IN RE THE TEXAS EDUCATION
IN THE SUPREME COURT OF TEXAS
ON PETITION FOR WRIT OF
CHIEF JUSTICE HECHT, dissenting.
Aftеr years-long investigations, the Texas Commissioner of Education
The trial court took just three weeks to
The result flaunts the Legislature‘s will. I respectfully dissent.
I
For years, several District schools have underperformed academically—which means, translating from bureauсratese to plain English, that students were denied the education promised by state law, dimming their futures and injuring society. In 2016, the Commissioner appointed a conservator for one school campus. While that helped a little, it was not enough. A statutory Special Accreditation Investigation4 of the District turned up multiple violations of state and federal laws. Not only were schools failing to educate students to acceptable standards, and officials allegedly violating the law, but racial tensions and chaotic outbursts among the District‘s Board of Trustees, which Houston‘s Mayor called “destabilizing and unacceptable“, were playing out in the media too. In November 2019, the Commissioner issued his proposed decision to enlarge the conservator‘s responsibilities to cover the entire District and to suspend the Board and appoint a board of managers to oversee the District.
While that proposed decision was pending final review by the Commissioner, the District sued on June 27, 2019, to enjoin the Commissioner from taking any of the proposed regulatory actions against it. Defendants5 immediately removed the case to United States District Court. In December, the federal court issued its final judgment, dismissing the District‘s federal-law claims and remanding the state-law claims to the state district court. On January 8, the trial court issued a temporary injunction prohibiting the Commissioner “from appointing a board of managers to oversee operations” of the District and “from imposing any sanctions or interventions on [the District] based on [the] Special Accreditation Investigation“. The trial court also enjoined the conservator “from acting outside her lawful authority to ensure and oversee district-level support to low-performing campuses and the implementation of the updated targeted improvement plan on those campuses“.
The next day the Commissioner appealed.
II
Rule 24 governs, as its title states, “suspension of enforcement of judgment pending
Section 6.001 of the Texas Civil Practice and Remedies Code exempts certain governmental entities and officers from filing a bond for an appeal in a civil case.11 Such an entity‘s notice of appeal automatically supersedes a judgment аgainst it.12 But does a trial court have discretion under Rule 24.2(a)(3) to deny the governmental entity supersedeas, as it would a private entity, if the judgment creditor counter-supersedes? In In re State Board for Educator Certification we answered yes.13 The Legislature promptly countermanded our decision as it applied to three of the governmental entities covered by Section 6.001: the State, a department of the State, or a department head. It did so by enacting Section 22.004(i) of the Texas Government Code, which states: “The supreme court shall adopt rules to provide that the right of [those three entities] to supersede a judgment or order on appeal is not subject to being counter-superseded under Rule 24.2(a)(3) . . . or any other rule.”14 The Court complied by adding this sentence to Rule 24.2(a)(3): “When the judgment debtor is the state, a department of this state, оr the head of a department of this state, the trial court must permit a judgment to be superseded“.15
Accordingly, the Commissioner‘s appeal superseded the temporary injunction. But despite the clear language of Section 22.004(i) and amended Rule 24.2(a)(3), the trial court allowed the District to counter-supersede the suspension. The court found “that the $200.00, previously deposited by Plaintiff with the Travis County District
The Commissioner seeks mandamus relief directing the court of appeаls to withdraw its reissuance of the temporary injunction. The Court denies relief.
III
The Court reasons thusly: True, the court of appeals’ order “may have the same practical effect” as counter-supersedeas,19 but it is “a materially different process with materially different inquiries and objectives.”20 For one thing, the court of appeals’ order is not labeled “counter-supersedeas“, whiсh is a “term[] of art“.21 For another, the court of appeals’ order is issued, well, by the court of appeals, while counter-supersedeas is ordered by the trial court. And besides, the court of appeals’ order and counter-supersedeas “are neither procedurally nor functionally equivalent” because the trial court and the court of appeals could both enforce a counter-superseded temporary injunction, while only the court of appeals can enforce its order.22 Also, the court of appeals’ order is governed by Rule 29.3, while counter-supersedeas is governed by Rule 24.2(a)(3). “While we cannot ignore the legislative prohibition [in Section 22.004(i)] against counter-supersedeas under ‘any other rule,’ that phrase cannot be read in isolаtion.”23 It is “textually limited“.24 “Construed in connection with the linguistically precedent context, the phrase refers to rules applicable to the supersedeas process.”25 Actually, “[t]he distinction between supersedeas and temporary orders suspending enforcement of a judgment may seem a fine one”26—okay, “punctilious“,27 even. But “reading [Section 22.004(i)] exactly as it is written in this case has the salutary effect of a reasonable result“.28 Otherwise,
a single judge could stymie the state from exercising its lawful powers and from representing the public as it sees fit during the course of an appellate process that might take years to conclude. Such a concern is less acute when a multi-judge panel, subject to mandamus
review by this Court, issues temporary relief.29
The flaws in the Court‘s explanations are glaring. The practical effects of counter-supersedeas and Rule 29.3 “unsupersedeas“, let‘s call it, are identical. The court of appeals simply “order[ed] that the trial court‘s temporary injunction remain[] in effect“.30 The “inquiry and objective” of the two are also identical: to determine and alleviate the effects of appellate delay. The process of making that determination is essentially the same whether conducted in the trial court or in the court of appeals, as it was here. Each court issued its order to prevent the District from being, in the court‘s view, irreparably injured. Enforcement of each order is practically the same in either court. The distinction between counter-supersedeas and unsupersedeas is not merely “fine” or even “punctilious“; it is nonexistent.
The Court says it must read Section 22.004(i) exactly as written, but “any other rule“, exactly as written, does not mean “any other counter-supersedeas rule“. A phrase cannot be read exactly as written by changing it. The Court explains that it must add a word here because the phrase “any other rule” is “textually limited“. Giving meaning to a statute based on its textually limited language channels the Court‘s recent decision in In re Xerox Corp.31 There we used a similar phrase, “textually constrained“, to mean that the Legislature used a word in one statutory subchapter but not in another.32 The Court uses its canon today to mean that “any other rule” must be “[c]onstrued in connection with the linguistically precedent context“.33 If that means text must always be read in context, then of course. But what the Court means is that because “any other rule” is used in a statute about counter-supersedeas, it is limited to any other counter-supersedeas rule. Even if that interpretation of the statute were reasonable, and it is not, it makes the statute nonsensical because there is no other counter-supersedeas rule. By reading an additional word into “any other rule“, the Court reads the entire phrase out of the statute. It refers to nothing. Section 22.004(i) has exactly the same effect under the Court‘s reading, with or without “any other rule“. Lacking the Court‘s expertise in the Rules but intending to ensure that its statute completely achieved its goal, the Legislature directed its mandate to a specific Rule and then to “any other rule“. The Court‘s interpretation flaunts that intent.
While not a mainstay canon for interpreting statutes, recent legal literature has described courts’ finding language textually constrained or limited as the “new purposivism” theory of statutory construction, or what one writer has labeled “backdoor purposivism“.34 The point of this new theory is that meaning is not dictated by text. Instead, courts merely consider text as perhaps helpful, though nonbinding, while still deciding the case on purposivist grounds.35 The Court‘s description of Section
The Court concludes that its reading of Section 22.004(i) “has the salutary effect” of putting the decision whether to “stymie the state from exercising lawful powers and from representing the public as it sees fit during the course of an appellate process that might take years to conclude” in three pairs of judicial hands on the court of appeals under Rule 29.3 rather than one on the trial court under Rule 24(a)(3).36 But Rule 29.3 applies only, by its terms, “[w]hen an аppeal from an interlocutory order is” pending.37 When the appeal is from a final judgment, Rule 25.1(h) provides that “[e]nforcement of the judgment may proceed unless . . . the appellant is entitled to supersede the judgment without security by filing a notice of appeal.”38 As already discussed, that exception applies to the governmental entities listed in Section 6.001. And Rule 24.2(a)(3) precludes counter-supersedeas. So the Court‘s “salutary effect” applies only in interlocutory appeals, not final appeals, which casts doubt on the Court‘s hypothesized three-judges-instead-of-one rationale it ascribes to the Legislature.
The Court certainly has the power to refuse to read Section 22.004(i) exactly as written. What it should not do is claim to read text exactly as written and then blаtantly do the opposite. And what the Court cannot do is read Section 22.004(i) exactly as written and reach the conclusion it does.
IV
The Court denies that it reached a conclusion exactly the opposite of the one it reaches today in another petition for mandamus that, coincidentally, was filed on the very same day as the Commissioner‘s.39
On March 7, 2020, the Texas Democratic Party and others sued for a declaration that fear of contracting COVID-19 was reason enough to apply for a mail-in ballot and injunctive relief to compel election officials to count those mail-in ballots.40 On April 17, after a hearing, the trial court issued a temporary injunction that enjoined the State from taking any actions preventing counties from accepting and tabulating such ballоts.41 The State immediately appealed, superseding the temporary injunction. The appellees moved for an order under Rule 29.3 for the court of appeals to reinstate the temporary injunction.42 On May 14, a divided court of appeals granted the motion, citing
The next day, the State petitioned this Court for mandamus relief and moved to stay the court of appeals’ order. The State made exactly the same argument the Commissioner does here, which is hardly surprising since the Solicitor General filed both petitions, on the same day, from indistinguishable orders. After reviewing the response of the real parties in interest, we granted the State‘s motion a few hours after it was filed.45
On May 13, the day before the court of appeals issued its Rule 29.3 order, the State petitioned this Court for mandamus relief prohibiting various election officials from misinforming voters that fear of COVID-19 was sufficient reason to request a mail-in ballot. While the appeal from the temporary injunction granting contrary relief against the State remained pending in the court of appeals, we conducted oral argument in the State‘s mandamus proceeding and decided the issue. Our opinion issued in In re State on May 20.46 The court of appeals lаter dismissed the appeal from the temporary injunction as moot.
Despite the Court‘s denial, the order, arguments, and authorities in the mandamus before us in connection with State were substantively the same as the Commissioner‘s here.
V
Section 22.004(i) and Rule 24.2(a)(3) prohibit the court of appeals from effectively imposing counter-supersedeas under Rule 29.3, but they do not foreclose all relief under that rule. The court here could unquestionably have expedited proceedings. The mail-in voting issue in State was critical to the election process. This Court finally decided the issue, after merits briefing and oral argument, seventy-four days after it was first raised in the trial court, five days after the petition was filed here, and more than five months before voting started. We stayed the court of appeals’ Rule 29.3 order after considering the opponents’ responsе, about six hours after the motion was filed. By contrast, the present case was filed more than twenty months ago. Not quite six of those months were in the court of appeals, with only three weeks in the trial court. Every day this case pends affects the lives and futures of thousands of public-school children.
The Court faults the Commissioner for not moving for expedited consideration.47 But a court of appeals that undertakes to effectively counter-supersede a temporary injunction against a state official in the face of stated legislative policy to the contrary—or in the Court‘s words, to “stymie the state from exercising its lawful powers and from representing the public as it sees
A court of appeals can certainly consider other interim actions. It could issue stays for specific reasons and limited times. Or it could require that parties notify each other before certain actions are taken. But it cannot grant statutorily prohibited relief by renaming it.
* * * * *
For all these reasons, I respectfully dissent.
Nathan L. Hecht
Chief Justice
OPINION DELIVERED: March 19, 2021