15-25-00209-CV ACCEPTED 15-25-00209-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 11/18/2025 7:46 PM No. 15-25-_________ CHRISTOPHER A. PRINE CLERK FILED IN IN THE COURT OF APPEALS FOR THE FIFTEENTH 15thDISTRICT COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 11/18/2025 7:46:49 PM CHRISTOPHER A. PRINE Clerk In re TikTok Inc.; TikTok Ltd.; TikTok Pte. Ltd.; TikTok U.S. Data Security Inc.; ByteDance Ltd.; and ByteDance Inc.,
Relators.
On Petition for Writ of Mandamus from the 250th District Court of Travis County, Texas Cause No. D-1-GN-25-003118, The Honorable Cory Liu
Relators’ Motion for Temporary Relief Pending Resolution of Relators’ Writ of Mandamus
Neema T. Sahni (pro hac vice) Brandon Duke nsahni@cov.com bduke@omm.com COVINGTON & BURLING LLP O’MELVENY & MYERS LLP 1999 Avenue of the Stars 700 Louisiana St., Suite 2900 Los Angeles, CA 90067 Houston, TX 77002 Tel. (424) 332-4800 Tel. (832) 254-1500 Fax. (424) 332-4749 Fax. (832) 254-1501
Megan A. Crowley (pro hac vice) mcrowley@cov.com COVINGTON & BURLING LLP 850 Tenth Street, NW Washington, DC 20001 Tel. (202) 662-6000 Fax. (202) 778-5112 ATTORNEYS FOR RELATORS
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Relators: TikTok Inc.; TikTok Ltd.; TikTok Pte. Ltd.; TikTok U.S. Data Security Inc.; ByteDance Ltd.; and ByteDance Inc.
Counsel for Relators: Neema Sahni COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, CA 90067
Megan A. Crowley COVINGTON & BURLING LLP 850 Tenth Street, NW Washington, DC 20001
Brandon Duke O’MELVENY & MYERS LLP 700 Louisiana St., Suite 2900 Houston, TX 77002
Real Party in Interest: State of Texas
Counsel for Real Party: Richard McCutcheon Assistant Attorney General Consumer Protection Division 808 Travis Street, Suite 1520 Houston, Texas 77002
David H. Thompson Adam P. Laxalt Brian W. Barnes COOPER & KIRK, PLLC 1523 New Hampshire Ave., NW Washington, DC 20036
ii Respondent: Judge Cory Liu 250th District Court Travis County Civil & Family Court 1700 Guadalupe Street 9th Floor Austin, TX 78701
iii TABLE OF CONTENTS
INTRODUCTION ................................................................................................ 1
STATEMENT OF FACTS .................................................................................. 2
STANDARD FOR TEMPORARY RELIEF UNDER RULE 52.10 ...................... 4
ARGUMENT........................................................................................................ 6
I. Relators are likely to succeed on their mandamus petition. .......................... 6
A. The trial court abused its discretion. ................................................... 7
B. Relators have no adequate remedy through appeal. ........................... 12
II. Temporary relief is necessary to prevent irreparable harm to Relators’ constitutional and statutory rights. .............................................................. 13
CONCLUSION AND PRAYER .......................................................................... 15
CERTIFICATE OF COMPLIANCE ................................................................... 17
CERTIFICATE OF SERVICE............................................................................. 18
iv TABLE OF AUTHORITIES
Cases Page(s)
A.B. v. Salesforce, Inc., 123 F.4th 788 (5th Cir. 2024) ........................................................................... 11
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 14
In re Butt, 495 S.W.3d 455 (Tex. App.—Corpus Christi-Edinburg 2016, no pet.) ............................................................................................................. 5, 14
In re City of Houston, 2024 WL 4846843 (Tex. App.—Houston [1st Dist.] Nov. 21, 2024, no pet.)................................................................................................... 14
Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425 (Tex. 1998) ................................................................. 7, 8, 9, 13
In re Diamond Offshore Gen., LLC, 2023 WL 2483550 (Tex. App.—Houston [1st Dist.] Mar. 14, 2023, pet. denied) ........................................................................................................ 5
Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) ............................................................................ 11
In re Essex Ins. Co., 450 S.W.3d 524 (Tex. 2014) ........................................................................ 6, 12
In re Facebook, Inc., 625 S.W.3d 80 (Tex. 2021) .................................................................... 11, 12, 13
In re Home Depot U.S.A., Inc., 2025 WL 899848 (Tex. App.—Houston [14th Dist.] Mar. 25, 2025, pet. filed) .................................................................................................. 5
In re Indus. Specialists, LLC, 2018 WL 2727606 (Tex. App.—Houston [1st Dist.] June 7, 2018, no pet.) .............................................................................................................. 5 v Moody v. NetChoice, LLC, 603 U.S. 707 (2024) ......................................................................................... 11
Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755 (2018) .......................................................................................... 12
Perry v. Del Rio, 66 S.W.3d 239 (Tex. 2001) ................................................................................ 7
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) ..................................................................... 13
Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169 (Tex. 1980) ............................................................................. 10
State ex rel. Rosenblum v. TikTok Inc., 2025 Ore. Cir. LEXIS 5135 (Or. Cir. Ct. June 13, 2025) ................................... 11
In re State, 711 S.W.3d 641 (Tex. 2024) ................................................................ 4, 5, 13, 14
In re Sydow Firm, PLLC, 2024 WL 2061168 (Tex. App.—Houston [1st Dist.] May 9, 2024, no pet.) .............................................................................................................. 5
Transocean Offshore Deepwater Drilling, Inc. v. Seadrill Ams., Inc., 2015 WL 6394436 (S.D. Tex. Oct. 22, 2015) .................................................... 15
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ........................................................................... 7, 9
Word of Faith World Outreach Ctr. Church, Inc. v. Morales, 787 F. Supp. 689 (W.D. Tex. 1992) .................................................................. 10
Statutes
Communications Decency Act, 47 U.S.C. § 230 ............................................. passim
Deceptive Trade Practices Act, Tex. Bus. & Com. Code §§ 17.41, et seq. ............................................................................................................. passim
vi Securing Children Online through Parental Empowerment Act, Tex. Bus & Com. Code §§ 509.001, et seq. ......................................................... passim
Other Authorities
Tex. R. App. P. 52.10 ................................................................................. 1, 4, 5, 16
Tex. R. Civ. P. 91a .......................................................................................... passim
vii INTRODUCTION
Relators TikTok Inc., TikTok Ltd., TikTok Pte. Ltd., TikTok U.S. Data
Security Inc., ByteDance Ltd., and ByteDance Inc. respectfully move to stay the
proceedings below pending this Court’s resolution of Relators’ concurrently filed
Petition for Writ of Mandamus. Tex. R. App. P. 52.10.
As the mandamus demonstrates, the trial court committed four clear abuses
of discretion in denying Relators’ Rule 91a Motion to Dismiss—errors that implicate
Relators’ constitutional rights, statutory immunities, and the limits of the State’s
enforcement authority. These issues go to the heart of whether the State may pursue
claims under the Securing Children Online Through Parental Empowerment
(SCOPE) Act and the Deceptive Trade Practices Act (DTPA). A stay is necessary
to safeguard Relators’ constitutional and statutory rights while this Court considers
the mandamus petition.
The State’s SCOPE Act claims rest on vague statutory language that, as
applied to Relators, fails to provide fair notice and invites arbitrary enforcement.
The State conceded these due-process violations during the Rule 91a hearing—
admitting, for example, that it does not know “what [Relators] are currently doing
that’s alleged to be a violation of the Act” or how the Act’s requirements apply to
them. MR 0421:10–22; MR 0432:13–24. Yet the trial court allowed those claims to
1 proceed. The court compounded its error by also permitting DTPA claims that (1)
stretch the statute to reach beyond its text to apply—for the first time—to conduct
that cannot even theoretically affect any statutory “consumer” and (2) disregard
Relators’ statutory immunity from suit under Section 230 of the Communications
Decency Act (“Section 230”) and their First Amendment protections. See Mand.
Pet. at 19–38.
Mandamus is the only adequate remedy, and a stay is essential to preserve
Relators’ Due Process, First Amendment, and Section 230 rights while this Court
considers the mandamus petition.
STATEMENT OF FACTS
On October 3, 2024—one month after the SCOPE Act went into effect and
without any prior outreach or investigation—the State of Texas sued Relators,
alleging three violations of the Act: that Relators failed to implement a
“commercially reasonable” parental verification method (Count XI), improperly
disclosed minors’ personal information without verified parental consent (Count
XII), and failed to provide verified parents with required tools under the Act (Count
XIII). The State also brought ten claims under the Texas DTPA, asserting that
Relators’ age ratings and app store questionnaire responses mislead users about the
2 content available on TikTok (Counts I–VIII),1 that TikTok was designed to be
addictive and negatively impacts users’ mental health, which is not disclosed to users
(Count IX), and that TikTok’s Community Guidelines do not align with some
content available on the platform (Count X). 2
Relators moved to dismiss the State’s petition under Rule 91a of the Texas
Rules of Civil Procedure, arguing that the SCOPE Act claims rely on
unconstitutionally vague provisions, as applied to Relators. As to the DTPA claims,
Relators explained that because TikTok is not a “good” or “service” under the
DTPA, there are no “consumers” under the statute—placing the claims wholly
outside the DTPA’s reach. MR 0119–23. Relators further argued that the State’s
DTPA claims are barred by Section 230 and the First Amendment. MR 0132–40.
At the Rule 91a hearing, the State repeatedly admitted it could not explain
what conduct violates the SCOPE Act, MR 0430:22–0431:9; see also MR 0433:8–9,
what the Act’s core liability standard—“commercially reasonable”—means for
1 References to “TikTok” herein, absent additional specification, denote the TikTok platform and business. 2 The State previously filed its DTPA and SCOPE claims as separate petitions: on January 9, 2025, and October 3, 2024, respectively. The Court granted the State’s unopposed motion to consolidate the two cases on June 27, 2025. The State did not serve its proposed amended consolidated petition until July 24, 2025, and the operative petition was not filed until August 13, 2025. 3 TikTok, MR 0421:15–16, or “what [Relators] are currently doing that’s alleged to be
a violation of the Act,” MR 0432:13–15; see also MR 0430:22–0431:9; MR 0433:8–9.
As Relators told the court, these concessions are the “very definition of vagueness
in a statute.” MR 0434:9–13. Relators likewise argued that applying the DTPA
where no “consumer” exists would give the State a sweeping mandate to regulate
all manner of free activities, untethered from the DTPA’s text or purpose. The trial
court itself flagged concern about the “consequence[s] of the interpretation [the
State was] advancing[,]” MR 0393:6–12, yet nonetheless adopted that interpretation
in denying Relators’ motion without any reasoning.
Relators filed a Petition for a Writ of Mandamus to correct these clear abuses
of discretion and now concurrently move for temporary relief to stay the trial court’s
proceedings pending this Court’s disposition of that mandamus petition.
STANDARD FOR TEMPORARY RELIEF UNDER RULE 52.10
“In a mandamus proceeding in the Supreme Court or a court of appeals, ‘[t]he
relator may file a motion to stay any underlying proceeding or for any other
temporary relief pending the court’s action on the petition.’” In re State, 711 S.W.3d
641, 644 (Tex. 2024) (alteration in original) (citing Tex. R. App. P. 52.10(a)). The
“purpose of relief under Rule 52.10” is to “preserv[e] . . . the parties’ rights while
the appeal proceeds.” Id. at 644–45. Rule 52.10 relief protects “part[ies] who [are]
4 very likely to succeed on the merits”—like Relators here—from having “to wait for
the lengthy appellate process to play out before exercising [their] legal rights.” Id.
at 645.
When deciding whether to stay trial court proceedings pending appellate
review, courts weigh two factors: (1) “the likely merits of the parties’ legal
positions”—with a stay favored when there is “serious doubt” about the validity of
the action to be stayed; and (2) “the balance of harms,” comparing prejudice to the
applicant if temporary relief is denied against prejudice to the opposing party if relief
is granted. Id. at 645–46. Texas appellate courts regularly stay proceedings in trial
courts while considering mandamus petitions challenging the denial of Rule 91a
motions. 3
3 See, e.g., In re Butt, 495 S.W.3d 455, 458, 468 (Tex. App—Corpus Christi-Edinburg 2016, no pet.) (noting that the court had previously stayed trial court proceedings pending review of relators’ mandamus petition challenging the trial court’s refusal to dismiss “baseless” claims against relator); In re Home Depot U.S.A., Inc., No. 14-24-00864-CV, 2025 WL 899848, at *1 (Tex. App.— Houston [14th Dist.] Mar. 25, 2025, pet. filed Mar. 25, 2025) (noting court had previously stayed trial court proceedings pending review of relators’ mandamus petition challenging the denial of its motion to dismiss); In re Indus. Specialists, LLC, No. 01-18-00202-CV, 2018 WL 2727606, at *1 (Tex. App.—Houston [1st Dist.] June 7, 2018, no pet.) (same); In re Sydow Firm, PLLC, No. 01- 23-00694-CV, 2024 WL 2061168, at *1 (Tex. App.— Houston [1st Dist.] May 9, 2024, no pet.) (same); In re Diamond Offshore Gen., LLC, No. 01-22-00837-CV, 2023 WL 2483550, at *1 (Tex. App.— Houston [1st Dist.] Mar. 14, 2023, pet. denied) (same). 5 ARGUMENT
Both factors overwhelmingly favor a stay here. First, the “likely merits”
present a textbook case for mandamus relief. The trial court’s refusal to dismiss the
SCOPE Act and DTPA claims does more than create a “serious doubt” about their
viability; it directly contradicts controlling law. As the mandamus petition explains,
the State repeatedly admitted facts that require a finding of unconstitutional
vagueness under controlling law. Likewise, the mandamus petition raises “serious
doubt” about the court’s unexplained expansion of the DTPA beyond its text and
purpose, as well as its rulings disregarding Section 230 immunity and the First
Amendment. Second, the risk of irreparable harm to Relators’ constitutional and
statutory rights far outweighs any harm from briefly staying the proceedings while
this Court reviews the mandamus petition.
I. Relators are likely to succeed on their mandamus petition.
Relators are likely to succeed on the merits of their mandamus petition
because (1) the trial court “abused its discretion” in four ways when it denied
Relators’ motion to dismiss; and (2) Relators have “no adequate remedy by appeal”
to address these errors. See In re Essex Ins. Co., 450 S.W.3d 524, 526 (Tex. 2014)
(setting forth requirements for mandamus relief).
6 A. The trial court abused its discretion.
A “failure by the trial court to analyze or apply the law correctly []
constitute[s] an abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992). This is true even when the “erroneous legal conclusion [is] in an unsettled
area of law.” Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001). As Relators’
mandamus petition explains, the trial court’s rulings satisfy this standard. The court
did not “analyze or apply the law correctly,” and thus abused its discretion, in four
ways.
First, the court refused to dismiss the SCOPE Act claims for unconstitutional
vagueness, despite the State’s repeated inability to explain how Relators allegedly
violated the Act or what the Act’s “commercially reasonable” standard requires
Relators to do. See, e.g., supra at 3–4. Texas law is clear that a statute violates due
process if it “fails to give fair notice of what conduct may be punished” or “invites
arbitrary or discriminatory enforcement.” Comm’n for Lawyer Discipline v. Benton,
980 S.W.2d 425, 437 (Tex. 1998). And courts apply a heightened vagueness
standard where, as here, a “statute’s language is capable of reaching protected
speech.” Id. at 438.
Section 509.101 of the SCOPE Act supplies the operative standard: it requires
service providers to “verify, using a commercially reasonable method and for each
7 person seeking to perform an action on a digital service as a minor’s parent or
guardian: (1) the person’s identity; and (2) the relationship of the person to the
known minor.” Tex. Bus. & Com. Code § 509.101(a) (emphasis added). But the
statute does not define “commercially reasonable” or provide any guidance on what
methods satisfy that standard, even though this “verif[ication]” is the predicate for
every other statutory requirement at issue. See Mand. Pet. at 18–19. By its terms,
the statute “fails to give fair notice of what conduct may be punished, forcing
[Relators] to guess at the statute’s meaning.” Benton, 980 S.W.2d at 437.
The State’s concessions only confirm the statute’s vagueness, as applied to
Relators. In its amended petition, the State acknowledges that TikTok offers the
“Family Pairing” feature, which “allow[s] ‘parents or guardians [to] link their
TikTok account to their teens’ to manage a variety of content, privacy, and well-
being settings.” MR 0073–74 (second alteration in original). The State alleges this
method is not a “commercially reasonable” method of complying with Section
509.101 without explaining why or identifying what would be reasonable. MR 0090.
Its 55-page opposition brief likewise never explained how Relators could come into
compliance with the “commercially reasonable” standard. See generally MR 0251–
317. And at the hearing on Relators’ 91a motion, the State again could not articulate
what the Act requires, what “commercially reasonable” means, or how Relators
8 allegedly violated the law. See Mand. Pet. at 17. Plainly, Defendants have no notice
of “what conduct may be punished” under the SCOPE Act when the State itself
cannot answer those questions. The trial court recognized that Relators had raised
“a fair point” about “what are we alleged to have done wrong” and even suggested
that the parties “have a conversation . . . instead of litigating this as a violation,” yet
still denied the motion. MR 0433:5–434:5. This failure to apply the law, particularly
under the stricter vagueness standard required here, is an abuse of discretion.
Walker, 827 S.W.2d at 840; Benton, 980 S.W.2d at 438.
Second, the trial court did not analyze or apply the law correctly when it
applied the DTPA, for the first time, to an action seeking to regulate alleged conduct
that cannot even theoretically affect any statutory “consumer.” The DTPA defines
“consumer” as one “who seeks or acquires by purchase or lease, any goods or services.”
Tex. Bus. & Com. Code § 17.45(4) (emphasis added). Unable to identify a single
“consumer” affected by the alleged conduct, the State argued that it may bring a
DTPA claim even where no “goods,” no “services,” and no “consumers” are
9 involved. 4 MR 0270–73. The court abused its discretion in adopting that position,
thereby transforming this consumer-protection statute into a generalized prohibition
on alleged deception—a role the Legislature never authorized. But the DTPA must
be applied “to promote its underlying purposes, which are to protect consumers.”
Tex. Bus. & Com. Code § 17.44. The only court to address this question held that
the State cannot bring a DTPA claim in the absence of a consumer. See Word of Faith
World Outreach Ctr. Church, Inc. v. Morales, 787 F. Supp. 689, 698 (W.D. Tex. 1992),
rev’d on other grounds, 986 F.2d 962 (5th Cir. 1993). Indeed, the State’s own pleading
uses the term “consumers” 66 times, see generally MR 0021–0093, and exclusively
bases each DTPA claim on provisions requiring misstatements about “goods or
services,” see MR 0076–0088 (each DTPA claim exclusively alleging violations of
Tex. Bus. & Com. Code §§ 17.46(b)(5), (7), (9), and/or (24)).
Third, the trial court abused its discretion when it refused to apply Section
230’s immunity to bar the DTPA claims against Relators. Section 230 provides
“broad immunity” to “[w]eb-based service providers for all claims stemming from
4 Both parties agree that TikTok is not a “good,” which the DTPA defines as “tangible chattels or
real property purchased or leased for use.” Tex. Bus. & Com. Code § 17.45(1). TikTok is also not a “service,” under the DTPA, defined as “work, labor, or service purchased or leased for use.” Id. § 17.45(2). The Texas Supreme Court has held that “services” under the DTPA must involve “activity on behalf of one party by another”—“similar in nature to work or labor.” Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169, 174 (Tex. 1980). 10 their publication of information created by third parties,” including on a motion to
dismiss. A.B. v. Salesforce, Inc., 123 F.4th 788, 794 (5th Cir. 2024) (emphasis
omitted) (quoting Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008)); see 47 U.S.C.
§ 230(c). The DTPA claims attempt to impose liability for Relators’ role as a
publisher of third-party content on TikTok’s platform—exactly what Section 230
forbids. Recasting them as deception or failure-to-warn claims does not avoid
Section 230, because those claims still target TikTok’s publishing decisions. See,
e.g., In re Facebook, Inc., 625 S.W.3d 80, 95–96 & n.11 (Tex. 2021) (holding Section
230 barred claims “premised on Facebook’s alleged failures to warn or to adequately
protect Plaintiffs from harm caused by other users”); State ex rel. Rosenblum v.
TikTok Inc., No. 24CV-48473, 2025 Ore. Cir. LEXIS 5135, at *27–28 (Or. Cir. Ct.
June 13, 2025) (TikTok’s “‘algorithms,’ ‘autoplay,’ ‘infinite scroll,’ and incessant
notifications are all content amplification features meant to publish content in a
manner that increases user engagement” and protected publishing activity under
Section 230).
Finally, the trial court misapplied First Amendment doctrine. The State’s
DTPA claims directly burden Relators’ protected expressive activities—in
particular, Relator TikTok Inc.’s choices about how to present third-party speech
available on the TikTok platform. See Moody v. NetChoice, LLC, 603 U.S. 707, 716
11 (2024). And part of the injunction the State seeks would compel Relators to convey
the State’s message about how to label and communicate about content, in violation
of core First Amendment principles. See Nat’l Inst. of Fam. & Life Advocs. v. Becerra,
585 U.S. 755, 766 (2018).
B. Relators have no adequate remedy through appeal.
Mandamus is required where, absent relief: (1) the parties and public would
waste “time and money . . . on fatally flawed proceedings,” In re Essex, 450 S.W.3d
at 528; or (2) a litigant would “suffer impairment or loss of ‘important substantive
. . . rights,’” including those conferred by statutes that “provid[e] covered
defendants with immunity from suit,” In re Facebook, 625 S.W.3d at 87 (alterations
in original) (internal quotations omitted). Both circumstances are present here.
First, Relators should not be forced to undergo time-intensive and expensive
discovery, trial, and appeal before obtaining an appellate ruling that the SCOPE Act
and DTPA claims are “fatally flawed.” In re Essex, 450 S.W.3d at 528. Mandamus
is necessary to preserve Relators’ substantive rights and to spare the parties and
public from wasting resources on a set of claims that have no legal basis.
Second, absent mandamus relief, Relators’ “important substantive and
procedural rights,” including their immunity from suit under Section 230 and their
constitutional protections under the Due Process Clause and the First Amendment,
12 will be “impair[ed] or los[t].” See In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
136 (Tex. 2004). The Texas Supreme Court has already held that Section 230
immunity is among the “important substantive . . . rights” that can “only be
vindicated by dismissal” and mandamus, rather than appeal. In re Facebook, 625
S.W.3d at 86–87 (alteration in original). Likewise, forcing Relators to litigate under
the vague SCOPE Act provisions at issue—when the State itself cannot articulate
what conduct the Act prohibits or how Relators could comply—violates their
constitutional right to fair notice and freedom from arbitrary enforcement. See
Benton, 980 S.W.2d at 437. That constitutional injury is immediate, ongoing, and
not remediable on appeal.
II. Temporary relief is necessary to prevent irreparable harm to Relators’ constitutional and statutory rights.
The “balance of harms,” In re State, 711 S.W.3d at 645, weighs decidedly in
favor of a stay.
Harm to Relators. Relators will be irreparably harmed in three ways if a stay
is denied. First, Relators have “raised serious doubt[s] about the constitutionality”
of the SCOPE Act as applied to them, and about the State’s use of the DTPA to
regulate Relators’ First Amendment-protected expressive activities. See id. at 646;
see also supra 7–9, 11–12. Any continued enforcement of vague statutory standards,
or continuation of claims burdening protected speech, would amount to an ongoing 13 constitutional violation that “could not be remedied or undone” by later appellate
review. See In re State, 711 S.W.3d at 646.
Second, absent a stay, Relators will be required to expend time and resources
defending against claims that have no basis in law, in direct contradiction of the
purpose of Rule 91a. In re City of Houston, No. 01-24-00629-CV, 2024 WL 4846843,
at *3 (Tex. App.—Houston [1st Dist.] Nov. 21, 2024, no pet.) (“The purpose of
Rule 91a is to require the early and speedy dismissal of baseless claims.”); see also In
re Butt, 495 S.W.3d 455, 460 (Tex. App.—Corpus Christi-Edinburg 2016, no pet.)
(“[M]andamus review of orders denying Rule 91a motions comports with the
Legislature’s requirement for an early and speedy resolution of baseless claims.”).
Requiring Relators to proceed through discovery and trial would eviscerate those
protections.
Third, a stay is essential to preserve Relators’ right to immunity from suit
under Section 230. Section 230 is not merely an affirmative defense; it confers an
entitlement “not to stand trial or face the other burdens of litigation” on claims that
target a service provider’s publication of third-party content. Ashcroft v. Iqbal, 556
U.S. 662, 673 (2009); see 47 U.S.C. § 230(e)(3). If proceedings continue, that
immunity will be irretrievably lost.
14 Harm to the State. By contrast, the State faces, at most, minimal harm from
a temporary stay. The only potential prejudice is a brief delay in the case schedule
while this Court considers the mandamus petition. But this purported harm alone is
insufficient to justify denying Relators’ request for a stay. See, e.g., Transocean
Offshore Deepwater Drilling, Inc. v. Seadrill Ams., Inc., No. H–15–144, 2015 WL
6394436, at *2 (S.D. Tex. Oct. 22, 2015) (finding that the “[m]ere delay that
inherently results from a stay” was insufficient harm to deny a request for stay
pending inter partes review of a patent application).
Scheduling delays simply cannot outweigh the constitutional and statutory
rights at stake here; if they could, a real party in interest could always invoke
deadlines to defeat any stay request—a result the law does not permit.
CONCLUSION AND PRAYER
For the reasons stated above, Relators respectfully request that this Court
grant its motion for temporary relief and stay proceedings below pending resolution
of Relators’ mandamus petition. Tex. R. App. P. 52.10(a). Relators also request
such other and further “just relief” to which this Court finds Relators are entitled.
Tex. R. App. P. 52.10(b).
15 November 18, 2025 Respectfully submitted,
/s/ Brandon Duke
Neema T. Sahni (pro hac vice) Brandon Duke nsahni@cov.com bduke@omm.com COVINGTON & BURLING LLP O’MELVENY & MYERS LLP 1999 Avenue of the Stars 700 Louisiana St., Suite 2900 Los Angeles, CA 90067 Houston, TX 77002 Tel. (424) 332-4800 Tel. (832) 254-1500 Fax. (424) 332-4749 Fax. (832) 254-1501
Megan A. Crowley (pro hac vice) mcrowley@cov.com COVINGTON & BURLING LLP 850 Tenth Street, NW Washington, DC 20001 Tel. (202) 662-6000 Fax. (202) 778-5112
ATTORNEYS FOR RELATORS
16 CERTIFICATE OF COMPLIANCE
I certify that this Motion for Temporary Relief contains 3,410 words as
calculated under Texas Rule of Appellate Procedure 9.4(i)(1).
I certify that Relators’ counsel has made a “diligent effort to notify all parties
by expedited means” that this motion for temporary relief would be filed, as required
by Texas Rule of Appellate Procedure 52.10(a).
Brandon Duke bduke@omm.com O’MELVENY & MYERS LLP 700 Louisiana St., Suite 2900 Houston, TX 77002 Tel. (832) 254-1500 Fax. (832) 254-1501
17 CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was
electronically filed and served on all counsel of record on November 18, 2025.
Brandon Duke bduke@omm.com O’MELVENY & MYERS LLP 700 Louisiana St., Suite 2900 Houston, TX 77002 Tel. (832) 254-1500 Fax. (832) 254-1501
18 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Court Services on behalf of Brandon Duke Bar No. 24094476 ommsvc2@omm.com Envelope ID: 108205774 Filing Code Description: Original Proceeding Petition Filing Description: Petition for Writ of Mandamus Status as of 11/19/2025 7:48 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Rebecca Hermann rebecca.herrmann@oag.texas.gov 11/18/2025 7:46:49 PM SENT
Zoann Willis zoann.willis@oag.texas.gov 11/18/2025 7:46:49 PM SENT
Richard Mccutcheon richard.mccutcheon@oag.texas.gov 11/18/2025 7:46:49 PM SENT
Megan Crowley mcrowley@cov.com 11/18/2025 7:46:49 PM SENT
Calendar Litigation litigationcalendar@omm.com 11/18/2025 7:46:49 PM SENT
Jerry Bergman jerry.bergman@oag.texas.gov 11/18/2025 7:46:49 PM SENT
Melinda Pate melinda.pate@oag.texas.gov 11/18/2025 7:46:49 PM SENT
Hannah Campus hannah.campus@oag.texas.gov 11/18/2025 7:46:49 PM SENT
Madeline Fogel madeline.fogel@oag.texas.gov 11/18/2025 7:46:49 PM SENT
Adam Laxalt alaxalt@cooperkirk.com 11/18/2025 7:46:49 PM SENT
David Thompson dthompson@cooperkirk.com 11/18/2025 7:46:49 PM SENT
Brian Barnes bbarnes@cooperkirk.com 11/18/2025 7:46:49 PM SENT
Adam Holtz adam.holtz@oag.texas.gov 11/18/2025 7:46:49 PM SENT
Brandon Duke bduke@omm.com 11/18/2025 7:46:49 PM SENT
Trial Court 250.submission@traviscountytx.gov 11/18/2025 7:46:49 PM SENT