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A unique Texas legal rule lets the attorney general’s office supersede some judges’ orders

By William Melhado, The Texas Tribune

A unique Texas legal rule lets the attorney general’s office supersede some judges’ orders” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Minutes before the close of business on a Friday in August, a state district judge temporarily ordered that women with complicated pregnancies could receive abortions in response to a lawsuit filed by Texans who had been denied care due to the state’s strict ban on the procedure.

“For the first time in a long time, I cried for joy when I heard the news,” lead plaintiff Amanda Zurawski said in a statement Aug. 4. “I have a sense of relief, a sense of hope, and a weight has been lifted. Now people don’t have to be pregnant and scared in Texas anymore.”

But within five hours of the judge’s decision, the Office of the Attorney General appealed State District Court Judge Jessica Mangrum of Austin’s temporary injunction. The simple act of filing the appeal immediately blocked the order and reinstated the abortion ban in full, without a single person testifying or any argument being considered.

That’s because an uncommon provision in state law allows the attorney general to supersede a state judge’s order.

Unofficially called the supersedeas rule, the provision is intended to prevent legal challenges from upending the status quo before a full legal case plays out. But lawyers whose victories have been quickly overturned by the provision argue it weakens the separation of powers between the branches of government and has created chaos for Texans subject to new laws.

“It’s absolutely appalling that the state would appeal this ruling — a ruling meant to save women’s lives,” Molly Duane, senior staff attorney at the legal group Center for Reproductive Rights, said in a statement about last month’s abortion ruling. “What our plaintiffs went through was pure torture, and the state is hell bent on making sure that kind of suffering continues.”

The Office of the Attorney General, which did not respond to requests for comment, exercised the supersedeas rule at least three times in rapid succession in the past several weeks to ensure new Texas laws take effect. Lawsuits have targeted legislative priorities that have become increasingly far-reaching and vital for conservative causes — abortion, election security and transgender health care access.

Just over a week after the abortion law was briefly impacted and rapidly reinstated, another Travis County district judge ruled that a new law abolishing Harris County’s elections chief position was unconstitutional and would disrupt this fall’s elections. Immediately, the attorney general’s office appealed the temporary injunction — also in the Texas Supreme Court — allowing Senate Bill 1750 to go into effect on Sept. 1.

The following week another Austin-based district court blocked Senate Bill 14 from banning transition-related care for trangender youth. Hours after the judge issued a temporary injunction — citing the harm that would come to trans children and their families if access to this medical care was taken away — an appeal by the state superseded the order and allowed the law to go into effect.

“The bar for obtaining a temporary injunction is high,” said Karen Loewy, senior counsel and director of constitutional law practice at Lambda Legal, one of the legal groups suing Texas over SB 14. “To have that swept away by the filing of a document that overrides an injunction, it’s unjust and odd.”

The little-known supersedeas rule of Texas courts is applicable only under specific circumstances. In temporary injunctions levied against the state, the attorney general can appeal a judge’s order. Similar appeals typically require defendants to post a bond but state agencies are exempt from putting up cash. The exemption allows the state’s appeal to supersede the judge’s order, preventing the court from enforcing the injunction while the case proceeds in court.

The supersedeas rule isn’t new, though it’s unfamiliar to attorneys who primarily work in federal courts, said South Texas College of Law professor Charles “Rocky” Rhodes. The federal government’s appeals process doesn’t offer the same ability to so quickly and automatically block a judge’s orders, he said.

What is new, Rhodes said, is the numerous challenges to the constitutionality of Texas laws that are going to state courtrooms, rather than federal ones. Rhodes said it was also rare for the attorney general’s office to appeal cases from district-level courts directly to the Texas Supreme Court instead of a court of appeals.

In the three August cases, the state bypassed the Austin-based 3rd Court of Appeals to go to the state’s Supreme Court. Only in cases that present a constitutional challenge can the attorney general directly appeal to the highest civil court.

“This is definitely a strategic decision by the attorney general’s office to take more of these cases right to the Texas Supreme Court whenever they can … where they think that they have a much more favorable tribunal than the Austin Court of Appeals,” Rhodes told The Texas Tribune.

Loewy attributed the frequency of cases going to the Supreme Court to the substance of the Republican-controlled Legislature’s recent slate of new laws.

“I think the real reason we are seeing more of these is about the nature of the laws coming out of the Texas Legislature. They are increasingly beyond the pale in the ways they infringe people’s rights and call for constitutional challenges,” Loewy told the Tribune.

In 2017, Texas legislators made a change to courts that give the state more authority to prevent judge’s orders from blocking the enforcement of laws. Previously, plaintiffs could “counter-supersede” the state’s appeal, which would reinstate a judge’s injunction. Lawmakers passed a bill that prevented plaintiffs from taking this action, ensuring only the state’s supersedeas appeal remains in effect.

An appellate court or the Supreme Court can issue another temporary injunction, known as a Rule 29.3, but that requires these judges to weigh the evidence that was already heard in trial courts and issue a separate order to reinstate a temporary injunction.

Lawyers say the supersedeas provision is rare in other states, though it’s not clear how many share the same legal process. At least one other state also extends this rule to its attorney general — where a number of similar legal battles are unfolding.

A Florida state court judge ruled the state’s 15-week abortion ban was unconstitutional in July 2022, blocking the law. In response, Florida’s attorney general appealed the judge’s decision, suspending the order and reinstating the law less than 24 hours later.

In a 2020 ruling in a lawsuit between the Houston Independent School District and the Texas Education Agency, the Texas Supreme Court confirmed a court of appeals’ right to issue a temporary injunction, through Rule 29.3, instead of counter-superseding, which was previously outlawed by the 2017 legislation.

“The purpose of supersedeas is ‘to preserve the status quo by staying the execution or enforcement of the judgment,’” the Texas Supreme Court opinion reads.

Brian Klosterboer, an attorney with the American Civil Liberties Union of Texas, which is representing plaintiffs in the suit over health care for trans youth, argued the state is twisting the purpose of this provision. In the transition-related care and the elections administrator lawsuits, the AG’s appeal upended the status quo — which the district judges sought to maintain through an injunction — by enacting new laws upending Texans’ lives, Klosterboer said.

Klosterboer, who is representing plaintiffs in the suit over health care for trans youth, said the rule is a separation-of-powers issue. By allowing the executive branch to stop district court orders, he said, the state is “getting a free pass to violate the law.”

“It essentially neutralizes the district court’s ability to provide relief against the government,” Klosterboer said. “That puts the appellate courts and the Supreme Court in a tough spot, too, because by the time they have a chance to make a ruling, something catastrophic already could have happened.”


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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/09/25/texas-attorney-general-state-court-appeal/.

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