Abbott,
601 S.W.3d 802, 807 (Tex. 2020) (orig. proceeding) (per curiam) (explaining that “[t]he Texas
standing requirements parallel the federal test for Article III standing . . . .”)). The Department
challenges only the “injury in fact” component of standing, which requires the Individual
Appellees to show they have suffered “an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.”’”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). We understand the
18
Department’s argument to be that the Individual Appellees have not adequately shown an actual
or imminent harm from the Department Statement that allegedly establishes a new rule in violation
of the APA’s rulemaking procedures, as well as allegedly being a facially invalid rule and
unconstitutional. The Department contends that “[t]he bare existence of an investigation is not a
legally cognizable injury,” that the Individual Appellees’ alleged harm that the Department “would
find child abuse occurred based solely on allegations that a child is transgender and taking
[pubertal blockers and hormone therapy] . . . is nothing more than a hypothetical future risk,” and
that the theoretical possibility that the Department might seek a subpoena or otherwise take action
against the parents is not enough to establish standing now.
In response, the Individual Appellees assert that they have standing for two reasons:
(1) because “unlawful investigations constitute legally cognizable harm—regardless of the
outcome of such investigations” and (2) because the Department’s unlawful promulgation and
implementation of the Department Statement as a new rule have caused and will continue to cause
(in the absence of injunctive relief) “significant, ongoing, and irreparable harm far beyond an
‘investigation.’” In addition, the Families contend that the Department fails to read the Families’
allegations as pleaded. See Texas Ass’n of Bus., 852 S.W.2d at 446 (explaining that when reviewing
standing for first time on appeal instead of on appeal from dismissal for want of jurisdiction, court
“must construe petition in favor of the party [whose standing is challenged], and if necessary,
review the entire record to determine if any evidence supports standing”).
In their petition, the Families allege that the Department’s unlawful acts, including
the adoption and implementation of the Department Statement as an invalid rule, interfere with or
impair, or threaten interference with or impairment of, three legal rights or privileges. They assert
that the allegedly invalid rule (1) deprives them of their rights to due process because the new rule
19
is unconstitutionally vague, (2) violates the Parents’ fundamental rights to direct their children’s
medical care, and (3) violates the Minors’ rights to equality under the law. On appeal, they focus
primarily on the allegedly invalid rule’s violation of the Parents’ rights to direct their children’s
medical care and the Minors’ rights to receive medically necessary treatment for gender dysphoria,
when the same treatments may be prescribed to cisgender individuals for other reasons. We will
consider whether they have sufficiently alleged concrete and particularized, actual or imminent
harm to those latter two legally protected interests.
1. The Department Statement Impairs the Individual Appellees’
Fundamental Rights
For our standing analysis, we need to determine whether the Individual Appellees
have adequately alleged and the record supports that they have suffered “an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not
“conjectural” or “hypothetical.’”” Lujan, 504 U.S. at 560 (citations omitted). To demonstrate
standing under Section 2001.038, the Individual Appellees’
pleadings must contain more than conclusory statements that their rights have been
or probably will be impaired. The pleadings must allege, or the record must
demonstrate, facts showing how a particular rule has already interfered with the
plaintiffs’ rights or how that rule in reasonable probability will interfere with the
plaintiffs’ rights in the future.
Finance Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 592 (Tex. 2013) (Johnson, J. concurring
and dissenting). Construing the Individual Appellees’ pleadings in their favor, as we must, they
allege that the “sudden and substantive changes reflected in [the Department’s] new rule, and the
sudden shift in longstanding agency policies . . . had immediate and harmful effects across the
20
state,” as well as upon each of their families. Soon after the Department’s Statement, the
Department opened an investigation into each of the Parents, solely on the basis of reports that the
Minors have been prescribed medical care for their diagnosed gender dysphoria. We examine
below whether the Individual Appellees’ allegations and record evidence supports their claim that
the Department’s allegedly invalid new rule and the subsequent investigations have interfered with
or in reasonable probability will interfere with the Individual Appellees’ rights in the future.
a. Allegations of Legally Protected Interests
The Individual Appellees assert that this initiation of investigations against each of
them is an invasion of the Parents’ protected interest in the “fundamental right of parents to make
decisions concerning the care, custody, and control of their children.” See, e.g., Troxel v. Granville,
530 U.S. 57, 65 (2000) (charting history of precedent supporting this right and stating that “it
cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and control of their
children”). “This natural parental right has been characterized as ‘essential,’ ‘a basic civil right of
man,’ and ‘far more precious than property rights.’” Holick v. Smith, 685 S.W.2d 18, 20
(Tex. 1985) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)); see also, e.g., Wiley v. Spratlan,
543 S.W.2d 349, 352 (Tex. 1976) (“The natural right which exists between parents and their
children is one of constitutional dimensions.” (collecting United States Supreme Court cases)).
“The Texas Legislature has likewise recognized that parents are presumed to be appropriate
decision-makers, giving parents the right to consent to their [child’s] medical care and surgical
treatment.” Miller ex rel. Miller v. HCA, Inc., 118 S.W.3d 758, 766 (Tex. 2003); see also Tex.
21
Fam. Code § 151.001(a)(3) (parents have right and duty “to support the child, including providing
the child with . . . medical and dental care”).
The Texas Constitution also provides that all persons “have equal rights,” Tex.
Const., art. I, § 3, and “[e]quality under the law shall not be denied or abridged because of sex,”
id. art. I, § 3a. The Individual Appellees allege that the Department’s Statement targets the Minors
on the basis of their sex because the Department’s decision to investigate the provision of puberty
blockers and hormone therapy as “child abuse” only targets the provision of those treatments to
transgender youth, not to cisgender youth who are prescribed the medication for other reasons.
See, e.g., Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661, 668 (8th Cir. 2022) (determining that
statute prohibiting healthcare professionals from providing “gender transition procedures” is
subject to heightened scrutiny because it distinguishes on basis of sex who may receive certain
types of medical care and who may not). As an example, a cisgender male may be prescribed
testosterone without fear that his family will be targeted for investigation, but a transgender male
(who was assigned the sex of female at birth) may not.
b. Allegations of Harms from Investigations
Each Individual Appellee offered testimony about the impact these investigations
have had on their families—the significant amount of fear, stress, and anxiety and accompanying
physical symptoms that they, the Minors, and their other children have suffered because of the
Department’s investigations. One of the Minors attempted suicide on the day that he learned of
the Governor’s Directive to the Department, and the outpatient psychiatric facility that the hospital
referred him to subsequently reported his mother as an alleged perpetrator of child abuse after the
staff learned that he had been prescribed medication for the treatment of his diagnosed gender
22
dysphoria. The Minors, all of whom were interviewed by Department investigators either at their
homes or after being pulled out of class at school, either missed school or transitioned away from
in-person school to remote school for some amount of time, and all struggled to focus in school,
resulting in a deterioration in their academic performance after the investigations into their families
began. All of the Parents fear that their children will be taken away from them. They fear for their
children’s physical and mental health and safety because of the stress and anxiety that the
investigations are causing the children.
c. Allegations and Evidence Presented About Medical Necessity of
Treatment for Gender Dysphoria
All of the Parents testified that they have been following the advice and seeking the
guidance and expertise of their children’s healthcare providers about what treatment is medically
necessary for their children’s diagnosed gender dysphoria. All of them also testified to their
concern that if they failed to follow the advice, guidance, and counseling of their children’s
physicians and mental-health professionals about what treatment is medically necessary for their
children’s gender dysphoria, there would be detrimental short-term and long-term physical and
mental-health consequences for their children. The Families attached an expert declaration to their
petition and offered testimony at the temporary-injunction hearing from Cassandra Brady, M.D., a
board-certified general pediatrician and pediatric endocrinologist, who is an assistant professor of
general pediatrics at the Vanderbilt University Medical Center and the clinical director of two
clinics, the Differences of Sex Clinic and a gender-dysphoria clinic for adolescents. 14 Dr. Brady
14
A bibliography is attached to Dr. Brady’s declaration and expert report containing a
numbered list of scientific journal articles and other reports that she relied upon in making her
report and as additional support for her opinions. Dr. Brady’s declaration and expert report
23
attested that while “individuals are given a sex at birth based typically on their genital anatomy[,]
[r]esearch . . . has shown that determination of sex is far more complex than what is seen on genital
exam,” and “sex is a complex compilation of multiple factors, including one’s chromosomal make
up,” gonadal sex, fetal hormonal sex, pubertal hormonal sex, and gender identity.”
Dr. Brady further explained that for each of the above factors contributing to the
development of sex, there can be variations, meaning that the “sex-related characteristics do not
always align as either completely male or completely female,” and that these variations are
common. She attested that “[g]ender identity is an individual’s inner sense of belonging to a
particular gender,” explaining that “[i]ndividuals whose sex and gender identity align are
cisgender. Individuals whose sex and gender identity do not match are transgender/gender diverse.
Research has shown that gender identity has a strong biological basis and cannot be voluntarily
changed.” (Endnote reference numbers omitted.) Dr. Brady attested to the timeline of children’s
development of self-awareness of their gender identity, explaining that many children have a clear
sense of their own gender identity by age three to seven, but some individuals do not develop a
sense and awareness of what their gender identity is until later into pubertal age or adolescence.
She further attested that “[e]xperts agree that being transgender is a normal variation of human
development. The medical community at large considers attempts at changing one’s gender
identity to be a futile, harmful, and unethical treatment approach.” (Endnote reference
number omitted.)
Dr. Brady further attested that “[w]hile all individuals have a gender identity, not
everyone’s gender identity is that of their sex assigned at birth. When this happens in transgender
references the articles in her bibliography; accordingly, our discussion indicates when endnote
reference numbers referencing the articles in the bibliography have been omitted from quotations.
24
individuals (i.e., a lack of alignment of assigned sex and gender identity), it can cause significant
distress which is referred to as gender dysphoria.” (Endnote reference number omitted.)
According to Dr. Brady, “Gender Dysphoria (capitalized) is the medical diagnosis for the
significant distress that results from the incongruity between one’s gender identity and sex assigned
at birth. It is a serious medical condition, and it is codified in the American Psychiatric
Association’s Diagnostic Manual of Mental Disorders, Fifth Edition (DSM-5).” (Endnote
reference number omitted.) Dr. Brady attested to the DSM-5’s definition of gender dysphoria as
the following:
[a] marked difference between the individual’s expressed/experienced gender and
the gender others would assign him or her, and it must continue for at least six
months. In children, the desire to be of the other gender must be present and
verbalized. This condition causes clinically significant distress or impairment in
social, occupational, or other important areas of functioning.
[G]ender dysphoria is manifested in a variety of ways, including strong desires to
be treated as the other gender or to be rid of one’s sex characteristics, or a strong
conviction that one has feelings and reactions typical of the other gender.
(Endnote reference number omitted.)
Dr. Brady testified about the numerous criteria for the medical diagnoses of gender
dysphoria both in children and in adolescents and adults, which are codified in the DSM-5. 15 Both
conditions are associated with “clinically significant distress or impairment” “in social circles,
school, or other important areas of functioning” (for children) and in “social, occupational, or other
15
A diagnosis of “Gender Dysphoria in Children” applies to pre-pubertal children and
requires the manifestation of at least six of eight listed criteria evidencing “[a] marked
incongruence between one’s experienced/expressed gender and assigned gender, of at least 6
months duration.” A diagnosis of “Gender Dysphoria in Adolescents and Adults” requires the
manifestation of at least two of six criteria evidencing “[a] marked incongruence between
experienced/expressed gender and assigned gender, of at least 6 months duration.”
25
important areas of functioning” (for adolescents and adults). Dr. Brady attested that “[g]iven that
gender dysphoria can cause such distress, many transgender individuals face depression, anxiety,
and higher rates of suicidality than cisgender people,” but that “these risks do decline when
transgender individuals are supported and live according to their gender identity.” (Endnote
reference numbers omitted.)
Dr. Brady also attested in great detail to the evidence-based clinical guidelines for
the care of gender dysphoria that are peer reviewed and recognized by professional medical
societies, including the American Academy of Pediatrics and the Pediatric Endocrine Society. She
attested that medication treatment is not recommended in prepubertal minors, but “[o]nce a patient
enters puberty, treatment options include pubertal suppression therapy and gender affirming
hormones.” She further testified at length about both the safety of and risks associated with the
use of puberty blockers and hormone therapy in youth for the treatment of gender dysphoria, as
well as other conditions.
Dr. Brady testified to various dangers both from withholding pubertal suppression
and hormone therapy from young people with gender dysphoria when it is medically indicated and
from withdrawing treatment once it has been initiated. In particular, she testified that “[i]f we do
not provide treatment to adolescents with gender dysphoria, they may have an increased risk for
anxiety, depression, and suicide depending on where they are with their mental health.” She also
attested that “it is at least as dangerous to withdraw treatment once it has been initiated as it is to
withhold the initiation of treatment. Abruptly stopping gender affirming, medically necessary
26
therapies causes mental and physical harm.” 16 In their petition, the Individual Appellees
summarized the dilemma that they face as follows:
Parents and families across the state of Texas are fearful that if they follow the
recommendations of their medical providers to treat their adolescent children’s
gender dysphoria, they could face investigation, criminal prosecution, and the
removal of their children from their custody. . . . They are also afraid that if they do
not pursue this medically prescribed and necessary care for their children in order
to avoid investigation and criminal prosecution, their children’s mental and
physical health will suffer dramatically.
The Individual Appellees have alleged a myriad of serious injuries from the Department Statement
and the resulting investigations, such as the fear and anxiety associated with the threat of having a
child removed from their home, the increased incidence of depression and risk of self-harm or
suicide for the Minors, and the adverse effects on the Minors’ grades and participation in school
activities. We conclude that the Individual Appellees’ allegation that the Department Statement is
impairing or interfering with the Parents’ right to make medical decisions for their children in
consultation with and upon the recommendation of their medical providers (who are acting in
accordance with prevailing medical guidelines) constitutes an invasion of their legally protected
interests to direct their children’s medical care, as well as an invasion of the Minors’ right to seek
such care, sufficient to establish their standing to challenge the allegedly invalid rule. The
Department Statement’s effect exists separate and apart from the Department’s actual
investigations of the Individual Appellees. Next, we turn to the Department’s contention that the
investigations themselves cannot constitute a legally cognizable injury.
16
The Families alleged in their petition that “[f]aced with the purported changed definition
of ‘child abuse’ under Texas law, some medical providers temporarily discontinued medically
necessary care for transgender adolescents with gender dysphoria.”
27
2. The Department’s Investigations Have Invaded the Individual Appellees’
Legally Protected Interests
The Department argues that the Department’s investigations of the Individual
Appellees are not evidence of a legally cognizable injury because an investigation alone merely
creates a “theoretical possibility” that they could be injured in the future by Department action
against them. We disagree. The petition alleges and the record supports that the Department
Statement and the Department’s implementation of that Statement have subjected the Individual
Appellees to invasive mandatory investigations for child abuse solely based on reports that their
children are transgender and they have sought gender-affirming medical care for their children. 17
Although the Department asserts that “[t]he bare existence of an investigation is not a legally
cognizable injury,” the case they rely on for that proposition, Laird v. Tatum, 408 U.S. 1 (1972), is
distinguishable from the situation presented here. In Laird, the United States Supreme Court held
that the plaintiffs lacked standing to challenge an Army intelligence-gathering program. Id. at 11-
16. The plaintiffs alleged that the Army’s surveillance of lawful and peaceful civilian political
activity violated their rights. Id. at 2. The Court considered whether the plaintiffs had presented
a justiciable controversy through their allegation that “the exercise of [their] First Amendment
rights is being chilled by the mere existence, without more, of a governmental investigative and
data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the
17
Although the Department asserts in its brief that “none of the individual Appellees have
become the subject of an investigation based purely on the fact that their child is transgender and
receiving [pubertal blockers and hormone therapy],” it provides no record citation to evidence that
supports this conclusory assertion. The Department presented no evidence at the hearing
supporting its assertion that there was any other basis for the investigations of the Individual
Appellees.
28
accomplishment of a valid governmental purpose.” 18 Id. at 10. The Court concluded that the
plaintiffs had failed to allege a specific present objective harm or a threat of specific harm. Id. at
13-14. Contrasting the case with other cases in which allegations of a chilling effect of
governmental regulations presented a justiciable controversy, the Court explained that in those
cases, “the challenged exercise of governmental power was regulatory, proscriptive, or compulsory
in nature, and the complainant was either presently or prospectively subject to the regulations,
proscriptions, or compulsions that he was challenging.” Id. at 11.
In this case, the Individual Appellees are presently and prospectively subject to the
regulation that they are challenging. They are or have been the subject of invasive investigations
by the Department based on the Department’s enforcement of the allegedly invalid new rule. This
is more than a threatened and “certainly impending” injury—this is injury that has already
occurred. Cf. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410, 420 (2013) (concluding that
speculative fear that U.S government would target plaintiffs’ communications with foreign
contacts under challenged surveillance law relied on “highly attenuated chain of possibilities” and
“mere conjecture about possible governmental actions” thus did not satisfy “requirement that
18
The Court explained that the information-gathering system had been put into place after
President Johnson had ordered federal troops to assist local authorities during civil disorders in
1967 in Detroit and following the assassination of Dr. Martin Luther King in 1968 because the
Army determined it should do additional preparatory planning for providing such assistance to
local authorities and it needed more information “to be able to respond effectively with a minimum
of force” when called upon to assist local authorities. Laird v. Tatum, 408 U.S. 1, 4-5 (1972). In
describing the Army’s information-gathering system, the Court explained that “[t]he information
itself was collected by a variety of means, but it is significant that the principal sources of
information were the news media and publications in general circulation” and that some of the
information came from Army Intelligence agents who attended meetings that were open to the
public. Id. at 6. In other words, the principal sources of information were public in nature. In
contrast, here, the Department’s investigations seek private medical information.
29
threatened injury must be certainly impending”). Actually being investigated by the Department
only heightens the chilling effect and impairment that the Department’s Statement imposes on the
Parents’ fundamental right to direct their children’s medical care and the Minors’ right to equal
treatment under the law and is an invasion of their legally protected interests. Moreover, now that
the Department is actually investigating them, the Parents are subject to a real threat of likely civil
actions against them should the Department conclude that the care that the Minors are receiving
for their gender dysphoria is not medically necessary and thus constitutes child abuse. See Patel
v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69, 78 (Tex. 2015) (concluding plaintiffs
had standing because they had “suffered some actual restriction under the challenged statute
because TDLR initiated regulatory proceedings against each of them pursuant to their alleged
violations of the Texas cosmetology statutes and regulations” and they were alleging that statute
unconstitutionally restricted their rights to practice their profession); cf. Babbitt v. United Farm
Workers Nat. Union, 442 U.S. 289, 298 (1979) (“When the plaintiff has alleged an intention to
engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a
statute, and there exists a credible threat of prosecution thereunder, he ‘should not be required to
await and undergo a criminal prosecution as the sole means of seeking relief.’”); see generally
Tex. Fam. Code §§ 261.001-267.002 (establishing procedures by which Department can take
various actions, including imposing service plans on families, removing children from the home,
and seeking to terminate parental rights).
We conclude that the Individual Appellees have alleged, and the record
demonstrates, facts showing how the Department’s allegedly invalid rule has interfered with their
rights and in reasonable probability will interfere with their rights in the future by subjecting the
Parents to mandatory investigation for child abuse based on reports that they have sought medical
30
care for their children’s diagnosed gender dysphoria. See Norwood, 418 S.W.3d at 592. These
facts also show how the allegedly invalid rule has interfered with the Minors’ rights to equal
protection under the law and in reasonable probability will interfere with their rights in the future
by subjecting their families to investigation for child abuse because they have sought medical
treatment for their gender dysphoria. See id. Construing the pleadings and the record liberally
and resolving any doubt in the Individual Appellees’ favor, as we are required to do, we hold that
the Individual Appellees have standing to bring their APA claims against the Department. See
Texas Bd. of Chiropractic Examiners v. Texas Med. Ass’n, 616 S.W.3d 558, 567 (Tex. 2021)
(analyzing constitutional standing in APA rulemaking appeal). We conclude that they have alleged
a concrete and particularized imminent injury to the Parents’ constitutionally protected interest in
directing their children’s medical care and the Minors’ constitutionally protected interest in
receiving such care sufficient to establish standing and that the alleged injury “is directly traceable
to” the Department’s alleged rulemaking “and would be redressed here by judicial invalidation of
the challenged rule[].” Id.
B. PFLAG’s Standing
The Department argues that PFLAG lacks standing because it does not satisfy any
of the three prongs of the standard for associational standing adopted by the Texas Supreme Court.
See Texas Ass’n of Bus., 852 S.W.2d at 447 (adopting three-prong test first articulated in Hunt v.
Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). “[A]n association has
standing to sue on behalf of its members when ‘(a) its members would otherwise have standing to
sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested requires the participation of individual
31
members in the lawsuit.’” Id. (quoting Hunt, 432 U.S. at 343). We address each requirement
in turn.
1. PFLAG’s Members Would Have Individual Standing
As discussed above, the Individual Appellees have standing as individuals to assert
their claims that the Department’s Statement and its implementation resulted in an invalid rule,
and “the rule or its threatened application interferes with or impairs, or threatens to interfere with
or impair, a legal right or privilege of the plaintiff[s].” Tex. Gov’t Code § 2001.038(a) (emphasis
added). The Department argues that other PFLAG members have suffered no cognizable harm
because “[t]here are no court orders or requests for court orders pending against them, much less
pending against them based on the sole claim that one of their children is taking [puberty blockers
and hormone therapy].” We disagree. The Department’s implementation of a policy requiring
mandatory investigation of parents reported solely to have provided their children with
gender-affirming medical care harms all PFLAG members with transgender children in the same
way that the Individual Appellees allege that they have been harmed. The alleged concrete and
particularized and actual or imminent harm is that the parents’ fundamental right to direct the
medical care of their children is interfered with or impaired (or threatened to be interfered with or
impaired) by subjecting them to a Hobson’s choice: automatic investigation for providing medical
care for gender dysphoria prescribed by their doctors or attempting to avoid investigation by
denying their children that medical care, which could seriously harm their children. And the
PFLAG members’ minor children are alleged to suffer the same concrete and particularized and
actual or imminent harm that the Minors allege—interference with or impairment of (or threatened
interference with or impairment of) their rights to equal protection under the law because the
32
Department’s allegedly invalid rule targets their families for child-abuse investigations solely
because the adolescents seek (in consultation with medical professionals) medical treatment for
diagnosed gender dysphoria, i.e., puberty blockers and hormone therapy, when families whose
children received the same medical treatment for reasons other than gender dysphoria would not
be subject to investigation.
In addition, the Department argues that PFLAG has not identified members who
are actually injured or facing imminent injury. Again, we disagree. The trial court had before it
evidence of the allegedly invalid rule’s effect both on the Individual Appellees who are also
PFLAG members, as detailed above, and on non-appellee PFLAG members. The Families
submitted a declaration and an affidavit from parent members who are not parties to the suit.
One parent of a thirteen-year-old child who has been diagnosed with gender
dysphoria by a psychologist and is exploring the idea of a social transition attested that she was
contacted by a Department CPS investigator days after the Department issued its statement and
informed that her family would be investigated to determine if she had committed child abuse.
She attested that her child is not receiving medical care related to gender identity. Her child has
been seeing a psychiatrist for a few years and also sees another therapist regularly and sees a
separate psychologist who specializes in Eye Movement Desensitization and Reprocessing and
provides therapy to the child related to a traumatic event that occurred when the child was younger.
The mother attested that even after she provided the CPS investigator with a letter from the child’s
psychiatrist of several years confirming that the child is not receiving any gender-affirming
medical care, CPS continued to investigate by reaching out to one of the child’s teachers and
contacting the mother’s attorney to attempt to schedule a “viewing” of the child at a public place.
She refused. Her case remained open.
33
Another PFLAG member attested that her eleven-year-old child is transgender.
Although her child was assigned the sex of “male” at birth, the mother attested that once her child
could speak, she began expressing that she was “born in the wrong body” and “persistently and
consistently asking for girl clothes and girl toys.” The child’s twin brother is living with cerebral
palsy and other developmental disabilities that he was diagnosed with shortly after birth. The
parents discussed how the child expressed herself with the child’s brother’s doctors and the doctors
referred them to a psychologist in childhood pediatrics. The child was initially diagnosed as gender
nonconforming and later with gender dysphoria. The parents have allowed her to socially
transition, following their doctors’ advice to let her explore her gender and to “let her be the one
to lead that exploration.” The mother attested that “allowing her to transition was a long, arduous,
and thoughtful process,” undertaken through consultation with many experts, including her
pediatrician, a neurologist, an endocrinologist, and therapists. The mother attested,
The doctors and specialists told us that transgender youth who face rejection and
repression are far more likely to attempt suicide and self-harm. Faced with her
depression, anxiety, and continued insistence that she was a girl, her father and I
considered our decision to allow her to transition, or not, as a matter of life or death.
After seeing the “profound difference in her life for the better, and watching her thrive as her true
self,” the mother attested that she and the child’s father decided to advocate for her and for children
like her, seeking to bring awareness about transgender people within Houston’s Jewish community,
which they are a part of, and later by the mother and child appearing in the Texas Legislature in
2021 to testify against anti-transgender legislation. The child “testified that being transgender is
‘not a choice’ and that she ‘would rather die than be a boy.’” Although the child is not currently
undergoing medical treatment for her gender dysphoria, she is under the care of a team of
34
physicians and mental-health providers, who have recommended routine checkups to determine
when she begins puberty so that they can determine whether she should take puberty blockers.
The mother testified that shortly after the Department issued its statement, the hospital where the
child was receiving care stopped providing gender-affirming medical care to transgender youth.
Although the hospital announced later it would start providing such care again, the interruption in
care prompted the parents to begin considering healthcare options out of state for their child and
making plans to move away from Texas. The mother attested in great detail to the disruption to
both parents’ careers and their other child’s healthcare that such a move would cause, describing
it as “a last resort that would change the trajectory not just of our careers, but all of our lives.” She
attested that if the Department opens an investigation into their family for providing
gender-affirming medical care to their child that her doctors recommend and deem medically
necessary, they will seriously consider whether and when to move. The mother further attested to
the psychological impact that the Department’s change in policy has had on the whole family,
including the child, whose sleep and studies have suffered and who fears that she will be taken
away from them or that they will be forced to move away from the only home the children have
ever known. The mother attested that the parents want to be able to continue to provide their child
with whatever medically necessary care is recommended by her doctors, including puberty
blockers, and that their “decision to follow the advice of her healthcare team is especially acute
because [the child] testified before the Texas Legislature last summer that she would rather die
than be a boy.”
Contrary to the Department’s argument that PFLAG has failed to “identify
members actually injured or facing imminent injury,” the Families have specifically identified at
least five PFLAG members (including the three Parent Appellees) who have suffered, and who are
35
at risk to further suffer, from the “invasion of a legally protected interest which is (a) concrete and
particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical,”’”—their
constitutionally protected rights to care for their children and their children’s rights to be treated
equally under the law. See Lujan, 504 U.S. at 560. We conclude that PFLAG members who are
at risk of being investigated by the Department based solely on reports that their children are
receiving gender-affirming medical care would have individual standing to bring the claims
brought by PFLAG in this suit, and therefore, PFLAG satisfies the first requirement of
associational standing.
2. The Interests That PFLAG Seeks to Protect Are Germane to Its Purpose
The Department argues that PFLAG cannot satisfy the second requirement of
associational standing because it must demonstrate not only that the interest that it seeks to protect
is germane to its purpose, but also that the interest that is germane to its purpose relates to the
interest “by which its members would ‘have standing to sue in their own right.’” Abbott v. Mexican
Am. Legis. Caucus, Tex. House of Representatives, 647 S.W.3d 681, 694 (Tex. 2022) (quoting Save
Our Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 886 (Tex. App.—Austin 2010,
pet. denied)). The Department argues that PFLAG cannot satisfy this requirement because while
“members of PFLAG would presumably have standing to sue in their own right if they suffered
an injury in the form of being placed on the child-abuse registry or having their child removed
from their home[,] . . . PFLAG is not an organization whose purpose is to assist parents from being
wrongfully labelled child abusers.” The Department points to PFLAG’s statement on its website
that its purpose is “[t]o create a caring, just, and affirming world for LGBTQ+ people and those
who love them.” They contend that PFLAG’s general concern about a “caring, just, and affirming
36
world” is unconnected to its individual members’ “unrelated concerns about being found to have
abused their child.”
PFLAG responds that the reference in its mission statement to creating “a caring,
just, and affirming world for LGBTQ+ people and those who love them” does not end the inquiry
into its organizational purpose. As alleged in the Families’ petition and stated on its website, and
as its executive director testified at the temporary-injunction hearing, PFLAG focuses on
supporting, educating, and advocating for LGBTQ+ people and their families. In the petition, the
Families allege that PFLAG’s support of LGBTQ+ youth and their families includes “encouraging
and supporting parents and families of transgender and gender expansive people in affirming their
children and helping them access the social, psychological, and medical supports they need.”
(Emphasis added.) “More specifically, it includes working with PFLAG families to encourage
love for and support of their transgender and gender expansive children and to help them ensure
that the children’s needs are met.” (Emphasis added.) Thus, as the Families argue in their brief,
“[h]elping, supporting, and advocating for parents of transgender youth in affirming their
transgender identities and accessing the social, psychological, and medical supports that they need
is part of PFLAG’s mission.” We conclude that because the allegedly invalid rule targets those
parents for investigation for child abuse based on reports that their children are receiving
gender-affirming medical care, PFLAG’s representation of its members’ interests in challenging
the allegedly invalid rule is germane to PFLAG’s purpose of helping, supporting, and advocating
for parents of transgender youth and helping transgender youth access the medical and other
support they need. Therefore, PFLAG satisfies the second requirement for associational standing.
37
3. PFLAG’s Claims at Issue in This Appeal Do Not Require Its Individual
Members to Participate
The Department argues that PFLAG does not satisfy the third requirement for
associational standing because the claims asserted and relief sought require the individual PFLAG
members to participate in this lawsuit themselves. They contend that the claims alleged by PFLAG
require each affected member to demonstrate the particular injuries they have suffered and the
relief that they are entitled to. However, as the Families point out, the basis of their claims is not
individualized allegations about the investigations that they have been subjected to. Instead, the
specifics of those investigations “are collateral to the general harm[s] posed by” the allegedly
invalid rule, which are shared by all PFLAG members with transgender children—the threat or
actuality of being investigated for child abuse solely based on a report that their child is receiving
gender-affirming medical care, which impairs the parents’ rights to make medical decisions for
their children, and the minor children’s rights to equal protection.
Even if the PFLAG members’ individual experiences of the harm differ, they have
identical legal claims concerning the invalidity of the rule that will be resolved by the declaratory
and injunctive relief sought by PFLAG. See Big Rock Inv’rs Ass’n v. Big Rock Petrol., Inc.,
409 S.W.3d 845, 850 (Tex. App.—Fort Worth 2013, pet. denied) (explaining that when association
seeks “prospective equitable relief, it can reasonably be supposed that the remedy, if granted, will
inure to the benefit of those members of the association actually injured and that, consequently,
prudential concerns are advanced and the association may possess standing to invoke the court’s
remedial powers on behalf of its members”); see also Texas Ass’n of Bus., 852 S.W.2d at 448;
Hunt, 432 U.S. at 343-44. The Department argues on reply that individualized proof of injury is
necessary because the Department Statement and its implementation do not apply to all parents
38
with transgender children, only to those who are reported to be providing gender-affirming medical
care to their children. We disagree. All parents with transgender children suffer from the same
interference with or impairment of, or threatened interference with or impairment of, their rights
to direct their children’s medical care and their children’s rights to equal protection under the law
because the Department’s allegedly invalid rule targets their families solely based on reports that
they are providing gender-affirming medical care to their children. Needless to say, not all those
reports will be true, and some parents whose transgender children are not being prescribed puberty
blockers or hormones have been or will be reported nonetheless. Thus, because the injury to
parents and their children may be proven by individualized evidence from representative members,
but a fact-intensive inquiry of each affected individual member is not required to prove the alleged
harm, that need for limited individual member participation does not defeat associational standing
for PFLAG. See, e.g., Big Rock Investors Ass’n, 409 S.W.3d at 851 (collecting cases recognizing
that when claims can be proven by evidence from representative injured members, participation of
those individual members does not defeat associational standing). Consequently, PFLAG satisfies
the third requirement for associational standing. Because it satisfies all three requirements, we
conclude that it has established associational standing to bring on behalf of its members its claims
asserting that the Department Statement and its implementation constitute an invalid rule, which
constituted the basis for the temporary-injunction application. 19
19
We also conclude that there is no merit to the Department’s arguments that the PFLAG
Injunction is improper because (1) it applies to all PFLAG members in Texas, including those that
join after the PFLAG Injunction was entered, and (2) its terms are ambiguous. The PFLAG
Injunction enjoins the Department to “immediately cease any intake, investigation, or assessment”
solely based on allegations that the person has a minor child who is gender transitioning or
receiving gender-affirming medical care upon receipt of actual notice that the person is a member
of PFLAG. With regard to their first argument, the injunction’s application to PFLAG members
does not make it overbroad. As set forth by the trial court, it only shields those PFLAG members
39
II. Ripeness
The Department contends that the trial court lacks subject-matter jurisdiction
because Voe’s and PFLAG’s claims lack ripeness “[t]o the extent [their] claims rest on the fact that
they have ongoing investigations where the possibility exists that [the Department] might take
action against them in the future.” The Department argues that Voe and PFLAG lack a concrete
injury, asserting that their claims “are not yet ripe because no court order affects their parent-child
relationships,” and further, they will not be ripe “[u]nless, and until, [the Department] obtains a
final court order affecting their parent-child relationships.” Alternatively, the Department asserts
that Voe’s and PFLAG’s claims are not yet ripe “because [the Department] has not made even an
initial determination that they engaged in child abuse.” In the absence of the Department’s arrival
“at a definitive position that would inflict concrete harm” on Voe and PFLAG, the Department
argues that Voe’s and PFLAG’s claims are not yet ripe. In response, the Families contend that the
Department’s ripeness arguments fail for the same reason their standing arguments fail—because
that the Department undertakes to investigate solely on the basis of reported gender transitioning
of or gender-affirming medical care for a minor child. As explained above, those PFLAG members
would have individual standing because they have the same injury as the Individual Appellees in
this case. Contrary to the Department’s argument, this is not a statewide injunction—it applies
only to PFLAG members. In addition, in Abbott v. Doe, handed down on the same day as this
opinion, we have affirmed the statewide injunctive relief granted by the trial court from the invalid
DFPS Rule, meaning that the Department is enjoined from all investigations based solely on
reported gender transitioning of or gender-affirming medical care for a minor child, whether the
reported alleged perpetrator is a PFLAG member or not. See Abbott v. Doe, No. 03-22-00126-CV,
-- S.W.3d --, slip op. at 47-49 (Tex. App.—Austin 2024, no pet. h.) (citing Texas Health & Hum.
Servs. Comm’n v. Advocates for Patient Access, 399 S.W.3d 615, 620-21 (Tex. App.—Austin 2013,
no pet.) (affirming statewide injunction of regulation challenged as ultra vires); Combs
v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 724-25 (Tex. App.—Austin 2009, no pet.)
(affirming statewide temporary injunction of rule challenged under APA)). Nor is there any merit
to the Department’s second argument—the injunction is unambiguous in its identification of the
specific actions that the Department is enjoined from taking and also whom they may not
investigate or take adverse action against.
40
they rely on the same misapprehension of the Families’ pleadings and the harms that the Families
contend flow from the Department’s allegedly invalid new rule and its subsequent investigations.
“Ripeness, like standing, is a threshold issue that implicates subject matter
jurisdiction, . . . and like standing, emphasizes the need for a concrete injury for a justiciable claim
to be presented.” Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439,
442 (Tex. 1998) (citation omitted). “While standing focuses on the issue of who may bring an
action, ripeness focuses on when that action may be brought.” Waco Indep. Sch. Dist. v. Gibson,
22 S.W.3d 849, 851 (Tex. 2000) (footnotes omitted). The ripeness doctrine addresses both the
pragmatic, prudential concern of conserving judicial time and resources for real and current
controversies rather than hypothetical or remote disputes and the constitutional prohibition on
advisory opinions, which stems from the separation-of-powers doctrine. Patterson, 971 S.W.2d
at 442-43.
To avoid issuing an advisory opinion, our ripeness analysis considers “whether, at
the time a lawsuit is filed, the facts are sufficiently developed so that an injury has occurred or is
likely to occur, rather than being contingent or remote.” Patel, 469 S.W.3d at 78 (emphasis added).
Thus, we focus on whether the case involves ‘uncertain or contingent future events that may not
occur as anticipated, or indeed may not occur at all.’” Patterson, 971 S.W.2d at 442 (quoting 13A
Wright et al., Federal Practice and procedure, § 3532, at 112 (2d ed. 1984)). Ripeness does not
require a claimant to show that a concrete injury has occurred, provided the claimant shows the
injury is likely to occur or imminent. Gibson, 22 S.W.3d at 852; Patterson, 971 S.W.2d at 442.
The Department’s ripeness challenge relies on its misapprehension of Voe’s and
PFLAG’s claims—none of their claims require the determination of factual matters that have not
yet sufficiently developed. Compare Beacon Nat’l Ins. Co. v. Montemayor, 86 S.W.3d 260, 268
41
(Tex. App.—Austin 2002, no pet.) (holding claims against Texas Department of Insurance
concerned abstract insurance contracts and hypothetical sets of facts and thus were “preemptive
claims for contractual construction . . . to avoid regulatory enforcement”), with City of Waco
v. Texas Nat. Res. Conservation Comm’n, 83 S.W.3d 169, 176-77 (Tex. App.—Austin 2002, pet.
denied) (holding trial court had jurisdiction to hear City’s UDJA claim that concerned “purely legal
issue” of whether federal law prohibited state agency from issuing new permits in watershed until
agency adopted necessary pollution-reduction measures; claim was ripe because purely legal
question would not benefit from development of additional facts in connection with specific permit
application). While it would certainly be a concrete injury if the Department made an initial
determination that Voe or other PFLAG members have engaged in child abuse by providing their
children with gender-affirming medical care and if the Department sought and obtained court
orders affecting those families’ parent-child relationships, those are not the injuries for which Voe
and PFLAG seek relief. The injuries for which they seek relief are the allegedly invalid rule’s
interference with or impairment of the parents’ fundamental right to direct their children’s care and
the minor children’s right to equal protection. Our resolution of their claims and provision of relief
for those injuries does not require the determination of facts in the context of any individual
Department investigation.
Our consideration of ripeness is limited to the Families’ claim for declaratory relief
sought under the APA because they sought the temporary injunction challenged here solely on the
grounds that the Department’s alleged new rule violates the APA. 20 Thus, the only claim relevant
20
As mentioned earlier, we need not address the Department’s jurisdictional challenges to
the Families’ constitutional claims because those claims were not the grounds for the temporary
injunction.
42
to our ripeness analysis is the Families’ claim for declaratory relief based on the invalidity of the
Department’s new rule resulting in the investigation of Voe’s family and the Department’s stated
intent to investigate any family for child abuse who is reported to provide gender-affirming
medical care to their minor children, which would include PFLAG members. The nature of the
APA claim and the injuries that Voe and PFLAG allege from the allegedly invalid rule distinguish
this case from the cases relied upon by the Department to support its argument that Voe’s and
PFLAG’s claims are not ripe.
Neither of those cases involved claims asserting an invalid agency rule under the
APA that were determined to lack ripeness. See Gates v. Texas Dep’t of Family & Protective Servs.,
No. 03-11-00363-CV, 2013 WL 4487534, at *6 (Tex. App.—Austin Aug. 15, 2013, pet. denied)
(mem. op.) (affirming grant of Department’s plea to jurisdiction and trial court’s dismissal of
claims arising from investigation of parent for child abuse); Rea v. State, 297 S.W.3d 379, 381
(Tex. App.—Austin 2009, no pet.) (affirming trial court’s grant of Texas Medical Board’s plea to
jurisdiction and dismissal of doctor’s claims arising from Board’s investigation of him on basis
that his claims were not ripe). The Department urges that these cases stand for the proposition that
a declaratory-judgment action is premature if other proceedings that will affect the parties’
respective rights remain pending. We disagree.
The Department contends that this Court’s ruling in Gates compels us to conclude
that Voe’s and PFLAG’s claims are not ripe. The Department describes our holding in Gates as
rejecting Gates’s claim that the Department violated her rights by investigating her for reported
child abuse and placing her on the child-abuse registry “as unripe because the administrative
appeals process challenging that designation was ongoing,” citing Gates, 2013 WL 4487534, at
*1. That conclusion is nowhere to be found in Gates. Gates sued the Department and the
43
Commissioner under the UDJA, asserting constitutional claims and challenging the Department’s
investigation and subsequent actions against her after it received a report of child abuse against
her. Id. She challenged the thoroughness of the investigation, her placement on the central registry
of reported child-abuse cases, the fairness of the administrative-review process, and the
Department’s alleged improper release of confidential information. Id. The Department asserted
in a plea to the jurisdiction that the trial court lacked jurisdiction over Gates’s constitutional claims
because she had not suffered a cognizable injury and the claims were not ripe. Id. This Court
reviewed Gates’s arguments on appeal “that the Department violated her due process and due
course of law rights, her right to familial integrity, her equal protection rights, her right to privacy,
her free exercise of religion rights, and her right to confidentiality and a ‘thorough investigation’
of the report of child abuse as provided by Texas statutes.” Id. at *4. The Court concluded that
“Gates did not allege or present evidence that the Department’s challenged actions had ‘legally
affected’ her relationship with her children or that she had been precluded from adopting or
working in childcare,” she failed to plead facts supporting “a protected property interest in addition
to damage to her reputation or an interest that would entitle her to greater process than she received
during the Department’s investigation,” and she did not contend the child-abuse registry itself is
unconstitutional, and thus the trial court did not err by granting the plea to the jurisdiction. Id. at
*5-6. Although Gates had added an APA claim to a supplemental petition, the Court concluded
that Gates’s allegations of invalid rules focused on the Department’s specific conduct directed to
her and did not identify an “agency statement of general applicability,” see Tex. Gov’t Code
§ 2001.003(6) (defining “rule” for purposes of APA), and thus sovereign immunity was not waived
for her purported APA claim. Gates, 2013 WL 4487534 at *6. Our holding in Gates does not
compel a conclusion that Voe’s and PFLAG’s claim of an invalid rule resulting in investigation or
44
the threat of investigations that impair parents’ rights to direct their children’s medical care and
impair their minor children’s rights to equal protection is not ripe.
In Rea, a doctor whom the Texas Medical Board determined had committed
violations of the Medical Practice Act filed a suit, alleging statutory and regulatory violations by
the Board during its investigation of him, and seeking to enjoin the Board from continuing to
prosecute him and to enjoin the State Office of Administrative Hearings (SOAH) from adjudicating
the complaint filed by the Board against him. 297 S.W.3d at 381. Rea challenged the Board’s
violation of procedural requirements in its investigation of him, but he did not allege that the Board
or SOAH lacked authority to make an initial determination about the revocation or suspension of
a medical license. Id. at 384-85 (concluding that alleged violations of statutes by Board and its
decision to continue with disciplinary proceeding were preliminary to SOAH administrative
hearing, not final agency action). We concluded that the Board’s challenged acts were preliminary
to the administrative hearing before SOAH and that because the Board was “merely seeking to
take disciplinary action against Rea, no final decision ha[d] been made at the agency level” and
the Board’s acts had not yet caused Rea to suffer any concrete injury. Id. at 384. In other words,
Rea’s suit was a premature attempt by the plaintiff “to arrest the administrative process before the
agency ha[d] taken adverse action” against him. Beacon, 86 S.W.3d at 268. In contrast, here, Voe
and PFLAG do not challenge any individual determination by the Department of child abuse.
Instead, Voe and PFLAG challenge the Department Statement as an invalid rule under the APA,
resulting in an investigation or the threat of investigations that interfere with or impair parents’
rights to direct their children’s medical care and interfere with or impair their minor children’s
rights to equal protection. This APA challenge presents a purely legal question that will not benefit
from the development of additional facts in connection with any specific Department
45
investigation—resolution of the claim does not “depend[] on the occurrence of contingent future
events that may not occur as anticipated or may not occur at all.” Patterson, 971 S.W.2d at 444.
Moreover, Voe and PFLAG need not wait for the Department to make initial or
ultimate determinations that they engaged in child abuse by providing gender-affirming medical
care or to seek court intervention with their parental rights for the trial court to have jurisdiction to
consider whether the Department Statement constitutes an invalid rule under the APA and to grant
a temporary injunction based on that claim. “[T]he purpose of section 2001.038 is to obtain a final
declaration of a rule’s validity before the rule is applied.” Texas Mut. Ins. Co. v. Texas Dep’t of
Ins., Div. of Workers’ Comp., 214 S.W.3d 613, 622 (Tex. App.—Austin 2006, no pet.) (citing State
Bd. of Ins. v. Deffebach, 631 S.W.2d 794, 797 (Tex. App.—Austin 1982, writ ref’d n.r.e.) (“[O]ne
is not required to wait until the rule is attempted to be enforced against him before he may resort
to declaratory relief.”)). Here, the challenged rule is already being applied because the Department
is actively investigating the Voe family and has stated it will investigate any parents who are
reported to provide gender-affirming medical care to their minor children. To require Voe and
PFLAG to wait to bring their APA rule challenge until the Department has determined that they
have committed child abuse or obtained a court order “would defeat the purpose of section
2001.038.” Id. Voe and PFLAG are challenging the Department’s authority to conduct the
investigations at all, not the end result of the investigations. Cf. S.O. v. University of Tex.,
No. 03-16-00726-CV, 2017 WL 2628072, at *3 (Tex. App.—Austin June 15, 2017, no pet.) (mem.
op.) (explaining that “[t]he nature of the controversy, therefore, is whether the University officials’
act of conducting a disciplinary proceeding to consider revoking S.O.’s degree is ultra vires,
regardless of its outcome” and that “[t]his controversy is neither hypothetical, contingent, or
remote”). Voe and PFLAG do not complain about a determination of child abuse, they complain
46
that the Department has implemented an invalid rule and is conducting investigations based on
that invalid rule. We therefore conclude Voe’s and PFLAG’s claim that the Department Statement
is an invalid rule under the APA is ripe for adjudication.
III. Mootness
The Department contends that Roe’s and the Briggles’ claims are moot because the
Department closed out its investigations against them with a “ruled out” determination, meaning
that the Department did not find abuse or neglect of the child.21 The Department asserts that the
ruled-out determinations mean that there is no longer a justiciable controversy between them and
Roe and the Briggles. The Roe and Briggle Appellees disagree, asserting that the controversy
between them and the Department remains live while the Department Statement remains in effect
because anyone who supports their children’s gender-affirming medical care in the future is subject
to mandatory investigation if reported to the Department as a suspected child abuser on that basis.
“If a controversy ceases to exist—‘the issues presented are no longer “live” or the
parties lack a legally cognizable interest in the outcome’—the case becomes moot.” Williams
v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Although the Department contends that “nothing in the
record suggests an investigation on the same allegations will occur in the future,” nothing in the
record supports their contention that additional investigations cannot occur in the future. While
Talbert testified that if the Department has completed an investigation and the exact same
21
The Department closed its investigation into Roe with a “ruled out” determination after
Roe had filed her notice of appeal from the temporary injunction issued in favor of her and Voe,
and the Department advised the trial court of the closure of the investigation before the trial court
ruled on the temporary injunction in favor of PFLAG and the Briggles. The investigation into the
Briggles had been closed by the time of the temporary-injunction hearing. In the PFLAG
Injunction, the trial court expressly concluded that the Briggles’ claims were ripe (and thus
not moot).
47
complaint came back in, they would “not work that case again,” no evidence in the record supports
a conclusion that the Department would not investigate a new complaint against these families,
especially if there are allegations that their course of gender-affirming medical care has changed.
In addition, according to the Department’s CPS Handbook, now that Roe and the Briggles have
been investigated, they are ineligible for an “Abbreviated Ruled-Out” disposition of other
allegations in the future.22 And the Department’s “ruled-out” letter sent to Roe specifically
provides that the fact that her role as an alleged perpetrator of child abuse in this particular
investigation has been ruled out “does not preclude further involvement with your family by [the
Department], including the provision of services, court involvement, or even termination of
parental rights.” Given that the threat of mandatory investigation remains should anyone report
new allegations of child abuse based on gender-affirming medical care against Roe and the
Briggles, the allegedly invalid rule created by the Department Statement continues to invade their
protected interests in their fundamental rights to direct their children’s medical care and the
Minors’ rights to equal protection under the law.23 Accordingly, we conclude that the controversy
22
Excerpts from the Department’s CPS Handbook were admitted into evidence at the
temporary-injunction hearing.
23
The Department continues to mischaracterize Roe’s and the Briggle’s claims as
“challenges to [the Department’s] past investigation” and thus asserts that “the possibility of a
future investigation is too speculative to support standing for a new claim.” As explained at length
in the section of this opinion addressing standing, the Families do not allege merely that the
investigations themselves are the injury giving rise to their standing, they allege the impairment of
both the Parents’ right to direct their children’s medical care free from the concern that they may
be investigated for child abuse for “consenting to medically necessary care” and the Minors’ right
to seek that care. The purpose of Section 2001.038(a) is to allow plaintiffs to seek a determination
of the validity of a challenged agency rule for such an alleged impairment of rights. See, e.g.,
Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 903 (Tex. App.—Austin 2009, no pet.)
(explaining that plaintiffs may seek both declaratory and injunctive relief because Section
2001.038’s purpose “is to obtain a final declaration of a rule’s validity before the rule is applied”
(quoting Rutherford Oil Corp. v. General Land Office of State of Tex., 776 S.W.2d 232, 235 (Tex.
48
between the parties about whether the Department Statement is an invalid rule under the APA
remains live, and Roe’s and the Briggles’ APA claims that form the basis for the temporary
injunction are not moot.
Having overruled the issue raised by the Department about mootness, we also
consider whether legislation enacted in 2023 after this appeal was filed has rendered these cases
moot. Although none of the parties has brought the issue to the Court’s attention, and the
Department has not argued that Senate Bill 14 (“SB 14”) renders these cases moot or affects any
of the Families’ standing, “we must consider issues affecting our jurisdiction sua sponte.” State
ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018) (citing M.O. Dental Lab v. Rape, 139 S.W.3d
671, 673 (Tex. 2004) (per curiam)). On May 17, 2023, after these appeals were fully briefed, the
Texas Legislature enacted SB 14. The bill included Subchapter X of Chapter 61 of the Texas
Health and Safety Code, titled “Gender Transitioning and Gender Reassignment Procedures and
Treatments for Certain Children,” which became effective on September 1, 2023. See generally
Tex. Health & Safety Code §§ 161.701-.706. Section 161.702(b) prohibits a physician or
healthcare provider from knowingly “provid[ing], prescrib[ing], administer[ing], or dispens[ing]
any of the following prescription drugs that induce transient or permanent infertility: (A) puberty
suppression or blocking prescription drugs to stop or delay normal puberty; (B) supraphysiologic
doses of testosterone to females; or (C) supraphysiologic doses of estrogen to males.” Id.
§ 161.702(3).
App.—Austin 1989, no writ)). The closure of these investigations does not solve Roe’s and the
Briggles’ dilemma of whether to continue following the course of care prescribed by their
children’s doctors and potentially subject themselves to further investigation or to stop following
that course of care prescribed by their doctors and potentially seriously harm their children.
49
SB 14 addresses the provision of gender-affirming medical care by physicians and
healthcare providers licensed in Texas. It does not directly address the Department’s Statement or
codify it. The Families’ allegations that the Department Statement and its implementation embody
an invalid rule that interferes with their fundamental constitutional rights are not resolved by
SB 14. Gender-affirming medical care is still being legally provided in other states. Therefore,
the Department’s policy of mandatory investigations for child abuse based solely on reports that a
child has been prescribed medical care for their diagnosed gender dysphoria continues to have the
effect of requiring that parents choose either to follow the course of care prescribed by their
children’s doctors and thus subject themselves to investigation for child abuse or to stop following
their doctors’ prescribed course of care and risk harm to their children. Consequently, the issues
presented remain live and the Families continue to have a legally cognizable interest in the
outcome. See Williams, 52 S.W.3d at 184.
We conclude that SB 14 does not affect our jurisdiction over these cases.
IV. Sovereign Immunity
The Department asserts that the Families’ APA claims against the Commissioner
are barred by sovereign immunity. 24 The Department contends that the Commissioner is immune
from the APA claims because the Department Statement is not an agency “rule” subject to APA
review “because it is not a statement of general applicability that implements, interprets, or
24
Although the Department asserts that all of the Families’ claims—their APA claims,
claims of ultra vires acts by the Commissioner and by the Governor, violations of substantive
due-process rights, and violations of the Texas Constitution—are barred by sovereign immunity,
as noted elsewhere, we only address sovereign immunity for the APA claims that are the grounds
for the temporary injunction. Moreover, the Department does not argue that DFPS enjoys
immunity from the Families’ APA claims.
50
prescribes a law or policy,” see Tex. Gov’t Code § 2001.003(6)(A)(i), and alternatively, because it
falls into the exception for statements regarding “only the internal management or organization of
a state agency and not affecting private rights and procedures,” see id. § 2001.003(6)(C). The
Families respond that the Commissioner’s announcement in the Department Statement that the
Department was operationalizing the Governor’s Directive and her subsequent implementation of
the announced policy established a new agency rule, subject to challenge under Government Code
Section 2001.038(a), and thus immunity is waived for their challenge to that rule’s validity.
The APA allows a party to bring a declaratory-judgment action to challenge the
validity or applicability of an agency rule if it is alleged that the rule or its threatened application
interferes with or impairs a legal right or privilege of the plaintiff. Id. § 2001.038(a); see Texas
Dep’t of Transp. v. Sunset Transp. Inc., 357 S.W.3d 691, 700 (Tex. App.—Austin 2011, no pet.).
“Section 2001.038 of the APA is considered a legislative grant of subject-matter jurisdiction, such
that valid claims raised pursuant to its provisions are not barred by sovereign immunity.”25 Trinity
Settlement Servs., LLC v. Texas State Secs. Bd., 417 S.W.3d 494, 501 (Tex. App.—Austin 2013,
pet. denied) (citing Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 720 (Tex. App.—
Austin 2009, no pet.)); see also Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 903-04
25
The jurisdictional inquiry concerns whether the Department Statement and its
implementation constitutes a “rule” as defined by the APA, and if so, whether that rule or its
threatened application interferes with or impairs the Families’ legal rights or privileges. See Texas
Dep’t of State Health Servs. v. Sky Mktg. Corp., No. 03-21-00571-CV, 2023 WL 6299115, at *11
(Tex. App.—Austin Sept. 28, 2023, pet. filed) (mem. op.) (citing Combs v. Entertainment Publ’ns,
Inc., 292 S.W.3d 712, 720 (Tex. App.—Austin 2009, no pet.)). In their issue asserting that
sovereign immunity is not waived, the Department only challenges whether the Department
Statement and its implementation constitute a rule. In our standing analysis, we have already
concluded that the allegedly invalid rule interferes with or impairs the Families’ legal rights or
privileges. Thus, in this portion of the opinion we only address whether the Department Statement
and its implementation constitute a rule under the APA.
51
(Tex. App.—Austin 2009, no pet.) (holding that trial court has subject-matter jurisdiction to
consider claims for declaratory and injunctive relief if claimant raises valid rule challenges under
APA). “[A] challenged agency action constituting a ‘rule’—as defined by the APA—must exist
for a claimant to successfully invoke the trial court’s subject-matter jurisdiction under section
2001.038.” Trinity Settlement, 417 S.W.3d at 501 (citing Slay v. Texas Comm’n on Env’t Quality,
351 S.W.3d 532, 545 (Tex. App.—Austin 2011, pet. denied) (explaining that unless “rule” as
defined by APA is being challenged, “the claimant cannot obtain the declaratory relief the statute
authorizes against the State, its agencies, or its agents”)). Otherwise, sovereign immunity bars the
cause of action. Id.
The APA defines a “rule” as follows:
(6) “Rule”:
(A) means a state agency statement of general applicability that:
(i) implements, interprets, or prescribes law or policy; or
(ii) describes the procedure or practice requirements of a state
agency;
(B) includes the amendment or repeal of a prior rule; and
(C) does not include a statement regarding only the internal
management or organization of a state agency and not affecting
private rights or procedures.
Tex. Gov’t Code § 2001.003(6). In this case, the Families have alleged that the Department
Statement is an invalid rule because it satisfies the APA definition of a “rule” and was adopted
without substantial compliance with the APA’s procedural requirements for promulgating agency
rules. See id. §§ 2001.023, .028, .033, .035 (establishing requirements for notice, public comment,
52
reasoned justification by agency for rule, and substantial compliance). They allege that the
Department Statement “is a statement of general applicability that is (1) directed at a class of all
persons similarly situated and (2) affects the interests of the public at large.” They further allege
that the Statement set forth a new rule and enforcement policy by stating that the Department
would implement the Governor’s Directive and follow the law as explained by the Attorney
General’s opinion KP-0401, and that going forward, the Department would investigate reports of
gender-affirming medical care as “child abuse.” The Families allege that before the Department
Statement was issued, the Department had not promulgated any rule concerning the investigation
of gender-affirming medical care as child abuse and that no such investigations were being pursued
by the Department at the time of the Statement. In addition, they allege that before the Statement,
the Department had refused to investigate reports of gender-affirming medical care as child abuse,
instead treating such reports as “priority none” and closing them without further investigation. The
Families allege that after the Statement, at least nine investigations had been opened into families
based on allegations that before the Statement would not have been investigated. They further
allege that the Department instructed its CPS investigators and supervisors to pursue these cases
in a manner that departs from longstanding agency procedures and that lacks transparency,
including by instructing them not to put anything about the cases in writing. They supported these
allegations with evidence at the temporary-injunction hearing.
The Department contends that the Department Statement “cannot be said to be
implementing, interpreting, or prescribing a new law or policy.” Instead, they argue, it is exactly
the type of “informal agency statement that does no more than restate its own formally
promulgated rules” and thus is not itself a rule, relying on Teladoc, Inc. v. Texas Med. Bd.,
453 S.W.3d 606, 617 (Tex. App.—Austin 2014, pet. denied) (quoting Texas Dep’t of Transp.
53
v. Sunset Transp., Inc., 357 S.W.3d 691, 703 (Tex. App.—Austin 2011, no pet.)). The Department
characterizes the Statement as “merely [saying] that [the Department] would continue to comply
with the law, as interpreted by the Attorney General.” This characterization ignores the fact that
the Attorney General’s opinion expanded the definition of “child abuse” to include gender-
affirming medical care obtained from medical providers, an interpretation that was new and that
the Department was not complying with before the opinion, as evidenced by the fact that the
Statement informed the public that “[a]t this time, there are no pending investigations of child
abuse involving the procedures described in that opinion.” The Department also urges that state
agencies should be able to rely on the Attorney General’s opinions interpreting the law without
going through a formal rulemaking process.
It is well settled that in certain circumstances, “agency pronouncements that advise
third parties regarding applicable legal requirements” may constitute “rules” under the APA.
Sunset Transp., 357 S.W.3d at 703 (collecting cases). To constitute a “rule,” the “agency statement
interpreting law must bind the agency or otherwise represent its authoritative position in matters
that impact personal rights.” Id.; see also, e.g., Entertainment Publ’ns, 292 S.W.3d at 722
(emphasizing that Comptroller’s stated legal interpretation would bind agency employees to apply
rule and was “aimed at placing the regulated public on notice of the Comptroller’s prospective
blanket application of” certain section of tax code, “unambiguously expressing an intent to apply
this interpretation . . . in all future cases” involving similar facts regardless of whether particular
circumstances of each transaction might have resulted in different tax treatment under
Comptroller’s previous analysis). Here, similar to the rule at issue in Entertainment Publications,
the Commissioner unambiguously announced that the Department would follow the interpretation
of the law as explained in the Attorney General’s opinion in all future cases in which the
54
Department received reports of allegations that caregivers were providing children with gender-
affirming medical care. The Commissioner’s stated intent to follow that legal interpretation bound
Department employees to investigate any such reports as child abuse, even if those reports would
not have been investigated before February 22, 2022. The Department Statement also placed the
public on notice of the prospective blanket application of this interpretation by stating the
Department’s intent to investigate all such reports as child abuse. 26 See also Texas Alcoholic
Beverage Comm’n v. Amusement & Music Operators of Tex., 997 S.W.2d 651, 658 (Tex. App.—
Austin 1999, pet. dism’d w.o.j.) (holding agency’s memoranda to its law-enforcement agents
constituted “rule” because “memoranda set out binding practice requirements,” “substantially
changed previous enforcement policy,” and Commission’s agents “not only intend[ed] to enforce,
but ha[d] enforced administrative sanctions on owners and operators” of gaming machines). The
evidence presented at the hearing supports the trial court’s conclusion that the Department now
requires investigations to be opened on all reports of gender-affirming medical care, without
exception. The evidence from the Department’s witness at the hearing further supports the
Families’ allegations that those investigations into reports of gender-affirming medical care cannot
be designated a lower level of priority, such that the Department can close them without an invasive
investigation. The Commissioner’s intent for the Department to enforce this legal interpretation
by investigating all reports of gender-affirming medical care as child abuse renders the Statement
a rule because it impacts personal rights. See Sunset Transp., 357 S.W.3d at 703; see also Brinkley
v. Texas Lottery Comm’n, 986 S.W.2d 764, 770 (Tex. App.—Austin 1999, no pet.) (observing that
26
The Department does not challenge the Statement’s “general applicability” as that term
is used in the APA.
55
agency advisory opinion regarding applicable law would have no legal effect “absent a statute that
so provides or some attempt by the agency to enforce its statement against a private person”).
Opening mandatory investigations into families accused of child abuse based solely on the
provision of gender-affirming medical care to their children constitutes an attempt by the
Department to enforce the newly expanded definition of “child abuse” against those
private persons.
The Department argues in the alternative that even if the Department Statement
could be considered a “rule,” it would fall within the exclusion for statements “regarding only the
internal management or organization of a state agency and not affecting private rights or
procedures.” Tex. Gov’t Code § 2001.003(6)(C). The Department contends that the Statement at
most “suggests that [the Department] applies the law as set out in the Attorney General’s opinion
when investigating and identifying child abuse” and that application of the law by the Department
would not “itself have a binding effect on private parties,” quoting Slay, at 546. Similar to their
arguments asserting that investigations are not an injury and thus the Families suffer no injury from
the Department Statement, the Department argues that “[i]n the child-abuse context, private rights
may be affected when an abuser is found guilty of a crime or when a child is removed from a
home,” but that investigations do not affect private rights. We disagree with the Department—
private rights are unquestionably affected by an intrusive government investigation into one’s
home, family life, and childrearing practices. The Legislature has unquestionably granted the
Department the statutory authority to investigate reports of child abuse, even though those
investigations can be invasive, as long as those investigations comport with the Department’s
statutory authority and its properly promulgated rules. But the Department does not have the
power to decide and announce without following APA rulemaking procedures that the provision
56
of a certain type of medical care constitutes “child abuse” and that henceforth it will conduct
invasive investigations of families solely on the basis of reports that their children are receiving
that medical care. In addition to their right to be free from an unlawful government investigation,
the families of transgender children have the fundamental right to direct their children’s medical
care without fear that they will be investigated and their children have the right to receive that
medical treatment. The private rights of all parents of transgender children and of the transgender
children themselves are affected by the Department’s Statement of policy and its subsequent
implementation of that policy that any report that minor children are receiving gender-affirming
medical care will result in mandatory investigations for child abuse.
“[T]he core concept” in distinguishing between an agency statement that concerns
only “internal management” and a “rule” is whether the agency statement has “a binding effect on
private parties.” See Texas State Bd. of Pharmacy v. Witcher, 447 S.W.3d 520, 529 (Tex. App.—
Austin 2014, pet. denied) (quoting Slay, 351 S.W.3d at 546). “[T]o constitute a “rule” under [the
APA] definition, ‘an agency statement interpreting law must bind the agency or otherwise
represent its authoritative position in matters that impact personal rights.’” Id. (quoting Sunset
Transp., Inc., 357 S.W.3d at 703 (emphasis added in Witcher)). “In that regard, a distinction exists
between nonbinding evaluative guidelines that take into consideration case-specific
circumstances—which have been held not to be a rule—and policies that dictate specified results
without regard to individual circumstances, which have been held to be a rule.” Id. The
Department Statement does not constitute “nonbinding evaluative guidelines that take into
consideration case-specific circumstances”—it announced a policy dictating “specified results
without regard to individual circumstances”: all reports of provision of gender-affirming medical
care to minors will be investigated as child abuse. See id. The Department Statement does not fall
57
under the exclusion for statements “regarding only the internal management or organization of a
state agency and not affecting private rights or procedures.” Tex. Gov’t Code § 2001.003(6)(C).
We hold that the Department Statement “is a statement implementing, interpreting,
or prescribing the agency’s policy that affects private rights and has implications beyond the parties
to the underlying proceeding.” See Witcher, 447 S.W.3d at 529. Therefore, it is a rule within the
meaning of the APA. See id. (citing El Paso Hosp. Dist. v. Texas Health & Hum. Servs. Comm’n,
247 S.W.3d 709, 714 (Tex. 2008); CenterPoint Energy Entex v. Railroad Comm’n of Tex.,
213 S.W.3d 364, 369 (Tex. App.–Austin 2006, no pet.) (“Ad hoc rulemaking occurs when the
agency makes a determination that has implications beyond the instant parties . . . .”)). Because
the Department Statement satisfies the APA elements of a “rule” and the internal-management
exclusion does not apply, sovereign immunity is waived for the Families’ APA claims against the
Commissioner and the Department.
V. Temporary Injunction
The Department contends that the trial court abused its discretion by granting the
temporary injunctions for several reasons. They contend that (1) the Families did not demonstrate
a probable right to the relief sought, (2) the trial court’s injunctions upended rather than preserved
the status quo, and (3) the trial court’s temporary injunctions do not prevent irreparable harm but
could cause it. The Families respond that the trial court properly granted the temporary injunctions
because they established a probable right to relief and the temporary injunctions preserve the status
quo and prevent irreparable harm. We first consider whether the temporary injunctions preserve
the status quo and then turn to whether the Families established the necessary elements of a
probable right to relief and prevention of irreparable harm.
58
A. Standard of Review
Whether to grant or deny a temporary injunction is within the trial court’s sound
discretion, and thus, we should reverse the orders granting injunctive relief only if the trial court
abused that discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). We must not
substitute our judgment for the trial court’s judgment unless the trial court’s action was so arbitrary
that it exceeds the bounds of reasonable discretion. Id. A temporary injunction is an extraordinary
remedy and does not issue as a matter of right. Id. “To obtain a temporary injunction, the applicant
must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a
probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the
interim.”27 Id.
B. Status Quo
“A temporary injunction’s purpose is to preserve the status quo of the litigation’s
subject matter pending a trial on the merits.” Id. In the context of injunctions, the “status quo” is
the “last, actual, peaceable, non-contested status which preceded the pending controversy.” See,
e.g., Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 555 (Tex. 2016). The trial court found
as follows:
[A]n allegation about the provision of gender-affirming medical care, such as
puberty blockers and hormone therapy, without more, was not investigated as child
abuse by [the Department] until after February 22, 2022. The DFPS Rule changed
the status quo for transgender children and their families. The DFPS Rule was
given the effect of a new law or new agency rule, despite no new legislation,
regulation, or even valid agency policy.
27
We have already determined that the Families have pled and proved that they have a
valid APA rule challenge against the Department.
59
The Department contends that at the time the trial court issued its injunctions, the
Department was obligated “to investigate allegations of abuse and neglect,” and that the trial
court’s orders that it cease all investigations into the individual Families and all PFLAG members
do not maintain that status quo. They assert that preventing the Department from assessing
whether reports received about the Families and other PFLAG members are actually reports of
child abuse or neglect violates the Texas Supreme Court’s holding in In re Abbott, 645 S.W.3d 276,
281 (Tex. 2022) (orig. proceeding) (“Doe”). We disagree with that characterization of the holding
in Doe. In a mandamus proceeding challenging this Court’s Rule 29.3 order reinstating the trial
court’s temporary injunction, the Texas Supreme Court sought to clarify the roles of the various
government actors involved in the decisions that led to the underlying suit (and also led to the suits
underlying this appeal). Id. at 280. The Texas Supreme Court stated that while the Governor and
Attorney General “have every right to express their views on [the Department’s] decisions and to
seek, within the law, to influence those decisions[,] . . . [the Department] alone bears legal
responsibility for its decisions” and “must assess whether a report it receives is actually ‘a report
of child abuse or neglect.’” Id. at 281 (quoting Tex. Fam. Code § 261.301(a)). The court further
recognized that, “depending on the circumstances, [Rule 29.3] 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.’” Id. at 282 (quoting In re Texas Educ. Agency, 619 S.W.3d 679, 680 (Tex.
2021) (orig. proceeding)). While the court granted mandamus relief as to the portion of the Rule
29.3 order that purported to grant statewide relief to nonparties from the Department’s Statement,
without commenting on the merits, the court left in place this Court’s order reinstating the
temporary injunction to preserve the status quo and prevent irreparable harm to the parties during
60
the pendency of the appeal, concluding that “none of the State’s argument in [the Texas Supreme
Court] focuses on the circumstances of this child.” Id. at 283. The Texas Supreme Court’s opinion
in Doe does not mandate that we conclude that the temporary injunction did not preserve the
status quo.
Although the Department argues that the Department Statement did not change the
status quo because it merely stated that the Department would follow the Attorney General’s
opinion, which was interpreting existing law, including the definition of “child abuse” in the
Family Code, as Justice Lehrmann recognized in her concurring opinion in Doe, the Department’s
“summary change in policy pursuant to the Governor’s directive . . . served to narrow the
discretion of [Department] employees with respect to screening reports and conducting such
investigations” into allegations that minors were receiving medical care for gender dysphoria by
precluding the employees from designating such cases as “Priority None.” Id. at 287 (Lehrmann,
J., concurring). The trial court heard ample evidence concerning the changes to the Department’s
procedures for handling cases involving allegations of gender-affirming medical care that were
reported after February 22, 2022. See Butnaru, 84 S.W.3d at 211 (“The trial court does not abuse
its discretion if some evidence reasonably supports the trial court’s decision.”). The trial court’s
temporary injunctions in these cases, like the one in Doe, “temporarily reinstate[] [the
Department’s policies as they were prior to the February 22 directive, leaving [the Department]
free to screen and investigate reports based on its preexisting policies regarding medical abuse and
neglect.” Doe, 645 S.W.3d at 286.
The evidence presented here supports the trial court’s determination that the status
quo is preserved by its narrowly tailored injunction preventing the Department from investigating
and taking action against the Families for child abuse or neglect “solely based on allegations that
61
they have a minor child or are a minor child who is gender transitioning or alleged to be receiving
or being prescribed medical treatment for gender dysphoria.” 28
C. Probable Right to Relief Sought
The trial court concluded that the Families have a probable right to the relief sought
by their APA claims, based on the evidence that it heard concerning the Department’s changes in
policy after the Department Statement was issued. When reviewing a temporary injunction, “we
need not resolve the ultimate merits of the plaintiffs’ claims in order to determine whether they
established a probable right to relief.” Abbott v. Anti-Defamation League Austin, Sw., & Texoma
Regions, 610 S.W.3d 911, 917 (Tex. 2020). The Department contends that to establish that their
claims are likely to succeed on the merits, the Families must prove that (1) gender-affirming
medical care can never be a form of child abuse, and it is always safe and reversible and (2) the
Department “created a ‘new rule’ without the proper procedures or otherwise acted outside its
authority under state or federal law.”
The Department again relies on mischaracterizing the Families’ claims to challenge
the trial court’s conclusion that the APA claims will probably succeed on the merits. The
Department asserts that the factual premise underlying the Families’ claims is that
28
As Justice Lehrmann recognized with regard to the Doe order, these orders do not
“preclude [the Department] from investigating reports that a child diagnosed with gender
dysphoria is receiving treatment that is medically unnecessary or inappropriate. To the contrary,
it requires [the Department], as has always been its responsibility, to investigate reports of child
abuse or neglect allegedly committed by a person responsible for a child’s care, custody, or
welfare.” In re Abbott, 645 S.W.3d, 276, 286 (Tex. 2022) (orig. proceeding) (“Doe”) (Lehrmann,
J., concurring). The temporary injunctions only bar the Department “from initiating investigations
and making referrals based solely on the new grounds set out in the Governor’s directive” and the
Department Statement. Id. Thus, the orders do not change the status quo with regard to the
Department’s preexisting statutory authority.
62
gender-affirming medical care is always safe and reversible and that they failed to prove that is
true. Contrary to what the Department argues, the Families’ APA claims do not require them to
prove that gender-affirming medical care is always safe and reversible (which would be an
impossible task with virtually any course of medical treatment, including even most over-the-
counter drugs). We need not delve into the scientific details of the relative safety and efficacy of
gender-affirming medical care to address the actual factual premise of the Families’ claims, which
is this: the Department “singled out the established course of medical care for transgender youth
with gender dysphoria and deemed it presumptively abusive, not only treating it differently than
all other medical care, but treating it differently than the same care for non-transgender youth.”
What the Families challenge by their APA claims are the Department’s “actions in unilaterally and
unlawfully changing the definition of child abuse, declaring the provision of medically necessary
gender affirming care to be abuse, and subjecting all parents alleged to have secured such care for
their transgender adolescents to invasions of privacy and infringements of parental autonomy.” As
we discussed at length above, the Families sufficiently alleged and supported with evidence both
that the Department Statement and its implementation impairs their fundamental rights and that
the Department Statement and its implementation constitute a “rule” within the meaning of the
APA that the Department adopted without following the proper rulemaking procedures under the
APA. See Butnaru, 84 S.W.3d at 211 (requiring only some evidence that reasonably supports the
trial court’s decision under abuse-of-discretion standard). We hold that at a minimum the Families
have established a probable right to relief on their claim that the Department Statement is an invalid
63
rule because it is a rule within the meaning of the APA and it was adopted without following proper
rulemaking procedures. This claim is sufficient to support the trial court’s temporary injunctions.29
D. Probable, Irreparable Injury
“An injury is irreparable if the injured party cannot be adequately compensated in
damages or if the damages cannot be measured by any certain pecuniary standard.” Butnaru,
84 S.W.3d at 204. The trial court concluded that, absent injunctive relief, the Families would suffer
probable, imminent, and irreparable injury, including but not limited to:
• being subjected to an unlawful and unwarranted child abuse investigation;
• intrusion and interference with parental decision-making;
• the deprivation or disruption of medically necessary care for the parents’
adolescent children;
• the chilling of the exercise of the right of Texas parents to make medical
decisions for their children relying upon the advice and recommendation of
their health care providers acting consistent with prevailing medical guidelines;
• intrusion into the relationship between patients and their health care providers;
• gross invasions of privacy in the home and school, and the resulting trauma felt
by parents, siblings, and other household members;
• outing an adolescent as transgender;
• adverse effects on grades and participation in school activities;
• fear and anxiety associated with the threat of having a child removed from the
home;
29
The Families have also established a probable right to relief on their APA claims that
the Department Statement is invalid because the Department lacked statutory authority to
promulgate it and because it is unconstitutional, given our conclusions that the rule was made
without following proper rulemaking procedures under the APA and that the Families established
the impairment of fundamental constitutional rights.
64
• increased incidence of depression and risk of self-harm or suicide;
• having to uproot their lives and their families to seek medically necessary care
in another state;
• being placed on the child abuse registry and the consequences that result
therefrom; and
• criminal prosecution and the threat thereof.
(Bullet points added.) The Department argues that the Families have not shown irreparable harm
because “[t]hey speculate as to harm that could befall them if the investigations do not resolve in
a favorable way.” They further argue that during the months the Department continued its
investigations, no investigation “went beyond ensuring the wellbeing of the child and confirming
the child either was not on [gender-affirming medical care] or was receiving [gender-affirming
medical care] as part of medically necessary treatment.”
Again, these arguments mischaracterize the harms that the Families allege and that
the trial court found were supported by some evidence. The Families challenge the Department’s
authority to promulgate and implement the invalid rule in the Department Statement, and they
allege irreparable harm from the “actual and imminent violations of [their] fundamental rights to
care for their children, the threat to essential medical care, and equal protection violations” from
the potentially unlawful investigations. As previously discussed at length in connection with the
issues of standing and sovereign immunity, the trial court had before it ample evidence to support
a conclusion that the Department Statement constitutes an invalid rule that results in an actual or
imminent impairment of the Families’ fundamental rights. 30 See id. at 211. The harms listed by
30
We disagree with the Department’s contention that the trial court’s delay of two months
in granting the PFLAG Injunction demonstrates the lack of need for an injunction to preserve the
status quo, as well as the lack of imminent irreparable harm. We fail to see how the length of time
65
the trial court related to that conclusion are being subjected to an unlawful and unwarranted child
abuse investigation; intrusion and interference with parental decision-making; the deprivation or
disruption of medically necessary care for the parents’ adolescent children; and the chilling of the
exercise of the right of Texas parents to make medical decisions for their children relying upon the
advice and recommendation of their health care providers acting consistent with prevailing
medical guidelines. We also conclude that there is some evidence to support the other irreparable
harms identified by trial court. 31 See id.
Having concluded that the temporary injunctions preserve the status quo and that
the Families established the temporary-injunction requirements of a probable right to relief and
prevention of irreparable harm, we hold that the trial court properly granted the
temporary injunctions.
a court needs to rule bears on whether an injunction is necessary to maintain the status quo. And
although some time passed between the hearing and the trial court’s ruling, the evidence at the
hearing showed “factual circumstances of an enduring nature.” Intercontinental Terminals Co.,
LLC v. Vopak N. Am., Inc., 354 S.W.3d 887, 894 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(holding trial court did not abuse its discretion by finding irreparable harm five months after
evidence was presented to trial court). The Department does not identify any specific evidence
that it contends was no longer accurate or applicable at the time of the trial court’s ruling. See id.
The harm that the Families assert here “is of a continuing nature:” interference with the parents’
rights to direct their minor children’s medical care and the minor children’s equal right to treatment
and the “ramifications . . . caused by that interference.” Id.
31
The only harm that the Department alleges that it will suffer is the irreparable harm that
the State suffers when it cannot “enforce its duly enacted” laws. Texas Ass’n of Bus. v. City of
Austin, Tex., 565 S.W.3d 425, 441 (Tex. App.—Austin 2018, pet. denied) (quoting Abbott v. Perez,
585 U.S. 579, 602 n.17 (2018)) (emphasis added). As explained above, nothing in the temporary
injunction precludes the Department from enforcing the “duly enacted” laws allowing it to
investigate child abuse and neglect. The only thing the temporary injunction precludes is the
Department’s enforcement of an invalid rule requiring mandatory investigation of families for
child abuse based solely on reports that they are providing gender-affirming medical care to their
minor children.
66
CONCLUSION
Having overruled all of the issues raised by the Department, we affirm the trial
court’s temporary injunctions.
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Affirmed
Filed: March 29, 2024
67