In Re Ken Paxton and the Office of the Attorney General

Supreme Court of Texas
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No. 25-0641
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In re Ken Paxton and the Office of the Attorney General,
Relators

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On Petition for Writ of Mandamus
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PER CURIAM

JUSTICE BLAND filed a concurring opinion, in which Justice
Lehrmann and Justice Huddle joined.

“Special provisions have been made for the State for issues like
supersedeas . . . .” In re Google, LLC, 705 S.W.3d 479, 492 (Tex. App.—
15th Dist. 2025, orig. proceeding) (Brister, C.J., dissenting); see also
Morath v. Kingsville Indep. Sch. Dist., 710 S.W.3d 918, 922 & nn.7-8
(Tex. App.—15th Dist. 2025, no pet.). Because those special provisions
were too hastily swept aside in this case, we conditionally grant
mandamus relief.
In rules promulgated earlier this year, the Attorney General
imposed reporting requirements on local prosecutors. See 1 TEX. ADMIN.
CODE §§ 56.1-.10; see also TEX. GOV’T CODE § 41.006 (commanding that
“district and county attorneys shall report . . . information . . . that the
attorney general desires” (emphasis added)). A group of counties, county
attorneys, and district attorneys assert that the reporting rules impose
substantial burdens on them and that the Attorney General lacked
statutory authority to promulgate the rules. They sued, and the district
court issued a temporary injunction against enforcement of the rules.
So the Attorney General brought an interlocutory appeal to the
Fifteenth Court of Appeals.
The Attorney General’s appeal “automatically superseded the
district court’s injunction.” In re Abbott, 645 S.W.3d 276, 280 (Tex.
2022); accord In re Tex. Educ. Agency, 619 S.W.3d 679, 680 (Tex. 2021);
In re Long, 984 S.W.2d 623, 625-26 (Tex. 1999). That is so because,
“[s]ince 1838, the State and its departments have been exempt from
filing a bond to appeal an adverse judgment.” In re State Bd. for
Educator Certification, 452 S.W.3d 802, 804 (Tex. 2014); see TEX. CIV.
PRAC. & REM. CODE § 6.001. Within the past decade, in fact, the
Legislature has expressly protected this governmental “right . . . to
supersede a judgment or order on appeal.” TEX. GOV’T CODE § 22.004(i).
“[W]hen and how supersedeas should be allowed is a policy question
peculiarly within the legislative sphere and the Legislature has
determined that the State . . . may supersede judgments of trial courts.”
Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 482 (Tex. 1964).
Ordinarily, therefore, the Attorney General would have been free
to enforce his new reporting rules while the temporary injunction was
being challenged on appeal. TEX. CIV. PRAC. & REM.
CODE § 6.001(b)(2)-(3); TEX. R. APP. P. 29.1(b); cf. TEX. R. APP.
P. 24.2(a)(3), 25.1(h)(2). But we have held that Rule 29.3, which
authorizes appellate courts to “make any temporary orders necessary to

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preserve the parties’ rights until disposition of the appeal,” enables a
court of appeals to issue injunctive relief against the government during
the pendency of an appeal notwithstanding the government’s right to
automatic suspension of a trial court’s interlocutory order. See In re Tex.
Educ. Agency, 619 S.W.3d at 682-92 (construing TEX. R. APP. P. 29.3).
Here, the Fifteenth Court halted enforcement of the Attorney General’s
reporting rules, pending its expedited resolution of the case, by
“order[ing] a stay under Texas Rule of Appellate Procedure 29.3 and
leav[ing] the trial court’s temporary injunction in place as to the named
Appellees only.” Paxton v. Garza, No. 15-25-00116-CV, slip op. at 3-4
(Tex. App.—15th Dist. July 17, 2025, order).
The dissent below warned that the “majority . . . stops short of
conducting a legal analysis on any [merits] issues or finding whether
Appellees have demonstrated a likelihood of success on the merits.” Id.,
slip op. at 6 (Farris, J., dissenting). This Court has held that “appellate
courts asked to issue temporary relief pending appeal should make a
preliminary inquiry into the likely merits of the parties’ legal positions.”
In re State, 711 S.W.3d 641, 645 (Tex. 2024). Yet the discussion of this
issue in the court below is confined to the following paragraph:
The case before us presents a close question of statutory
construction and many other issues that are mixed
questions of fact and law and are hotly contested.
Appellees have raised serious questions of statutory
construction on whether the Attorney General had express
authority to promulgate the rules at issue and whether
that authority may be implied. Based on the limited
briefing we have received, as well as amicus briefs
submitted to us thus far, the issues before us are complex.
The parties have had several months to consider, object, or
defend the rules, but we have not, and we are reluctant to

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decide who is “likely to succeed on the merits” of a dispute
that arrived on this Court’s doorstep two weeks ago.

Paxton, slip op. at 3 (majority opinion).
We agree with the dissent that this cannot be enough to justify a
stay of the Attorney General’s reporting rules. “A stay pending appeal
is, of course, a kind of injunction,” and we have treated “the likely
merits” as one of the “required considerations” for granting injunctive
relief. In re State, 711 S.W.3d at 645 (emphasis added).* A court’s
“reluctan[ce] to decide who is ‘likely to succeed on the merits,’ ” Paxton,
slip op. at 3, does not dispense with that requirement, which is perhaps
at its strongest when the judiciary is asked to enjoin executive-branch
action on matters of public import. After all, as we have repeatedly held,
the work of the other branches is entitled to “a presumption of
regularity, good faith, and legality.” Webster v. Comm’n for Law.
Discipline, 704 S.W.3d 478, 501 (Tex. 2024). Any judicial interference
with the executive branch’s desired course of action should always be
premised, at least in part, on judicial analysis of whether that course of
action is within the executive’s legal authority. This principle, on which
our precedent is clear, derives from the separation of powers and does
not waver when time is short. “The relevance of the merits to requests
for injunctive relief does not vanish when courts must rule
expeditiously.” In re State, 711 S.W.3d at 645.

* See, e.g., In re State, 682 S.W.3d 890, 893 n.3 (Tex. 2023); Abbott v.

Harris County, 672 S.W.3d 1, 21 (Tex. 2023); In re Abbott, 628 S.W.3d 288, 291
(Tex. 2021); State v. Hollins, 620 S.W.3d 400, 405 (Tex. 2020); Abbott v. Anti-
Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 917 (Tex.
2020); In re Newton, 146 S.W.3d 648, 652 (Tex. 2004).

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If, as the suing prosecutors suggest, there are particular kinds of
information that may not properly be disclosed, then discrete challenges
as to the applicability of the rules in that context will remain available.
Only if the Fifteenth Court concludes that it is necessary to block the
rules in their entirety at this early stage may it do so, and that conclusion
cannot be reached without at least a preliminary assessment of the
merits of the challenge to the rules. Nothing in our decision today
prevents the Fifteenth Court from considering such a stay under the
proper standard.
Without hearing oral argument, see TEX. R. APP. P. 52.8(c), we
conditionally grant mandamus relief and direct the court of appeals to
evaluate the merits to determine, by January 5, 2026, whether a
Rule 29.3 stay is warranted. We are confident the court of appeals will
do so promptly; our writ commanding vacatur of its order granting
temporary relief under Rule 29.3 will issue only if it does not.

OPINION DELIVERED: December 22, 2025

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