Rule 29.3 Stays Against the State: Appellate Courts Must Consider Likely Merits, Balance Harms, and Have Reasonable Time to Decide

I. Introduction

Case: In re Ken Paxton and the Office of the Attorney General, No. 25-0641 (Tex. Dec. 22, 2025) (orig. proceeding).
Posture: Petition for writ of mandamus challenging a court of appeals’ stay order issued under Texas Rule of Appellate Procedure 29.3.
Opinion excerpt provided: Concurring opinion by Justice Bland, joined by Justice Lehrmann and Justice Huddle.

The underlying dispute arises from rules promulgated by the Attorney General requiring prosecutors to submit extensive categories of information—including “work product and otherwise privileged and confidential matters”—through initial, quarterly, and annual reports. The rules also authorize enforcement mechanisms for noncompliance, including treating violations as “official misconduct,” pursuing quo warranto forfeiture, or filing civil actions to compel compliance.

Counties and prosecutors (collectively, “the prosecutors”) sued to enjoin the rules via ultra vires and constitutional challenges, contending the Attorney General lacked authority to promulgate them and that they conflicted with prosecutors’ constitutional obligations. After a full evidentiary hearing, the trial court issued a temporary injunction. The State appealed, which automatically superseded the injunction. The prosecutors then sought temporary relief in the court of appeals under Rule 29.3 to stay enforcement of the rules pending appeal. The court of appeals granted a stay as to named parties. The State sought mandamus relief in the Supreme Court of Texas, arguing the court of appeals failed to adequately evaluate the prosecutors’ likelihood of success on the merits before issuing temporary relief that effectively counteracted the State’s supersedeas.

II. Summary of the Opinion

Justice Bland concurs in the Court’s decision to grant mandamus relief because the court of appeals “erred in not evaluating the preliminary merits” before issuing a Rule 29.3 stay that preserves appellate jurisdiction but also effectively deprives the State of the practical effect of its supersedeas rights. The concurrence emphasizes two additional requirements for appellate courts considering Rule 29.3 stays:

1. Balance of harms: appellate courts must evaluate and weigh the harms associated with granting or denying temporary relief.
2. Reasonable time to decide: appellate courts must be afforded a reasonable time to make a preliminary assessment of whether a stay is warranted, especially in complex cases, even when emergency relief is sought.

The concurrence agrees that affording the court of appeals additional time to perform the merits evaluation is appropriate because (i) the court of appeals did address the balance of harms, (ii) the State’s mandamus arguments did not engage the underlying merits, and (iii) sufficient time had elapsed for the court of appeals—now fully briefed—to make a preliminary merits determination or issue its merits opinion and moot the temporary-relief dispute.

III. Analysis

A. Precedents Cited

1. In re State, 711 S.W.3d 641 (Tex. 2024)

In re State is the doctrinal anchor of the concurrence. Justice Bland describes it as marking a “shift” in how Texas appellate courts must approach Rule 29.3 temporary relief when such relief operates against the State’s supersedeas right. The key holding drawn from In re State is that appellate courts must do what trial courts do when assessing temporary injunctions: give “some consideration of the merits” and balance harms before granting temporary relief that functionally counteracts the State’s statutory supersedeas.

The concurrence treats In re State as establishing that equitable, case-specific considerations may be relevant, but they do not substitute for the two essential inquiries: preliminary merits and balancing harms. The court of appeals’ omission of a preliminary merits evaluation therefore triggered mandamus vulnerability under the standard articulated in In re State.

2. In re Tex. Educ. Agency, 619 S.W.3d 679 (Tex. 2021)

Justice Bland cites In re Tex. Educ. Agency for the proposition that Rule 29.3 authorizes temporary relief “necessary to preserve the parties’ rights until disposition of the appeal.” The concurrence uses this case to frame Rule 29.3 as an appellate tool that can, in appropriate circumstances, “effectively grant the same relief” as the enjoined order—even when the State has superseded a trial court injunction by appealing.

3. In re Abbott, 645 S.W.3d 276 (Tex. 2022) (Blacklock, J., concurring in part and dissenting in part)

The concurrence references In re Abbott to highlight that, before In re State, the Supreme Court of Texas had not clearly articulated a standard for Rule 29.3 motions “against the State.” That historical ambiguity explains why some intermediate appellate decisions emphasized status quo and irreparable harm without explicitly assessing likely merits—an approach the concurrence indicates is no longer sufficient after In re State.

4. Tex. Educ. Agency v. Hous. Indep. Sch. Dist., 609 S.W.3d 569 (Tex. App.—Austin 2020), mand. denied sub nom. In re Tex. Educ. Agency, 619 S.W.3d 679 (Tex. 2021)

Justice Bland cites this appellate decision as an example of pre-In re State practice: the court of appeals ordered a temporary injunction to remain in effect “without any comment on the merits.” The concurrence treats such cases as illustrative of an older emphasis on preserving the status quo, which In re State recalibrated by requiring at least a preliminary merits assessment.

5. Abbott v. Doe, No. 03-22-00126-CV, 2022 WL 837956 (Tex. App.—Austin), mand. granted in part and denied in part sub nom. In re Abbott, 645 S.W.3d 276 (Tex. 2022)

This case is likewise cited as an example of a stay order that maintained injunctive relief without a merits discussion. The concurrence uses it to reinforce that the jurisprudence has evolved: what might once have been routine under Rule 29.3 is now subject to a more structured inquiry that includes likely merits and harms.

B. Legal Reasoning

1. Reconciling the State’s supersedeas rights with Rule 29.3

The concurrence recognizes the State’s “statutory right to supersede a trial court order by taking an appeal,” but emphasizes that supersedeas does not eliminate appellate discretion to grant temporary relief under Rule 29.3 when “necessary to preserve the parties’ rights until disposition of the appeal.” The doctrinal problem, however, is that a Rule 29.3 stay can operate as a practical override of the State’s supersedeas—so it cannot be issued on an unstructured, purely equitable basis.

2. The mandatory two-part inquiry: (i) some merits review; (ii) balancing harms

Applying In re State, Justice Bland reiterates that appellate courts must:

• Give “some consideration of the merits”—a preliminary, non-final evaluation of whether the applicant’s claims “may have some merit,” not a definitive adjudication.
• Balance harms—including harms to the parties, the public, and nonparties; the applicant must show irreparable harm absent relief, and the court must weigh that against harms caused by granting relief.

The concurrence explains that the court of appeals did perform the harms analysis and found the State’s harm “less immediate in nature,” crediting evidence that compliance would require significant time and costs, divert prosecutorial resources, and risk disclosure of privileged and confidential information. But because the order did not include a preliminary merits evaluation, it did not satisfy the In re State framework.

3. Reasonable time to decide: urgency does not eliminate deliberation

A distinctive contribution of the concurrence is its emphasis that appellate courts must have “a reasonably sufficient time” to assess likely merits. The concurrence rejects a false dichotomy between emergency requests and careful judging: merits remain relevant even when courts must act quickly, but appellate courts still must produce “thoughtful and accurate review.”

Here, the stay was issued seventeen days after the emergency motion, in a case the court of appeals itself described as “complex,” “close,” and “serious,” with condensed briefing. By the time mandamus was considered, merits briefing in the appeal was complete, making the court of appeals best positioned to make the required preliminary merits determination within a reasonable time—or to issue its merits decision, mooting further need for temporary relief.

C. Impact

The concurrence—building on In re State—signals a more disciplined and reviewable approach to Rule 29.3 stays that functionally restrain state action after the State has superseded a trial court injunction by appeal.

• For courts of appeals: stay orders under Rule 29.3 should expressly address (i) preliminary merits and (ii) harm balancing. Orders lacking one of these elements are more susceptible to mandamus.
• For litigants challenging state action: applicants for Rule 29.3 relief should develop an evidentiary record and briefing that support both prongs—especially a nonconclusory showing of likely success (even if preliminary) in addition to irreparable harm.
• For the State: mandamus remains a meaningful mechanism to police Rule 29.3 relief that effectively neutralizes supersedeas; however, the State’s advocacy will be stronger when it addresses not only procedural deficiencies but also why the challengers are unlikely to succeed on the merits.
• Systemic effect: the opinion encourages intermediate appellate courts to produce more reasoned temporary-relief orders, increasing transparency and consistency in emergency appellate practice.

IV. Complex Concepts Simplified

• Supersedeas: a mechanism that suspends (or prevents enforcement of) a trial court judgment or injunction while an appeal is pending. Here, the State’s appeal automatically superseded the temporary injunction.
• Texas Rule of Appellate Procedure 29.3: permits appellate courts to grant temporary orders in an interlocutory appeal to preserve parties’ rights until the appeal is decided. In practice, it can reinstate protections similar to a trial court’s injunction, but must be justified under the In re State framework when used against the State.
• Mandamus: an extraordinary remedy used to correct a clear abuse of discretion (and typically the lack of an adequate appellate remedy). The State used mandamus to challenge the court of appeals’ stay order.
• Temporary injunction: preliminary relief entered before a final decision, intended to prevent irreparable harm and preserve rights pending full adjudication.
• Balance of harms / irreparable harm: courts weigh the applicant’s claimed harms if relief is denied against harms to the opposing party and others if relief is granted; “irreparable” generally means not adequately remedied by money damages or later relief.
• Ultra vires claim: a claim that a government official acted beyond legal authority; often used to challenge allegedly unauthorized rulemaking or enforcement actions.
• Quo warranto: a proceeding challenging an official’s right to hold office; here, the rules allegedly allow the Attorney General to pursue forfeiture for “official misconduct.”
• Work product / privilege: protections for attorneys’ legal strategies and confidential communications; the prosecutors argued the reporting rules risk compelled disclosure of privileged and confidential materials.

V. Conclusion

The concurrence in In re Ken Paxton and the Office of the Attorney General reinforces and operationalizes the modern Rule 29.3 standard articulated in In re State: when an appellate court considers temporary relief that would counteract the State’s supersedeas, it must (1) give “some consideration of the merits” and (2) balance harms. Justice Bland further underscores a practical safeguard for sound adjudication—appellate courts must have a reasonable time to make that preliminary merits assessment, particularly in complex statutory and constitutional disputes. The decision thus tightens the methodology for emergency appellate stays, pushing Rule 29.3 practice toward transparent, structured, and reviewable reasoning.