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)

Opinion

ACCEPTED 15-25-00116-CV August 20, 2025 FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 8/20/2025 3:43 AM No. 15-25-00116-CV CHRISTOPHER A. PRINE CLERK

In the Court of Appeals 15th COURT RECEIVED IN OF APPEALS for the Fifteenth Judicial DistrictAUSTIN, TEXAS 8/20/2025 3:43:16 AM Austin, Texas CHRISTOPHER A. PRINE Clerk

KEN PAXTON, in his official capacity as Attorney General of Texas and THE OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TEXAS, Appellants, v. D ELIA G ARZA , in her official capacity as Travis County Attorney, ET AL .; J OHN C REUZOT , in his official capacity as Dallas County Criminal District Attorney, ET AL .; and B RIAN M. M IDDLETON , in his official capacity as District Attorney of Fort Bend County (268th Judicial District), ET AL ., Appellee.

On Interlocutory Appeal from the 459th Judicial District Court, Travis County No. D-1-GN-25-003445 consolidated with No. D-1-GN-25-00351 and No. D-1-GN-003581

RESPONSE BRIEF OF APPELLEE BRIAN M. MIDDLETON IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF FORT BEND COUNTY (268TH JUDICIAL DISTRICT)

JUSTIN C. PFEIFFER State Bar No. 24091473 GAVRILOV & BROOKS, PC P.O. Box 56632 Houston, Texas 77256 [Tel.] (832) 312-7900 JPfeiffer@gavrilovlaw.com

Counsel for BRIAN M. MIDDLETON, in his official capacity as Fort Bend County District Attorney (268th Judicial District)

ORAL ARGUMENT REQUESTED IDENTIFY OF PARTIES AND COUNSEL

Appellants: Ken Paxton in his official capacity as the Attorney General of Texas The Office of the Attorney General of the State of Texas

Appellate and Trial Counsel: KEN PAXTON BRENT WEBSTER WILLIAM R. PETERSON WILLIAM F. COLE (lead counsel) BENJAMIN WALLACE MENDELSON MEAGAN CORSER KIMBERLY GDULA WILLIAM H. FARRELL William.Cole@oag.texas.gov OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 [Tel.] (512) 979-5561 William.Cole@oag.texas.gov

Appellees: Cause No. D-1-GN-25-003445 Delia Garza in her official capacity as Travis County Attorney José P. Garza in his official capacity as Travis County District Attorney (53d Judicial District) Travis County James Montoya in his official capacity as El Paso County District Attorney (34th Judicial District) Christina Sanchez in her official capacity as El Paso County Attorney El Paso County

Cause No. D-1-GN-25-003531 John Creuzot in his official capacity as Dallas County Criminal District Attorney Dallas County Joe Gonzales in his official capacity as Bexar County Criminal District Attorney

ii Bexar County Sean Teare in his official capacity as Harris County District Attorney Harris County

Cause No. D-1-GN-25-003581 Brian M. Middleton in his official capacity as District Attorney of Fort Bend County (268th Judicial District) Shawn W. Dick in his official capacity as District Attorney of Williamson County (26th Judicial District)

Counsel for Cause No. D-1-GN-25-003445 LESLIE W. DIPPEL (lead counsel) TODD A. CLARK CYNTHIA W. VEIDT O FFICE OF D ELIA G ARZA T RAVIS C OUNTY A TTORNEY P.O. Box 1748 Austin, Texas 78767 [Tel.] (512) 854-9513 Leslie.Dippel@traviscountytx.gov Counsel for Appellees Travis County, Travis County Attorney Delia Garza, and Travis County District Attorney José Garza (53d Judicial District)

CHRISTINA SANCHEZ BERNARDO RAFAEL CRUZ (lead counsel) OFFICE OF CHRISTINA SANCHEZ EL PASO COUNTY ATTORNEY 320 S. Campbell St., Suite 200 El Paso, Texas 79901 [Tel.] (915) 273-3247 b.cruz@epcountytx.gov Counsel for Appellees El Paso County District Attorney James Montoya, El Paso County Attorney Christina Sanchez, and El Paso County

Counsel for Cause No. D-1-GN-25-003531 ALEXANDRIA OBERMAN (lead counsel) MICHAEL J. SATIN (admitted pro hac vice) MILLER & CHEVALIER CHARTERED 900 16th Street, NW iii Washington, DC 20006 [Tel.] (202) 626-5567 aoberman@milchev.com Counsel for Appellees Criminal District Attorney John Creuzot; Dallas County; Criminal District Attorney Joe Gonzales; and Bexar County

BRADLEY W. SNEAD (lead counsel) JONATHAN G.C. FOMBONNE MICHAEL ADAMS-HURTA TIFFANY S. BINGHAM WRIGHT CLOSE & BARGER, LLP CHRISTOPHER GARZA One Riverway, Suite 2200 OFFICE OF CHRISTIAN D. MENEFEE Houston, Texas 77056 HARRIS COUNTY ATTORNEY [Tel.] 713-572-4321 1019 Congress Plaza, 15th Floor snead@wrightclosebarger.com Houston, Texas 77002 Houston, Texas 77002 [Tel.] (713) 274-5101 Counsel for Appellees District Attorney Sean Teare and Harris County

Counsel for Cause No. D-1-GN-25-003581 JUSTIN C. PFEIFFER (lead counsel) GAVRILOV & BROOKS, PC (Houston Office) P.O. Box 56632 Houston, Texas 77256 [Tel.] (832) 312-7900 JPfeiffer@gavrilovlaw.com Counsel for Appellee Brian M. Middleton in his official capacity as Fort Bend County District Attorney (268th Judicial District)

RANDY T. LEAVITT (lead counsel) C. ROBERT HEATH LAW OFFICE OF RANDY T. LEAVITT BICKERSTAFF HEATH DELGADO 1301 Rio Grande St ACOSTA Austin, TX 78701-1711 1601 S Mopac Expy., Suite 400 [Tel.] (512) 476-4475 Austin, TX 78746-7017 randy@randyleavitt.com [Tel.] (512) 404-7821 bheath@bickerstaff.com Counsel for Appellee Shawn W. Dick in his official capacity as Williamson County District Attorney (26th Judicial District)

iv TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL ............................................................ ii

TABLE OF CONTENTS .....................................................................................v

INDEX OF AUTHORITIES ............................................................................. viii

RECORD REFERENCES .............................................................................. xvii

STATEMENT OF THE CASE........................................................................ xviii

STATEMENT OF ORAL ARGUMENT.............................................................. xix

ISSUE PRESENTED ....................................................................................... xx

INTRODUCTION ............................................................................................. 1

STATEMENT OF FACTS .................................................................................. 3

A. The Challenged Rules ....................................................................... 3

B. Procedural History ............................................................................ 6

SUMMARY OF THE ARGUMENT .................................................................... 10

STANDARD OF REVIEW................................................................................ 12

ARGUMENT ................................................................................................. 13

I. APPELLEES ESTABLISH A PROBABLE RIGHT TO RELIEF ..................... 14

A. Section 41.006 of the Government Code Does Not Grant the Attorney General Rulemaking Authority ...................................... 16

B. Despite § 41.006’s Failure to Set Forth the Power to Adopt Rules or Engage in Rulemaking, the Challenged Rules are Invalid Under the Relevant Texas Statutes ................................................................. 20 v 1. The Challenged Rules Contravene Specific Statutory Language .................................................................................... 21

a. By Allowing the Attorney General to Initiate Legal Action, the Challenged Rules Contravene the Statutory Provisions for the Those Legal Actions ................................................... 21

b. The Challenged Rules Conflict with the Legislative Provision Providing the Attorney General the Authority to Request Information for Human Trafficking Cases Under Specific Conditions .............................................................................. 28

2. The Relevant Texas Statutes Do Not Permit the Challenged Rules............................................................................................ 30

a. Section 41.006 Originated as Part of a Reporting Requirement No Longer in Effect ......................................... 31

b. That a Heretofore Unknown Vehicle for the Attorney General to Supervise Prosecuting Attorneys Began in 1879 is Implausible. ........................................................................ 37

c. The Attorney General’s Former Authority in Criminal Appeals Does Not Permit the Rules ..................................... 38

3. The Challenged Rules impose additional burdens inconsistent with the relevant statutory provisions ..................................... 40

C. The Challenged Rules Violate the Separation of Powers Clause by Interfering with the Prosecuting Attorneys’ Core Constitutional Authority ......................................................................................... 42

1. Interference Prong Separation of Powers Clause Challenge .................................................................................... 43

2. With Respect to Core Constitutional Authority, the Challenged Rules Deny the Prosecuting Attorneys the Broad Judgment and Discretion He Claims for Himself.............................................. 44

vi II. APPELLEES ESTABLISH AN INTERIM PROBABLE, IMMINENT, AND IRREPARABLE INJURY ............................................................................ 49

III.THE TRIAL COURT PROPERLY ENJOINED THE ATTORNEY GENERAL FROM ENFORCING AND IMPLEMENTING THE CHALLENGED RULES REGARDLESS OF A PROSECUTING ATTORNEY’S PARTY STATUS .................................... 53

CONCLUSION AND PRAYER FOR RELIEF ...................................................... 55

CERTIFICATE OF SERVICE ........................................................................... 56

CERTIFICATE OF COMPLIANCE.................................................................... 57

vii TABLE OF AUTHORITIES PAGE(S) CASES Abbott v. Anti-Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911 (Tex. 2020) ................................................................. 13

In re Abbott, 645 S.W.3d 276 (Tex. 2022) ................................................................. 54

Acker v. Tex. Water Comm’n, 790 S.W.2d 299 (Tex. 1990) ................................................................. 28

Agey v. Am. Lib. Pipe Line Co., 172 S.W.2d 972 (Tex. 1943) ................................................................. 47

Brazos Elec. Power Coop. v. Pub. Util. Comm’n., 101 S.W.3d 499 (Tex. App.—Austin 2002, pet. denied) ..................... 16

In re Bell, 91 S.W.3d 784 ...................................................................................... 16

Chambers Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339 (Tex. 2019) ........................................................... 12, 13

Charles Scribner’s Sons v. Marrs, 262 S.W. 722 (Tex. 1924) .................................................................... 47

Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex. 1995) ................................................................. 20

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ................................................................. 14

Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566 (Tex. 2014) ................................................................ 47

Henry v. Cox, 520 S.W.3d 28 (Tex. 2017) ................................................................... 13

viii Holmes v. Eckels, 731 S.W.2d 101 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) .................................................................................... 23

Humble Oil & Refining Co. v. R.R. Comm’n of Tex., 128 S.W.2d 9 (1939) ............................................................................. 20

Garcia v. Laughlin, 285 S.W.2d 191 (Tex. 1955) ................................................................. 42

Kappus v. Kappus, 284 S.W.3d 831 (Tex. 2009) ................................................................. 18

Lytle v. Halff, 12 S.W. 610 (1889) ............................................................................... 42

Meshell v. State, 739 S.W.2d 246, 254 (Tex. Crim. App. 1987)...................................... 48

Messameno v. Statewide Grievance Committee, 663 A.2d 317 (Conn. 1995) .................................................................. 46

Morath v. Tex. State Tchrs. Ass’n, No. 03-23-00279-CV, — S.W.3d —, 2025 WL 1449591 (Tex. App.—Austin May 21, 2025, pet. filed) ..................................... 41

Newsom v. State, 922 S.W.2d 274, 278 (Tex. App—Austin 1996, writ denied) ............. 26

Orix Capital Markets, LLC v. American Realty Trust, Inc., 356 S.W.3d 748 (Tex. App.—Dallas 2011, pet. denied) ..................... 25

Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69 (Tex. 2015) ................................................................... 22

Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016).............................................. 48

Phillips v. McNeill, 635 S.W.3d 620 (Tex. 2021) ................................................................. 15 ix Pub. Util. Comm’n. of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 315 (Tex. 2001 ........................................................... 21

Pub. Util. Comm’n of Tex. v. Cofer, 754 S.W.2d 121 (Tex. 1988) ................................................................. 29

Pub. Util. Comm’n of Tex. v. Luminant Energy Co. LLC, 691 S.W.3d 448 (Tex. 2024) ........................................................... 13, 21

Rochelle v. Lane, 148 S.W. 558 (1912) ............................................................................. 50

City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) ................................................................. 18

Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002)................................................ 38

Sexton v. Mt. Olivet Cemetery Ass’n, 720 S.W.2d 129 (Tex. App.—Austin 1986, writ ref‘d n.r.e.) .............. 21

Shepperd v. Alaniz, 303 S.W.2d 846 (Tex. Civ. App.—San Antonio 1957, no pet.) ........... 51

State v. Hollins, 620 S.W.3d 400, 410 (Tex. 2020) (per curiam). ........................... passim

State v. City of San Marcos, 714 S.W.3d 224 (Tex. App.—15th Dist. 2025, pet. filed) ................... 50

State v. Loe, 692 S.W.3d 215 (Tex. 2024) ................................................................. 12

In re State, 711 S.W.3d 641 (Tex. 2024) ................................................................. 15

In re State ex rel. Best, 616 S.W.3d 594 (Tex. Crim. App. 2021).............................................. 49

x State ex rel. Edwards v. Reyna, 333 S.W.2d 832 (Tex. 1960) ........................................................... 24, 26

State ex rel. Dishman v. Gary, 359 S.W.2d 456 (Tex. 1962) ................................................................. 23

State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex. Crim. App. 1990).................................................. 25

State ex rel. Hickman v. Alcorn, 14 S.W. 663 (Tex. 1890) ....................................................................... 25

State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994)...................................... 48

State v. S. Pac. R. Co., 24 Tex. 80 (1859) .................................................................................. 47

Stephens v. State, 663 S.W.3d 45 (Tex. Crim. App. 2021), reh’g denied, 664 S.W.3d 293 (Tex. Crim. App. 2022)........................................ 29, 43

Stern v. State ex rel. Ansel, 869 S.W.2d 614(Tex. App.—Houston [14th Dist.] 1994, writ denied) .......................................................................................... 25

Ex parte Taylor, 36 S.W.3d 883 (Tex. Crim. App. 2001) (per curiam) .......................... 38

Terrell v. Greene, 31 S.W. 631 (Tex. 1895) ....................................................................... 27

Tex. Educ. Agency v. Houston Indep. Sch. Dist., 660 S.W.3d 108 (Tex. 2023) ........................................................... 12, 14

Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618(Tex. 2011) (per curiam)14 ........................................ 12

Tex. State Bd. of Exam’rs of Marriage & Fam. Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28 (Tex. 2017) ........................................................ 21 xi Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 616 S.W.3d 558, 571 (Tex. 2021) .................................................. passim

Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) ................................................................. 53, 54

In re Turner, 627 S.W.3d 654 (Tex. 2021) ................................................................. 26

Walton v. City of Midland, 287 S.W.3d 97 (Tex. App.—Eastland 2009, pet. denied) ................... 26

Webster v. Comm’n for Law. Discipline, 704 S.W.3d 478 (Tex. 2024) .......................................................... passim

Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987).............................................................................. 49

CONSTITUTIONS

CONN. CONST. art. IV, § 27 ....................................................................... 46

TEX. CONST. art. 2, 1 ................................................................................. 42

TEX. CONST. art. 4, § 22 ............................................................................ 27

TEX. CONST. art. 5, § 21 ...................................................................... 23, 27

TEX. CONST. of 1845 art. 5, § 9 ................................................................. 31

TEX. CONST. of 1869 art. 4, § 23 ............................................................... 37

TEX. CONST. of 1876 art. 4, § 9 ................................................................. 33

TEX. CONST. of 1876 art. 4, § 22 ............................................................... 37

TEX. CONST. of 1876 art. 5, § 3 ................................................................. 34

TEX. CONST. of 1876 art. 5, § 1 ................................................................. 37

xii TEX. CONST. of 1876 art. 5, § 3 ................................................................. 38

TEX. CONST. OF 1876 art. 5, § 6 ................................................................ 37

TEX. CONST. of 1876 art. 5, § 26 ............................................................... 38

STATUTES

5 U.S.C. § 706(2)(c)(2) .............................................................................. 54

Act approved Mar. 19, 1846, 1st Leg., R.S., § 7, 1846 Tex. Gen. Laws 10, 11, reprinted in H.P.N. GAMMEL, 2 The Laws of Texas 1822–1897, at 1316, 1317 (Austin, Gammel Book Co. 1898) ..................................... 31

Act approved May 11, 1846, 1st Leg., R.S., § 3, 1846 Tex. Gen. Laws 206, 206, reprinted in H.P.N. GAMMEL, 2 The Laws of Texas 1822–1897, at 1512 (Austin, Gammel Book Co. 1898) ......................................... 31, 32

Act approved May 13, 1846, 1st Leg., R.S., § 2, 1846 Tex. Gen. Laws 295, 296, reprinted in H.P.N. GAMMEL, 2 The Laws of Texas 1822–1897, at 1601–02 (Austin, Gammel Book Co. 1898) ......................................... 31

Act approved Mar. 15, 1875, 14th Leg., 2d R.S., ch. 112, § 1, 1875 Tex. Gen. Laws 179, 179–80, reprinted in H.P.N. GAMMEL, 8 The Laws of Texas 1822–1897, at 551–52 (Austin, Gammel Book Co. 1898)........ 39

Act of Mar. 28, 1885, 19th Leg. R.S., ch. 64, § 1, 1885 Tex. Gen. Laws 61, 61 .......................................................... 18, 35

Act of Aug. 29, 1911, 32nd Leg., 1st C.S., ch. 3, 1911 Tex. Gen. Laws 2, 17–18 ............................................................ 39

Act of Mar. 30, 1923, 38th Leg., R.S., ch. 156, § 4, 1923 Tex. Gen. Laws 335, 335 ............................................................ 40

Act of May 18, 1931, 42nd Leg., R.S. 1931, ch. 139, § 1, 1931 Tex. Gen. Laws 234, 234 ............................................................ 40

Act of May 17, 1985, 69th Leg., R.S. ch. 480, 1985 Tex. Gen. Laws 1720, 1720 ........................................................ 35 xiii Act of Apr. 30, 1987, 70th Leg., R.S., ch. 147, § 1, 1987 Tex. Gen. Laws 316, 321–24 ................................................ 17, 35

Act of Aug. 9, 1991, 72d Leg., 1st C.S., ch. 4, § 5.01, 1991 Tex. Gen. Laws 1st C.S. 98, 104 ................................................ 17

Act of May 20, 2003, 78th Legis., R.S., ch. 691, §1, 2003 Tex. Gen. Laws 620, 620 ................................................ 18, 35, 36

Act of Jun. 2, 2003, 78th Leg., R.S., ch. 198, § 2.139, 2003 Tex. Gen. Laws 611, 705 ............................................................ 18

Act of May 26, 2011, 82d Leg., R.S., ch. 1257, § 1, 2011 Tex. Gen. Laws 3378, 3378 ........................................................ 17

Act of May 21, 2019, 86th Leg., R.S., ch. 469, § 1.04, 2019 Tex. Gen. 1076, 1078 .............. 53

Act of May 28, 2023, 88th Legis., R.S., ch. 366, §1, 2023 Tex. Gen. Laws 800, 800 ............................................................ 24

Act of May 26, 2025, 89th Leg., R.S., Ch. 364, § 2 (H.B. 45), 2025 Tex. Gen. Laws. ____, ____ ........................................................ 29

TEX. CIV. PRAC. & REM. CODE: § 37.001–.004 ....................................................................................... 13 § 37.006 ................................................................................................ 13 § 37.010 ................................................................................................ 13 § 66.001(2) ............................................................................................ 25 § 66.003(1) ............................................................................................ 26

TEX. CODE CRIM. PROC. art. 2A.205 ............................................................................................ 48 art. 17.32 ................................................................................................ 5 art. 17.50 ................................................................................................ 5 art. 20A.204 .......................................................................................... 53 art. 38.43 .............................................................................................. 49 art. 29 (1879) .................................................................................. 18, 33 art. 30 (1879) .................................................................................. 33, 34

xiv art. 40 (1879) .................................................................................. 33, 37 art. 58 (1879) ........................................................................................ 33 § 3, art. 1 (1925) ................................................................................... 35

TEX. GOV’T CODE § 41.006 ......................................................................................... passim § 41.009 ................................................................................................ 26 § 402.02012 .......................................................................................... 17 § 402.003 ............................................................................ 17, 18, 35, 36 § 402.035 .............................................................................................. 17 § 402.0351 ............................................................................................ 17 § 402.036 .............................................................................................. 17 § 420.005 .............................................................................................. 19 § 420.011 .............................................................................................. 19 § 420.108 .............................................................................................. 19 § 552.231 .............................................................................................. 19 § 552.262 .............................................................................................. 19 § 552.3031 ............................................................................................ 19 § 1202.004 ............................................................................................ 19 § 2001.033(a)(2)................................................................................ 3, 47 § 2001.035(b) .......................................................................................... 3 § 2001.038(a) .................................................................................. 13, 33 § 2101.038(f) ......................................................................................... 19 § 2107.002 ............................................................................................ 19

TEX. LOC. GOV’T CODE: § 87.011 ................................................................................................ 21 § 87.013 ................................................................................................ 24 § 87.015 ................................................................................................ 21 § 87.018(d) ...................................................................................... 22, 23 § 87.018(e) ............................................................................................ 23 § 87.018(f) ............................................................................................. 23

TEX. REV. CIV. CODE tit. 69, ch. 2, art. 2758 (1879) .............................................................. 33 tit. 69, ch. 3, art. 2771 (1879) .............................................................. 33 tit. final, § 2 (1925) ............................................................................. 33

xv LEGISLATIVE MATERIALS

House Comm. on Judicial Affairs, Bill Analysis, Tex. H.B. 2676, 78th Leg., R.S. (2003) .......................................................................... 18

Fiscal Note, S.B. 1228, 69th Leg. (1985) ................................................ 35

S.J.R. 16, 22nd Leg., R.S., 1891 Tex. Gen. Laws 197, 198, reprinted in H.P.N. GAMMEL, 10 The Laws of Texas 1822–1897, at 199–200 (Austin, Gammel Book Co. 1898) ........................................................ 39

S.J.R. 34, 70th Leg., R.S., 1987 Tex. Gen. Laws 4114, 4114.................. 39

RULES

TEX. R. APP. P.: 9.4(i)(1) ................................................................................................. 57 9.5(b)(1) ................................................................................................ 56 Tex. R. App. P. 29.3 ........................................................................... passim Tex. R. App. P. 34(b)(1) .......................................................................... xvii Tex. R. App. P. 34(c)(1)........................................................................... xvii Tex. R. App. P. 38.2(a)(1)(C) .................................................................. xvii Tex. R. App. P. 38.2(a)(1)(B) ...................................................................... 3

OTHER AUTHORITIES 2173 (2025) ..................................................................................... passim

xvi RECORD REFERENCES

“CR” refers to the Clerk’s Record as Appellants originally

requested. “RR” refers to the Reporter’s Record.

On July 2, 2025, Appellants submitted a sufficient Amended

Designation of Request for Clerk’s Record with the trial court. See TEX.

R. APP. P. 34(b)(1) & TEX. R. APP. P. 34(c)(1). The Clerk of the Court

recommended to treat these materials under under TEX. R. APP. P.

38.2(a)(1)(C). Accordingly, Appellants’ amended record designation and

the two trial court filings are appended to District Attorney Middleton’s

Corrected Appellee Response Brief as a Supplemental Appendix (“Supp.

App.”). If requested, District Attorney Middleton will file a supplemented

brief once the Court receives the supplemental clerk’s record.

xvii STATEMENT OF THE CASE Nature of the On March 13, 2025, the Office of Attorney filed the Underlying Action “District and County Attorney Reporting Requirements,” as adopted, with the Secretary of State. 50 TEX. REG. 2173–2182 (Mar. 28, 2025). The Williamson/Fort Bend District Attorneys filed their Original Verified Petition for declaratory and injunctive relief to prevent the Attorney General from enforcing and implementing the Challenged Rules on May 16, 2025. [CR 280-324]. The district attorneys (and county attorneys with criminal jurisdiction) for Travis and El Paso Counties filed a similar action, [CR 4-50], as did the prosecuting attorneys for Dallas, Bexar, and Harris Counties. [CR 123-278]. All sought relief due to the Attorney General’s lack of authority to promulgate the Challenged Rules, the Challenged Rules’ violations of the Separation of Powers Clause, the Attorney General’s failures to comply with the rulemaking process, and the Challenged Rules’ conflicts with federal and state nondisclosure laws.

Course of proceedings: The parties agreed to consolidate the three matters to serve judicial efficiency. [CR 339-40]. On June 16, 2025, the trial court conducted an all-day evidentiary hearing. [2 RR 11-208]. The trial court admitted Appellees’ 23 exhibits, including nine witness declarations, and Appellants’ five exhibits. [2 RR 15- 17]. Appellees presented two witnesses live, [2 RR 35- 160], with the additional seven declarants present, including the Williamson and Fort Bend district attorneys themselves. [2 RR 14:14-16]. Appellants’ counsel declined to cross-examine any of seven noting similarity in testimony, [2 RR 162:1-2], and did not present any witness testimony. [2 RR 162: 17-19].

Trial Court: 459th Judicial District Court, Travis County The Honorable Catherine Mauzy, presiding

Trial Court’s The trial court granted Appellees’ applications for a Disposition temporary injunction filed in in Cause No. D-1-GN-25- 003445, Cause No. D-1-GN-25-003531, and Cause No. D-1-GN-25-003581 [CR 391-95.]

xviii STATEMENT REGARDING ORAL ARGUMENT

On July 17, 2025, the Court set this matter for oral argument to

occur on September 24, 2025.

Oral argument will assist the Court with the complicated statutory

history and constitutional issues raised by this matter. Here, the

Attorney General asserts a portion of statutory scheme dating back to the

First Legislature as the statutory justification for the Challenged Rules .

Relevant constitutional and statutory changes since are numerous.

Further, as this Court is aware, historic statutes predating the

creation of the subject-matter codes are cumbersome. The digitized copies

available via the Texas State Law Library are thousands of pages in

length. Discussion will help synthesize and clarify the historical lineage.

The Court will only benefit from questioning counsel; thus, the

Court should increase the time allotted to each side from 20 minute to 30

minutes.

xix ISSUE PRESENTED

Did the trial court properly enjoin Appellants from enforcement and

implementation pending a final trial on the merits of Chapter 56 of Title

I of the Texas Administrative Code when:

• Appellants’ statutory justification for promulgating Chapter 56

does not provide Appellants with rulemaking authority?

• The Legislature long ago repealed the Attorney General’s authority

to request limited and specific information from the prosecuting

attorney as well as the reasons for providing such authority in the

first place?

• Chapter 56 interferes with the county and district attorneys’ core

constitutional powers?

• The temporary injunction maintains he status quo, and Appellants

did not present any evidence of a concrete harm to counter

Appellees’ irreparable loss of financial resources and diversion of

personnel time?

xx INTRODUCTION

Despite lacking rulemaking authority and contrary to recent

authoritative rulings by the state’s highest courts recognizing that the

Texas Constitution vests independent judgment and discretion onto

officers exercising exclusive constitutional authority, Defendants-

Appellants Ken Paxton, sued in his official capacity as Texas Attorney

General and the Office of Attorney General of the State of Texas

(collectively, “Attorney General” or “Appellants”) promulgated the

“District and County Attorney Reporting Requirements” in Chapter 56 to

Title 1 of the Texas Administrative Code (“TAC”). 50 TEX. REG. 2173–

2182 (Mar. 28, 2025) (hereinafter, the “Challenged Rules” or “Rules”).

The Challenged Rules’ purpose and effect are to control and

supervise duties the Constitution assigns to the local prosecutors in

thirteen Texas counties.1

The statutory provision that the Attorney General asserts

authorize or require the Rules does not provide the Attorney General

with rulemaking authority. The provision dates back to a statutory

1 The counties are those with a population of at least 400,000 according to the 2020 census, which include Harris, Dallas, Tarrant, Bexar, Travis, Collin, Denton, Fort Bend, Hidalgo, El Paso, Montgomery, Williamson, and Cameron counties. Brazoria and Bell counties, with populations slightly less than 400,000, will likely meet the 400,000-person threshold by the time of the next decennial census.

1 scheme that was adopted more than 100 years ago, which required the

Attorney General to gather limited data to make a statistical report on

the number of indictments, convictions, fines received, etc.—not the

detailed, intrusive information the Challenged Rules purport to

authorize and certainly not for determining if other constitutional officers

are appropriately performing their duties. The Legislature has

reassigned the reporting obligation to the Office of Court Administration

and repealed both the statute requiring the Attorney General to prepare

a report and his authorization to require district and county attorneys to

provide him with the necessary information.

There is no doubt that the Challenged Rules’ purpose and effect are

to control and supervise duties the Constitution assigns to local

prosecutors. The Attorney General expressly justifies the Rules as

“ensur[ing] that county and district attorneys are consistently complying

with statutory duties, including seeking justice for citizens who have been

harmed by a criminal act, appropriately administering funds, and

appropriately prosecuting crimes.” 50 TEX. REG. at 2173. The Challenged

Rules even create an Oversight Advisory Committee in the Office of the

Attorney General with the stated purpose of questioning county and

2 district attorneys’ determinations of probable cause to prosecute. 1 TAC

§§ 56.3(a)(6) & 56.9.

But the Constitution exclusively vests those duties in locally elected

prosecutors who are officers of the judicial branch, not in the Attorney

General, who is an executive officer. The Challenged Rules violate the

Separation of Powers Clause by seeking to expand the Attorney General’s

authority to matters assigned to the judicial branch.

STATEMENT OF FACTS2

A. The Challenged Rules.

Appellants accurately state the procedural aspects of the

rulemaking process. Appellants’ sole statutory justification, see TEX.

GOV’T CODE § 2001.033(a)(2), both in the order adopting the Rules, 50

TEX. REG. at 2173, and asserted in the litigation, is § 41.006 of the

Government Code. Section 41.006 , which is titled for the judicial branch

and subtitled for prosecuting attorneys, provides:

At the times and in the form that the attorney general directs, the district and county attorneys shall report to the attorney general the information from their districts and counties that the attorney general desires relating to criminal matters and the interests of the state.

TEX. GOV’T CODE § 41.006.

2 When an appellee “is dissatisfied” with the appellant’s “statement of acts,” an appellee may include its own. TEX. R. APP. P. 38.2(a)(1)(B). 3 The Challenged Rules require prosecuting attorneys (in counties

with a population of 400,000 or more) 1 TAC § 56.3(b), “in a manner

prescribed by the [Office of Attorney General].” 1 TAC § 56.1. The Rules

require the prosecuting attorneys to submit “an initial, and quarterly and

annual reports.” 1 TAC § 56.1. The initial report requires submission of

“reporting event[s]” between January 1, 2021, and the April 2, 2025

effective date. 1 TAC § 56.(3)(b).

• any correspondence3 describing or containing an analysis of a district or county attorney’s “policy not to indict a category or sub-category of criminal offenses,” 1 TAC § 56.3(a)(9); • any “correspondence with any employee of a federal agency regarding a decision whether to indict an individual,” 1 TAC § 56.3(a)(10); • any “correspondence with any non-profit organization regarding a decision whether to indict an individual,” 1 TAC § 56.3(a)(11); and • any correspondence by an assistant prosecutor regarding “that attorney’s resignation under a formal or informal complaint process,” 1 TAC § 56.3(a)(12).

Notwithstanding that the judge hearing a state habeas petition

may only appoint “some qualified practicing attorney to represent the

State” when “neither the county nor the district attorney be present,”

3 The Challenged Rules define “correspondence” to include “any email, letter, memorandum, instant message, text message, or direct message, received or issued by an employee of the reporting entity,” but not including “a reporting entity employee’s correspondence that is purely personal in nature and has no connection with the transaction of official business.” 1 TAC § 56.2(2).

4 TEX. CODE CRIM. PROC. art. 11.39, a “reporting event” also includes the

entire case file4 for instances where a district or county attorney

recommends that a convicted defendant be released, resentenced to a

lesser sentence, or granted a new trial based on admitted error, 1 TAC

§ 56.3(a)(4), as well as the entire case file for instances where the

Attorney General’s “Oversight Advisory Committee”5 concludes that a

district or county attorney lacked probable cause to pursue a prosecution.

1 TAC § 56.3(a)(6).

Despite the Legislature having defined what constitutes a “violent

crime” with precision, see TEX. CODE CRIM. PROC. art. 17.32 & 17.50,

Appellants admit that the Challenged Rules use an use a more expansive

expanded definition. 50 TEX. REG. at 2173.6 The Challenged Rules require

reporting “the number of instances in which any law enforcement agency

made an arrest under the expanded definition of ‘violent crime’ but no

4 The Challenged Rules define “case file” to include “all documents, notes, memoranda, and correspondence, in any format such as handwritten, typed, electronic, or otherwise, including drafts and final copies, that were produced within or received by the reporting entity’s office, including work product and otherwise privileged and confidential matters.” 1 TAC § 56.2(1). 5 Section 56.9 creates “Oversight Advisory Committee composed of three members of the Office of the Attorney General designated by the Attorney General.” 1 TAC § 56.9(a). 6 “[T]he definition of ‘violent crime’ in § 56.2(7) is only applicable to the reporting requirements in the rule. The rule does not purport to amend the definition of ‘violent crime’ in any other context.” 50 TEX. REG. at 2173. 5 indictment was issued, the case was resolved by deferred prosecution or

a similar program, or all charges were dropped,” 1 TAC § 56.3(a)(7).

Because the Oversight Advisory Committee may then request “[a]ll

correspondence . . . for a matter listed in response to [that] paragraph of

this subsection on a prior quarterly report,” 1 TAC § 56.3(a)(8), the

Challenged Rules allow the Oversight Advisory Committee to request

correspondence even though the prosecuting attorneys only have to

report a number. Regardless, the Oversight Advisory Committee may

request an entire case file for any matter it desires a case-by-case basis.

1 TAC § 56.9(c).

B. Procedural History.

On May 16, 2025, Brian M. Middleton, in his official capacity as the

District Attorney for the 268th Judicial District of Texas (Fort Bend

County) joined by Shawn W. Dick, in his official capacity as the District

Attorney for the 26th Judicial District of Texas (Williamson County),

(collectively, “Williamson/Fort Bend District Attorneys”) filed their

Original Verified Petition and Request for Temporary and Permanent

Injunction against Appellants. [CR 280-324]. Seeking declaratory and

injunctive relief, the Williamson/Fort Bend District Attorneys asserted

four causes of action: (1) the Attorney General lacked the rulemaking

6 authority necessary to adopt the Challenged Rules; (2) the Rules violate

the Texas Constitution’s Separation of Powers Clause; (3) the Rules are

inconsistent with and violative of various state and federal laws

providing for confidentiality; and (4) the Rules’ adoption was an ultra

vires act of the Attorney General.

Also on May 16,7 the district attorneys (and county attorneys with

criminal jurisdiction) for Travis and El Paso counties—joined by the

counties themselves—filed a similar action, [CR 4-50] (Cause No. D-1-

GN-25-003445 (“Travis/El Paso Appellees”), along with an extremely

thorough brief in support of their temporary injunction application. [CR

57-111]. So did the criminal district attorneys for Dallas and Bexar

counties and the district attorney for Harris County—also joined by the

counties themselves. [CR 123-174]. Cause No. D-1-GN-25-003531

(“Dallas/Bexar/Harris Appellees”). Their petition incorporated 14

exhibits, including some of the foundational documents cited in this brief.

[CR 181-278].8

7 Because one may bring an action contesting an administrative rule’s compliance with procedural requirements until “the second anniversary of the effective date of the rule,” GOV’T CODE § 2001.035(b), Appellees’ petitions filed six weeks after the Challenged Rules’ effective date were timely. 8 The other Appellees’ response brief certainly contains excellent argument for which there is widespread agreement. Nevertheless, a prosecuting attorney’s exclusive constitutional authority deserves defense from counsel unencumbered with 7 Given the commonality of the issues raised and to serve judicial

efficiency, the parties agreed to consolidate the three matters. [CR 339-

40]. District Attorneys Shawn Dick, [Supp. App. 31-40], and Brian

Middleton, [Supp. App. 20-30], filed declarations supporting the

preliminary injunction application.9 Such added to the seven declarations

already filed by other Appellees:

Declarant Prosecuting Attorney’s Clerk’s Record Office Cite Danny W. Smith, Jr. Travis County Attorney’s CR 90-95 Office Holly Taylor Travis District Attorney’s CR 96-101 Office (53 d Judicial District) Alma Trejo El Paso County Attorney’s CR 102-106 Office Amy Lechuga El Paso District Attorney’s CR 107-111 Office (34th Judicial District) Masha Edwards Dallas Criminal District CR 254-261 Attorney’s Office Jamissa Jarmon Bexar Criminal District CR 262-269 Attorney’s Office Joshua Reiss Harris District Attorney’s CR 270-278 Office

representation of their respective counties. President Reagan’s truism certainly applies: “The person who agrees with you 80% of the time is a friend and ally, not a 20% enemy.” 9 The Williamson/Fort Bend District Attorneys’ also filed supplemental argument in support of their temporary injunction application on June 13. [Supp. App. 7–13]. Prior the hearing, the Williamson/Fort Bend District Attorney’s filed a reply to Appellants’ response to the temporary injunction application. [Supp. App. 42–50].

8 Because Appellants’ trial counsel stipulated the admission of the

nine declarations “if the declarant is available at the hearing for purposes

of cross-examination,” [CR 385], all nine declarants attended the trial

court’s all-day evidentiary hearing on June 16, 2025. [2 RR 11-208].

After the trial court admitted the nine declarations, Appellees’

other 14 exhibits, and Appellants’ five exhibits, [2 RR 15-17], the trial

court heard testimony from Mr. Smith and Ms. Jamisson. [2 RR 35-160].

The other Appellees’ response brief graciously and ably summarizes the

nine declarations and the two live witnesses’ testimony. [Other

Appellees’ Br. at 14–18]. To avoid unnecessary repetition where legal

issues are central, Appellee District Attorney Middleton incorporates by

reference the evidentiary references in the Other Appellees’ Brief.

Noting the similarity between the other seven witnesses’

declarations and Mr. Smith’s and Ms. Jamisson’s testimony, Appellants’

counsel declined to cross-examine the other seven declarants. [2 RR

162:1-2]. Asserting “the vast majority of this case is a question of law, not

necessarily of fact,” [2 RR 162:7-8], Appellants did not present any

witness testimony or add to their five judicially noticeable exhibits. [2 RR

162: 17-19].

9 The trial court concluded the hearing by stating that it would grant

the temporary injunction applications and ordered the parties to confer

regarding a date for the merits hearing. [2 RR 205:24–206:4]. On June

20, 2025, the trial court issued its order granting Appellees’ temporary

injunction applications.

Appellants timely filed their notice of appeal. [CR 399-401].

SUMMARY OF THE ARGUMENT

The Challenged Rules’ admitted purpose is to supervise prosecuting

attorneys. The Attorney General’s source of statutory authority is in the

wrong section and was written in the wrong era to provide the Attorney

General any rulemaking authority let alone the unprecedented power the

Attorney General contends the statutory provision grants him.

Because the statute lacks any indicia that the Legislature intended

to provide the Attorney General rulemaking authority, the Attorney

General cannot provide—and Appellees cannot find—an example of a

court concluding an agency has rulemaking authority from a source so

scant. The Attorney General’s contrary conclusion relies on isolated

words out of context. Application of all three factors of the Supreme

Court’s required inquiry demonstrates its invalidity.

10 That the Challenged Rules conflict with numerous other legislative

provisions further demonstrates the Attorney General’s mistake in

relying on an isolated statutory provision. That the statutory provisions

in conflict emanate from the common law all the way up to June further

shows the Challenged Rules’ lack of legitimacy. Examining the statutory

structure leads to further questions and fundamental contradictions.

That the Legislature provided the Attorney General a sweeping power—

unknown and unclaimed by any other Attorney General—three years

after the Constitution’s ratification is also unprecedented.

Rather, and properly understood in its context, the relevant

provision was part of a modest good-government program whose purpose

was to check authority rather than to constitute an unconstrained source.

Not only is this the more legitimate answer, it is the answer that

avoids a constitutional question that is also without precedent. If an 1879

provision had provided the Attorney General such authority while

making his assistant a gubernatorial appointment, it is doubtful such

would have first come to light in 2024. More importantly, if the 1879

Legislature was so disposed to undue the 1876 Constitution’s balance, it

is doubtful that the writings of the era and the history books would

contain no mention.

11 That Appellees demonstrated interim, probable imminent and

irreparable injury is not in dispute. The Attorney General asserts

additional sovereign injury arguments. An injury under the Separation

of Powers Clause is a legal rather than a factual inquiry. And even if that

was not the case, the Attorney General did not contest the evidence

provided by the prosecuting attorneys.

The Challenged Rules’ invalidity means the trial court properly

enjoined Appellants’ actions respecting the Challenged Rules. Rule 29.3’s

express limitation to the parties does not constrain the Court now.

STANDARD OF REVIEW

“Th[is] Court reviews an order granting a temporary injunction for

an abuse of discretion.” State v. Loe, 692 S.W.3d 215, 226 (Tex. 2024).

Some evidence reasonably supporting the trial court’s factual findings is

sufficient. Henry v. Cox, 520 S.W.3d 28, 34 (Tex. 2017). However, because

a “trial court has no discretion to misapply the law [this Court] review[s]

its legal determinations de novo.” Tex. Educ. Agency v. Houston Indep.

Sch. Dist., 660 S.W.3d 108, 116 (Tex. 2023). Interpretation of the

Challenged Rules and the relevant statutes, involving questions of law,

are reviewed de novo. Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n,

616 S.W.3d 558, 568 (Tex. 2021).

12 ARGUMENT

It is certainly true that an applicant seeking a temporary injunction

must plead and prove (1) a cause of action against the defendant,10 (2) a

probable right to the relief sought,11 and (3) a probable imminent, and

irreparable injury in the interim. Abbott v. Anti-Defamation League

Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 914 (Tex. 2020). “When

the claim is that an agency rule exceeds the scope of statutory law, the

judiciary’s role is purely textual,” Pub. Util. Comm’n of Tex. v. Luminant

Energy Co. LLC, 691 S.W.3d 448, 464 (Tex. 2024), and “ultra vires

conduct automatically results in harm to the sovereign as a matter of

law.” State v. Hollins, 620 S.W.3d 400, 410 (Tex. 2020) (per curiam).

The prosecuting attorneys as well as the Attorney General often file

ultra vires action to seeking “compliance with statutory or constitutional

provisions.” Chambers-Liberty Ctys. Navigation Dist., 575 S.W.3d at 348.

“[A]n ultra vires suit is a tool ‘to reassert the control of the state’”

10 Appellees properly assert causes of action for declaratory judgment under GOV’T CODE § 2001.038(a) against the Office of the Attorney General, ultra vires against General Paxton, and the UDJA as to both. CIV. PRAC. & REM. CODE § 37.001–.004, .006 & .010. 11 “[R]esolution of the merits remains a separate matter from resolution of [an] interlocutory appeal” even where this Court answers “questions of law that closely resemble the questions that will dictate the ultimate outcome of the litigation.” Chambers Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 355 (Tex. 2019).

13 regardless of whether the allegedly errant official is in Austin or a county

seat. Hollins, 620 S.W.3d at 410 (quoting City of El Paso v. Heinrich, 284

S.W.3d 366, 372 (Tex. 2009)). Because the State was neither a petitioner

nor a respondent in Heinrich,12 this Court should reject the Attorney

General’s assertion that the presumption of sovereign injury only

attaches when the State is the appealing party. [Appellants’ Br. 34–35].

In fact, an independent school district properly brought an ultra vires

action against the Commissioner of the Texas Education Commission.

Tex. Educ. Agency, 660 S.W.3d at 110. The Supreme Court expressly

granted an outdoor-advertising-permit applicant the opportunity to

plead an ultra vires action against the agency’s executive director. Tex.

Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 & n.2 (Tex. 2011) (per

curiam).

The Attorney General asserts that the nonapplicable standard of

equitable balancing dispositively weight in the Attorney General’s favor

because the Challenged Rules have the force of law. But the Attorney

General invokes a mandamus decision challenging an appellate court’s

grant of TEX. R. APP. P. 29.3 motion for temporary relief. [Appellants’ Br.

12 In Heinrich, the Attorney General appeared for the State as amicus curiae. 284 S.W.3d 369 n.2.

14 at 34 (citing In re State, 741 S.W.3d 641, 645 (Tex. 2024))]. Because this

Court is tasked with determining whether the Challenged Rules

“contravene[] the [relevant statutes specific text] or run [] counter to its

purpose as a matter of law,” Tex. Bd. of Chiropractic Exam’rs, 616 S.W.3d

at 571, the Challenged Rules are not a duly enacted law with the same

force as a statute. This is particularly true where prosecuting attorneys

challenging the usurpation of their authority. That the Attorney

General’s asserted sufficient remedy to the protect the prosecuting

attorney Appellees’ vested legal rights is the Challenged Rules providing

“three different provisions that allow them to request exceptions or

extensions” from the Attorney General, [Appellants’ Br. at 35 (emphasis

in original)], is out of place in “a government of laws, and not of men.”

Phillips v. McNeill, 635 S.W.3d 620, 628 (Tex. 2021).

I. APPELLEES ESTABLISH A PROBABLE RIGHT TO RELIEF

The Attorney General lacks any legal authority, express or implied,

to promulgate administrative rules to “direct” the conduct of the district

and county attorneys. Section 41.006 of the Government Code does not

provide Attorney General with rulemaking authority. The Challenges

Rules are also invalid as contravened by specific statutes, contrary to the

statutory objectives, and disproportionate burdens not related to a

15 legitimate purpose. Interpretation of the Challenges Rules and the

relevant statutes, involving questions of law, are reviewed de novo. Tex.

Bd. of Chiropractic Exam’rs, at 568.

A. Section 41.006 of the Government Code Does Not Grant the Attorney General Rulemaking Authority.

The existence of the agency’s rulemaking authority is wholly

dependent upon a valid statutory grant set forth expressly by the

Legislature. See, e.g., Pub. Util. Comm’n. of Tex. v. City Pub. Serv. Bd. of

San Antonio, 53 S.W.3d 310, 315 (Tex. 2001); Brazos Elec. Power Coop.

v. Pub. Util. Comm’n., 101 S.W.3d 499, 501 (Tex. App.—Austin 2002, pet.

denied); & Sexton v. Mt. Olivet Cemetery Ass’n, 720 S.W.2d 129, 137 (Tex.

App.—Austin 1986, writ ref’d n.r.e.). Section 41.006 of the Government

Code does not provide the Attorney General any rulemaking authority.

As discussed, infra II.B, the Legislature required the district attorneys

to report information concerning court operations and receipts from fines

and forfeitures to the Attorney General, who in turn reported the

statewide information to the governor.

Chapter 402 of the Government Code sets out the Attorney

General’s powers and duties. Chapter 402 does not provide the Attorney

General any general rulemaking authority. Instead, the legislature

16 provided only four specific grants of rulemaking authority in all of

Chapter 402:

• TEX. GOV’T CODE § 402.0212 (provision of legal services by outside counsel); • TEX. GOV’T CODE § 402.035 (“may adopt rules to administer the submission and collection of information” to the human trafficking prevention task force); • TEX. GOV’T CODE 402.0351 (“by rule shall prescribe the design and content” of the anti-human-trafficking signs the legislature requires certain businesses and entities to post); and • TEX. GOV’T CODE § 402.036 (“shall establish” rules related to the “Support Adoption” account).

None of the four were a part of the creation of Chapter 402 (and the

executive branch portion of the government code).13 Respecting the entire

creation of the Government Code’s title for the executive branch, the

House Committee on State Affairs concluded the bill “does not delegate

rulemaking authority to any state officer, agency, department, or

institution.”14 Accordingly, as enacted in 1987, the provision requiring

13 Act of Apr. 30, 1987, 70th Leg., R.S., ch. 147, § 1, 1987 Tex. Gen. Laws 316, 321–24 (codified TEX. GOV’T CODE Ch. 402). Even the provision granting the Attorney General authority to hire outside legal counsel did not appear until 1991. Act of Aug. 9, 1991, 72d Leg., 1st C.S., ch. 4, § 5.01, 1991 Tex. Gen. Laws 1st C.S. 98, 104 (codified TEX. GOV’T CODE § 402.0212). And the legislature did not provide rulemaking authority for that provision until 2011. Act of May 26, 2011, 82d Leg., R.S., ch. 1257, § 1, 2011 Tex. Gen. Laws 3378, 3378 (codified TEX. GOV’T CODE § 402.0212(f)). 14 Act of Apr. 30, 1987, 1987 Tex. Gen. Laws at 322 (codified TEX. GOV’T CODE § 402.003).

17 the Attorney General to provide information concerning criminal cases to

the governor (§ 402.003) does not provide rulemaking authority.

When the Legislature removed nearly all the Attorney General’s

criminal reporting requirements (§ 402.003).15 The House Committee on

Judicial Affairs explained that the amendment deleted those

requirements because this information “is collected by the Office of Court

Administration rather than the Attorney General’s office” and stated that

the bill does not grant rulemaking authority.16

The remainder of the Government Code also demonstrates that

neither § 41.006 nor § 402.003 provides the Attorney General with

rulemaking authority. Because “[e]very word excluded from a statute [is]

presumed to have been excluded for a purpose,”17 the Government Code’s

other specific grants of rulemaking authority are instructive.

15 Compare Act of May 20, 2003, 78th Legis., R.S., ch. 691, §1, 2003 Tex. Gen. Laws 620, 620 (codified TEX. GOV’T CODE § 402.003) with Act of Mar. 28, 1885, 19th Leg. R.S., ch. 64, § 1, 1885 Tex. Gen. Laws 61, 61 (amending TEX. CODE CRIM. PROC. art. 29). 16 House Comm. on Judicial Affairs, Bill Analysis, Tex. H.B. 2676, 78th Leg., R.S. (2003). The document stated “additional rulemaking authority,” but as explained, infra ¶ 44, the relevant legislative committee stated the predecessor statute did not provide any rulemaking authority. 17 In re Bell, 91 S.W.3d 784, 790 (Tex. 2002); see also Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009), City of Rockwall v. Hughes, 246 S.W.3d 621, 629 (Tex. 2008).

18 Aside from the four set out in Chapter 402 detailed above, there are

nine more:

• TEX. GOV’T CODE § 420.005 (administration of grants awarded by the Office of Attorney General related to sexual assault survivors); • TEX. GOV’T CODE § 420.011 (“Attorney General may adopt rules necessary to implement” sexual assault prevention and crisis services); • TEX. GOV’T CODE § 420.108 (statewide telehealth center for sexual assault forensic medical examination); • TEX. GOV’T CODE § 552.231 (public information requests requiring programming or manipulation of data); • TEX. GOV’T CODE § 552.262 (setting the maximum rate of charges for the copying of public information); • TEX. GOV’T CODE § 552.3031 (request for Attorney General public information opinion by electronic submission); • TEX. GOV’T CODE § 1202.004 (Attorney General’s examination of public security registrations); • TEX. GOV’T CODE § 2107.002 (collection of delinquent obligations to the State); and • TEX. GOV’T CODE § 2260.052 (negotiation of contract claims against the State).

The Legislature has provided the Attorney General express rulemaking

authority in at least a dozen other instances outside of the Government

Code, including in the Code of Criminal Procedure, the Business and

Commerce Code, the Family Code, the Insurance Code, and the

Transportation Code.

The scope of an agency’s expressly-provided authority is different

than the threshold inquiry of whether the Legislature has expressly

19 provided an agency any subject-matter authority. Regarding the

dispositive threshold inquiry, “[s]uch power must be conferred under

statutory or constitutional language that is free from doubt, and that

admits of no other reasonable construction.” Humble Oil & Refining Co.

v. R.R. Comm’n of Tex., 128 S.W.2d 9, 15 (1939). Only if the Legislature

has provided an agency authority expressly, then the limits of such

authority may be implied. That is the statutory inquiry to which this brief

now turns.

B. Despite § 41.006’s Failure to Set Forth the Power to Adopt Rules or Engage in Rulemaking, the Challenged Rules are Invalid Under the Relevant Texas Statutes.

Most statutory validity challenges to an adopted rule concern the

scope of an agency’s rulemaking authority—i.e., whether “the rule’s

provisions are in harmony with the general objectives of the act

involved”—rather than whether the Legislature expressly provided such

authority Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 750 (Tex.

1995). “Generally then, the objecting party must show that the rule:

(1) contravenes specific statutory language; (2) runs counter to the

general objectives of the statute; or (3) imposes additional burdens,

conditions, or restrictions in excess of or inconsistent with the relevant

20 statutory provisions.” Tex. State Bd. of Exam’rs of Marriage & Fam.

Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 33 (Tex. 2017).

A statute’s objectives are always read “in context—not isolation.”

Hollins, 620 S.W.3d at 407. The Court is simultaneously “give[s] meaning

to every word in a statute, harmonizing each provision while considering

the context and framework of the entire statute in order to meld its words

into a cohesive reflection of legislative intent.” Luminant Energy Co., 691

S.W.3d at 460.

1. The Challenged Rules Contravene Specific Statutory Language.

a. By Allowing the Attorney General to Initiate Legal Action, the Challenged Rules Contravene the Statutory Provisions for the Those Legal Actions.

The Challenged Rules state that violations are “official misconduct”

under TEX. LOC. GOV’T CODE § 87.011, 1 TAC § 56.8(1) for which the

Attorney General may enforce in Court. 1 TAC § 56.8(3). In response to

comments, the Attorney General stated that only a district judge may

remove a prosecuting attorney after petitioning the district court under

TEX. LOC. GOV’T CODE § 87.015. 50 TEX. REG. at 2175.

The Attorney General does not have the authority to expand the

statutory definition of official misconduct, a ground for quo warranto, or

21 create a civil action for the Attorney General to pursue. To the extent the

Attorney General purports to create a civil action or expand the statutory

definition of official misconduct or ground for quo warranto, such is

precluded by statutes and decisional law.18

Representation of the State in a Removal Proceeding. The

Legislature—not the Attorney General—controls who shall represent the

State in removal proceedings for county officials. Prior to June 20 of this

year, the county attorney represented the State in removal proceedings

under LOC. GOV’T CODE § 87.018(d) unless one of two circumstances

presented: (1) the removal petition is against the county attorney who is

not a prosecuting attorney in which case the district attorney represents

the State; or (2) the removal petition is against the prosecuting attorney

in which case the presiding judge of the administrative judicial region

18 The Attorney General asserts the prosecuting attorney Appellees lack standing to challenge the compliance provisions. In a multi-plaintiff case, the Court need only analyze one plaintiff’s standing individually. Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 77 (Tex. 2015). The Attorney General does not cite any authority for a piecemeal application of standing under GOV’T CODE § 2001.038(a) for which the Supreme Court has repeatedly analyzed standing as to the entirety of the review and criticized deviation from the purely textual reviews. Because review of standing raised for the first time on appeal is lenient, Tex. Bd. of Chiropractic Exam’rs, 616 S.W.3d at 567, a plaintiff’s view of imprecise and conflicting answers trumps a defendant’s assertion that such is speculative. [Compare Appellants’ at 23-24 with 50 TEX. REG. at 2175], particularly for a constitutional interference concern between officials with exclusive constitutional authority.

22 appoints a prosecuting attorney from another judicial district or county.

TEX. LOC. GOV’T CODE §§ 87.018(e) & (f).

In legislation effective immediately upon the Governor’s signature,

the 89th Legislature expanded the provision by requiring the presiding

judge of the administrative judicial region to appoint a prosecuting

attorney from another judicial district or county for removal petitions

against the prosecuting attorney to all removal proceedings of county

officials. The Legislature also repealed sections (d) & (e).19 Because such

has never included the Attorney General, 1 TAC § 56.8(3) cannot provide

the Attorney General with authority to represent the State in removal

proceedings.20

Definition of Official Misconduct. The 88th Legislature defined

“official misconduct” by a prosecuting attorney to include “a prosecuting

attorney’s adoption or enforcement of a policy of refusing to prosecute a

19 Id. at ____ (repealing TEX. LOC. GOV’T. CODE § 87.018(d) & (e))). 20 Historically, the removal proceedings were referred to as ouster proceedings and divided between the county and district attorneys under TEX. CONST. art. 5, § 21 as a civil case. State ex rel. Dishman v. Gary, 359 S.W.2d 456, 458 (Tex. 1962). The county or district attorney represented the State “in its sovereign capacity, to protect the interests of the people as a whole and guard the public welfare by ousting incumbents of office who wrongfully hold to the injury of the public.” Id. The Legislature’s division of authority between the district and county attorneys controlled. Officials who usurped authority faced consequences in that action. Holmes v. Eckels, 731 S.W.2d 101, 103 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) (district attorney sanctioned where statutory authority clearly belonged to the county attorney).

23 class or type of criminal offense under state law or instructing law

enforcement to refuse to arrest individuals suspected of committing a

class or type of offense,”21 or permitting an attorney employed or

otherwise directly controlled by prosecuting attorney to do the same.22

Both courts of last resort have limited removal to statutory

grounds. The Court of Criminal Appeals expressly held that a trial court

may remove a district attorney only one of the three grounds for removal

enumerated in TEX. LOC. GOV’T CODE § 87.013—one of which is “official

misconduct.” State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 5 (Tex. Crim.

App. 1990). The Supreme Court limited the ability to remove an elected

officer to specific statutory duty constituting unlawful conduct. State ex

rel. Edwards v. Reyna, 333 S.W.2d 832, 836 (Tex. 1960). Because official

misconduct is and has been defined by statute,23 1 TAC § 56.8(1) is

contravened by statute.

Ground for a Quo Warranto Proceeding. The Challenged Rules also

assert that the Attorney General may bring an action in quo warranto for

21 Act of May 28, 2023, 88th Legis., R.S., ch. 366, §1, 2023 Tex. Gen. Laws 800, 800 (codified TEX. LOC. GOV’T CODE § 87.011(3)(B)). 22 Id. (codified TEX. LOC. GOV’T CODE § 87.011(3)(C)). 23 In 1890, the Supreme Court held the ouster statute was “penal in character, and must be construed as though it were one defining a crime and prescribing its punishment.” State ex rel. Hickman v. Alcorn, 14 S.W. 663, 665 (Tex. 1890). 24 forfeiture of office for a violation of Chapter 56. 1 TAC § 56.8(2). Under

CIV. PRAC. & REM. CODE § 66.001(2), a ground bringing an action in quo

warranto is if “a public officer does an act or allows that by law causes a

forfeiture of his office.” CIV. PRAC. & REM. CODE § 66.001(2).

The Attorney General asserts that because he does not need any

separate authorization to exercise his quo warranto authority, 1 TAC

§ 56.8(2) cannot violate the nondelegation doctrine. The Fort Bend

County District Attorney agrees with the Attorney General to the extent

that the ground for quo warranto existed at common law and is allowable

under the Constitution. Therein lies the problem with the Attorney

General’s argument. An action in quo warranto for forfeiture of office is

narrow and cannot be used to create grounds—like an administrative

rule entered without rulemaking authority—unsupported by the action

at common law or permitted under the Constitution.

Quo warranto is an ancient common-law writ that gave the king an

action against a person who claimed or usurped any office, franchise, or

liberty, to inquire by what authority that person supported the claim to

hold office. Orix Capital Markets, LLC v. American Realty Trust, Inc., 356

S.W.3d 748, 752 (Tex. App.—Dallas 2011, pet. denied). “A quo warranto

action serves to test whether an individual has the proper authority to

25 hold office, not to test the validity of their actions once in office.” Walton

v. City of Midland, 287 S.W.3d 97, 101 (Tex. App.—Eastland 2009, pet.

denied) (citing Newsom v. State, 922 S.W.2d 274, 278 (Tex. App—Austin

1996, writ denied)).

Rather, the Attorney General seeks to backdoor the authority he

clearly does not have to expand the definition of “official misconduct” and

represent the State in ouster proceedings by asserting such authority as

a forfeiture of office. Since the Supreme Court held in Reyna that the

ability to remove an elected officer is limited to a specific statutory duty

constituting unlawful conduct, 333 S.W.2d at 836, even an

administrative rule enacted with rulemaking authority does not create a

new statutory ground for removal. See CIV. PRAC. & REM. CODE

§ 66.003(1) (requiring removal from office).

Certainly, if not reporting information, confidential information

about initiating criminal prosecutions to someone who does not have any

authority to initiate criminal prosecutions is a forfeiture of office, then so

would a public officer entrusted with the safe-keeping of public funds

abusing that trust. Section 41.009 of the Government Code provides that

authority to the district and county attorneys. As the Supreme Court

26 noted, that statute vests an exclusive power in the district or county

attorney. Terrell v. Greene, 31 S.W. 631, 633 (Tex. 1895).

What the foregoing discussion reveals is that removal’s “official

misconduct” and quo warranto’s act that causes a forfeiture of office are

not synonymous. By using distinct terms, the Legislature has signaled

otherwise. Therefore, the plain text of the controlling authority bars the

Attorney General from (1) unilaterally defining the failure to comply with

the Challenged Rules as “official misconduct” and (2) redefining causing

a forfeiture of office to include “official misconduct.”

Last, the Attorney General’s citation to the Supreme Court’s recent

quo warranto decision has little relevance because that matter concerned

the Attorney General’s exclusive constitutional authority over

corporations. Paxton v. Annunciation House, Inc., No. 24-0573, — S.W.3d

—, 2025 WL 1536224, at *12 (Tex. May 30, 2025) (citing TEX. CONST. art.

4, § 22). Presumably, that limits the Attorney General’s ability to

determine that sufficient cause exists to exercise his quo warranto

authority. Section 56.8(2) of the Challenges Rules is invalid because

27 b. The Challenged Rules Conflict with the Legislative Provision Providing the Attorney General the Authority to Request Information for Human Trafficking Cases Under Specific Conditions.

“A legislative enactment covering a subject dealt with by an older

law, but not repealing that law, should be harmonized whenever possible

with its predecessor in such a manner as to give effect to both.” Acker v.

Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990). The Attorney

General asserts the Legislature’s enactment of § 41.006 “empower[s] the

Attorney General to request and receive any information he desires about

‘criminal matters’ from” prosecuting attorneys—a determination the

Legislature supposedly made in 1879—means that § 41.006 “must be

read as an exception to those unidentified confidentiality laws.”

[Appellants’ Br. at 18].

The 89th Legislature enacted legislation providing the Attorney the

Attorney General with the authority to initiate prosecution where a

prosecuting attorney does not take a prosecutorial action within 180 days

of receipt of a report stating there is probable cause to believe an offense

28 occurred under Chapter 20A of the Penal Code (Human Trafficking).24

[Supp. App. 49].

The same provisions provides the Attorney General authority to

“submit a request” to a prosecuting attorney and, more importantly

compels the prosecuting attorney to “provide all requested information”

only where the attorney general is representing the state in that specific

human trafficking matter after 180 days of prosecutorial action.25

Because that is narrower than the provision in the Challenged

Rules allowing the “Oversight Advisory Committee”26 to request

“information that the Oversight Advisory Committee desires relating to

criminal matters and the interests of the state on a case-by-case basis,”

1 TAC § 56.9(c), the provision of the Challenged Rule conflicts with

statute.27

24 Act of May 26, 2025, 89th Leg., R.S., Ch. 364, § 2 (H.B. 45), 2025 Tex. Gen. Laws. ____, ____ (to be codified TEX. GOV’T. CODE §§ 402.101, 102(a), 103(a)). The Fort Bend District Attorney believe this statute is unconstitutional under Stephens. 25 Id. at ____ (to be codified TEX. GOV’T. CODE § 402.102(a)). 26 Section 56.9 of the Rules creates an “Oversight Advisory Committee composed of three members of the Office of the Attorney General designated by the Attorney General.” 1 TAC § 56.9(a). “[S]ince the various assistant attorneys general have no constitutional or statutory authority that is not derived directly from the Attorney General himself,” Pub. Util. Comm’n of Tex. v. Cofer, 754 S.W.2d 121, 123 (Tex. 1988), the nondelegation doctrine does not permit the creation of the “Oversight Advisory Committee.” 1 TAC § 56.9(a) & (b). 27 It seems like members of the Legislature (and the Governor) do not share the Attorney General’s view § 41.006, particularly as this provision will be in Chapter 402. Because such is not contained in the Texas Register, the Attorney General’s 29 2. The Relevant Texas Statutes Do Not Permit the Challenged Rules.

Failing to address any other statutory provision, the “generally

worded provisions do not provide authority” for the “unprecedented” and

“thus said ever to have been considered necessary and indispensable,”

Hollins, 620 S.W.3d at 407, provision of complete criminal case files to

the Attorney General. First, § 41.006 was part of the implementation of

the Attorney General’s obligation to report certain criminal case

statistics to the governor, that reporting obligation and the statute

authorizing the Attorney General to require the district and county

attorneys to give him information necessary to prepare that report no

longer exist. Second, the Attorney General’s assertion of 1879 as the

Legislature’s authorization of the Attorney General’s entitlement to

entire criminal case files is ahistorical. Third, any possible basis for the

Attorney General’s need beyond for reporting beyond basic statistical and

financial information is no longer present.

assertion that he promulgated the Rules as a favor to the prosecuting attorneys “to avoid requesting information on an ad hoc basis,” [Appellants’ Br. 2], is post hoc. 30 a. Section 41.006 Originated as Part of a Reporting Requirement No Longer in Effect

The First Legislature’s Reporting Requirements. The Statehood

Constitution assigned to the Governor the duty to “give to the legislature

information in writing of the state of government, and recommend to

their consideration such measures as he may deem expedient.” TEX.

CONST. of 1845 art. 5, § 9. “[O]n the first Monday of each December” and

“at other times [the governor] shall [or may] require,” the treasurer,28 the

comptroller of public accounts,29 and the attorney general30 to report

specified information to the governor.

The attorney general reported to the governor (1) “the number of

indictments which have been found by grand juries in this State for the

preceding year, the offenses charged therein”; (2) “the number of

arraignments, convictions and acquittals for each offence, the number of

indictments which have been disposed of without the intervention of a

28 Act approved Mar. 19, 1846, 1st Leg., R.S., § 7, 1846 Tex. Gen. Laws 10, 11, reprinted in H.P.N. GAMMEL, 2 The Laws of Texas 1822–1897, at 1316, 1317 (Austin, Gammel Book Co. 1898). 29 Act approved Apr. 11, 1846, 1st Leg., R.S., § 3, 1846 Tex. Gen. Laws 68, 69, reprinted in H.P.N. GAMMEL, 2 The Laws of Texas 1822–1897, at 1374, 1375 (Austin, Gammel Book Co. 1898). 30 Act approved May 11, 1846, 1st Leg., R.S., § 4, 1846 Tex. Gen. Laws 206, 207, reprinted in H.P.N. GAMMEL, 2 The Laws of Texas 1822–1897, at 1512, 1513 (Austin, Gammel Book Co. 1898).

31 petit jury, with the cause and manner of such disposition”; and (3) “a

summary of the judgments rendered on conviction, specifying the offence,

the nature and amount of penalties imposed, and the amount of fines

collected.”31 The First Legislature required the Attorney General to

obtain from the several district attorneys “all the information necessary

for [the Attorney General’s] compliance with the requisitions of” that

report to the governor,32 and “precise information of the situation of all

suits instituted by them for the collection of public money.”33 The

information required by the statute was basic statistical and financial

information.

The First Legislature required the several district attorneys to

provide to the Attorney General the exact information the attorney

general reported to the Governor.34 Additionally, the district attorneys

were to “give to the attorney general such information as he may require

as to their official acts.”35

31 Id. 32 Id. at § 5. 33 Id. at § 7. 34 Act approved May 13, 1846, 1st Leg., R.S., § 4, 1846 Tex. Gen. Laws 295, 296, reprinted in H.P.N. GAMMEL, 2 The Laws of Texas 1822–1897, at 1601, 1602 (Austin, Gammel Book Co. 1898). 35 Id. at § 5.

32 The 1876 Constitution’s Continuation of the Gubernatorial

Reporting Requirement. The 1876 Constitution expressly required the

Governor to “account to the Legislature for all public moneys received

[and to] present estimates of the money required to be raised by taxation

for all purposes.” TEX. CONST. of 1876 art. 4, § 9. The department heads

continued to provide annual reports to the governor.36 The legislature

required the attorney general to provide substantially the same

statewide information concerning court operations and receipts from

fines and forfeitures, TEX. CODE CRIM. PROC. art. 29 (1879), and allowed

the attorney general to obtain from the district (and now also county)

attorneys all information to complete such report, id. at art. 30 (1879).

The Legislature further required the district and county attorneys

to report to the attorney general such information as the attorney general

“may desire in relation to the criminal matters and the interests of the

state.” Id. at art. 40 (1879). The Legislature also required the county

clerks to report to the Attorney General requested materials related to

“criminal matters.” Id. at art. 58 (1879).37

36 TEX. REV. CIV. CODE tit. 69, ch. 2, art. 2758 (1879) (comptroller of public accounts) & TEX. REV. CIV. CODE tit. 69, ch. 3, art. 2771 (1879) (treasurer) & TEX. CODE CRIM. PROC. art. 29 (1879) (attorney general). 37 The first code of criminal procedure required the district clerks provide similar specified information to the attorney general. TEX. CODE CRIM. PROC. art. 944 (1856).

33 In short, the 1879 Code of Criminal Procedure included three

interconnected articles that implemented the attorney general’s

obligation to prepare a report for the governor. Article 29 directed the

attorney general to make the report, article 30 gave him the authority to

require district and county attorneys to provide him with the data

“necessary for his compliance with the [article requiring him to report to

the governor],”38 and article 40 directed the district and county attorneys

to give him the information he requested. Article 40, which is now

§ 41.006, connected to obtaining the information the attorney general

needed so that the attorney general could consolidate it into the

statistical report to the governor. The Attorney General could not exceed

the express limitation in article 30 and ask for more.

Subsequent Statutory Changes. Over the years, the statutes were

codified and recodified, and the reporting requirements changed. In 1925,

the Attorney General still had an obligation to make a report to the

governor, TEX. REV. CIV. CODE tit. 70, ch. 4, art. 4413 (1925), and the

prosecuting attorneys had a duty to assist in the same. TEX. REV. CIV.

38 “[The attorney general] may require the several district and county attorneys, clerks of the district and county courts in the state, to communicate to him at such times as he may designate, and in such form as he may prescribe, all the information necessary for his compliance with the requirements of the preceding article.” TEX. CODE CRIM. PROC. art. 30 (1879) (emphasis added).

34 CODE tit. 15, ch. 3, art. 333 (1925). Article 30 of the Code of Criminal

Procedure—the provision authorizing the attorney general to require the

district and county attorneys to provide him with information—was

repealed with the codifications in that year of both the Code of Criminal

Procedure and the Revised Civil Statutes.39

In 1985 and 1987, the legislature created the government code (in

addition to other subject matter codes) as part of the Texas Legislative

Council’s nonsubstantive revision of Texas statutes. Section 41.006 is a

verbatim copy of article 333 of the 1925 civil statutory compilation40 that

had no fiscal implication anticipated for local government. 41 The

Attorney General’s reporting requirement to the governor is an almost

verbatim copy of article 4311 of the 1925 civil statutory compilation.42

In 2003, the legislature removed nearly all the Attorney General’s

criminal reporting requirements (§ 402.003).43 The House Committee on

39 TEX. CODE CRIM. PROC. § 3, art. 1 (1925) (repealing all laws relating to criminal procedure not included herein); TEX. REV. CIV. CODE tit. final, § 2 (1925) (repealing all civil statutes not included herein). 40 Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1720, 1919 (codified TEX. GOV’T CODE § 41.006). 41 Fiscal Note, S.B. 1228, 69th Leg. (1985). 42 Act of Apr. 30, 1987, 70th Leg., R.S., ch. 147, § 1, 1987 Tex. Gen. Laws 316, 322 (codified TEX. GOV’T CODE § 402.003). 43 Compare Act of May 20, 2003, 78th Legis., R.S., ch. 691, §1, 2003 Tex. Gen. Laws 620, 620 (codified TEX. GOV’T CODE § 402.003) with Act of Mar. 28, 1885, 19th Leg. 35 Judicial Affairs explained that the amendment deleted those

requirements because this information “is collected by the Office of Court

Administration rather than the attorney general’s office.”44

All that remained for the Attorney General to report to the

Governor were the categories the Legislature added in 1885 to report a

summary of the (a) summaries of the cases in which the state was a party

at a court of last resort, including the Court of Criminal Appeals, and

(b) summaries of the civil cases in which the attorney general’s

represented the state as a party in state or federal court.45 The 2003

amendment removed the justification dating back to 1846 for the

prosecutors supplying the discrete categories of information compiled for

the Attorney General’s report to the Governor.

R.S., ch. 64, § 1, 1885 Tex. Gen. Laws 61, 61 (amending TEX. CODE CRIM. PROC. art. 29). 44 House Comm. on Judicial Affairs, Bill Analysis, Tex. H.B. 2676, 78th Leg., R.S. (2003). The document stated “additional rulemaking authority,” the relevant legislative committee stated the predecessor statute did not provide any rulemaking authority. 45 Act of May 20, 2003, 2003 Tex. Gen. Laws at 620 (codified TEX. GOV’T CODE § 402.003).

36 b. That a Heretofore Unknown Vehicle for the Attorney General to Supervise Prosecuting Attorneys Began in 1879 is Implausible.

The Attorney General attempts to muddy the historic record by

asserting that “[s]ince at least since 1879, the Legislature has empowered

the Attorney General to obtain reports from district and county attorneys

about criminal matters and the interests of the State.” [Appellants’ Br.

at 1 (citing TEX. CODE CRIM. PROC. art. 40 (1879))]. Our present 1876

Constitution made two important changes relevant to this inquiry.

First, the 1876 Constitution repealed the Attorney General’s prior

authority to “instruct and direct the official action of the District

Attorneys so as to secure all fines and forfeitures, all escheated estates,

and all public moneys to be collected by suit.” TEX. CONST. of 1869 art. 4,

§ 23.

Second, the 1876 Constitution bifurcated the state’s judicial power

by vesting it in one Supreme Court and one Court of Appeals. TEX. CONST.

of 1876 art. 5, § 1. The 1876 Constitution vested the Attorney General

with express authority to “represent the State in all suits and pleas in

the Supreme Court of the State in which the State may be a party.” TEX.

CONST. of 1876 art. 4, § 22. While the 1876 Constitution provided the

Court of Appeals with appellate jurisdiction over all “in all criminal

37 cases, of whatever grade.” TEX. CONST. of 1876 art. 5, § 6 (emphasis

added), the Framers did not confer on the Attorney General for the Court

of Appeals what it did for the Supreme Court.46 The 1876 Constitution’s

use of the phrase “all criminal cases, of whatever grade” and lack of

express assignment to the Attorney General indicates that the Attorney

General was not a player in criminal prosecutions at ratification.

The 1879 Legislature providing the Attorney General unlimited

access to criminal case files is belied by the fact that “the framers of our

constitution, influenced by the political philosophy of the Jacksonian era

and the despotic control of the Reconstruction governor, deliberately

chose to decentralize executive authority.” Saldano v. State, 70 S.W.3d

873, 877 (Tex. Crim. App. 2002) (internal quotation marks omitted).

c. The Attorney General’s Former Authority in Criminal Appeals Does Not Permit the Rules.

The Attorney General “had constitutional authority to represent

the State in appeals of criminal cases, and it had statutory authority to

do so until 1923.” Ex parte Taylor, 36 S.W.3d 883, 878 (Tex. Crim. App.

2001) (per curiam).

46 In 1891, a constitutional amendment changed the name of the Court of Appeals to the Court of Criminal Appeals and stripped its civil jurisdiction. 1891 Tex. Gen. Laws at 198, reprinted in H.P.N. GAMMEL, 10 The Laws of Texas 1822–1897, at 199–200; TEX. CONST. art. 5, § 5 (amended 1891).

38 Criminal convictions at ratification (and in 1879) proceeded before

a singular appellate court.47 The intermediate courts of appeals obtained

jurisdiction over criminal appeals other than capital in 1981. Even then,

the State did not have the right to appeal a criminal matter (except for

extraordinary writs).48

With one appellate court for criminal matters in Austin, the burden

on the district attorneys of defending criminal appeals caused the

Legislature created one “Assistant Attorney General” position.49 Even so,

the position required a gubernatorial appointment, with advice and

consent of the Senate.50 The Legislation placed this position in the

Judicial Department for budgetary purposes by appropriating the same

under the Court of Criminal Appeals.51

47 The intermediate court of appeals did not exist until 1891. See TEX. S.J.R. 16, 22nd Leg., R.S., 1891 Tex. Gen. Laws 197, 198, reprinted in H.P.N. GAMMEL, 10 The Laws of Texas 1822–1897, at 199–200 (Austin, Gammel Book Co. 1898); TEX. CONST. art. 5, § 6 (added 1891). 48 Compare TEX. CONST. OF 1876 art. 5, § 26 with TEX. S.J.R. 34, 70th Leg., R.S., 1987 Tex. Gen. Laws 4114, 4114; TEX. CONST. art. 5, § 26 (amended 1987). 49 Act approved Mar. 15, 1875, 14th Leg., 2nd R.S., ch. 122, § 1, 1875 Tex. Gen. Laws 179, 179–80, reprinted in H.P.N. GAMMEL, 8 The Laws of Texas 1822–1897, at 551– 52 (Austin, Gammel Book Co. 1898). 50 Id. 51 See, e.g., Act of Aug. 29, 1911, 32nd Leg., 1st C.S., ch. 3, 1911 Tex. Gen. Laws 2, 17–18 (attorney general); 34 (salary of assistant attorney general underneath the Court of Criminal Appeals).

39 In 1923, the Legislature provided the position of the “attorney for

the State before the Court of Criminal Appeals of Texas.”52 The position

continued to be subject to gubernatorial appointment with the advice and

consent of the Senate.53 In 1931, the Legislature renamed the position as

the “State Prosecuting Attorney.”54 The Legislature provided the Court

of Criminal Appeals the authority to appoint the State Prosecuting

Attorney.55

To whatever extent the Attorney General’s former authority in

criminal appellate matters created blurred lines between the executive

and judicial departments, the Legislature unblurred them by placing the

responsibility under the Court of Criminal Appeal, which continues to

this day as Chapter 42 of the Government Code.

3. The Challenged Rules impose additional burdens inconsistent with the relevant statutory provisions.

Principally, the Challenged Rules well exceed the historic practice

of the prosecuting attorneys providing basic statistical and financial

52 Act of Mar. 30, 1923, 38th Leg., R.S., ch. 156, § 4, 1923 Tex. Gen. Laws 335, 335. 53 Act of May 18, 1931, 42nd Leg., R.S. 1931, ch. 139, § 1, 1931 Tex. Gen. Laws 234, 234. 54 Id. 55 Act of May 18, 1931, 42nd Leg., R.S. 1931, ch. 139, § 1, 1931 Tex. Gen. Laws 234, 234.

40 information to the Attorney General for the Attorney General’s report to

the Governor. By ignoring the statutory context and focusing on just one

section, the Attorney General mistakenly draws “meaning . . . from

isolated words or phrases.” Tex. Bd. of Chiropractic Exam’rs, 616 S.W.3d

at 569.

Additionally, the historic context diminished rather than increased

the Attorney General’s need for criminal case files in 1879. This

decreased further as the need for non-statistical information related to

criminal appellate matters ceased in 1923.

The Challenged Rules’ expansion of the quo warranto ground may

work to interfere with the prosecuting attorneys’ authority in statutory

causes of action that the Legislature has assigned to them.

The expansion of the enforcement mechanism against the

prosecuting attorneys in their capacity as officeholders also interferes

with their statutory rights respecting official misconduct inquiries and

actions in quo warranto. See Morath v. Tex. State Tchrs. Ass’n, No. 03-23-

00279-CV,— S.W.3d —, 2025 WL 1449591, at **4–5 (Tex. App.—Austin

May 21, 2025, pet. filed) (agency rule that eliminates a statutory “right

to file grievances and appeal adverse grievance decisions to the

Commissioner and beyond” to the Travis County district court “impose[]

41 additional burdens, conditions, or restrictions in excess of or inconsistent

with the relevant statutory provisions.”)

C. The Challenged Rules Violate the Separation of Powers Clause by Interfering with the Prosecuting Attorneys’ Core Constitutional Authority.

The Texas Constitution’s Separation of Powers Clause provides:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy . . . and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

TEX. CONST. art. 2, § 1.

Because the Separation of Powers Clause “prohibits one branch of

government from exercising a power belonging inherently to another,” in

re Turner, 627 S.W.3d 654, 659 (Tex. 2021), it “leads each branch to avoid

stoking needless friction with the other coordinate branches of

government.” Webster v. Comm’n for Law. Discipline, 704 S.W.3d 478,

487 (Tex. 2024) (citing Lytle v. Halff, 12 S.W. 610, 611 (1889)). “The

powers conferred by the Constitution upon the state officials are

generally held to be exclusive, and except in the manner authorized by

the Constitution, these powers cannot be enlarged or restricted.” Garcia

v. Laughlin, 285 S.W.2d 191, 194 (Tex. 1955).

42 1. Interference Prong Separation of Powers Clause Challenge.

“Absent the consent and deputization order of a local prosecutor or

the request of a district or county attorney for assistance, the Attorney

General has no authority to independently prosecute criminal cases in

trial courts.” State v. Stephens, 663 S.W.3d 45, 56 (Tex. Crim. App. 2021).

The Court of Criminal Appeals invalided a contrary grant of

prosecutorial power as a violation of the separation of powers provision

by providing the Attorney General “a power that is more ‘properly

attached’ to a member of the judicial branch of government.” Id. at 57.

The Challenged Rules violate the Separation of Powers Clause

because they “unduly interfere[] with another branch so that the other

branch cannot effectively exercise its constitutionally assigned powers.”

Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App.

1990) (emphasis in original). Where the Constitution provides an

attorney with the authority to represent the state, allowing another

department to “second-guess[]” the officer’s “selection of legal arguments,

his assessment of the facts and evidence, and the ultimate decision to file

suit on those determinations” threatens that officer’s “clear

constitutional authority.” Webster, 704 S.W.3d at 503.

43 The Challenged Rules also expressly encroach on core prosecutorial

discretion with the creation of an “Oversight Advisory Committee”56

empowered to obtain “entire case files” and “all correspondence”57 that it

deems relate “to criminal matters and the interests of the state”58 for

which the failure to comply is “official misconduct” under Chapter 87 of

the Local Government Code.59 This is precisely the sort of executive-

branch second-guessing of a judicial officer’s litigation decisions that

article 2, § 1, of the Constitution precludes.

2. With Respect to Core Constitutional Authority, the Challenged Rules Deny the Prosecuting Attorneys the Broad Judgment and Discretion He Claims for Himself.

The Supreme Court in Webster recently held that the constitutional

separation-of-powers provision bars a judicial entity—the Commission

for Lawyer Discipline—from “collaterally attack[ing] initial pleadings

made before a court.” Webster, 704 S.W.3d at 502. Rather, “the attorney

general’s assessments in bringing suit are privileged at a constitutional

level from collateral review by other branches.” Id. at 495–96 (emphasis

56 1 TAC § 56.9(a) & (b). 57 1 TAC §§ 56.3(a)(8) & 56.9(c). 58 The Rule requires retroactive records retention dating back more than four years. 1 TAC § 56.3(b). 59 1 TAC § 56.8(1).

44 in original). There is no discernible reason that Article 2, § 1 does not also

protect members of the judicial branch from encroachment on their

duties and actions by executive officers just as Webster held that it

protected executive officials from encroachment by entities of the judicial

branch.

Since our Supreme Court has held that the actions of a state’s

attorneys are not subject to collateral attack, it is hard to see any aspect

of the Challenged Rules surviving separation-of-powers scrutiny. The

Commission on Lawyer Discipline has “valid” constitutional and

statutory powers regarding both the admission of attorneys to practice

law in Texas and to discipline them. Webster, 704 S.W.3d at 489–94.

Nevertheless, the disciplinary commission’s review of the Attorney

General’s selection of legal arguments and ultimate decision of whether

the Attorney General files suit in any given matter threatens the

Attorney General’s “clear constitutional authority.” Id. at 503. In other

words, the disciplinary commission’s legitimate authority is limited in

that it may not encroach on the exercise of the Attorney General’s

constitutional authority.

Constitutional limitations respecting review of the Attorney

General’s “selection of legal arguments, his assessment of the facts and

45 evidence, and the ultimate decision to file suit on those determinations,”

id., must also be afforded to review of the same actions by a prosecuting

attorney. In fact, our Supreme Court relied upon the reasoning of another

state’s highest court for the proposition that “particular aspects of the

prosecutorial function’—including weighing ‘the strength of the

evidence’—are ‘generally [not] well suited for broad judicial oversight.’”

Id. (quoting Messameno v. Statewide Grievance Committee, 663 A.2d 317,

336 (Conn. 1995)). CONN. CONST. art. IV, § 27.60 Here, though, the

Challenged Rules encroach on the prosecuting attorney’s “selection of

legal arguments, his assessment of the facts and evidence, and the

ultimate decision to file suit on those determinations.” See id. at 503. By

adoption of the Rule, the Attorney General seeks to exercise the very

same type of review and oversight of county and district attorneys that

the Supreme Court in Webster held were barred by the separation of

powers provision of the Texas Constitution when the Commission on

Lawyer Discipline sought to apply them to the Attorney General.

Further, while the disciplinary commission’s statutory and derived

constitutional authority is well established—id. at 489–94—TEX. GOV’T

60 Unlike Texas, Connecticut’s prosecutorial power is not vested at a county level, but rather vest “in a chief state’s attorney and the state’s attorney for each judicial district.” Id.

46 CODE § 41.006’s use as a tool for open-ended inquiries is not. The

Attorney General’s GOV’T CODE § 2001.033(a) justification responds to

the assertion that the Rule “violates the separation of powers provision

in the Texas Constitution,” by simply stating that “[t]he rule implements

Government Code § 41.006 as it prescribes the time, form, and content of

reports the OAG requires from certain district and county attorneys’

offices.” 50 TEX. REG. at 2175. Because “[e]xceptions to the

constitutionally mandated separation of powers are never to be implied

in the least [and] must be ‘expressly permitted’ by the Constitution

itself,” Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 570 (Tex. 2014),

the Attorney General’s response is not sufficient.

The Separation of Powers Clause does not permit another

department’s interference with an attorney for the state’s exercise of

“broad judgment and discretion.” Charles Scribner’s Sons v. Marrs, 262

S.W. 722, 727 (Tex. 1924). Judgment and discretion include the “right to

investigate the facts and [to] exercise his judgment and discretion

regarding the filing of a suit.” Agey v. Am. Lib. Pipe Line Co., 172 S.W.2d

972, 974 (Tex. 1943); see also State v. S. Pac. R. Co., 24 Tex. 80, 117 (1859)

(“[T]he [English] king could direct and control the bringing of suits.) In

47 this state, such direct control, as a legal power, is cut off by the

independence of the law officers of the state.”).

The Court of Criminal Appeals protects the prosecuting attorneys’

“clear constitutional authority” from encroachment in a similar manner

to the above-detailed Supreme Court’s protection of the attorney

general’s authority. “An obvious corollary to a district or county

attorney’s duty to prosecute criminal cases is the utilization of his own

discretion in the preparation of those cases for trial.” Meshell v. State,

739 S.W.2d 246, 254 (Tex. Crim. App. 1987). Because there is not a

“constitutional provision expressly granting the Legislature the power to

control a prosecutor’s preparation for trial,” id. at 257, the Court of

Criminal Appeals invalidated the Speedy Trial Act. The legislative

provision allowing a district court to disqualify a district attorney for

being employed adversely prior to his election—CODE CRIM. PROC. art.

2A.105(a) (formerly art. 2.01)—will not apply to “a conflict of interest that

does not rise to the level of a due process violation.” State ex rel. Hill v.

Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994) (orig. proceeding)

(plurality opinion).

Another branch’s diversion from the execution of core constitutional

authority can itself violate separation of powers. See Ex parte Perry, 483

48 S.W.3d 884, 901 (Tex. Crim. App. 2016) (The legislature’s use of a penal

(or any statute) to limit the governor’s veto power and the district

attorney’s prosecution thereunder violated separation of powers).

Compliance with the Rule would interfere with core prosecutorial

authority. The broad categories encompassed by the Rule’s reporting

requirements61 constitute a facially onerous mandate to retain

materials62 and compile into collections of “all correspondence” or “entire

case files” that would otherwise not exist.63 The requested categories

involve decisions “critical to the conduct of a prosecution.” Young v. U.S.

ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987).64

II. APPELLEES ESTABLISH AN INTERIM PROBABLE, IMMINENT, AND IRREPARABLE INJURY.

As this Court noted “a showing of likely success on the merits [in

an ultra vires action] is sufficient to satisfy the irreparable-injury

61 1 TAC §§ 56.3(a)(4), 56(a)(6), 56(a)(7), 56(a)(9), 56.3(a)(10), 56.3(a)(11) & 56.3(a)(12). 62 1 TAC §§ 56.6 (retention of possible materials for at least two years after reporting). 63 Cf. In re State ex rel. Best, 616 S.W.3d 594, 600 (Tex. Crim. App. 2021) (CODE CRIM. PROC. art. 38.43 pre-DNA testing provision “does not extend to the point of ordering the State to create or generate evidence that does not otherwise exist”). 64 Core discretionary acts include “the determination of which persons should be targets of investigation, what methods of investigation should be used, what information will be sought as evidence, which persons should be charged with what offenses, which persons should be utilized as witnesses, whether to enter into plea bargains and the terms on which they will be established, and whether any individuals should be granted immunity.” Id.

49 requirement for a temporary injunction. State v. City of San Marcos, 714

S.W.3d 224, 245 (Tex. App.—15th Dist. 2025, pet. filed) (quoting. Hollins,

620 S.W.3d at 410).65 The trial court found that the Challenged Rules

have already interfered with and would, absent the temporary

injunction, continue to interfere with the prosecuting attorneys’ core

constitutional power by “divert[ing] resources and personnel time from

performing necessary tasks related to the investigation and prosecution

of criminal activity.” [CR 393].

Assuming the Challenged Rules’ interference with the prosecuting

attorneys’ core constitutional authority presents any sort of evidentiary

question, no evidence can defeat some evidence. Because the Attorney

General did not cross-examine the seven witnesses who testified by

declaration, did not present any of his own evidence, and did not brief

how the trial court abused its discretion in concluding that Appellees

demonstrated interim, probable imminent and irreparable injury, the

Attorney has forfeited appellate review of this issue.

Because constitutional injury presents a “legal question,” Rochelle

65 The Texas Supreme Court in Hollins held that where the Election Code does not expressly authorize a county clerk’s mass mailing of vote-by-mail applications, the question is whether the Election Code implies such authority. 620 S.W.3d at 406. Importantly, the Election Code makes it the specific duty of the Secretary of State “obtain and maintain uniformity in the application, operation, and interpretation of [the] code and [other] election laws.” Id. at 408 (quoting ELEC. CODE § 31.003). 50 v. Lane, 148 S.W. 558, 561 (1912), this too is likely a presumed injury just

like the Attorney General’s ultra vires act of adopting the Challenged

Rules without statutory authority. Undersigned, however, found just a

single instance of this presumed constitutional injury as between an

attorney general and a prosecuting attorney. The San Antonio Court of

Civil Appeals upheld the temporary injunction in favor of the Webb

County District Attorney restraining the Attorney General from

examining any evidence or compelling the questioning of any witness

related to the July 28, 1956, general primary election. Shepperd v. Alaniz,

303 S.W.2d 846, 848–50 (Tex. Civ. App.—San Antonio 1957, no pet.).

Because “[i]t has always been the principal duty of the district and county

attorneys to investigate and prosecute the violation of all criminal laws,”

id. at 850 (emphasis added), the court of appeals upheld the temporary

injunction merely because the Webb County District Attorney had

already instituted proceedings.

With respect to all Appellees, the trial court found that Appellees

demonstrated irreparable harm by (1) the expenditure of “a significant

amount of resources, personnel time, and taxpayer funds,” which cannot

be recovered as damages, and (2) the disclosure of confidential

information “that are specifically protected from unauthorized disclosure

51 by Plaintiffs under other state and/or federal laws that contain both civil

and criminal penalties.” [CR 393]. All Appellees provided substantial

uncontested testimony to support the trial court’s finding. [Other

Appellees’ Br. at 14–18].

Despite presenting no evidence to the trial court,66 the Attorney

General asserts it is Appellees’ “burden to explain why providing with

such information to the Attorney General would violate the (unspecified)

confidentiality laws.” [Appellants’ Br. at 19]. These are detailed in the

three verified petitions and nine witness declarations Appellees’

submitted in the trial court (contra the Attorney General’s submission of

any verified filings of any sort). Because of the serious consequences of

improper disclosure, undersigned are particularly concerned about the

Challenged Rules’ failure to address grand jury materials separately. See

Stern v. State ex rel. Ansel, 869 S.W.2d 614, 619–24 (Tex. App.—Houston

[14th Dist.] 1994, writ denied) (removal from office for public disclosure

of grand jury testimony).

66 Rather the Attorney General purports to create his own record on appeal with his claim that the Montgomery and Camerson District Attorney have filed their “initial reports” to the Attorney General. [Appellants’ Br. 4-5 & 32-33]. Even if a trial court could abuse its evidentiary discretion by not considering something that postdated the trial court’s order, the Legislature requires this Court to “direct the district court to conduct any necessary evidentiary hearings,” TEX. GOV’T CODE § 2001.038(f). Further, and as copiously briefed in the other Appellees’ response brief, unrecoverable compliance costs already have and will be substantial. 52 The Code of Criminal Procedure prohibits the attorney

representing the state from disclosing “anything transpiring before the

grand jury” unless covered by an exception. CODE CRIM. PROC. art.

20A.204(a). The attorney representing the state may disclose grand jury

materials to a “law enforcement agency” if that attorney—rather than

the Oversight Advisory Committee—determines that the disclosure “is

necessary to assist the attorney in the performance of the attorney’s

duties.” TEX. CODE CRIM. PROC. art. 20A.204(b). Section 41.006 of the

Government Code, which the Attorney General asserts traces back to

1879 does not trump provisions Code of the Criminal Procedure

provisions enacted in 2019.67

III. THE TRIAL COURT PROPERLY ENJOINED THE ATTORNEY GENERAL FROM ENFORCING AND IMPLEMENTING THE CHALLENGED RULES REGARDLESS OF A PROSECUTING ATTORNEY’S PARTY STATUS.

Not only does this Court have the authority to affirm the trial

court’s temporary relief order. The U.S. Supreme Court decision the

Attorney General cites supports the Court doing exactly that.

[Appellants’ Br. at 37 (citing Trump v. CASA, Inc., 145 S. Ct. 2540

(2025))].

67 Act of May 21, 2019, 86th Leg., R.S., ch. 469, § 1.04, 2019 Tex. Gen. 1076, 1078 (codified Tex. Code Crim. Proc. art. 20A.204). 53 A court of appeals’ authority to grant temporary orders is expressly

“the parties’ rights.” TEX. R. APP. P. 29.3. The Attorney General misreads

the U.S. Supreme Court’s decision in Trump v. CASA. As Justice

Kavanaugh noted in concurrence, “plaintiffs may ask a court to

preliminarily ‘set aside’ a new agency rule.” Id. at 2567 (Kavanaugh, J.,

concurring) (citing 5 U.S.C. § 706(2)). Indeed, the majority expressly

stated that “[n]othing we say today resolves the distinct question whether

the Administrative Procedure Act authorizes federal courts to vacate

federal agency action.” The decision from the Texas Supreme Court that

this Court properly relied to narrow the trial court’s temporary injunction

to the parties expressly noted this distinction. In re Abbott, 645 S.W.3d

276, 283 (Tex. 2022) (“Whether or not the plaintiffs are right about the

scope of a district court’s power to enjoin an administrative rule, that

question is beside the point.”)

Under 5 U.S.C. § 706(2)(C), a federal court shall set aside an agency

action that is “in excess of statutory jurisdiction, authority, or limitations,

or short of statutory right.” One proper challenge under the Texas

Administrative Procedures Act is whether “[a]gency rules [are]

authorized and consistent with their statutory authority.” Tex. Bd. of

Chiropractic Exam’rs, 616 S.W.3d at 569. The trial court’s temporary

54 injunction should apply to any affected prosecuting attorney.

CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, this Court should affirm the trial court’s

order granting Appellees’ applications for a temporary injunction in

Cause No. D-1-GN-25-003445, Cause No. D-1-GN-25-003531, and Cause

No. D-1-GN-25-003581.

DATED: AUGUST 20, 2025 RESPECTFULLY SUBMITTED,

/s/ Justin C. Pfeiffer JUSTIN C. PFEIFFER State Bar No. 24091473 GAVRILOV & BROOKS, PC (Houston Office) P.O. Box 56632 Houston, Texas 77256 [Tel.] (832) 312-7900 jpfeiffer@gavrilovlaw.com

Counsel For BRIAN M. MIDDLETON, in his official capacity as Fort Bend County District Attorney (268th Judicial District)

55 CERTIFICATE OF SERVICE

On August 20, 2025, I served the Brief of Appellees Brian M.

Middleton in his official capacity as Fort Bend County District Attorney

(268th Judicial District) via the Court’s electronic filing manager in

compliance with the Texas Rules of Appellate Procedure. In accordance

with TEX. R. APP. P. 9.5(b)(1), I also served counsel for all parties by their

respective email addresses:

Counsel for Appellants Ken Paxton Ken.Paxton@oag.texas.gov Brent Webster Brent.Webster@oag.texas.gov William R. Peterson William.Peterson@oag.texas.gov William F. Cole William.Cole@oag.texas.gov Benjamin Wallace Mendelson Ben.Mendelson@oag.texas.gov Meagan Corser Megan.Corser@oag.texas.gov Kimberly Gdula Kimberly.Gdula@oag.texas.gov William H. Farrell Biff.Farrell@oag.texas.gov Counsel for Appellees Travis County, Travis County Attorney Delia Garza, and Travis County District Attorney José Garza (53d Judicial District) Leslie Dippel Leslie.Dippel@traviscountytx.gov Todd Clark Todd.Clark@traviscountytx.gov Cynthia Veidt Cynthia.Veidt@traviscountytx.gov Counsel for Appellees El Paso County District Attorney James Montoya (34th Judicial District), El Paso County Attorney Christina Sanchez, and El Paso County Christina Sanchez ch.sanchez@epcountytx.gov Bernardo Rafael Cruz b.cruz@epcountytx.gov

56 Counsel for Appellees Dallas Criminal District Attorney John Creuzot; Dallas County; Bexar Criminal District Attorney Joe Gonzales; and Bexar County Alexandria Oberman aoberman@milchev.com Michael J. Satin msatin@milchev.com Counsel for Appellees District Attorney Sean Teare and Harris County Bradley W. Snead snead@wrightclosebarger.com Michael Adams-Hurta hurta@wrightclosebarger.com Jonathan G.C. Fombonne Jonathan.Fombonne@harriscountytx.gov Tiffany S. Bingham Tiffany.Bingham@harriscountytx.gov Christopher Garza Christopher.Garza@harriscountytx.gov Counsel for Appellee Shawn W. Dick in his official capacity as Williamson County District Attorney (26th Judicial District) Randy T. Leavitt randy@randyleavitt.com Bob Heath bheath@bickerstaff.com

/s/ Justin C. Pfeiffer JUSTIN C. PFEIFFER

CERTIFICATE OF COMPLIANCE

Microsoft Word reports that the foregoing Response Brief of

Appellee Brian M. Middleton, in his official capacity as District Attorney

for Fort Bend County (268th Judicial District), contains 11,967 words,

excluding the portions of the brief exempted by TEX. R. APP. P. 9.4(i)(1).

/s/ Justin C. Pfeiffer JUSTIN C. PFEIFFER

57 No. 15-25-00116-CV

In the Court of Appeals for the Fifteenth Judicial District Austin, Texas KEN PAXTON, in his official capacity as Attorney General of Texas and THE OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TEXAS, Appellants, v. D ELIA G ARZA , in her official capacity as Travis County Attorney, ET AL .; J OHN C REUZOT , in his official capacity as Dallas County Criminal District Attorney, ET AL .; and B RIAN M. M IDDLETON , in his official capacity as District Attorney of Fort Bend County (268th Judicial District), ET AL ., Appellee.

On Interlocutory Appeal from the 459th Judicial District Court, Travis County No. D-1-GN-25-003445 consolidated with No. D-1-GN-25-00351 and No. D-1-GN-003581

INDEX AND SUPPLEMENTAL APPENDIX OF BRIAN M. MIDDLETON IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF FORT BEND COUNTY (268TH JUDICIAL DISTRICT)

JUSTIN C. PFEIFFER State Bar No. 24091473 GAVRILOV & BROOKS, PC P.O. Box 56632 Houston, Texas 77256 [Tel.] (832) 312-7900 JPfeiffer@gavrilovlaw.com

Counsel for BRIAN M. MIDDLETON, in his official capacity as Fort Bend County District Attorney (268th Judicial District)

ORAL ARGUMENT REQUESTED INDEX OF THE SUPPLEMENTAL APPENDIX

KEN PAXTON, in his official capacity as Attorney General of Texas, ET AL .

vs. D ELIA G ARZA , in her official capacity as Travis County Attorney, ET AL .

Cause Nos. D-1-GN-25-003445 consolidated with No. D-1-GN-25-003531 and No. D-

1-GN-25-003581; Appellate No. 15-25-00116-CV

PAGES

Defendants’ Amended Designation of Request for Clerk’s Record filed July 2, 2025................................................................. 001-003

[Automated Certificate of eService] ...................................... 004-006

Supplement and Further Argument in Support of Plaintiffs’ Application filed June 13, 2025 ...................................................... 007-013

[Certificate of Service] ........................................................... 014-016

Exhibit 1 Verification Affidavit of Brian M. Middleton ........ 017-019

Exhibit 2 Declaration of Brian M. Middleton ........................ 020-030

Exhibit 3 Declaration of Shawn W. Dick ............................... 031-040

[Automated Certificate of eService] ............................................. 041

Reply to Defendants’ to Plaintiffs’ Original Verified Petition and Request for a Temporary Injunction filed June 16, 2025 ...... 042-050

[Certificate of Service] ........................................................... 051-053

Chart: Evolution of Section 41.006 ....................................... 053-054

[Automated Certificate of eService] ............................................. 056

Sworn Verification (August 18, 2025) ................................................... 057

2 7/2/2025 11:08 AM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-25-003445 D-1-GN-25-003445 (Lead Case) Selina Hamilton

DELIA GARZA, in her official § IN THE DISTRICT COURT Capacity as Travis County Attorney; et al. § § v. § OF TRAVIS COUNTY, TEXAS § KEN PAXTON, in his official capacity as § Attorney General for the State of Texas, et al. § 459th JUDICIAL DISTRICT

CONSOLIDATED WITH

CAUSE NO. D-1-GN-25-003531

JOHN CREUZOT, et al. § IN THE DISTRICT COURT § v. § OF TRAVIS COUNTY, TEXAS § KEN PAXTON, et al. § 353rd JUDICIAL DISTRICT

AND

CAUSE NO. D-1-GN-25-003581

BRIAN M. MIDDLETON, et al. § IN THE DISTRICT COURT § v. § OF TRAVIS COUNTY, TEXAS § KEN PAXTON, et al. § 98th JUDICIAL DISTRICT

DEFENDANTS’ AMENDED DESIGNATION OF REQUEST FOR CLERK’S RECORD

Defendant asks that the following be included in the Clerk’s Record:

1. 05/16/2025 PLAINTIFFS' ORIGINAL PETITION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF AND VERIFIED APPLICATION FOR TEMPORARY INJUNCTION 2. 05/16/2025 PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT 3. 05/16/2025 PLAINTIFF'S ORIGINAL VERIFIED PETITION 4. 05/16/2025 NOTICE OF CONSTITUTIONAL CHALLENGE

Supp. App. 001 5. 05/16/2025 PLAINTIFFS' SUPPLEMENT AND BRIEF IN SUPPORT OF APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION 6. 05/16/2025 NOTICE REGARDING FILING OF ACTION CHALLENGING AGENCY RULES OR SEEKING DECLARATORY JUDGMENT AGAINST A STATE AGENCY UNDER CHAPTER 10 OF THE TRAVIS COUNTY LOCAL RULES OF CIVIL PROCEDURE AND RULES OF DECORUM 7. 05/16/2025 NOTICE OF ACTION FILED CHALLENGING AGENCY RULES UNDER CHAPTER 10 OF THE TRAVIS COUNTY LOCAL RULES OF CIVIL PROCEDURE AND RULES OF DECORUM 8. 06/06/2025 UNOPPOSED MOTION TO CONSOLIDATE CASES UNDER RULE 174(A) 9. 06/11/2025 AGREED ORDER GRANTING PLAINTIFFS UNOPPOSED MOTION TO CONSOLIDATE CASES 10. 06/13/2025 DEFENDANTS ORIGINAL ANSWER AND GENERAL DENIAL 11. 06/13/2025 PLAINTIFFS JOINT EXHIBIT LIST 12. 06/13/2025 DEFENDANTS' CONSOLIDATED RESPONSE TO PLAINTIFFS' ORIGINAL PETITIONS AND APPLICATIONS FOR TEMPORARY INJUNCTION 13. 06/13/2025 DISTRICT ATTORNEYS BRIAN MIDDLETON’S AND SHAWN DICK’S SUPPLEMENT AND FURTHER ARGUMENT IN SUPPORT OF THEIR APPLICATION FOR A TEMPORARY INJUNCTION* 14. 06/14/2025 DEFENDANTS' SUPPLEMENTAL RESPONSE TO PLAINTIFFS' ORIGINAL PETITIONS AND APPLICATIONS FOR TEMPORARY INJUNCTION 15. 06/16/2025 DISTRICT ATTORNEYS BRIAN MIDDLETON’S AND SHAWN DICK’S REPLY TO THE DEFENDANTS’ RESPONSE TO THEIR APPLICATION FOR A TEMPORARY INJUNCTION* 16. 06/16/2025 JOINT STIPULATION OF UNDISPUTED FACTS AND ADMISSIBILITY OF EXHIBITS 17. 06/20/2025 ORDER GRANTING PLAINTIFFS APPLICATIONS FOR TEMPORARY INJUNCTION 18. 06/23/2025 REQUEST FOR ISSUANCE OF PROCESS - TEMPORARY INJUNCTION 19. 06/27/2025 DEFENDANTS' NOTICE OF APPEAL 20. 06/30/2025 TAMES RECORD SUBMISSION FOR NOA FILED WITH 15TH COA 21. 07/01/2025 DEFENDANTS’ DESIGNATION OF CLERK’S RECORD 22. 07/01/2025 DEFENDANTS’ DESIGNATION OF REPORTER’S RECORD

*Items added 2 Supp. App. 002 Respectfully submitted.

KEN PAXTON Attorney General of Texas

BRENT WEBSTER First Assistant Attorney General

RALPH MOLINA Deputy First Assistant Attorney General

AUSTIN KINGHORN Deputy Attorney General for Civil Litigation

KIMBERLY GDULA Chief, General Litigation Division

/s/ William H. Farrell WILLIAM H. FARRELL Assistant Attorney General Texas Bar No. 0079531 biff.farrell@oag.texas.gov

Office of the Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Phone: (512) 936-2650 Fax: (512) 320-0667 COUNSEL FOR DEFENDANTS

CERTIFICATE OF SERVICE

I hereby certify that on July 2, 2025, a true and correct copy of the foregoing Defendant’s Designation of Clerk’s Record was served on all counsel of record via e-mail.

/s/ William H. Farrell____ WILLIAM H. FARRELL Assistant Attorney General

*Items added 3 Supp. App. 003 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.

Nicole Myette on behalf of William Farrell Bar No. 796531 nicole.myette@oag.texas.gov Envelope ID: 102689557 Filing Code Description: Request Filing Description: DEFENDANTS' AMENDED DESIGNATION OF REQUEST FOR CLERK'S RECORD Status as of 7/8/2025 12:28 PM CST

Associated Case Party: JOSE P. GARZA, IN HIS OFFICIAL CAPACITY AS TRAVIS COUNTY DISTRICT ATTORNEY

Name BarNumber Email TimestampSubmitted Status

Leslie Dippel leslie.dippel@traviscountytx.gov 7/2/2025 11:08:01 AM SENT

Cynthia W.Veidt cynthia.veidt@traviscountytx.gov 7/2/2025 11:08:01 AM SENT

Todd A.Clark Todd.Clark@traviscountytx.gov 7/2/2025 11:08:01 AM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Christopher Garza 24078543 christopher.garza@harriscountytx.gov 7/2/2025 11:08:01 AM SENT

Associated Case Party: KEN PAXTON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL FOR THE STATE OF TEXAS

Name BarNumber Email TimestampSubmitted Status

William Farrell 796531 biff.farrell@oag.texas.gov 7/2/2025 11:08:01 AM SENT

Associated Case Party: SHAWN W. DICK DISTRICT ATTORNEY OF WILLIAMSON COUNTY, TEXAS (26TH JUDICIAL DISTRICT)

Name BarNumber Email TimestampSubmitted Status

Randy Leavitt 12098300 randy@randyleavitt.com 7/2/2025 11:08:01 AM SENT

Associated Case Party: BRIAN M. MIDDLETON DISTRICT ATTORNEY OF FORT BEND COUNTY, TEXAS (268TH JUDICIAL DISTRICT)

Supp. App. 004 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.

Nicole Myette on behalf of William Farrell Bar No. 796531 nicole.myette@oag.texas.gov Envelope ID: 102689557 Filing Code Description: Request Filing Description: DEFENDANTS' AMENDED DESIGNATION OF REQUEST FOR CLERK'S RECORD Status as of 7/8/2025 12:28 PM CST

Associated Case Party: BRIAN M. MIDDLETON DISTRICT ATTORNEY OF FORT BEND COUNTY, TEXAS (268TH JUDICIAL DISTRICT)

Name BarNumber Email TimestampSubmitted Status

Justin Pfeiffer 24091473 jpfeiffer@gavrilovlaw.com 7/2/2025 11:08:01 AM SENT

Associated Case Party: OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF TEXAS

Name BarNumber Email TimestampSubmitted Status

Nicole A.Myette nicole.myette@oag.texas.gov 7/2/2025 11:08:01 AM SENT

William Farrell biff.farrell@oag.texas.gov 7/2/2025 11:08:01 AM SENT

Associated Case Party: HARRIS COUNTY

Name BarNumber Email TimestampSubmitted Status

Tiffany Bingham 24012287 tiffany.bingham@harriscountytx.gov 7/2/2025 11:08:01 AM SENT

Associated Case Party: CHRISTINA SANCHEZ, IN HER OFFICIAL CAPACITY AS EL PASO COUNTY ATTORNEY

Name BarNumber Email TimestampSubmitted Status

Bernardo RafaelCruz b.cruz@epcountytx.gov 7/2/2025 11:08:01 AM SENT

Christina Sanchez Ch.sanchez@epcountytx.gov 7/2/2025 11:08:01 AM SENT

Carl Jones Carl.Jones@epcountytx.gov 7/2/2025 11:08:01 AM SENT

Pamela Lopez Pam.Lopez@epcountytx.gov 7/2/2025 11:08:01 AM SENT

Associated Case Party: DELIA GARZA, IN HER OFFICIAL CAPACITY AS TRAVIS COUNTY ATTORNEY Supp. App. 005 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.

Nicole Myette on behalf of William Farrell Bar No. 796531 nicole.myette@oag.texas.gov Envelope ID: 102689557 Filing Code Description: Request Filing Description: DEFENDANTS' AMENDED DESIGNATION OF REQUEST FOR CLERK'S RECORD Status as of 7/8/2025 12:28 PM CST

Associated Case Party: DELIA GARZA, IN HER OFFICIAL CAPACITY AS TRAVIS COUNTY ATTORNEY

Name BarNumber Email TimestampSubmitted Status

Cynthia W.Veidt cynthia.veidt@traviscountytx.gov 7/2/2025 11:08:01 AM SENT

Associated Case Party: JAMES MONTOYA, IN HIS OFFICIAL CAPACITY AS EL PASO COUNTY DISTRICT ATTORNEY

Name BarNumber Email TimestampSubmitted Status

Christina Sanchez Ch.sanchez@epcountytx.gov 7/2/2025 11:08:01 AM SENT

Bernardo Cruz b.cruz@epcountytx.gov 7/2/2025 11:08:01 AM SENT

Associated Case Party: DALLAS COUNTY

Name BarNumber Email TimestampSubmitted Status

Alexandria Oberman aoberman@milchev.com 7/2/2025 11:08:01 AM SENT

Michael Satin msatin@milchev.com 7/2/2025 11:08:01 AM SENT

Supp. App. 006 6/13/2025 8:03 PM Velva L. Price District Clerk Travis County D-1-GN-25-003581 CAUSE NO. D-1-GN-25-003581 Stephanie Garza

BRIAN M. MIDDLETON, § IN THE DISTRICT COURT in his official capacity as District § Attorney of Fort Bend County, § Texas (268th Judicial District) § and SHAWN W. DICK, in his § official capacity as District § Attorney of Williamson County, § Texas (26th Judicial District), § § Plaintiffs, § § v. § 98th JUDICIAL DISTRICT § WARREN KENNETH PAXTON, § JR., in his official capacity as § Texas Attorney General, and § THE OFFICE OF THE § ATTORNEY GENERAL OF THE § STATE OF TEXAS, § § Defendants. § TRAVIS COUNTY, TEXAS

PLAINTIFFS’ SUPPLEMENT AND FURTHER ARGUMENT IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR A TEMPORARY INJUNCTION

On May 16, 2025, Plaintiffs Brian M. Middleton, in his official capacity

as the District Attorney for the 268th Judicial District of Texas (Fort Bend

County) and Shawn W. Dick, in his official capacity as the District Attorney

for the 26th Judicial District of Texas (Williamson County) (collectively,

Plaintiffs’ Supplement and Further Argument in Support of Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 1 Supp. App. 007 “District Attorneys” or “Plaintiffs”) filed Plaintiffs’ Original Verified 1 Petition

and Request for Temporary and Permanent Injunction against Defendants

Warren Kenneth Paxton, Jr., in his official capacity as Texas Attorney and the

Office of Attorney General of the State of Texas (collectively, “Attorney

General” or “Defendants”). Plaintiffs file this supplement in support of

Plaintiffs’ application for a temporary injunction enjoining enforcement and

implementation of the Attorney General’s recently adopted “District and

County Attorney Reporting Requirements,”2 to include Declarations of District

Attorneys Brian Middleton and Shawn Dick:

1. District attorneys may and have successfully sought temporary

injunctions where the Attorney General interferes with core prosecutorial

authority. In Shepperd v. Alaniz, for example, the San Antonio Court of Civil

Appeals upheld the temporary injunction in favor of the Webb County district

attorney restraining the Attorney General from prosecuting a matter that

Webb County was already prosecuting. 303 S.W.2d 846, 848–50 (Tex. Civ.

App.—San Antonio 1957, no pet.).

1 Attached is Exhibit 1 is the Verification Affidavit of Plaintiff Brian M. Middleton. Plaintiff

Shawn W. Dick submitted the Original Petition’s verification. 2. 50 TEX. REG. 2173–2182 (Mar. 28, 2025) (adopting 1 TAC Ch. 56) (hereinafter, the “Adopted

Rule” or “Rule”). Plaintiffs’ Supplement and Further Argument in Support of Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 2

Supp. App. 008 2. Because “[i]t has always been the principal duty of the district and

county attorneys to investigate and prosecute the violation of all criminal

laws,” id. at 850, the court of appeals affirmed the trial court’s grant of a

temporary injunction without regard to a showing of irreparable harm or a

balance of the harms. Whether an action violates the Separation of Powers

Clause presents a “legal question.” Rochelle v. Lane, 148 S.W. 558, 561 (1912).

3. As set out in the attached Declarations of District Attorneys Brian

Middleton3 and Shawn Dick,4 the Rule expressly encroaches on core

prosecutorial discretion core prosecutorial discretion with the creation of an

“Oversight Advisory Committee”5 empowered to obtain “entire case files” and

“all correspondence”6 that it deems relate “to criminal matters and the

interests of the state” for which the failure to comply is “official misconduct”

under Chapter 87 of the Local Government Code.7 Both declarations

extensively detail how the mandate is onerous and time-consuming (after

already expending a great deal of time to be able to so declare).

3 Attached is Exhibit 2 is the Declaration of Plaintiff Brian M. Middleton, District Attorney

for the 268th Judicial District of Texas. 4 Attached is Exhibit 3 is the Declaration of Plaintiff Shawn W. Dick, District Attorney for

the 26th Judicial District of Texas. 5 1 TAC § 56.9(a) & (b).

6 1 TAC §§ 56.3(a)(8) & 56.9(c).

7 1 TAC § 56.8(1).

Plaintiffs’ Supplement and Further Argument in Support of Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 3

Supp. App. 009 4. The Adopted Rule’s justification states it “helps ensure that county

and district attorneys are consistently complying with statutory duties,

including seeking justice for citizens who have been harmed by a criminal act,

appropriately administering funds, and appropriately prosecuting crimes.” 50

TEX. REG. at 2173. And the reporting requirements complained of all touch on

prosecutorial decisions “critical to the conduct of a prosecution,” including

determining targets, charges, witnesses, plea bargains offered, dismissals,

and/or offers of transaction immunity offers and use immunity. Young v. U.S.

ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987).

5. “To obtain a temporary injunction, the applicant must plead and

prove (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.” State v. Loe, 692 S.W.3d 215, 226 (Tex. 2024). “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 v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). There is

irreparable injury here for at least three reasons.

6. First, this case seeks to prevent a violation of the state

constitution. As the Fifteenth Court of Appeals has held, “there is no question

that a local official’s violation of state law inflicts irreparable harm on the Plaintiffs’ Supplement and Further Argument in Support of Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 4

Supp. App. 010 State.” State by and Through the Office of the Attorney General v. City of San

Marcos, — S.W.3d — 2025 WL 1142065, at *8 (Tex. App—15th Dist., Apr. 17,

2025, no pet. h.). While that case involved a dispute between a state officer and

a city, here the dispute is between constitutionally created state officers, both

of which are charged with representing the state and both of which have an

interest in seeing that the state’s law—especially its constitution—is observed.

TEX. CONST., art. 4, § 22 & art. 5, § 21. Here, the attorney general, an executive

official, seeks to exercise the legislative power of rulemaking in the absence of

legislative authorization and seeks supervisory authority over judicial officers

all in violation of art. 2, § 1, of the Texas Constitution. The Fifteenth Court has

held that in a suit to enjoin an official’s ultra vires action “a showing of likely

success on the merits is sufficient to satisfy the irreparable-injury requirement

for a temporary injunction.” San Marcos, 2025 WL 1142065, at *8 (quoting

State v. Hollins, 620 S.W.3d 400, 410 (Tex. 2020)).

7. Second, an injury is irreparable if “damages cannot be measured

by any certain pecuniary standard.” Butnaru, 84 S.W.3d at 204. As set out in

the Declarations, the Adopted Rule interferes with District Attorneys Brian

Middleton and Shawn Dick’s core constitutional authority. The loss of a

constitutional right is often not measurable in pecuniary terms, particularly

related to a violation of the Separation of Powers Clause. Further, Plaintiffs’ Supplement and Further Argument in Support of Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 5

Supp. App. 011 implementation of the Rule has already and will negatively affect each District

Attorney’s ability to prosecute criminal cases. Allowing another department to

“second-guess[]” the attorney for the state’s “selection of legal arguments, his

assessment of the facts and evidence, and the ultimate decision to file suit on

those determinations” threatens that officer’s “clear constitutional authority.”

Webster v. Comm’n for Law. Discipline, 704 S.W.3d 478, 503 (Tex. 2024). It is

not possible to assign a dollar value on the delay or potential reduction in

prosecution activity attributable to the reassignment of resources.

8. Finally, the injury to the District is irreparable because, even if it

were possible to assign a monetary value to it, monetary relief is not available

in either an ultra vires action, City of El Paso v. Heinrich, 284 S.W.3d 366, 368–

69 (Tex. 2009), or a declaratory judgment action, Tex. Dep’t of Transp. v. Sefzik,

355 S.W.3d 618, 621 (Tex. 2011). However, as demonstrated by the

declarations, compliance costs will run into the millions.

PRAYER

9. For the foregoing reasons stated here and for the reasons stated in

the Original Verified Petition, Plaintiffs respectfully request the Court grant

Plaintiff’s application for a temporary injunction enjoining Defendants from

enforcing and implementing Texas Administrative Code Chapter 56 pending a

final trial on the merits. Plaintiffs’ Supplement and Further Argument in Support of Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 6

Supp. App. 012 RESPECTFULLY SUBMITTED on this 13th of June, 2025.

/s/ Justin C. Pfeiffer JUSTIN C. PFEIFFER (SBN 24091473) Counsel of Record GAVRILOV & BROOKS, PC (Houston Office) P.O. Box 56632 Houston, Texas 77256 [Tel.] (832) 312-7900 jpfeiffer@gavrilovlaw.com

COUNSEL FOR BRIAN M. MIDDLETON, IN HIS OFFICIAL CAPACITY AS FORT BEND COUNTY DISTRICT ATTORNEY (268TH JUDICIAL DISTRICT)

/s/ Randy T. Leavitt C. ROBERT HEATH(SBN 09347500) RANDY T. LEAVITT (SBN 12098300) BICKERSTAFF HEATH DELGADO ACOSTA Counsel of Record 1601 S Mopac Expy. LAW OFFICE OF RANDY T. LEAVITT Suite 400 1301 Rio Grande St Austin, TX 78746-7017 Austin, TX 78701-1711 [Tel.] (512) 404-7821 [Tel.] (512) 476-4475 bheath@bickerstaff.com randy@randyleavitt.com

COUNSEL FOR SHAWN M. DICK IN HIS OFFICIAL CAPACITY AS WILLIAMSON COUNTY DISTRICT ATTORNEY (26TH JUDICIAL DISTRICT)

Plaintiffs’ Supplement and Further Argument in Support of Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 7

Supp. App. 013 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document

was forwarded to Defendants via email and all counsel of record by electronic

filing in accordance with the Texas Rules of Civil Procedure and Local Rules

on June 13, 2025, and by email to counsel in consolidated matters as follows:

Counsel for Defendants Warren Kenneth Paxton, Jr., Attorney General of Texas and the Office of the Attorney General of Texas:

William H. “Biff” Farrell Assistant Attorney General Texas Bar No. 00796531 biff.farrell@oag.texas.gov General Litigation Division Office of the Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 979-5561 Facsimile: (512) 320-0667

For Cause No. D-1-GN-25-003445 (459th Judicial District Court):

Attorneys for Travis County, Travis County Attorney Delia Garza, and Travis County District Attorney José Garza: Leslie W. Dippel Executive County Attorney Leslie.Dippel@traviscountytx.gov Todd A. Clark Assistant County Attorney Todd.Clark@traviscountytx.gov Cynthia W. Veidt Assistant County Attorney Cynthia.Veidt@traviscountytx.gov OFFICE OF DELIA GARZA TRAVIS COUNTY ATTORNEY

Plaintiffs’ Supplement and Further Argument in Support of Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 8

Supp. App. 014 P.O. Box 1748 Austin, Texas 78767 Telephone: (512) 854-9513 Facsimile: (512) 854-4808

Attorneys for El Paso County District Attorney James Montoya, El Paso County Attorney Christina Sanchez, and El Paso County: Christina Sanchez El Paso County Attorney ch.sanchez@epcountytx.gov Bernardo Rafael Cruz Assistant County Attorney b.cruz@epcountytx.gov OFFICE OF CHRISTINA SANCHEZ EL PASO COUNTY ATTORNEY 320 S. Campbell St., Suite 200 El Paso, Texas 79901 Tel: (915) 273-3247

For Cause No. D-1-GN-25-003531 (353rd Judicial District Court):

Counsel for Criminal District Attorney John Creuzot; Dallas County; Criminal District Attorney Joe Gonzales; and Bexar County: Alexandria Oberman Email: aoberman@milchev.com Telephone: (202) 626-6049 Michael J. Satin (admitted pro hac vice) Email: msatin@milchev.com Telephone: (202) 626-6009 Laura G. Ferguson (admitted pro hac vice) Email: lferguson@milchev.com Telephone: (202) 626-5567 MILLER & CHEVALIER CHARTERED 900 16th Street, NW Washington, DC 20006 Facsimile: (202) 626-5801

Counsel for District Attorney Sean Teare and Harris County: Plaintiffs’ Supplement and Further Argument in Support of Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 9

Supp. App. 015 Jonathan G.C. Fombonne Deputy County Attorney and First Assistant Jonathan.Fombonne@harriscountytx.gov Tiffany S. Bingham Managing Counsel, Affirmative & Special Litigation Division Tiffany.Bingham@harriscountytx.gov Christopher Garza Deputy Division Director, Affirmative & Special Litigation Division Christopher.Garza@harriscountytx.gov

Office of The Harris County Attorney CHRISTIAN D. MENEFEE HARRIS COUNTY ATTORNEY 1019 Congress Plaza, 15th Floor Houston, Texas 77002 Telephone: (713) 274-5101 Facsimile: (713) 755-8924

/s/ Justin C. Pfeiffer JUSTIN C. PFEIFFER (SBN 24091473)

Plaintiffs’ Supplement and Further Argument in Support of Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 10

Supp. App. 016 EXHIBIT 1

PLAINTIFFS’ SUPPLEMENT AND FURTHER ARGUMENT IN

SUPPORT OF PLAINTIFFS’ APPLICATION FOR A TEMPORARY

INJUNCTION

CAUSE NO. D-1-GN-25-003581

VERIFICATION AFFIDAVIT OF BRIAN M. MIDDLETON

Supp. App. 017 Supp. App. 018 Supp. App. 019 EXHIBIT 2

PLAINTIFFS’ SUPPLEMENT AND FURTHER ARGUMENT IN

SUPPORT OF PLAINTIFFS’ APPLICATION FOR A TEMPORARY

INJUNCTION

CAUSE NO. D-1-GN-25-003581

DECLARATION OF BRIAN M. MIDDLETON

DATED JUNE 13, 2025

Supp. App. 020 CAUSE NO. D-1-GN-25-003581

BRIAN M. MIDDLETON, § IN THE DISTRICT COURT in his official capacity as District § Attorney of Fort Bend County, § Texas (268th Judicial District) § and SHAWN W. DICK, in his § official capacity as District § Attorney of Williamson County, § Texas (26th Judicial District), § § Plaintiffs, § § v. § 98th JUDICIAL DISTRICT § WARREN KENNETH PAXTON, § JR., in his official capacity as § Texas Attorney General, and § THE OFFICE OF THE § ATTORNEY GENERAL OF THE § STATE OF TEXAS, § § Defendants. § TRAVIS COUNTY, TEXAS

DECLARATION OF BRIAN M. MIDDLETON

I, Brian M. Middleton, declare as follows:

1. I am the elected District Attorney for the 268th Judicial District of

Texas (Fort Bend County Attorney) and have served as the District Attorney

for the past 6.5 years.

2. I am over eighteen years of age and competent to make this

declaration. I have personal knowledge of all matters set forth herein or have

provided such information necessary to confirm the statements in this

DECLARATION OF BRIAN M. MIDDLETON Page 1 Supp. App. 021 declaration, and all such statements are true and correct. If called as a witness,

I could and would competently testify thereto under oath.

3. Prior to being elected as the District Attorney I served as an

assistant prosecuting attorney in the Fort Bend County Attorney’s Office. I

also served as an assistant attorney general in the Habeas Corpus Division of

the Office of the Texas Attorney General and as a briefing attorney for Judge

Morris Overstreet at the Texas Court of Criminal of Appeals.

4. My training, education, experience as a prosecutor in the State of

Texas and current position of District Attorney make me familiar with the

constitutional duties and core functions of Texas prosecuting attorneys. I am

also familiar with the collection, retention and storage of data, documents and

media obtained in prosecuting attorney offices across the state and am

intimately familiar with those matters in the Office of the District Attorney for

the 268th Judicial District of Texas. (“Office”).

5. I have read and am familiar with the “District and County

Attorney Reporting Requirements” Chapter 56 (§§ 56.1–56.10) of Title 1 of the

Texas Administrative Code (“TAC”), the “District and County Attorney

Reporting Requirements,” adopted by the Office of the Attorney General of

Texas (“Attorney General”) in March. 50 TEX. REG. 2173–2182 (Mar. 28, 2025)

(the “Adopted Rule” or “Rule”). As extensively detailed in the Original Verified

Petition and Application for Temporary Injunction and Permanent

DECLARATION OF BRIAN M. MIDDLETON Page 2 Supp. App. 022 Injunction—which my Co-Plaintiff verified at the time of filing and for which

I also file a verification solely for the sake of completeness—this declaration

provides further detail as to the irreparable harm the Adopted Rule foists upon

the Office in submitting “an initial, and quarterly and annual reports.” 1 TAC

§ 56.1.

6. The Office handles thousands of cases—the majority of which

would have some relevance under the Adopted Rule. From January 2021 to April

2, 2025, the period covered by the initial report, the Office received over 55,000

case submissions in adult cases alone. Felony cases, which are almost always

the subject to grand jury proceedings prior to indictment accounted for over

23,000 of that number. Due to the Office’s antiquated case management

system for juvenile cases, I requested the information from Fort Bend’s

Juvenile Probation Department. From the beginning of Fiscal Year 2021

(September 1, 2020) and April 30, 2025, there were 5,197 juvenile cases.

7. At present, the Office has 174 employees, including 89 assistant

prosecuting attorneys—all of whom may have relevant materials—due to the

broad categories of “correspondence” for which the Adopted Rule requires

reporting. The Adopted Rule compels reporting of “correspondence,” which

includes “any email, letter, memorandum, instant message, text message, or

direct message, received or issued by an employee of the reporting entity,”

1 TAC § 56.2(2), for five categories:

DECLARATION OF BRIAN M. MIDDLETON Page 3 Supp. App. 023 (a) correspondence describing or containing an analysis of a district or

county attorney’s “policy not to indict a category or sub-category of

criminal offenses,” 1 TAC § 56.3(a)(9);

(b) “correspondence with any employee of a federal agency regarding a

decision whether to indict an individual,” 1 TAC § 56.3(a)(10);

(c) “correspondence with any non-profit organization regarding a

decision whether to indict an individual,” 1 TAC § 56.3(a)(11);

(d) correspondence by an assistant prosecutor regarding “that attorney’s

resignation under a formal or informal complaint process,” 1 TAC

§ 56.3(a)(12); and

(e) correspondence requested by the Oversight Advisory Committee, 1

TAC § 56.3(a)(8), regarding “instances that an arrest was made for a

violent crime but no indictment was issued, the case was resolved by

deferred prosecution or a similar program or all charges were dropped,”

1 TAC § 56.3(a)(7).

8. Individual county computers and the entire network are routinely

recorded with back up tapes also recorded. The Office’s (and the County’s)

employees are routinely advised that the destruction of public records

(including emails) may constitute a criminal offense. Departing employes, in

particular, are advised as to the broad definitions employed in Texas record

retention statutes and County record retention policies (including use of

DECLARATION OF BRIAN M. MIDDLETON Page 4 Supp. App. 024 County-owned cellular phones). Nevertheless, 52 assistant prosecuting

attorneys and 40 staff members have left the Office since January 1, 2021. Fort

Bend County IT—or more likely a third-party vendor—would have to collect

current and former employee emails (and other forms of communications), transfer

them to a document review platform, and run searches for responsive documents.

8. Locating, reviewing, and producing responsive correspondence is

also difficult because of the broad scope implicated. The Office routinely

interacts with at 15 non-profit organizations, including the Fort Bend Women’s

Center, Child Advocates of Fort Bend, George Foundation, Wessendorff

Foundation, Katy Christian Ministries, East Fort Bend Needs, Helping Hands,

Fort Bend Senior Meals on Wheels, Access Health, Fort Bend Hope, United

Way, Catholic Charities, United Against Human Trafficking, Hope for Three,

and the Fort Bend Literacy Council. To search for responsive correspondence

with non-profit organizations, the Office would have to have to identify every

potential individual at those 15 organizations with which an employee of the

Office interacts or has interacted. Fort Bend County IT—or more likely a third-

party vendor—would then have to collect the materials and put them into a

reviewable format. These would, in turn, have to be reviewed further to ensure

relevance to an actual or contemplated indictment. It is difficult to envision

how such could be completed without manual review.

DECLARATION OF BRIAN M. MIDDLETON Page 5 Supp. App. 025 9. Similarly, for correspondence with “any employee of a federal

agency,” the Office would also have to determine individual employees of the

at least nine federal agencies with whom the Office regularly interacts: ATF,

DEA, DOJ, FBI, ICE, IRS, U.S. Marshal Service, U.S. Postal Inspection, and

U.S. Secret Service. Collecting the emails of hundreds of employees for

correspondence with hundreds more of those agencies is only the first step and

not one that can be done in a complete fashion because there may well be

another federal agency (or another non-profit) not included in what has

already been a thorough attempt to compile such lists. After collection,

conducting further review to determine if the correspondence is a “reporting

event” under the Rule is an even less straightforward step that will require

significant individualized review.

10. The inclusion of “automobile theft,” “burglary,” and “riot” as

“violent crime,” 1 TAC § 56.2(7), complicates review and requires the creation

of new means of compiling and retaining records. Using the definition of

“violent crime” in the Adopted Rule, there were 5,234 cases of “violent crime”

in Fiscal Year 2024 (September 1, 2023 to October 1, 2024). Because

“automobile theft” is not a specifically labeled offense in Texas, it is hard to

guarantee accuracy in even this first step. While the line between a riot,

particularly one involving only property damage or disruption, and a lawful

First Amendment-protected protest is not always clear, the inclusion of riot

DECLARATION OF BRIAN M. MIDDLETON Page 6 Supp. App. 026 and burglary expand “violent crime” well beyond what prosecutors commonly

think of as a “violent crime.” The case files for those 5,234 cases (and all others

from the time period of January 1, 2021 until April 2, 2025; March 1, 2025

until May 31, 2025; and thereafter quarterly) would have to be reviewed

individually to determine if such would fit into the category where “no

indictment was issued, the case was resolved by deferred prosecution or a

similar program or all charges were dropped.” 1 TAC § 56.3(a)(7).

11. The Office’s case management software, Odyssey, does not have

the capability of searching our case files for arrest. Arrest/booking information

is stored at the Fort Bend County Jail of which my Office only has limited

access. Fort Bend County’s IT Department, whose executive director reports to

the County’s Commissioners and not to me, would have to develop search

criteria for the information sought by the Rule. It would then fall to my Office

individually reviewed—a time-consuming exercise even if all materials could

be accurately collected.

12. The Preamble to the Final Rule states that “[r]eporting entities

currently routinely submit their entire case files, including all of the types of

information specified in the comments to the OAG in various manners and in

compliance with other statutes that only generally require disclosure of

information to the OAG.” 50 TEX. REG. 2176. The Office does not routinely

submit criminal case files or correspondence. Since I became the District

DECLARATION OF BRIAN M. MIDDLETON Page 7 Supp. App. 027 Attorney for the 268th Judicial District of Texas on January 1, 2019, the Office

has not produced in any instance a criminal case file to the Attorney General.

Without the Adopted Rule, the Office would only produce a criminal case file

to the Office of the Attorney General in the event the Fort Bend DAO has

recused itself from a case and the Office of the Attorney General has agreed to

the prosecute the matter. Case files contain confidential information or

otherwise protected information, release of which is prohibited by law or would

otherwise infringe upon the rights of victim witnesses, grand jury participants,

law enforcement officials, or accused defendants.

13. The Office will need at a minimum 2 full-time employees (“FTE”)

at a cost of at least $292,000 per year, inclusive of benefits, equipment, and

training. While the Office has apprised of needing at least one new person, the

Office will need at least another assistant prosecuting attorney to avoid

significant reductions in prosecutions. Additionally the Fort Bend County IT

Department will require at a minimum 2 FTE (data analyst and programmer)

at a cost of at least $225,000 annually. With respect to IT, however, it is more

likely that such will have to be contracted out at a substantial cost of

$120/hour. There most likely will be a cost for additional software yet to be

determined.

14. The Adopted Rule offers no recourse and no avenue for

administrative appeal of any decision made by the Defendants or the Oversight

DECLARATION OF BRIAN M. MIDDLETON Page 8 Supp. App. 028 Advisory Committee. Instead, § 56.8 purports to give Attorney General

authority to initiate a removal action or a proceeding in quo warranto to

produce the requested information regardless of any other legal restriction that

may counsel against disclosure.

15. Thus, my Office must prepare, under consequence of removal from

office, for the possibility of having to turn over four years of data,

correspondence, and certain case files, in twelve categories, by July 1, 2025.

Many of the categories require electronic searches, the results of which

implicate thousands of cases that must be reviewed in detail to establish

whether they include required information and records. It is difficult to know

if the assumptions we would have to make about any undefined term’s

meaning would be viewed as compliant reporting.

16. Injunctive relief is justified here because compliance with the

Adopted Rule has created and will continue to impose a tremendous burden on

the Office and has significantly and adversely affected the ongoing operations

of the Office and if left intact will continue to seriously undermine our

constitutional core duties as prosecutors and incur significant unrecoverable

financial expense.

I declare under the penalty of perjury that all the foregoing is true and correct.

Executed in Fort Bend County, Texas, this the 13th day of June, 2025.

DECLARATION OF BRIAN M. MIDDLETON Page 9 Supp. App. 029 Brian M. Middleton Fort Bend County District Attorney

DECLARATION OF BRIAN M. MIDDLETON Page 10 Supp. App. 030 EXHIBIT 3

PLAINTIFFS’ SUPPLEMENT AND FURTHER ARGUMENT IN

SUPPORT OF PLAINTIFFS’ APPLICATION FOR A TEMPORARY

INJUNCTION

CAUSE NO. D-1-GN-25-003581

DECLARATION OF SHAWN W. DICK

DATED JUNE 13, 2025

Supp. App. 031 Supp. App. 032 Supp. App. 033 Supp. App. 034 Supp. App. 035 Supp. App. 036 Supp. App. 037 Supp. App. 038 Supp. App. 039 Supp. App. 040 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.

Justin Pfeiffer on behalf of Justin Pfeiffer Bar No. 24091473 jpfeiffer@gavrilovlaw.com Envelope ID: 102018958 Filing Code Description: Amended Filing Filing Description: PLAINTIFFS’ SUPPLEMENT AND FURTHER ARGUMENT IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR A TEMPORARY INJUNCTION Status as of 6/16/2025 2:48 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Randy Leavitt 12098300 randy@randyleavitt.com 6/13/2025 8:03:29 PM SENT

Justin Pfeiffer JPfeiffer@gavrilovlaw.com 6/13/2025 8:03:29 PM SENT

C. RobertHeath bheath@bickerstaff.com 6/13/2025 8:03:29 PM SENT

William HowardFarrell biff.farrell@oag.texas.gov 6/13/2025 8:03:29 PM SENT

Supp. App. 041 6/16/2025 4:01 AM Velva L. Price District Clerk Travis County D-1-GN-25-003581 CAUSE NO. D-1-GN-25-003581 Susan Schmidt

BRIAN M. MIDDLETON, § IN THE DISTRICT COURT in his official capacity as District § Attorney of Fort Bend County, § Texas (268th Judicial District) § and SHAWN W. DICK, in his § official capacity as District § Attorney of Williamson County, § Texas (26th Judicial District), § § Plaintiffs, § § v. § 98th JUDICIAL DISTRICT § WARREN KENNETH PAXTON, § JR., in his official capacity as § Texas Attorney General, and § THE OFFICE OF THE § ATTORNEY GENERAL OF THE § STATE OF TEXAS, § § Defendants. § TRAVIS COUNTY, TEXAS

PLAINTIFFS’ REPLY TO THE DEFENDANTS’ RESPONSE TO PLAINTIFFS’ APPLICATION FOR A TEMPORARY INJUNCTION

Plaintiffs Brian M. Middleton, in his official capacity as the District

Attorney for the 268th Judicial District of Texas (Fort Bend County) and

Shawn W. Dick, in his official capacity as the District Attorney for the 26th

Judicial District of Texas (Williamson County) (collectively, “Williamson/Fort

Bend District Attorneys” or “Plaintiffs”) respond to Defendants Warren

Kenneth Paxton, Jr., in his official capacity as Texas Attorney and the Office

Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 1 Supp. App. 042 of Attorney General of the State of Texas (collectively, “Attorney General” or

“Defendants”) Response to Plaintiffs’ Original Verified Petition and Request

for a Temporary Injunction as follows:

1. On May 16, 2025, Plaintiffs’ filed the Original Verified Petition,

which sought a temporary injunction to enjoin Defendants from enforcing and

implementing the Attorney General’s recently adopted “District and County

Attorney Reporting Requirements, 50 TEX. REG. 2173–2182 (Mar. 28, 2025)

(adopting 1 TAC Ch. 56) (hereinafter, the “Adopted Rule” or “Rule”).

2. Also on May 16, the district attorneys (and county attorneys with

criminal jurisdiction) for Travis and El Paso counties—joined by the counties

themselves—filed a similar action. Cause No. D-1-GN-25-003445 (“Travis/El

Paso Plaintiffs”). As did the criminal district attorneys for Dallas and Bexar

counties and the district attorney for Harris County—also joined by the

counties themselves. Cause No. D-1-GN-25-003531 (“Dallas/Bexar/El Paso

Plaintiffs”).

3. On June 13, 2025, Defendants filed an consolidated answer and

general denial to all three petitions.1 Defendants also filed a consolidated

1 Such is completely proper as the three actions have been consolidated with the matter for

the Travis/El Paso Plaintiffs designated as lead. Undersigned counsel maintain the separate style here merely to keep clear the group advancing a particular argument. The nature of replying to a June 13 response for a June 16 extraordinary writ hearing makes it difficult to obtain authority to make a substantive filing outside of the immediate group, particularly in light of the hearing. Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 2

Supp. App. 043 response in opposition to the similar (but not identical) applications for a

temporary injunction on June 13.

4. The Williamson/Fort Bend District Attorneys’ reply responds to

two assertions in Defendants’ Response: (a) “the Texas Legislature has

continuously bestowed such broad authority and discretion upon the Attorney

General since at least 1879” to obtain the materials compelled by the Adopted

Rule [Resp. Br. at 2]; and (b) “[e]ven if Rules were never adopted, the OAG could

request the information for which the district and county attorneys complain

at any time so desired,” [id. at 3 (emphasis in original)].

5. An examination of the historical context belies the Attorney

General’s assertion that the 1879 enactment of the predecessor to the § 41.006

of the Government Code provides rulemaking authority for the Adopted Rule.

50 Tex. Reg. at 2173. So do the actions of the most recent Legislature.

I. The Attorney General’s Former Authority to Represent the State in Criminal Appellate Matters Does Not Provide Authority to Supervise the District and County Attorneys.

6. The Attorney General attempts to muddy the historic record by

asserting that “at least since 1879,” “the Texas Legislature has continuously

bestowed” the on the Attorney General the authority to request broad statutory

reporting obligations. [Resp. Br. at 2 (citing TEX. CODE CRIM. PROC. art. 40

Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 3

Supp. App. 044 (1879))].2 What is missing is that before 1876, the Attorney General “had

constitutional authority to represent the State in appeals of criminal cases,

and it had statutory authority to do so until 1923.” Ex parte Taylor, 36 S.W.3d

883, 878 (Tex. Crim. App. 2001) (per curiam). 3 The authority for the Attorney

General to request materials from the district attorneys went away in 1925,

which coincidentally is when the Attorney General’s authority to represent the

State in criminal matters did as well.

A. The 1876 Constitution’s Division of the Authority for Final Review of Civil and Criminal Law Matters Informs the Entire Constitution and the Statutes of the Period.

7. The 1876 Constitution bifurcated the state’s judicial power by

vesting such into one Supreme Court and one Court of Appeals. TEX. CONST. of

1876 art. 5, § 1. The 1876 Constitution vested the Attorney General with

express authority to “represent the State in all suits and pleas in the Supreme

2 The Attorney General’s response ignores the two other interconnected statutory provisions

delineating the Attorney General’s own obligation to prepare a report for the Governor on court operations statewide as detailed at ¶¶ 21–33 of the Williamson/Fort Bend District Attorneys’ Original Verified Petition. The Williamson/Fort Bend District Attorneys also attach a chart immediately after the certificate of service illustrating the statutory provisions. 3 In fact, the First Legislature required the attorney general to obtain from the several district

attorneys “all the information necessary for [the attorney general’s] compliance with the requisitions of” that report to the governor. [Act approved May 11, 1846, 1st Leg., R.S., § 5, 1846 Tex. Gen. Laws 206, 207, reprinted in H.P.N. GAMMEL, 2 The Laws of Texas 1822–1897, at 1512, 1513 (Austin, Gammel Book Co. 1898).] Thus, the First Legislature the several district attorneys to provide to the attorney general the exact information the attorney general reported to the governor. [Act approved May 13, 1846, 1st Leg., R.S., § 4, 1846 Tex. Gen. Laws 295, 296, reprinted in H.P.N. GAMMEL, 2 The Laws of Texas 1822–1897, at 1601, 1602 (Austin, Gammel Book Co. 1898).] Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 4

Supp. App. 045 Court of the State in which the State may be a party.” TEX. CONST. of 1876 art.

4, § 22. While the 1876 Constitution provided the Court of Appeals appellate

jurisdiction over all “in all criminal cases, of whatever grade.” TEX. CONST.

of 1876 art. 5, § 6 (emphasis added), the Framers did not confer on the Attorney

General for the Court of Appeals it did for the Supreme Court.4 The 1876

Constitution’s use of the phrase “all criminal cases, of whatever grade” and

lack of express assignment to the Attorney General indicates that the Attorney

General was not a player in criminal prosecutions at ratification.

8. In State v, Stephens, 663 S.W.3d 45 (Tex. Crim. App. 2021), the

Attorney General asserted the Attorney General’s debatable statutory criminal

appellate jurisdiction proved the Attorney General’s proved the constitutional

basis for the Attorney General’s independent prosecutorial authority. The

Court of Criminal Appeals rejected that argument after extensive briefing—

from the very same parties before the Court today. There, the Attorney General

tried to expropriate prosecutorial authority in the “District and inferior

courts,” while here the Attorney General interferes with such authority

through the Adopted Rule for the reasons all plaintiff groups have briefed.

4 In 1891, a constitutional amendment changed the name of the Court of Appeals to the Court

of Criminal Appeals and stripped its civil jurisdiction. 1891 Tex. Gen. Laws at 198. reprinted in H.P.N. GAMMEL, 10 The Laws of Texas 1822–1897, at 199–200; TEX. CONST. art. 5, § 5 (amended 1891). Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 5

Supp. App. 046 B. The Legislature Repealed the Provision Providing the Attorney General Authority to Request Materials from the District and County Attorneys Just After the Legislature Created the Office of the State Prosecuting Attorney.

9. At ratification, criminal convictions proceeded before what a

singular appellate court.5 [Not until 1981 did the intermediate courts of

appeals obtain jurisdiction over criminal appeals over than capital. Even then,

the State did not have a right to appeal a criminal matter (except extraordinary

writs).6]

10. With one appellate court for criminal matters here in Austin, the

Legislature Recognizing the burden on the district attorneys of defending

criminal appeals in one appellate court located in Austin, the Legislature

created one “Assistant Attorney General” position.7 Even so, the position

required a gubernatorial appointment and with advice and consent of the

senate.8 Not only did this position require a gubernatorial appointment, the

5 The intermediate court of appeals did not exist until 1891. See TEX. S.J.R. 16, 22nd Leg.,

R.S., 1891 Tex. Gen. Laws 197, 198, reprinted in H.P.N. GAMMEL, 10 The Laws of Texas 1822–1897, at 199–200 (Austin, Gammel Book Co. 1898); TEX. CONST. art. 5, § 6 (added 1891). 6 Compare TEX. CONST. OF 1876 art. 5, § 26 with TEX. S.J.R. 34, 70th Leg., R.S., 1987 Tex.

Gen. Laws 4114, 4114; TEX. CONST. art. 5, § 26 (amended 1987). 7 Act approved Mar. 15, 1875, 14th Leg., 2nd R.S., ch. 122, § 1, 1875 Tex. Gen. Laws 179,

179–80, reprinted in H.P.N. GAMMEL, 8 The Laws of Texas 1822–1897, at 551–52 (Austin, Gammel Book Co. 1898). 8 Id.

Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 6

Supp. App. 047 Legislation placed this position in the Judicial Department for budgetary

purposes by appropriating the same under the Court of Criminal Appeals. 9

11. In 1923, the Legislative provided the position of the “attorney for

the State before the Court of Criminal Appeals of Texas.”10 The position

continued to be subject to gubernatorial appointment with the advice and

consent of the Senate.11 In 1931, the Legislature renamed the position as the

“State Prosecuting Attorney.”12 The Legislature provided the Court of Criminal

Appeals the authority to appoint the State Prosecuting Attorney. 13

12. The historical context of the three interrelated statutory

provisions thus has a clear purpose. Not only did the Legislature narrow the

Attorney General’s reporting responsibilities in 2003 as all plaintiff groups

briefed, but the executive branch bore responsibility for criminal appellate

matters in 1879. These blurred lines continued until the Legislature unblurred

them by placing the responsibility under the Court of Criminal Appeal, which

continues to this day as Chapter 42 of the Government Code.

9 See, e.g., Act of Aug. 29, 1911, 32nd Leg., 1st C.S., ch. 3, 1911 Tex. Gen. Laws 2, 17–18

(attorney general); 34 (salary of assistant attorney general underneath the Court of Criminal Appeals). 10 Act of Mar. 30, 1923, 38th Leg., R.S., ch. 156, § 4, 1923 Tex. Gen. Laws 335, 335.

11 Act of May 18, 1931, 42nd Leg., R.S. 1931, ch. 139, § 1, 1931 Tex. Gen. Laws 234, 234. 12 Id.

13 Act of May 18, 1931, 42nd Leg., R.S. 1931, ch. 139, § 1, 1931 Tex. Gen. Laws 234, 234. Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 7

Supp. App. 048 II. The Actions 89th Legislature Better Correspond with All Plaintiffs’ Reading of §41.006 than that Presented by the Attorney General.

13. Under the Texas Constitution, the Governor has until June 22,

2025 to take action on enrolled legislation passed during the last 10 days of the

legislative session. Among such enrolled bills, is H.B. 45, relating to the duty

of the attorney general to represent the state in the prosecution of the criminal

offense of trafficking of persons.

14. While Plaintiffs here believe this legislation to be unconstitutional

under Stephens, § 2 of the May 26, 2025 enrolled bill would provide the

Attorney General certain authority under Chapter 20A of the Penal Code

(Human Trafficking). Under “Provision of Information to the Attorney

General” would be the authority to request from the local prosecuting attorneys

nonpublic information for just human trafficking offenses “only if the attorney

general is representing the state in the prosecution of the criminal offense

pursuant to [what would be codified] Section 402.103(a) or the local

prosecuting attorney otherwise agrees to provision of the information under

this subsection.” (emphasis added).

15. Thus, the present Legislature makes the link between turning over

case files and prosecutorial actions.

Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 8

Supp. App. 049 PRAYER

16. For the foregoing reasons, the Williamson/Fort Bend District

Attorneys respectfully request the Court grant their application for a

temporary injunction enjoining Defendants from enforcing and implementing

Texas Administrative Code Chapter 56 pending a final trial on the merits.

RESPECTFULLY SUBMITTED on this 16th of June, 2025.

/s/ Justin C. Pfeiffer JUSTIN C. PFEIFFER (SBN 24091473) Counsel of Record GAVRILOV & BROOKS, PC (Houston Office) P.O. Box 56632 Houston, Texas 77256 [Tel.] (832) 312-7900 jpfeiffer@gavrilovlaw.com

COUNSEL FOR BRIAN M. MIDDLETON, IN HIS OFFICIAL CAPACITY AS FORT BEND COUNTY DISTRICT ATTORNEY (268TH JUDICIAL DISTRICT)

/s/ Randy T. Leavitt C. ROBERT HEATH(SBN 09347500) RANDY T. LEAVITT (SBN 12098300) BICKERSTAFF HEATH DELGADO ACOSTA Counsel of Record 1601 S Mopac Expy. LAW OFFICE OF RANDY T. LEAVITT Suite 400 1301 Rio Grande St Austin, TX 78746-7017 Austin, TX 78701-1711 [Tel.] (512) 404-7821 [Tel.] (512) 476-4475 bheath@bickerstaff.com randy@randyleavitt.com

COUNSEL FOR SHAWN M. DICK IN HIS OFFICIAL CAPACITY AS WILLIAMSON COUNTY DISTRICT ATTORNEY (26TH JUDICIAL DISTRICT)

Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 9

Supp. App. 050 CERTIFICATE OF SERVICE

I hereby certify that on June 16, 2025, a true and correct copy of the

foregoing document was forwarded to Defendants via email and all counsel of

record by electronic filing in matter D-1-GN-25-003581 in accordance with the

Texas Rules of Civil Procedure and Local Rules on June 16, 2025, and further

a true and correct copy of the foregoing documented was served by email to

counsel in consolidated matters as follows:

Counsel for Defendants Warren Kenneth Paxton, Jr., Attorney General of Texas and the Office of the Attorney General of Texas:

William H. “Biff” Farrell Assistant Attorney General Texas Bar No. 00796531 biff.farrell@oag.texas.gov General Litigation Division Office of the Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 979-5561 Facsimile: (512) 320-0667

For Cause No. D-1-GN-25-003445 (459th Judicial District Court):

Attorneys for Travis County, Travis County Attorney Delia Garza, and Travis County District Attorney José Garza: Leslie W. Dippel Executive County Attorney Leslie.Dippel@traviscountytx.gov Todd A. Clark Assistant County Attorney Todd.Clark@traviscountytx.gov Cynthia W. Veidt Assistant County Attorney Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 10

Supp. App. 051 Cynthia.Veidt@traviscountytx.gov OFFICE OF DELIA GARZA TRAVIS COUNTY ATTORNEY P.O. Box 1748 Austin, Texas 78767 Telephone: (512) 854-9513 Facsimile: (512) 854-4808

Attorneys for El Paso County District Attorney James Montoya, El Paso County Attorney Christina Sanchez, and El Paso County: Christina Sanchez El Paso County Attorney ch.sanchez@epcountytx.gov Bernardo Rafael Cruz Assistant County Attorney b.cruz@epcountytx.gov OFFICE OF CHRISTINA SANCHEZ EL PASO COUNTY ATTORNEY 320 S. Campbell St., Suite 200 El Paso, Texas 79901 Tel: (915) 273-3247

For Cause No. D-1-GN-25-003531 (353rd Judicial District Court):

Counsel for Criminal District Attorney John Creuzot; Dallas County; Criminal District Attorney Joe Gonzales; and Bexar County: Alexandria Oberman Email: aoberman@milchev.com Telephone: (202) 626-6049 Michael J. Satin (admitted pro hac vice) Email: msatin@milchev.com Telephone: (202) 626-6009 Laura G. Ferguson (admitted pro hac vice) Email: lferguson@milchev.com Telephone: (202) 626-5567 MILLER & CHEVALIER CHARTERED 900 16th Street, NW Washington, DC 20006 Facsimile: (202) 626-5801 Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 11

Supp. App. 052 Counsel for District Attorney Sean Teare and Harris County: Jonathan G.C. Fombonne Deputy County Attorney and First Assistant Jonathan.Fombonne@harriscountytx.gov Tiffany S. Bingham Managing Counsel, Affirmative & Special Litigation Division Tiffany.Bingham@harriscountytx.gov Christopher Garza Deputy Division Director, Affirmative & Special Litigation Division Christopher.Garza@harriscountytx.gov

Office of The Harris County Attorney CHRISTIAN D. MENEFEE HARRIS COUNTY ATTORNEY 1019 Congress Plaza, 15th Floor Houston, Texas 77002 Telephone: (713) 274-5101 Facsimile: (713) 755-8924

/s/ Justin C. Pfeiffer JUSTIN C. PFEIFFER (SBN 24091473)

Reply to Defendants’ Response to Plaintiffs’ Application for a Temporary Injunction District Attorneys Brian Middleton & Shawn Dick v. Attorney General Ken Paxton Page 12

Supp. App. 053 EVOLUTION OF SECTION 41.006

1879 TEX. CODE CRIM. PROC. art 29 TEX. CODE CRIM. PROC. art. TEX. CODE CRIM. PROC. (1879) 30 (1879) art. 30 (1879) ART. 29. He shall report to the ART. 30. He may require the ART. 40. District and governor on the first Monday of several district and county county attorneys shall, December, annually, and at such attorneys, clerks of the district, when required by the other times as the governor may and county courts in the state, attorney-general, report to require, the number of indictments to communicate to him at such him at such times, and in which have been found by grand times as he may designate, and accordance with such juries in this state for the preceding in such form as he may forms as he may direct, year; the number of informations filed prescribe, all the information such information as he in this state for the preceding year;· necessary for his compliance may desire in relation to the offenses charged in such with the requirements of the criminal matters and the indictments or information; the preceding article. interests of the state, in number of arraignments, convictions their districts and and acquittals for each offense; the counties. number of indictments and informations which have been disposed of without the intervention of a petit jury, with the cause and manner of such disposition; and also a summary of the judgments rendered on conviction, specifying the offense, the nature and amount of penalties imposed, and the amount of fines collected.

Added: “This report shall also give a general summary of all the business, civil and criminal, disposed of by the Supreme Court and Court of Appeals, so far as the State of Texas may be a party to such litigation, and of all civil causes to which the State is a party prosecuted or defended by him in any other courts, State or Federal. Act of March 28, 1885, 19th Legis., R.S., ch. 64, § 1. 1925 Art. 30 Repealed TEX. REV. CIV. CODE tit. 70, ch. 4, art. Tex. Code. Crim. Proc., § 3, art. TEX. REV. CIV. CODE tit. 4413 (1925). 1 (1925); TEX. REV. CIV. CODE 15, ch. 3, art. 333 (1925). tit. final, § 2 (1925)

Page 1

Supp. App. 054 EVOLUTION OF SECTION 41.006

2003 TEX. GOV’T CODE § 402.003 The attorney general shall report to the governor on the first Monday of December of each even-numbered year. The report must include the following information for the preceding two years: (1) a summary of the cases in which the state was a party that were acted on by the supreme court and court of criminal appeals; and (2) a summary of civil cases in which the state was a party that were prosecuted or defended by the attorney general in other state or federal courts.

Amended by Acts 2003, 78th Leg., ch. 691, § I, eff. Sept. I, 2003.

NOTE: the 2003 amendment deleted all AG reporting requirements regarding local criminal justice matters covered by the proposed rule. This is the current text of the provision. Current Text § 41.006. Report to Attorney General At the times and in the form that the attorney general directs, the district and county attorneys shall report to the attorney general the Same as in 2003 None information from their districts and counties that the attorney general desires relating to criminal matters and the interests of the state.

Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.

Page 2

Supp. App. 055 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.

Justin Pfeiffer on behalf of Justin Pfeiffer Bar No. 24091473 jpfeiffer@gavrilovlaw.com Envelope ID: 102028225 Filing Code Description: Answer/Response Filing Description: PLAINTIFFS' REPLY TO THE DEFENDANTS' RESPONSE TO PLAINTIFFS' APPLICATION FOR A TEMPORARY INJUNCTION Status as of 6/16/2025 2:16 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Randy Leavitt 12098300 randy@randyleavitt.com 6/16/2025 4:01:12 AM SENT

Justin Pfeiffer JPfeiffer@gavrilovlaw.com 6/16/2025 4:01:12 AM SENT

C. RobertHeath bheath@bickerstaff.com 6/16/2025 4:01:12 AM SENT

William HowardFarrell biff.farrell@oag.texas.gov 6/16/2025 4:01:12 AM SENT

Supp. App. 056 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.

Justin Pfeiffer on behalf of Justin Pfeiffer Bar No. 24091473 jpfeiffer@gavrilovlaw.com Envelope ID: 104591456 Filing Code Description: Motion Filing Description: Appellee Brian M. Middleton's Unopposed Motion to Extend Time and Allow Requested Supplemental Clerk's Record be Filed as a Supplemental Appendix to Response Brief to File Requested Clerk's Record Material as a Supplemental Appendix to Corrected Response Brief Status as of 8/20/2025 7:17 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Christopher Garza 24078543 christopher.garza@harriscountytx.gov 8/20/2025 3:43:16 AM SENT

Cynthia Veidt 24028092 cynthia.veidt@traviscountytx.gov 8/20/2025 3:43:16 AM SENT

Christina Sanchez 24062984 christina.sanchez@epcounty.com 8/20/2025 3:43:16 AM SENT

Jonathan Fombonne 24102702 jonathan.fombonne@harriscountytx.gov 8/20/2025 3:43:16 AM SENT

William FCole William.Cole@oag.texas.gov 8/20/2025 3:43:16 AM SENT

Nicole A.Myette nicole.myette@oag.texas.gov 8/20/2025 3:43:16 AM SENT

Tiffany Bingham 24012287 tiffany.bingham@harriscountytx.gov 8/20/2025 3:43:16 AM SENT

Nancy Villarreal nancy.villarreal@oag.texas.gov 8/20/2025 3:43:16 AM SENT

William Farrell biff.farrell@oag.texas.gov 8/20/2025 3:43:16 AM SENT

Joshua Woods woods@wrightclosebarger.com 8/20/2025 3:43:16 AM SENT

Bradley W.Snead snead@wrightclosebarger.com 8/20/2025 3:43:16 AM SENT

Michael Adams-Hurta hurta@wrightclosebarger.com 8/20/2025 3:43:16 AM SENT

Eric Abels Eric.Abels@oag.texas.gov 8/20/2025 3:43:16 AM SENT

Ben Mendelson Ben.Mendelson@oag.texas.gov 8/20/2025 3:43:16 AM SENT

Cynthia W.Veidt cynthia.veidt@traviscountytx.gov 8/20/2025 3:43:16 AM SENT

Alexandria Oberman aoberman@milchev.com 8/20/2025 3:43:16 AM SENT

Katharine Tafuri ktafuri@milchev.com 8/20/2025 3:43:16 AM SENT

Amanda Ruch amanda.ruch@oag.texas.gov 8/20/2025 3:43:16 AM SENT

Leslie W. Dippel Leslie.Dippel@traviscountytx.gov 8/20/2025 3:43:16 AM SENT

Todd A. Clark Todd.Clark@traviscountytx.gov 8/20/2025 3:43:16 AM SENT 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.

Justin Pfeiffer on behalf of Justin Pfeiffer Bar No. 24091473 jpfeiffer@gavrilovlaw.com Envelope ID: 104591456 Filing Code Description: Motion Filing Description: Appellee Brian M. Middleton's Unopposed Motion to Extend Time and Allow Requested Supplemental Clerk's Record be Filed as a Supplemental Appendix to Response Brief to File Requested Clerk's Record Material as a Supplemental Appendix to Corrected Response Brief Status as of 8/20/2025 7:17 AM CST

Case Contacts

Todd A. Clark Todd.Clark@traviscountytx.gov 8/20/2025 3:43:16 AM SENT

Jonathan G.C. Fombonne Jonathan.Fombonne@harriscountytx.gov 8/20/2025 3:43:16 AM SENT

Tiffany S. Bingham Tiffany.Bingham@harriscountytx.gov 8/20/2025 3:43:16 AM SENT

Christopher Garza Christopher.Garza@harriscountytx.gov 8/20/2025 3:43:16 AM SENT

Justin C. Pfeiffer jpfeiffer@gavrilovlaw.com 8/20/2025 3:43:16 AM SENT

Christina Sanchez Ch.sanchez@epcountytx.gov 8/20/2025 3:43:16 AM SENT

Bernardo Rafael Cruz b.cruz@epcountytx.gov 8/20/2025 3:43:16 AM SENT

C. RobertHeath bheath@bickerstaff.com 8/20/2025 3:43:16 AM SENT

William H. Farrell bill.farrell@oag.texas.gov 8/20/2025 3:43:16 AM ERROR

Cynthia W. Veidt Cyntia.Vedt@traviscountytx.gov 8/20/2025 3:43:16 AM ERROR

Randy T. Leavitt randy@randyleavitt.com 8/20/2025 3:43:16 AM SENT

Alexandria Oberman aoberman@milchev.com 8/20/2025 3:43:16 AM SENT

Michael J. Statin mstatin@milchev.com 8/20/2025 3:43:16 AM ERROR

Jacob Beach Jacob.Beach@oag.texas.gov 8/20/2025 3:43:16 AM SENT

Michael J.Satin msatin@milchev.com 8/20/2025 3:43:16 AM SENT

Laura G.Ferguson lferguson@milchev.com 8/20/2025 3:43:16 AM SENT

Laura G. Ferguson lferguson@milchev.com 8/20/2025 3:43:16 AM SENT

William H. Farrell H.Farrell bill.farrell@oag.texas.gov 8/20/2025 3:43:16 AM ERROR

Leslie W.Dippel leslie.dippel@traviscountytx.gov 8/20/2025 3:43:16 AM SENT

Leslie W.Dippel leslie.dippel@traviscountytx.gov 8/20/2025 3:43:16 AM SENT

Bradely W.Snead snead@wrightclosebarger.com 8/20/2025 3:43:16 AM SENT 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.

Justin Pfeiffer on behalf of Justin Pfeiffer Bar No. 24091473 jpfeiffer@gavrilovlaw.com Envelope ID: 104591456 Filing Code Description: Motion Filing Description: Appellee Brian M. Middleton's Unopposed Motion to Extend Time and Allow Requested Supplemental Clerk's Record be Filed as a Supplemental Appendix to Response Brief to File Requested Clerk's Record Material as a Supplemental Appendix to Corrected Response Brief Status as of 8/20/2025 7:17 AM CST

Case Contacts

Bradely W.Snead snead@wrightclosebarger.com 8/20/2025 3:43:16 AM SENT

Bernardo Cruz b.cruz@epcountytx.gov 8/20/2025 3:43:16 AM SENT

Bernardo Cruz b.cruz@epcountytx.gov 8/20/2025 3:43:16 AM SENT

Bernardo Cruz b.cruz@epcountytx.gov 8/20/2025 3:43:16 AM SENT

Alexandria Oberman Oberman aoberman@milchev.com 8/20/2025 3:43:16 AM SENT

Alexandria Oberman aoberman@milchev.com 8/20/2025 3:43:16 AM SENT

Alexandria Oberman aoberman@milchev.com 8/20/2025 3:43:16 AM SENT

Melissa Contreras m.contreras@epountytx.gov 8/20/2025 3:43:16 AM SENT

Isela Baeza i.baeza@epcountytx.gov 8/20/2025 3:43:16 AM SENT

Isela Jones carl.jones@epcountytx.gov 8/20/2025 3:43:16 AM SENT

Pamela Lopez Pam.Lopez@epcountytx.gov 8/20/2025 3:43:16 AM SENT

Amy Pollock amy.pollock@traviscountytx.gov 8/20/2025 3:43:16 AM SENT

Michael J. Satin msatin@milchev.com 8/20/2025 3:43:16 AM SENT

Andrea Mintzer andrea.mintzer@harriscountytx.gov 8/20/2025 3:43:16 AM SENT

Andrea Mintzer andrea.mintzer@harriscountytx.gov 8/20/2025 3:43:16 AM SENT