Supreme Court of Texas
                             ══════════
                              No. 25-0641
                             ══════════

     In re Ken Paxton and the Office of the Attorney General,
                                 Relators

   ═══════════════════════════════════════
           On Petition for Writ of Mandamus
   ═══════════════════════════════════════

      JUSTICE BLAND, joined by Justice Lehrmann and Justice Huddle,
concurring.

      I agree the court of appeals erred in not evaluating the
preliminary merits of the parties’ positions before issuing a stay to
preserve its jurisdiction. I therefore concur with the Court’s decision to
grant relief. I write separately to observe that appellate courts must
(1) also evaluate the balance of harms associated with the requested
relief; and (2) have a reasonable time to determine whether a stay is
warranted.
                                     I
      The case underlying this original proceeding concerns statutory
and constitutional challenges brought by counties and prosecutors to
enjoin rules the Attorney General promulgated.1 The rules require the
prosecutors to submit twelve categories of information to the Attorney

      1 See 1 Tex. Admin. Code pt. 3 §§ 56.1–.10.
General via initial, quarterly, and annual reports, “including work
product and otherwise privileged and confidential matters.”2 If a
prosecutor fails to comply with these rules, they empower the Attorney
General to construe a violation as “official misconduct,” institute a quo
warranto proceeding seeking forfeiture of that official’s office, or initiate
a civil proceeding to obtain compliance.3 The real parties in interest
bring ultra vires and constitutional challenges to the rules, arguing that
the Attorney General has no authority to promulgate them, and that
they conflict with the prosecuting attorneys’ constitutional obligations.
       On June 20, 2025, following a full evidentiary hearing, the trial
court concluded that the prosecutors4 were likely to succeed on the
merits and issued a temporary injunction against enforcement of the
rules. A week later, the State noticed its appeal, automatically
superseding the injunction.5
       In the court of appeals, the prosecutors moved for temporary relief
to stay enforcement of the rules pending the appeal. The court of appeals
granted the motion and reinstated the stay as to the named parties only
on July 17—seventeen days after the prosecutors filed the emergency
Rule 29.3 motion. The court ordered accelerated briefing, pronounced
that it would allow no extensions, and held argument on September 24.



       2 Id. §§ 56.2(1), .3–.4. The first reports became due in the summer of

2025. See id. § 56.5(a)(4).
       3 Id. § 56.8.


       4 The real parties, including district attorneys, local attorneys, and
several counties, are collectively referred to as the “the prosecutors.”
       5 See Tex. Gov’t Code § 22.004(i); Tex. Civ. Prac. & Rem. Code § 6.001(b).




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       Six days after the court of appeals issued its order, the State
petitioned this Court for a writ of mandamus, asking that we direct the
court of appeals to vacate its stay because the court had failed to
sufficiently evaluate the prosecutors’ likelihood of success on the merits.
                                       II
       A governmental entity has a statutory right to supersede a trial
court order by taking an appeal, but its right to supersedeas does not
constrain the courts of appeals from exercising their discretion to
effectively grant the same relief under Texas Rule of Appellate
Procedure 29.3, if such relief is “necessary to preserve the parties’ rights
until disposition of the appeal.”6
       Prior to In re State,7 our Court had not articulated the standard
for considering a Rule 29.3 motion against the State.8 We had upheld
such relief in cases in which courts of appeals did not consider the merits
of parties’ claims,9 focusing the analysis mainly on whether a temporary




       6 In re Tex. Educ. Agency, 

, 685, 688–89 (Tex. 2021)
(citing Tex. R. App. P. 29.3).
       7 

 (Tex. 2024).


       8 In re Abbott, 

, 288 (Tex. 2022) (Blacklock, J., concurring

in part and dissenting in part).
       9 See Tex. Educ. Agency v. Hous. Indep. Sch. Dist., 

, 577

(Tex. App.—Austin 2020) (ordering a trial court’s temporary injunction to
remain in effect without any comment on the merits), mand. denied sub nom.
In re Tex. Educ. Agency, 

 (Tex. 2021); Abbott v. Doe, No.
03-22-00126-CV, 

, at *2, (Tex. App.—Austin) (same), mand.
granted in part and denied in part sub nom. In re Abbott, 

 (Tex.
2022).




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injunction would preserve the status quo and prevent irreparable harm
during the pendency of the appeal.10
      In re State marked a shift. In that case, we made it clear that, as
trial courts do in issuing temporary injunctions, appellate courts must
inquire into the likely merits of the parties’ positions and the balance of
harms to the parties before countermanding the State’s supersedeas
right.11 An appellate court “may take into account other case-specific
equitable considerations that bear on its exercise of discretion,” but such
considerations do not relieve the court of its duty to balance the harm
from such relief and to give “some consideration of the merits.”12
      Thus, I agree with the Court that the court of appeals erred in not
making a preliminary evaluation of whether the prosecutors’ claims are
likely to succeed. And I agree that affording the court of appeals
additional time to make such a determination before ordering it to
vacate the stay is appropriate because: (1) the court of appeals
established in its order that the balance of harms weighs in favor of a
stay; (2) the State’s arguments in this Court do not address the
underlying merits; and (3) given the time the case has been pending, the
time allotted is sufficient for the court of appeals to determine the likely
merits.




      10 See, e.g., In re State, 711 S.W.3d at 644; In re Abbott, 645 S.W.3d at

282–83; In re Tex. Educ. Agency, 619 S.W.3d at 689.
      11 In re State, 711 S.W.3d at 645–46.


      12 Id.




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                                    A
      While consideration of the merits was lacking in the court of
appeals’ order, the court held that the balance of harms favors a stay—
a conclusion that the State does not challenge in this Court. Weighing
the harms to the parties, the public, and to nonparties is a necessary
aspect of a court’s effort “to preserve the parties’ rights pending
appeal.”13 The applicant for temporary relief must show it will suffer
irreparable harm if relief is not granted, and the court must weigh that
alleged harm against harms others stand to suffer if relief is granted.14
      In the court of appeals, the prosecutors averred that the Attorney
General would not be harmed by a delay in the production of the
information the rules require, whereas compliance with unlawful rules
would force them to incur significant costs, divert staff away from their
primary obligation to prosecute criminals, and infringe upon their
constitutional responsibilities. To support their arguments, the
prosecutors attached nearly twenty exhibits considered by the trial
court, including nine declarations detailing the cost and time required
to comply with the rules’ reporting obligations, and concerns about their
ability to safeguard privileged and confidential information.
      In response, the State, pointing to its intrinsic right to enforce its
own laws, argued that the prosecutors’ failure to comply with the
challenged rules irreparably harms the State as a matter of law.
Considering these arguments, the court of appeals appropriately



      13 Id. at 645.


      14 Id.




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concluded that the harm to the State was “less immediate in nature”
because the prosecutors demonstrated that the mandated reports would
“require hours of work that will take away from their ability to
effectively prosecute cases and will lead to the production of privileged
and confidential information.”
      Because the court of appeals established that the balance of
harms sufficiently demonstrates a need for a stay, the prosecutors are
entitled to some form of temporary relief if the court determines the
prosecutors’ claims may have some merit.15
                                     B
      In seeking mandamus relief, the State does not argue that the
prosecutors are unlikely to prevail against the State’s appeal. Rather,
the State focuses its argument on the court of appeals’ failure to
sufficiently evaluate the likely merits in its stay order. Both parties now
have fully briefed the merits of the appeal in the court of appeals, placing
that court in the best position to make a preliminary determination.
      “The relevance of the merits to requests for injunctive relief does
not vanish when courts must rule expeditiously,”16 but neither does an
appellate court’s obligation to provide thoughtful and accurate review.
Courts must have a reasonably sufficient time to evaluate the
requesting parties’ likelihood of success on the merits. This time will
vary depending on the exigencies of the situation, the complexity of the



      15 See id. (stating that “[t]he merits need not—and often should not—be

definitively determined at this preliminary stage” but must be given “some
consideration”).
      16 Id.




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case, and the harm such a delay might cause. The need for urgency must
be balanced with the necessity of protecting parties’ rights during the
pendency of an appeal.
       In this case, the court of appeals issued its order seventeen days
after the prosecutors filed their emergency Rule 29.3 motion. The court
stressed that the case presented “complex,” “close,” and “serious” issues
of statutory and constitutional interpretation, on a condensed timeline
with limited briefing. While the court of appeals did not commit to any
deadline, it committed to not holding “this matter in abeyance any
longer than necessary.” We have no reason to doubt that commitment.
Sufficient time has passed to make a preliminary determination of the
merits. The Court therefore correctly concludes on this record that the
State is entitled to relief.
       Alternatively, the court of appeals could issue its opinion, mooting
any need for a further stay of proceedings.
                               *     *     *
       With the addition of these considerations, I join the Court’s
opinion and concur in its conditional grant of relief.




                                         Jane N. Bland
                                         Justice

OPINION FILED: December 22, 2025




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