Ken Paxton, in His Official Capacity as Attorney General for the State of Texas and the Office of the Attorney General for the State of Texas v. Delia Garza, in Her Official Capacity as Travis County Attorney; John Creuzot, in His Official Capacity as Dallas County Criminal District Attorney; And Brian Middleton, in His Official Capacity as District Attorney of Fort Bend County (268th Judicial District)

Court of Appeals of Texas·Decided July 11, 2025·No. 15-25-00116-CV·Published

Opinion

ACCEPTED

15-25-00116-CV

FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS

7/11/2025 6:32 PM

No. 15-25-00116-CV CHRISTOPHER A. PRINE CLERK

FILED IN

I N THE F IFTEENTH C OURT OF A PPEALS15th COURT OF APPEALS AUSTIN, TEXAS

KEN PAXTON, ET AL . , 7/11/2025 6:32:50 PM CHRISTOPHER A. PRINE

Appellants, Clerk v.

DELIA GARZA , ET AL . ,

Appellees.

On Direct Appeal from the 419th Judicial District Court, Travis County, Texas No. D-1-GN-25-003445, Consolidated With No. D-1-GN-25-003531 & No. D-1-GN-25-003581

APPELLEES’ REPLY TO APPELLANTS’ RESPONSE TO APPELLEES’ EMERGENCY MOTION FOR TEMPORARY RELIEF

TO THE HONORABLE FIFTEENTH COURT OF APPEALS:

Temporary relief is necessary to maintain the status quo while this Court considers Appellants’ appeal. Appellants’ response amounts to a sweeping assertion that his authority is effectively unlimited and that any delay in producing reports (that were never previously sought) somehow constitutes irreparable harm. The Attorney General offers no evidence—none—that a temporary delay will cause any concrete injury, especially when Appellants will be able to obtain the requested reports should they ultimately prevail on this appeal.

By contrast, Appellees face immediate and irreparable harm under the trial court’s detailed findings: hundreds of hours of diverted staff time, disclosure of

confidential information, and the threat of removal from office in a quo warranto action. Appellees sought relief just six weeks after the rules took effect, won a temporary injunction after a full evidentiary hearing, and now seek only to preserve the status quo while this Court reviews the temporary injunction order.

The Attorney General claims broad rulemaking power under a statute that says nothing about rules. Appellees are not asking this Court to resolve those questions now but rather before they are required to comply with the Challenged Rules. Appellants’ opening brief is due in 17 days. TEX. R. APP. P. 38.6(a)(2).

This is precisely what temporary appellate relief is for. At this stage, Appellees need not prove they will win—only that Appellees have demonstrated— and the Attorney General has not refuted—that Appellees’ challenge raises serious legal questions and that the equities favor a continued stay. See In re Tex. Educ. Agency, 619 S.W.3d 679, 683–84 (Tex. 2021).

ARGUMENT

Preliminarily, the Attorney General’s assertion that Appellees “manufacture[d] an emergency” instead of “prepar[ing] to comply,” Resp. at 3, is not only irrelevant, it is belied by the record.

Appellees began preparing to comply with the Challenged Rules before they took effect and told the Attorney General that producing the requested reports is extraordinarily burdensome. Evidence presented at the temporary injunction hearing establishes that Appellees already have spent hundreds of hours preparing

the requested reports. 2RR74:5-22. Before Appellees requested that the Attorney General agree to temporary relief in this Court, Appellees asked the Attorney General to postpone or extend the reporting deadlines either during the pendency of litigation or until September 1, but he refused. 2RR148:3-7.

Regardless, Appellees would have needed temporary relief from this Court no matter when they filed their lawsuits. Appellees brought suit a mere six weeks after the Challenged Rule took effect on April 2, 2025. Then, after extensive conferral with the Attorney General, they noticed the temporary injunction hearing shortly thereafter. Even had they filed earlier, less than three months between the effective date and due date of the first report would never have been enough time to fully litigate the validity of the rule. And, in the end, it was the Attorney General who waited until 4:00 pm June 27, 2025—the Friday prior to the Monday compliance deadline—to file his notice of appeal.

I. The Attorney General glosses over the Rule 29.3 balancing standard, which prioritizes “preserv[ing] the parties’ rights.”

The Attorney General misapplies the Texas Supreme Court’s balancing test.

Even where “the State has an intrinsic right to enforce its own laws,” In re State, 711 S.W.3d 641, 645 (Tex. 2024) (cleaned up), the balancing of harms is “a required aspect of a court’s effort to preserve the parties’ rights pending appeal.” Id. at 645 (emphasis added). Here, the Attorney General acknowledges Appellees have at

least some rights at stake. (E.g., Resp. at 25–26 (the right and responsibility to prosecute cases)).

A temporary injunction applicant “is not required to establish that it will prevail on the final trial.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (citing Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968)). And the decision on this motion does not even decide the merits of the temporary injunction—that is what the appeal is for. This is why, in In re State, the Texas Supreme Court made “no definitive statement about the merits” but instead found temporary relief justified when the movant simply “raised serious doubt” about the validity and constitutionality of the actions that the movant sought to stay. 711 S.W.3d at 646.

The balancing of harms between the various parties has two elements that are critical here. First, whether damages or other harm can “feasibly be recouped if it is later determined” that the harmful action was invalid is part of asking whether harms are “irreparable” and thus entitled to additional weight. Id. at 647. Second, when a governmental entity’s constitutional rights are impacted, that is where the “status quo” question is particularly helpful, too—favoring a stay of state action that would change another governmental unit’s “manner of governance” from its “last, actual, peaceable non-contested status” before the lawsuit. Tex. Educ. Agency, 619 S.W.3d at 683–84.

Appellants do not address these factors or even mention In re Texas Education Agency. They are dispositive here, if the traditional balance weighing is not enough.

II. Appellants show no harm and ignore Appellees’ harm.

The balance of harms weighs heavily in Appellees’ favor. At the temporary injunction hearing, Appellees presented substantial evidence that they would be irreparably harmed by compliance with the Challenged Rules, which the Attorney General neither contradicted nor countered. Rather, the Attorney General presents the legally incorrect view that government officials are irreparably harmed whenever they cannot impose their view of the law.

A. The Attorney General has no evidence of harm.

Typically, “[w]hen the State files suit to enjoin ultra vires action by a local official, a showing of likely success on the merits is sufficient to satisfy the irreparable-injury requirement for a temporary injunction.” State v. Hollins, 620 S.W.3d 400, 410 (Tex. 2020). Here, however, Appellees are the government officials bringing an ultra vires action, and Appellees have shown a likelihood of success on the merits, as the district court found. Allowing the Attorney General to invoke this doctrine in defending against an ultra vires claim would shield the Attorney General from ultra vires actions even if he could show a likelihood of success on the merits, which he certainly has not shown. Plus, there has been no violation of law, as the Attorney General has claimed, for which he needs any enforcement. The precise reason that Appellees need the temporary injunction and stay is so that the Attorney cannot injure them in violation of the law.

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Ken Paxton, in His Official Capacity as Attorney General for the State of Texas and the Office of the Attorney General for the State of Texas v. Delia Garza, in Her Official Capacity as Travis County Attorney; John Creuzot, in His Official Capacity as Dallas County Criminal District Attorney; And Brian Middleton, in His Official Capacity as District Attorney of Fort Bend County (268th Judicial District), (Tex. Ct. App. 2025).

Ken Paxton, in His Official Capacity as Attorney General for the State of Texas and the Office of the Attorney General for the State of Texas v. Delia Garza, in Her Official Capacity as Travis County Attorney; John Creuzot, in His Official Capacity as Dallas County Criminal District Attorney; And Brian Middleton, in His Official Capacity as District Attorney of Fort Bend County (268th Judicial District) (Ken Paxton, in His Official Capacity as Attorney General for the State of Texas and the Office of the Attorney General for the State of Texas v. Delia Garza, in Her Official Capacity as Travis County Attorney; John Creuzot, in His Official Capacity as Dallas County Criminal District Attorney; And Brian Middleton, in His Official Capacity as District Attorney of Fort Bend County (268th Judicial District)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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