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Minutes before the close of business on a Friday in August, a state district judge temporarily ordered that women with complicated pregnancies could receive abortions in response to a lawsuit filed by Texans who had been denied care due to the state’s strict ban on the procedure.
Amanda Zurawski, the lead plaintiff, expressed her emotions on August 4th, stating, “After a considerable period, I shed tears of joy upon receiving this news. A profound sense of relief and hope has washed over me, and I feel a significant burden has been lifted. Thankfully, people in Texas no longer have to face pregnancy with fear.”
But within five hours of the judge’s decision, the Office of the Attorney General appealed State District Court Judge Jessica Mangrum of Austin’s temporary injunction. The simple act of filing the appeal immediately blocked the order and reinstated the abortion ban in full, without a single person testifying or any argument being considered.
The reason for this is due to a rare stipulation in state legislation, granting the attorney general the authority to override a state judge’s directive.
The provision, informally known as the supersedeas rule, aims to maintain the current state of affairs until a complete legal case is resolved, thereby avoiding disruptions caused by legal challenges. However, attorneys whose wins have been swiftly reversed due to this provision contend that it undermines the separation of powers among government branches and leads to confusion for Texans affected by new laws.
Molly Duane, senior staff attorney at the legal group Center for Reproductive Rights, expressed deep dismay at the state’s decision to appeal the recent abortion ruling, which was specifically aimed at preserving women’s lives. In a statement, Duane emphasized the gravity of the situation, stating that the experience endured by our plaintiffs was nothing short of agonizing, and it is disheartening to see the state relentlessly pursue policies that perpetuate such suffering.
The Office of the Attorney General, despite not responding to requests for comment, has recently utilized the supersedeas rule multiple times within a short period. This action aims to guarantee the implementation of new Texas laws. The lawsuits filed have been directed towards legislative priorities that hold significant importance for conservative causes, including abortion, election security, and transgender health care access.
Just over a week after the abortion law was briefly impacted and rapidly reinstated, another Travis County district judge ruled that a new law abolishing Harris County’s elections chief position was unconstitutional and would disrupt this fall’s elections. Immediately, the attorney general’s office appealed the temporary injunction — also in the Texas Supreme Court — allowing Senate Bill 1750 to go into effect on Sept. 1.
The following week another Austin-based district court blocked Senate Bill 14 from banning transition-related care for trangender youth. Hours after the judge issued a temporary injunction — citing the harm that would come to trans children and their families if access to this medical care was taken away — an appeal by the state superseded the order and allowed the law to go into effect.
Karen Loewy, senior counsel and director of constitutional law practice at Lambda Legal, expressed that the standard for acquiring a temporary injunction is quite rigorous. She finds it unfair and unusual that this injunction can be disregarded simply by filing a document that overrides it, particularly in the case of the legal groups suing Texas over SB 14.
The little-known supersedeas rule of Texas courts is applicable only under specific circumstances. In temporary injunctions levied against the state, the attorney general can appeal a judge’s order. Similar appeals typically require defendants to post a bond but state agencies are exempt from putting up cash. The exemption allows the state’s appeal to supersede the judge’s order, preventing the court from enforcing the injunction while the case proceeds in court.
According to Charles “Rocky” Rhodes, a professor at South Texas College of Law, the supersedeas rule is not a new concept. However, attorneys who primarily practice in federal courts may be unfamiliar with it. Unlike the federal government’s appeals process, the supersedeas rule allows for a swift and automatic blocking of a judge’s orders.
Rhodes pointed out that a significant change is the increasing number of challenges against the constitutionality of Texas laws being brought to state courtrooms instead of federal ones. Additionally, Rhodes mentioned that it is uncommon for the attorney general’s office to directly appeal cases from district-level courts to the Texas Supreme Court, bypassing the court of appeals.
The state chose to bypass the Austin-based 3rd Court of Appeals and directly appeal to the state’s Supreme Court in the three August cases. The attorney general can only make a direct appeal to the highest civil court in cases that involve a constitutional challenge.
Rhodes informed The Texas Tribune that the attorney general’s office is intentionally making strategic decisions to escalate more of these cases directly to the Texas Supreme Court. They believe that this particular court provides a more favorable tribunal compared to the Austin Court of Appeals.
The reason for the increased number of cases reaching the Supreme Court was credited by Loewy to the nature of the recently implemented laws by the Republican-controlled Legislature.
Loewy told the Tribune that, in their opinion, the increase in such cases can be attributed to the nature of the laws being passed by the Texas Legislature. They believe that these laws go beyond acceptable limits by infringing on people’s rights and prompting constitutional challenges.
In 2017, Texas legislators made a change to courts that give the state more authority to prevent judge’s orders from blocking the enforcement of laws. Previously, plaintiffs could “counter-supersede” the state’s appeal, which would reinstate a judge’s injunction. Lawmakers passed a bill that prevented plaintiffs from taking this action, ensuring only the state’s supersedeas appeal remains in effect.
A Rule 29.3, also referred to as another temporary injunction, can be issued by either an appellate court or the Supreme Court. However, in order to do so, the judges must carefully consider the evidence presented during the trial courts and subsequently issue a distinct order to reinstate the temporary injunction.
Lawyers claim that the inclusion of the supersedeas provision is uncommon in other states, although it remains uncertain how many states follow the same legal procedure. Additionally, in at least one other state, this rule also applies to its attorney general, especially as several comparable legal disputes are currently occurring.
A Florida state court judge ruled the state’s 15-week abortion ban was unconstitutional in July 2022, blocking the law. In response, Florida’s attorney general appealed the judge’s decision, suspending the order and reinstating the law less than 24 hours later.
In a 2020 ruling in a lawsuit between the Houston Independent School District and the Texas Education Agency, the Texas Supreme Court confirmed a court of appeals’ right to issue a temporary injunction, through Rule 29.3, instead of counter-superseding, which was previously outlawed by the 2017 legislation.
According to the Texas Supreme Court opinion, the purpose of supersedeas is to maintain the current state of affairs by halting the execution or enforcement of the judgment.
Brian Klosterboer, a lawyer from the American Civil Liberties Union of Texas, is representing the plaintiffs in the lawsuit concerning healthcare for transgender youth. He claimed that the state is distorting the intent of this regulation. In the cases involving transition-related care and the elections administrator, the Attorney General’s appeal disrupted the existing state of affairs. The district judges had sought to preserve this status quo through an injunction, but the Attorney General’s enactment of new laws has caused upheaval in the lives of Texans, according to Klosterboer.
According to Klosterboer, who is advocating for the plaintiffs in the case concerning health care for trans youth, the rule presents a concern regarding the separation of powers. By granting the executive branch the authority to halt district court orders, he argues that the state is essentially evading legal repercussions and disregarding the law without consequence.
Klosterboer explained that the government’s actions essentially strip the district court of its power to offer any remedy. This poses a difficult situation for the appellate courts and the Supreme Court as well, as by the time they have an opportunity to issue a verdict, a catastrophic event may have already occurred.
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