ACCEPTED 15-25-00141-CV FIFTEENTH COURT OF APPEALS No. 15-25-00141-CV AUSTIN, TEXAS 11/3/2025 1:24 PM In the Court of Appeals CHRISTOPHER A. PRINE CLERK for the Fifteenth Judicial District15th COURT FILED IN OF APPEALS Austin, Texas AUSTIN, TEXAS 11/3/2025 1:24:14 PM CHRISTOPHER A. PRINE Clerk Ken Paxton, in his official capacity as Texas Attorney General, Appellant, v. Powered by People, Appellee.

On Appeal from the 41st Judicial District Court, El Paso County REPLY IN SUPPORT OF APPELLANT

Ken Paxton Abigail E. Smith Attorney General of Texas Assistant Attorney General State Bar No. 24141756 Brent Webster First Assistant Attorney General ROB FARQUHARSON Deputy Chief, Consumer Protection Johnathan Stone Division Chief, Consumer Protection Division Office of the Attorney General Consumer Protection Division 12221 Merit Drive, Ste. 650 Dallas, Texas 75251 Tel: (214) 290-8830 Fax: (214) 969-7615 Counsel for Appellant Table of Contents Page(s) Index of Authorities ................................................................................................. ii Argument ................................................................................................................. 3 I. The Trial Court Implicitly Denied the Attorney General’s Plea to the Jurisdiction. .......................................................................................... 3 A. The TRO decided the merits of the case. ............................................ 3 B. The trial court’s ordered merits discovery constitutes an independent implicit denial of the Attorney General’s jurisdictional challenge. ....................................................................... 6 C. City of Austin and Thomas support a finding of implicit denial in this case. ........................................................................................... 9 II. Appellee’s Only Properly Pled Claims are Moot. ..................................... 10 A. Appellee cannot defeat mootness by pressing legally defective claims. ................................................................................................ 12 B. No exception to mootness applies....................................................... 15 Prayer ..................................................................................................................... 18 Certificate of Compliance ...................................................................................... 18

i Index of Authorities Page(s) Cases Carswell v. Camp, 54 F.4th 307 (5th Cir. 2022) ............................................................................... 6 City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ........................................................................ 13, 14 Dickson v. Am. Gen. Life Ins. Co., 698 S.W.3d 234 (Tex. 2024) (Young, J., concurring in the denial of the petition for review) ....................................................................................... 6 Estate of Matthews III, 510 S.W.3d 106 (Tex. App.—San Antonio 2016, pet. denied) .......................... 10 Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566 (Tex. 2013) ................................................................................ 3 Heckman v. Williamson Cnty., 369 S.W.3d 137 (Tex. 2012) .............................................................................. 10 In re Nonparty Patient No. 1, No. 15-25-00031-CV, 2025 WL 2934064 (Tex. App. [15th Dist.]

Oct. 16, 2025)...................................................................................................... 2 In re Powered by People, No. 15-25-00140-cv, Order Granting Partial Relief on Emergency Motion (Sept. 12, 2025) ...................................................................................... 4 Office of the Attorney General of the State of Texas v. PFLAG, Inc., No. 24-0892 ...................................................................................................... 12 Paxton v. Annunciation House, Inc., 719 S.W.3d 555 (Tex. 2025), reh’g denied (Sept. 26, 2025) ..................... 12, 15, 16 Paxton v. City of Austin, No. 15-24-00078-CV, 2024 WL 4446073 (Tex. App. [15th Dist.]

Oct. 8, 2024) .............................................................................................. 3, 9, 10

ii Rodriguez v. Cantu, 581 S.W.3d 859 (Tex. App.—Corpus Christi–Edinburg 2019, no pet.).................................................................................................................... 13 State v. Nonparty Patient No. 1, No. 15-25-00023-CV, 2025 WL 2355380 (Tex. App. [15th Dist.]

Aug. 14, 2025) ..................................................................................... 2, 11, 12, 13 Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ........................................................................ 2, 6, 9 Thomas v. Long, 207 S.W.3d 334 (Tex. 2006) .................................................................. 4, 5, 9, 10 Willacy Cnty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd., 555 S.W.3d 29 (Tex. 2018) ................................................................................ 14 Williams v. Lara, 52 S.W.3d 171 (Tex. 2001) ................................................................................. 17 Statutes 42 U.S.C. § 1988 ..................................................................................................... 15 Tex. Civ. Prac. & Rem. Code § 37.008 ................................................................... 15 Tex. Civ. Prac. & Rem. Code § 51.014(a)(8)............................................................ 5 Other Authorities Tex. R. Civ. P. 45(b) ............................................................................................... 13 Tex. R. Civ. P. 63 .................................................................................................... 13 Tex. R. Civ. P. 176.6(e) .................................................................................... passim Tex. R. Civ. P. 192.6 .................................................................................... 11, 12, 14 Tex. R. Civ. P. 202 ................................................................................. 11, 12, 13, 14

iii Introduction This case presents two discrete legal questions: (1) Whether a temporary re- straining order (TRO) that rules on the merits, and subsequent discovery orders au- thorizing merits discovery, constitute an implicit denial of a plea to the jurisdiction; and (2) Whether a court retains jurisdiction to hear a Rule 176.6(e) subpoena chal- lenge after the subpoena has been revoked and cannot be reissued. Neither issue re- quires the exhaustive factual inquiry that Appellee urges this Court and the trial court to undertake. Nor do they justify the deposition of Attorney General Ken Pax- ton or other merits discovery. These are threshold legal issues, not fact-intensive disputes.

On the first issue, Appellee asks this Court to privilege form over substance. Ap- pellee argues that because the trial court stated in its TRO that it would not rule on the merits, its subsequent merits-based rulings should be disregarded. But implicit denial is determined by what a court does, not what it says. The trial court’s substan- tive rulings, including merits discovery orders, reflect an implicit denial of the Attor- ney General’s jurisdictional challenge. Appellee’s assertion that the discovery was jurisdictional is unsupported. The trial court never characterized the discovery as jurisdictional, and Appellee’s briefing below never characterized it as jurisdictional, either—it was only after the trial court asked Appellee a question about it that Ap- pellee belatedly submitted a few jurisdictional discovery cases to the court. But both the nature of the discovery sought and Appellee and the trial court’s discussion of it clearly indicate the discovery was “intended to inform the subsequent temporary injunction hearing,” meaning it was directed at the merits. Appellee’s Br. at 9. That kind of merits-based discovery has no bearing on the Attorney General’s legal chal- lenge to jurisdiction based on mootness and does not resemble the mixed questions of law and fact addressed in Miranda. Cf. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

Regarding the second issue of mootness, the relevant facts are undisputed and already in the record. One day after Appellee filed suit challenging the RTE, the Attorney General withdrew it. Two days later, the Office of the Attorney General declared under penalty of perjury that it would not reissue the RTE or issue any sim- ilar RTE to Appellee concerning the same subject matter. On these facts, Appellee’s third-party subpoena challenge is moot.

Appellee’s additional claims—quo warranto, declaratory and injunctive relief, and attorneys’ fees—do not salvage jurisdiction. These claims cannot be properly joined to a Rule 176.6(e) subpoena challenge. As this Court recently held in State v. Nonparty Patient No. 1, No. 15-25-00023-CV, 2025 WL 2355380 (Tex. App. [15th Dist.] Aug. 14, 2025), and reaffirmed in In re Nonparty Patient No. 1, No. 15-25-00031-CV, 2025 WL 2934064 (Tex. App. [15th Dist.] Oct. 16, 2025), a Rule 176.6(e) petition does not “assert[] a substantive ‘claim’ against the State,” but in- stead “seeks to avoid discovery.” Nonparty Patient No. 1, 2025 WL 2355380, at *4.

Appellee is free to pursue independent claims in a separate action, but it was im- proper to append them to an ancillary discovery dispute. A motion for protection is not a pleading and cannot be used to assert freestanding claims or seek broader relief.

Because the only properly filed issue before the trial court—a 176.6(e) challenge to the RTE—is moot, this case should be dismissed for lack of jurisdiction.

Argument I. The Trial Court Implicitly Denied the Attorney General’s Plea to the Jurisdiction.

A. The TRO decided the merits of the case.

The plain language of the TRO ruled on the merits of the case and was thus sufficient to constitute an implicit denial of the Attorney General’s plea to the juris- diction under Texas law. Compare CR.559 (TRO ruling on Plaintiff’s “probable right to relief”), with Paxton v. City of Austin, No. 15-24-00078-CV, 2024 WL 4446073, at *2 (Tex. App. [15th Dist.] Oct. 8, 2024) (rejecting an implicit denial argument be- cause there was no “order or any ruling on the merits” while a plea to the jurisdiction was pending). The TRO repeatedly stated that Appellee had a probable right to relief on its claims and granted injunctive relief on that basis. CR.559, 563 (holding that “Plaintiff has shown a probable right to relief on its constitutional claims” and that the Attorney General’s “enforcement actions and public conduct associated with those enforcement actions . . . demonstrate that Plaintiff has stated a probable right to relief under the Equal Protection Clauses of the Texas and United States Consti- tutions”). Even Appellee conceded that the trial court had already implicitly ruled on jurisdiction. 4.RR.24–25 (arguing the trial court should order merits discovery because “the Court has already assumed some probable jurisdiction without ruling on the plea”). But see Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) (holding courts “may not [even] assume jurisdiction for the purpose of decid- ing the merits of the case”) (quoting Sino-chem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)).

Appellee argues that the TRO did not reach the merits primarily for two reasons: First, because the TRO merely “preserve[d] the status quo,” Appellee’s Br. at 13; and second, because the TRO stated it was “expressly . . . not a ruling on the mer- its.” Neither is correct. Contrary to Appellee’s contention that a TRO “does not constitute a ruling on the merits,” Appellee’s Br. at 14, this Court recently acknowl- edged in related litigation that temporary relief—including a TRO—“cannot be af- forded without some consideration of the merits.” In re Powered by People, No. 15-25- 00140-cv, Order Granting Partial Relief on Emergency Motion (Sept. 12, 2025) (quoting In re State, 711 S.W.3d 641, 645 (Tex. 2024)); accord Appellee’s Br. at 15 (“To be sure, it is possible that a trial court could make a merits ruling in a prelimi- nary order”). It is no excuse that the TRO expressly disclaimed ruling on the merits, because the TRO did ultimately issue multiple rulings on the merits, then based its injunctive relief on those merits determinations. A court cannot evade appellate re- view by employing or avoiding magic words—rather, it is a court’s actions that de- termine appellate review. “The Texas Rules of Appellate Procedure only require that the record show the trial court ruled on the request, objection, or motion, either expressly or implicitly.” Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006) (quoting Tex. R. App. P. 22.1(a)(2)(A)). That is the very justification for the principle of “im- plicit” denial as explained by the Supreme Court in Thomas.

Appellee seems to argue that implicit denial requires a final determination on the merits, not just a merits ruling that could reversed later in the case. See Appel- lee’s Br. at 15 (arguing the TRO found “only a ‘probable right to relief,’ not a full finding of liability”). But requiring a final merits determination would subvert the entire purpose of permitting an interlocutory appeal under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. Furthermore, the Supreme Court held otherwise in Thomas. There, the Court considered whether the denial of summary judgment on a claim constituted the implicit denial of a jurisdictional challenge to that claim. 207 S.W.3d at 337. After the trial court denied Thomas’s motion for sum- mary judgment, it ordered multiple merits claims to proceed to trial, including retal- iation and back pay. Id. at 337. This denial of summary judgment did not constitute a final merits ruling—only a trial judgment or a grant of summary judgment could do that. Nevertheless, the Supreme Court still held that “the trial court’s rulings on the merits of some claims for which Thomas argued the trial court lacked subject matter jurisdiction” were sufficient to “constitute an implicit rejection” of those jurisdic- tional challenges. Id. at 339.

Likewise here, despite claiming not to (in implicit acknowledgement that doing so would trigger an interlocutory appeal from the Attorney General), the trial court’s TRO assessed the merits of the case, determined Appellee “had shown a probable right to relief on its constitutional claims,” and ruled that the Attorney General’s “enforcement actions and public conduct” demonstrated Appellee’s “probable right to relief under the Equal Protection Clauses of the Texas and United States Constitutions.” CR.559, 563. Just like in Thomas, these were not final merits deter- minations, but they did rule on the merits. Doing so implicitly denied the Attorney General’s jurisdictional claims and triggered interlocutory appellate review under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code.

Finally, Appellee additionally makes a parade of horribles argument, contending that it would upend the entire Texas system of preliminary injunctive relief to require that courts consider their subject matter jurisdiction before entering temporary re- straining orders or temporary injunctions. Appellee’s Br. at 15–16. But this does not upend the law, it is the law. Of course a trial court should not enter injunctive relief until it has resolved subject matter jurisdiction. In every case, regardless of the relief sought, “[j]urisdiction is always first.” Carswell v. Camp, 54 F.4th 307, 310 (5th Cir. 2022). That is why a court “must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litiga- tion to proceed.” Miranda, 133 S.W.3d at 226. This “order of operations is not op- tional,” and “courts must resolve any jurisdictional challenges—hard or easy, first raised in the trial court or first raised in the court of appeals, raised by a party or raised by the court itself—before turning to the merits.” Dickson v. Am. Gen. Life Ins.

Co., 698 S.W.3d 234, 235 n.2 (Tex. 2024) (Young, J., concurring in the denial of the petition for review).

B. The trial court’s ordered merits discovery constitutes an independent implicit denial of the Attorney General’s jurisdictional challenge.

Appellee does not dispute that an order on merits discovery would constitute an implicit denial of the Attorney General’s plea to the jurisdiction. Rather, Appellee contends for the first time that the ordered discovery was jurisdictional, not merits- based, and that it was “relevant to this question of mootness.” Appellee’s Br. at 19.

This argument fails for two reasons: the ordered discovery was purely merits

discovery, and no jurisdictional discovery was necessary to resolve the jurisdictional question of mootness.

First, the ordered discovery was not jurisdictional. Appellee concedes that the discovery was “intended to inform the subsequent temporary injunction hearing” but also claims that it sought information on “factual issues that inform the jurisdic- tional questions raised.” Appellee’s Br. at 9. The record states otherwise. Appellee’s emergency motion for expedited discovery, SCR.4–15, does not use the word “juris- diction” one time, and never mentions the Attorney General’s plea to the jurisdic- tion. To the contrary, it repeatedly requests expedited discovery “so that the Court has a more established record at the temporary injunction hearing.” SCR.4; accord SCR.8 (requesting discovery on “[t]he constitutional issues in question here,” and arguing the “discovery sought . . . will shed light on matters pertinent to the tempo- rary injunction hearing”). Appellee did not seek to resolve jurisdictional questions of mootness; it sought discovery into the facts underlying its claims for the tempo- rary injunction hearing.

Furthermore, the trial court never stayed merits discovery, and Appellee’s rep- resentation that the court did is incorrect. On page 21 of its brief, Appellee cites to “RR4.24,” the transcript of the hearing on Appellee’s emergency motion for expe- dited discovery, to argue that the trial court “explicitly noted it ‘stay[ed] merits dis- covery—merit-based discovery.’”

But that quote comes from a question the trial court posed to Appellee’s counsel about the Attorney General’s arguments. In the quoted statement, the trial court

asked Appellee’s counsel whether the Attorney General was correct that merits dis- covery should be stayed pending the determination of a plea to the jurisdiction: COURT: And then other things that I’d like a response is [the Attorney General’s argument] that, the plea to the jurisdiction has not been ruled on.

And [they argue that] unless, you know, there’s a ruling, you know, we stay merit discovery—merit-based discovery. What is your response to that?

4.RR.24:11–16. The trial court did not issue a stay (or represent that one had already been entered), it merely asked Appellee’s position on whether merits-based discov- ery should be stayed.

Appellee did not agree and instead argued that because the Court had “already assumed some probable jurisdiction without ruling on the plea,” the requested dis- covery was appropriate. 4.RR.24:25–25:2. Apparently the trial court agreed, because it ordered expedited merits discovery the very next day without mention of the phrase “jurisdictional.” CR.948.

Second, the inquiry is not whether ordered discovery could be “relevant” to the jurisdictional question—rather, it is whether the ordered discovery is necessary to re- solve the jurisdictional question. Appellee tries to draw a comparison to the discov- ery in this case and that ordered in Texas Southern University v. Young, see Appellee’s Br. at 21–22, but in the concurring opinion that Appellee relies on, Justice Young clearly states: “Targeted discovery cannot be allowed unless—and only to the extent that—it is essential to the resolution of a jurisdictional question.” Id. at 889.

The Attorney General disagrees that any of the discovery sought is relevant to the mootness inquiry because it is undisputed that the Attorney General’s office has withdrawn the RTE and declared under perjury to not reissue that RTE or a substantially similar one. CR.65, CR.110, CR.85. As such, the only jurisdictional question before the Court is whether a government official’s declaration under per- jury is sufficient to demonstrate mootness under existing precedent. Additional facts about the motivation behind the issuance of the original RTE are irrelevant (not to mention privileged under various law enforcement and attorney work product privi- leges). But even if those facts did have some tangential relevance, they are not nec- essary to determine this jurisdictional question. The only “necessary” facts to de- termine mootness were the withdrawal of the RTE and the existence of the declara- tion. Because this evidence was already in the record and “is undisputed,” the trial court was required to “rule[] on the plea to the jurisdiction as a matter of law,” not based on (unrequested) jurisdictional discovery. Miranda, 133 S.W.3d at 228.

C. City of Austin and Thomas support a finding of implicit denial in this case.

Appellee’s arguments on the applicability of this Court’s ruling in Paxton v. City of Austin, No. 15-24-00078-CV, 2024 WL 4446073, hinge on the same arguments addressed above: First, that the trial court’s TRO stated it did not issue a ruling on the merits or the plea to the jurisdiction (even though the substance of the order did), and second, that there is no merits order in the record. Appellee’s Br. at 23–24. For the reasons explained supra Sections I.A and B, as well as the arguments made in the Attorney General’s opening brief, see Appellant’s Br. at 26–28, those arguments are incorrect. There are multiple merits rulings in the record and thus multiple implicit denials of the plea to the jurisdiction, making this case far less like City of Austin (where the trial court failed to issue a single order of any kind, let alone an order on

the merits, see 2024 WL 4446073, at *2) and far more like Thomas (where a non-final merits determination was sufficient to implicitly deny a jurisdictional challenge to that claim, see 207 S.W.3d at 339 (holding “the trial court’s rulings on the merits of some claims for which Thomas argued the trial court lacked subject matter jurisdic- tion” were sufficient to “constitute an implicit rejection” of those jurisdictional challenges”)).

Appellee argues a finding of implicit denial would ignore the trial court’s words, but the reverse is true. Appellee asks this Court to focus on a single sentence from the trial court’s TRO—its claim not to rule on the plea or the merits—and ignore the many other sentences, orders, and actions throughout the trial litigation that re- peatedly ruled on the merits and implicitly denied the Attorney General’s plea to the jurisdiction. Implicit denial in this case is far clearer than in City of Austin, and if this Court disagrees, it would be prudent to await the Supreme Court of Texas’s ruling on the State’s pending petition for review before acting further.

II. Appellee’s Only Properly Pled Claims are Moot.

“A case becomes moot if, since the time of filing, there has ceased to exist a justiciable controversy between the parties—that is, if the issues presented are no longer ‘live,’ or if the parties lack a legally cognizable interest in the outcome.” Heck- man v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012). “A party has a legally cognizable interest when the court can grant relief on the party’s claims.” Estate of Matthews III, 510 S.W.3d 106, 115 (Tex. App.—San Antonio 2016, pet. denied). As such, a facially defective legal claim cannot defeat mootness.

The Attorney General’s undisputed evidence demonstrated that Appellee’s only legally cognizable claim—its motion for a protective order under Rules 176.6(e) and 192.6—is moot. The RTE has been withdrawn, the Attorney General’s office has declared that it will not reissue it (or a similar RTE), and the factual circum- stances that justified the RTE in the first instance have come and gone.

Appellee does not dispute that its subpoena challenge to the RTE is moot on its face. Instead, Appellee argues its other claims and other requested forms of relief create a live controversy. But these cannot defeat mootness because they are all in- valid on their face. This legal challenge is not an ordinary lawsuit—it is a motion for a protective order under Texas Rules of Civil Procedure 176.6(e) and 192.6. As such, it is not a “suit” at all but an ancillary discovery proceeding, akin to a Rule 202 Peti- tion or a Civil Investigative Demand challenge. See State v. Nonparty Patient No. 1, No. 15-25-00023-CV, 2025 WL 2355380, at *4 (Tex. App. [15th Dist.] Aug. 14, 2025) (holding a 176.6(e) “petition for protection is not, in itself, a ‘suit’”). Because parties challenging discovery cannot seek declaratory or injunctive relief, because no statute authorizes attorneys’ fees for an RTE subpoena challenge, and because a freestanding claim for relief cannot be added to a discovery proceeding, none of Ap- pellee’s other claims or requested relief constitute a “legally cognizable interest” that could defeat mootness. Since no exception to mootness applies, the trial court should have granted the Attorney General’s plea to the jurisdiction.

A. Appellee cannot defeat mootness by pressing legally defective claims.

Appellee argues its suit is not moot because, as part of its 176.6(e) request for a protective order against the RTE, it seeks declaratory and injunctive relief and attor- neys’ fees. Appellee further contends that its amendment to include a quo warranto claim keeps the case alive. But none of these can defeat mootness because they fall outside the scope of what Rule 176.6(e) permits.

As this Court recently recognized, motions for protection under Rules 176.6(e) and 192.6 are not independent lawsuits subject to the ordinary rules of discovery, summary judgment, and sovereign immunity. Rather, they are “procedural motions or ancillary proceedings” designed solely to “avoid discovery served by the State.”

Nonparty Patient No. 1, No. 15-25-00023-CV, 2025 WL 2355380, at *3–4 (Tex. App. [15th Dist.] Aug. 14, 2025). Like a Rule 202 Petition or a Civil Investigative Demand, an RTE is a discovery tool employed by the Attorney General to aid in investigations.

When a recipient challenges an RTE, it does so via a discovery dispute governed by Rules 176.6(e) and 192.6. See Paxton v. Annunciation House, Inc., 719 S.W.3d 555, 593 (Tex. 2025) (noting an RTE can be challenged “by Rule 176.6(e)’s protective or- ders”), reh’g denied (Sept. 26, 2025).

Texas law does not provide for a full trial process to resolve discovery disputes. 1 That is why Rule 176.6(e) subpoena challenges are not considered “suits” for

The Office of the Attorney General recently briefed and argued this same point in the context of a Civil Investigative Demand in Office of the Attorney General of the State of Texas v. PFLAG, Inc., No. 24-0892, which is currently pending before the Supreme Court of Texas. purposes of sovereign immunity. See, e.g., Nonparty Patient No. 1, 2025 WL 2355380, at *4 (holding a petition for protection under 176.6(e) “seek[s] protection from dis- covery” and “is not, in itself, a ‘suit’ to which sovereign immunity applies”); see also Rodriguez v. Cantu, 581 S.W.3d 859, 869 (Tex. App.—Corpus Christi–Edinburg 2019, no pet.) (holding “[a] Rule 202 proceeding is not a separate independent law- suit,” constitutes “an ancillary proceeding,” and “asserts no substantive claim or cause of action upon which relief can be granted”) (citations omitted). A party may seek protection from discovery, but it is not entitled to broader relief such as a tem- porary injunction or declaratory judgment. Injunctive relief—like the temporary re- straining order or temporary injunction sought in this case—is unnecessary because a party objecting to discovery under Rule 176.6(e) need not comply “unless ordered to do so by the court.” Tex. R. Civ. P. 176.6(e). And declaratory relief is improper because it would “enlarge [the] trial court’s jurisdiction” and “alter [the] suit’s un- derlying nature” from a procedural discovery dispute into a full-blown lawsuit. City of El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009).

For the same reason, Appellee cannot amend its discovery motion to add a free- standing quo warranto claim or any other independent cause of action. Texas Rule of Civil Procedure 63 permits amendments to “pleadings,” but not every petition qualifies as a pleading. A pleading must assert a cause of action. Tex. R. Civ. P. 45(b).

Appellee’s original filing, though styled as a petition, sought “protection from dis- covery” under Rule 176.6(e) and was “not, in itself, a ‘suit.’” Nonparty Patient No. 1, 2025 WL 2355380, at *4; accord Rodriguez, 581 S.W.3d at 869 (holding it was

improper “to use a pending Rule 202 proceeding to institute substantive claims for relief”).

In the same way that a party cannot combine a Rule 202 petition with a substan- tive claim, Appellee could not seek relief beyond a protective order when it peti- tioned for protection under Rule 176.6(e). What Appellee styled as “counts” were simply different bases to obtain a protective order (such as that the RTE violated the First Amendment), not freestanding causes of action. And because Appellee insti- tuted a discovery proceeding under Rule 176.6(e)—not a substantive lawsuit—Ap- pellee could not transform it into one by amendment. Doing so would again “alter [the] suit’s underlying nature.” Heinrich, 284 S.W.3d at 370.

This case illustrates why discovery proceedings are not vehicles for broader re- lief. In just a few weeks, the parties and the court expended significant resources— multiple hearings, a flurry of motions, and numerous orders—on what should have been a straightforward discovery dispute, resolved with, at most, a single hearing.

Now that the underlying Rule 176.6(e) subpoena challenge is moot, the case cannot be kept alive by tacking on substantive claims outside the scope of the discovery dis- pute.

Nor can Appellee preserve the case by seeking attorneys fees. Texas law is clear: “Attorney’s fees may not be recovered unless provided for by statute or by contract between the parties.” Willacy Cnty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd., 555 S.W.3d 29, 52 (Tex. 2018), opinion corrected on reh’g (Sept. 28, 2018) (citing Dall.

Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992)). Neither Rule 176.6(e) nor Rule 192.6 authorize fee-shifting, and no other statute provides for attorneys’ fees in ordinary discovery disputes. 2 Nor is there any contract between Appellee and the Attorney General that would support such a claim. As such, Ap- pellee’s request for attorneys’ fees does not present a live, legally cognizable contro- versy that can defeat mootness.

B. No exception to mootness applies.

Neither the voluntary cessation exception nor the capable-of-repetition-yet- evading-review exception to mootness applies here.

The Attorney General’s statement is unequivocal: The Office will never “reis- sue the challenged RTE nor send any other RTE to [Appellee] seeking records relat- ing to the solicitation and expenditure of funds to aid and abet Texas legislators aban- doning their offices and relating to any benefits or compensation offered or provided to the legislators for abandoning their offices during the 89th Special Legislative Ses- sion.” CR.65. This is not a vague, evasive, or prevaricating assurance. The Office has categorically stated—under penalty of perjury—that none of the records sought in the original RTE will be requested again via an RTE. Full stop.

That declaration forecloses the voluntary cessation exception and distinguishes this case from Annunciation House. There, the Attorney General merely withdrew

Appellee’s Brief claims to seek attorneys’ fees under 42 U.S.C. section 1988 and Texas Civil Practice & Remedies Code section 37.008. Appellee’s Br. at 31. (Pre- sumably, Appellee meant to refer to section 37.009, which authorizes attorneys’ fees for declaratory judgment actions). But Appellee cannot seek attorneys’ fees under either section, because neither Appellee’s section 1983 claim (which can justify at- torneys’ fees under section 1988) nor Appellee’s request for declaratory judgment can be part of a discovery challenge under Rule 176.6(e). the RTE without disavowing future requests for the same records. The Supreme Court found that insufficient, noting that the “attorney general remain[ed] free to simply file more requests.” Annunciation House, 719 S.W.3d at 590. Here, by con- trast, the Attorney General has expressly renounced any future attempt to obtain the same records via an RTE. To do so would violate a declaration and subject the Office of the Attorney General to perjury liability. Appellee’s suggestion that the Attorney General might reissue a differently worded RTE seeking the same records is pure speculation, unsupported by the record and contrary to the sworn statement.

That makes this case far more akin to DeFunis v. Odegaard, where the Supreme Court of the United States found mootness based on the defendant’s binding repre- sentations that the challenged conduct would not recur. 416 U.S. 312, 316–20 (1974).

The Court rejected hypothetical scenarios as speculative and insufficient to defeat mootness. Id. at 318. Similarly, in Robinson v. Alief Independent School District, 3 298 S.W.3d 323 (Tex. App.—Houston [14th Dist.] 2009, pet. denied), the Fourteenth Court rejected a voluntary cessation argument where the plaintiff offered no evi- dence that the school would reverse its expungement of records. The plaintiff’s re- quest for injunctive relief “in the event [the school district] reinstates the documents sometime in the future” was deemed “merely conjunctural and hypothetical,” and would have resulted in an advisory opinion. Id. at 326–27.

While the Attorney General’s opening brief argued the application of this case ex- tensively, Appellee’s Brief failed to address it.

The capable-of-repetition exception also fails. Appellee simply has no “reason- able expectation” that it “will be subjected to the same action again.” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). The Attorney General has sworn not to reis- sue an RTE seeking the original records, and there is no credible evidence or reason- able basis to believe that the Attorney General would violate that declaration and risk perjury. Any contention otherwise is “speculative” and insufficient to invoke this narrow exception, which “applies only in rare circumstances.” Id.

Prayer The Court should reverse the district court’s implicit denial of the State’s plea to the jurisdiction and direct the district court to dismiss the case for lack of subject- matter jurisdiction.

Respectfully Submitted, Ken Paxton Johnathan Stone Attorney General of Texas Chief, Consumer Protection Division Brent Webster /s/ Abigail E. Smith First Assistant Attorney General Abigail E. Smith Assistant Attorney General Ralph Molina Deputy First Assistant Attorney General Rob Farquharson Deputy Chief, Consumer Protection Austin Kinghorn Division Deputy Attorney General for Civil Litigation Office of the Attorney General Consumer Protection Division 12221 Merit Drive, Ste. 650 Dallas, Texas 75251 Tel: (214) 290-8830 Fax: (214) 969-7615 Counsel for Appellant Certificate of Compliance Microsoft Word reports that this document contains 4,541 words, excluding ex- empted text.

/s/ Abigail E. Smith Abigail E. Smith

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Pauline Sisson on behalf of Abigail Smith Bar No. 24141756 [email protected] Envelope ID: 107591285 Filing Code Description: Response Filing Description: 20251103 OAGs Reply Brief Status as of 11/3/2025 1:28 PM CST Associated Case Party: Powered by People Name BarNumber Email TimestampSubmitted Status Mimi Marziani 24091906 [email protected] 11/3/2025 1:24:14 PM SENT Joaquin Gonzalez [email protected] 11/3/2025 1:24:14 PM SENT Rebecca (Beth) Stevens [email protected] 11/3/2025 1:24:14 PM SENT Lynn Coyle [email protected] 11/3/2025 1:24:14 PM SENT

Associated Case Party: Ken Paxton, in his official capacity as Texas Attorney General Name BarNumber Email TimestampSubmitted Status William Cole 24124187 [email protected] 11/3/2025 1:24:14 PM SENT Rob Farquharson [email protected] 11/3/2025 1:24:14 PM SENT Abby Smith [email protected] 11/3/2025 1:24:14 PM SENT Johnathan Stone [email protected] 11/3/2025 1:24:14 PM SENT William Peterson [email protected] 11/3/2025 1:24:14 PM SENT

Case Contacts Name BarNumber Email TimestampSubmitted Status Pauline Sisson [email protected] 11/3/2025 1:24:14 PM SENT Emily Samuels [email protected] 11/3/2025 1:24:14 PM SENT