In re Ken Paxton and the Office of the Attorney General, 25-0641, December 22, 2025.
On appeal from Court of Appeals for the Fifteenth District of Texas (15th Court of Appeals, Travis County)
Synopsis
The Texas Supreme Court conditionally granted mandamus, holding that an appellate Rule 29.3 stay that halts executive action requires at least a preliminary merits assessment. The Court directed the Fifteenth Court of Appeals to evaluate the merits and decide by January 5, 2026 whether the stay is warranted, warning it will vacate the stay if the court fails to do so.
Relevance to Family Law
Although the dispute arose from Attorney General rulemaking, the decision changes the mechanics of appellate stays against state actors that can affect family-law practice — for example, enforcement actions, administrative directives affecting child support, subpoenas to state agencies, or injunctions affecting CPS procedures. Appellate courts may still halt executive action under Rule 29.3, but only after at least a preliminary inquiry into the likelihood of success on the merits. That shifts the tactical burden in family cases: practitioners must treat Rule 29.3 stay requests as necessarily merits-focused and must preserve and prioritize record and briefing on statutory authority and likelihood of success.
Case Summary
Fact Summary
The Attorney General promulgated reporting rules requiring local prosecutors to provide certain information. A coalition of counties, county attorneys, and district attorneys filed suit in district court, which entered a temporary injunction blocking enforcement of those rules. The Attorney General appealed to the Fifteenth Court of Appeals, invoking the State’s statutory right to automatic supersedeas. The Fifteenth Court, however, entered a Rule 29.3 stay preserving the district-court injunction against enforcement while it expedited the appeal. The Supreme Court reviewed the appellate stay by conditionally granting mandamus, finding the court of appeals had not performed the preliminary merits analysis required by SCOTX precedents when issuing temporary relief that interferes with executive action.
Issues Decided
The Supreme Court addressed whether a court of appeals may issue a Rule 29.3 stay halting executive-branch action without conducting at least a preliminary inquiry into the likely merits of the challenger’s claims, in light of the State’s statutory right to automatic supersedeas. The Court decided that such a stay requires at least a preliminary merits assessment and remanded for the Fifteenth Court to perform that review.
Rules Applied
The Court applied Texas Rule of Appellate Procedure 29.3 (authority to make temporary orders pending appeal) against the backdrop of statutory provisions and precedents recognizing the State’s historical right to supersede without bond (e.g., TEX. CIV. PRAC. & REM. CODE § 6.001; TEX. GOV’T CODE § 22.004(i)). Key precedents include In re State, 711 S.W.3d 641 (Tex. 2024), which requires a preliminary inquiry into likely merits for temporary relief, and earlier cases recognizing both the presumption of regularity for executive action and the State’s special supersedeas treatment (In re Abbott, In re Tex. Educ. Agency, In re State Bd. for Educator Certification).
Application
The Court recognized the longstanding legislative protections that permit the State to supersede adverse interlocutory orders on appeal without bond. But it reaffirmed that Rule 29.3 gives appellate courts the equitable authority to issue temporary relief — including stays that restrain executive action — and that equitable relief must be grounded in a consideration of the requestor’s likely success on the merits. Because the Fifteenth Court stopped short of any meaningful merits analysis (its explanation amounted to noting complexity and limited briefing), the Supreme Court concluded that was insufficient when the relief blocks executive-branch action. The Court therefore conditionally granted mandamus, instructing the court of appeals to perform the preliminary merits assessment and determine by a firm deadline whether the stay remains justified.
Holding
The Supreme Court conditionally granted mandamus relief, holding that an appellate Rule 29.3 stay that halts executive action cannot be entered without at least a preliminary inquiry into the likely merits of the challengers’ claims. The Court directed the Fifteenth Court of Appeals to evaluate the merits and to decide by January 5, 2026 whether the stay is warranted, warning that a writ vacating the stay will issue if it does not. The Court emphasized that the presumption of regularity and other separation-of-powers concerns make the merits inquiry particularly important when temporary relief interferes with executive functions.
Practical Application
In family-law litigation that implicates state actors or administrative rules — for example, constitutional or statutory challenges to AG or agency policies that affect child support enforcement, access to CPS records, or the scope of prosecutorial reporting and cooperation — expect appellate courts to require a targeted merits showing before staying executive action under Rule 29.3.
When seeking a stay that would restrain state action, craft a concise, merits-focused stay application that marshals statutory text, controlling precedent, and record evidence showing a likelihood of success. When defending a State actor or agency, emphasize the State’s automatic supersedeas rights, the presumption of regularity for executive action, and the absence of a clear likelihood of success by the challenger. Timing and record preservation are now dispositive: appellate courts will not excuse a lack of merits analysis merely because briefing is truncated or the case is novel.
Checklists
Prepare Merits-Focused Stay Motion
- Identify and state the dispositive legal question(s) early.
- Provide a one-page “issue + authority” summary up front.
- Cite controlling statutes and precedent showing likelihood of success.
- Include targeted record citations or affidavits that bear on statutory authority and scope.
- Address separation-of-powers and public-interest implications directly.
Preserve the Record on Likely Merits
- File focused trial-court findings, motions, and objections that frame the legal issues.
- Offer and obtain admissions or stipulations of undisputed facts where feasible.
- Develop affidavits from responsible officials about how the rule applies in practice.
- Designate trial-court pleadings and evidentiary materials in the appellate record that show statutory text and administrative history.
Responding to an Opposing Rule 29.3 Stay (State/Agency side)
- Invoke TEX. CIV. PRAC. & REM. CODE § 6.001 and other supersedeas protections early.
- Emphasize presumption of regularity and government interests, with citations (Webster and related authorities).
- Produce affidavits describing harm to public programs if stay not vacated.
- Ask the court to require a narrow, merits-specific showing before entering stay.
Emergency Temporary Injunction Strategy in Family Cases
- If the relief sought affects child safety, custody, or ongoing enforcement, file parallel expedited substantive briefs on the merits with any stay application.
- Quantify irreparable harm to children, family stability, or public safety and attach supporting evidence.
- Propose narrow interim measures (e.g., limited, case-specific relief) rather than sweeping statewide halts to minimize separation-of-powers objections.
Citation
In re Ken Paxton and the Office of the Attorney General, No. 25-0641 (Tex. Dec. 22, 2025).
Full Opinion
Full opinion (Texas Supreme Court, per curiam)
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