Rule 29.3 Stays Against the State: Appellate Courts Must Weigh Merits, Balance Harms, and Act Within a Reasonable Time

1. Introduction

In re Ken Paxton and the Office of the Attorney General is an original mandamus proceeding arising from a high-stakes dispute over the Attorney General’s authority to require local prosecutors to submit extensive reporting information—allegedly including “work product and otherwise privileged and confidential matters”—through rules promulgated in the Texas Administrative Code. Counties and prosecutors (collectively, “the prosecutors”) sued, asserting ultra vires and constitutional challenges and seeking to enjoin enforcement of the rules.

After an evidentiary hearing, the trial court issued a temporary injunction, finding the prosecutors likely to succeed on the merits. The State appealed, and the injunction was automatically superseded under statutory supersedeas provisions. The prosecutors then sought temporary relief in the court of appeals under Texas Rule of Appellate Procedure 29.3 to stay enforcement of the rules pending appeal. The court of appeals granted a stay as to the named parties.

The State petitioned for mandamus, arguing the court of appeals failed to adequately assess the prosecutors’ likelihood of success on the merits before issuing a Rule 29.3 stay that effectively countermanded the State’s supersedeas right. Justice Bland, joined by Justices Lehrmann and Huddle, concurred, agreeing relief was warranted but emphasizing two additional requirements for appellate courts: they must (1) evaluate the balance of harms and (2) be afforded a reasonable time to decide whether a stay is warranted.

2. Summary of the Opinion (Concurring)

Justice Bland concurs in the Court’s decision to grant mandamus relief because the court of appeals erred by granting a Rule 29.3 stay without a preliminary evaluation of the merits—an inquiry required by In re State.

The concurrence adds two key clarifications:

Balance of harms is essential. A Rule 29.3 stay analysis must weigh irreparable harms to the applicant against harms to the opposing party, the public, and nonparties.
Appellate courts need a reasonable time. While the merits remain relevant even on an expedited timetable, appellate courts must have sufficient time—dependent on complexity and exigency—to responsibly make the preliminary merits determination.

On the record presented, Justice Bland agrees it is appropriate to allow the court of appeals additional time to make the required preliminary merits evaluation, noting the court of appeals already found the balance of harms favored a stay and the State did not substantively challenge that finding in mandamus.

3. Analysis

3.1. Precedents Cited

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

In re State is the doctrinal fulcrum of the concurrence. Justice Bland characterizes it as a “shift,” because it clarified the standard for evaluating Rule 29.3 requests “against the State” where the State has invoked statutory supersedeas. The concurrence reads In re State to require that appellate courts, like trial courts issuing temporary injunctions:

Give “some consideration of the merits”—a preliminary look at the requesting party’s likelihood of success; and
Balance the harms associated with granting or denying temporary relief.

The concurrence also highlights In re State’s recognition that appellate courts may weigh “case-specific equitable considerations,” but those considerations do not excuse the core duties of preliminary merits assessment and harm-balancing. Applying that framework, the concurrence concludes the court of appeals erred by not preliminarily evaluating whether the prosecutors’ claims were likely to succeed.

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 relief may be available even when the State has a statutory supersedeas right, because courts of appeals retain discretion to grant temporary relief “necessary to preserve the parties’ rights until disposition of the appeal.” The concurrence uses this case to frame the underlying tension: statutory supersedeas protects the State from being compelled to comply with an adverse injunction during appeal, but Rule 29.3 can, in limited circumstances, restore injunction-like protections if needed to preserve rights.

In re Abbott, 645 S.W.3d 276 (Tex. 2022) (and Justice Blacklock’s separate writing)

The concurrence references In re Abbott to underscore that—prior to In re State—the Court had not clearly articulated a standard for Rule 29.3 stays against the State. Justice Blacklock’s concurring/dissenting observations are invoked as evidence of this doctrinal uncertainty. The concurrence leverages that history to justify why In re State now governs and why lower courts must conform their stay orders to its demands.

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 decision as an example of the pre-In re State approach: a court of appeals maintained the effect of a temporary injunction under Rule 29.3 “without any comment on the merits.” This serves as a contrast case—illustrating what In re State later rejected as incomplete analysis when the State’s supersedeas is being counterbalanced by appellate temporary relief.

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)

Like Tex. Educ. Agency v. Hous. Indep. Sch. Dist., this is offered as another example of appellate temporary relief granted without merits discussion. Its citation reinforces the concurrence’s narrative: historically, some intermediate courts emphasized status quo and irreparable harm without engaging the merits; after In re State, that approach is insufficient when granting relief that impairs the State’s supersedeas position.

3.2. Legal Reasoning

A. The supersedeas baseline and Rule 29.3 as a limited counterweight

The concurrence begins from the structural premise that the State (or a governmental entity) has a statutory entitlement to supersede a trial court’s order by perfecting an appeal. Here, that meant the trial court’s temporary injunction was automatically superseded once the State noticed appeal. However, the concurrence reiterates that this supersedeas entitlement does not “constrain the courts of appeals” from using Rule 29.3 to grant temporary relief necessary to preserve rights pending appeal.

The key doctrinal move is that when a court of appeals uses Rule 29.3 to effectively restore an injunction’s protections against the State’s position, it must exercise that discretion according to In re State—not by reflexively preserving the status quo, but through a disciplined, two-part analysis (merits + harms), plus any case-specific equitable considerations.

B. The two mandatory inquiries: (1) preliminary merits, (2) balance of harms

Justice Bland agrees the court of appeals failed the first inquiry: it did not make a preliminary evaluation of the prosecutors’ likelihood of success. But the concurrence is careful to emphasize that the second inquiry was addressed: the court of appeals found the balance of harms favored a stay, and the State did not challenge that conclusion in the mandamus proceeding.

On harms, the concurrence highlights the competing characterizations:

Prosecutors’ asserted harms: compliance would impose significant costs, divert staff from prosecuting crime, and risk disclosure of privileged/confidential material—impairing constitutional responsibilities.
The State’s asserted harms: as a matter of law, the State is irreparably harmed when its laws are not enforced, and it has an intrinsic sovereign interest in enforcement.

Justice Bland treats the court of appeals’ harm assessment as supportable: the harm to the State was “less immediate in nature” compared to the prosecutors’ evidence of hours of work and compelled production of sensitive material. This matters because, in the concurrence’s view, once harm-balancing shows a real need for interim protection, a stay may be justified if the claims have “some merit”—which in turn requires the missing preliminary merits review.

C. “Some consideration of the merits” does not mean full adjudication—especially on emergency timelines

A central practical point in the concurrence is calibration. Justice Bland reiterates In re State’s instruction that the merits “need not—and often should not—be definitively determined” at the temporary-relief stage; however, they cannot be ignored. This attempts to harmonize:

the need for speed and interim protection (Rule 29.3’s function), with
the need for legitimacy and restraint when impairing the State’s supersedeas position.

D. Reasonable time as a due-process-and-quality constraint on emergency appellate action

The concurrence’s most distinctive addition is its insistence that appellate courts must have a “reasonably sufficient time” to evaluate the merits. Justice Bland acknowledges In re State’s admonition that merit relevance “does not vanish when courts must rule expeditiously,” but adds that careful review does not vanish either.

In applying that principle, the concurrence notes:

the court of appeals ruled 17 days after the emergency motion;
it described the issues as “complex,” “close,” and “serious”;
briefing was condensed; and
by the time mandamus was considered, merits briefing had been completed, placing the court of appeals in the best position to make the required preliminary merits determination.

The result is a remedial posture that is both corrective and pragmatic: the stay order was defective for failure to address preliminary merits, but the proper remedy is not necessarily immediate dissolution without allowing the intermediate court a reasonable opportunity to supply the required analysis (or to issue its merits opinion, which would moot the need for interim relief).

3.3. Impact

Although this is a concurrence, it crystallizes operational guidance for Rule 29.3 practice in cases where the State’s statutory supersedeas is at issue:

More structured Rule 29.3 orders: Intermediate appellate courts should expect that conclusory stay orders focusing only on urgency or status quo will be vulnerable to mandamus if they omit preliminary merits analysis.
Harm-balancing must be explicit: The concurrence treats harm-balancing as indispensable and expects courts to address the relative immediacy and magnitude of harms, including effects on third parties and the public.
Record-building incentives: Parties seeking Rule 29.3 relief will likely submit detailed evidentiary support (declarations, cost/time analyses, privilege risks) to carry irreparable-harm and balancing burdens; opposing parties will emphasize sovereign enforcement interests.
“Reasonable time” as a moderating principle: The concurrence cautions against expecting instantaneous merits assessments in complex cases, which may reduce whipsaw emergency rulings but also encourages intermediate courts to move promptly once full merits briefing is in.
Increased mandamus scrutiny: The decision reinforces that mandamus remains a potent mechanism for policing Rule 29.3 stays that effectively undo the State’s supersedeas without the analysis demanded by In re State.

4. Complex Concepts Simplified

Mandamus: An extraordinary remedy used to correct a clear abuse of discretion or failure to perform a legal duty when there is no adequate remedy by appeal. Here, the State used mandamus to challenge the court of appeals’ stay order.
Supersedeas (automatic supersedeas for the State): A mechanism that suspends enforcement of a trial court’s judgment or injunction during appeal. Texas law grants governmental entities a statutory right to supersede certain orders by appealing, meaning the injunction does not operate while the appeal is pending (absent proper temporary relief).
Texas Rule of Appellate Procedure 29.3: A rule allowing appellate courts to grant temporary relief during an interlocutory appeal when “necessary to preserve the parties’ rights until disposition of the appeal.” It can function like an appellate-level “temporary injunction” pending appeal.
Temporary injunction standard (likelihood of success + irreparable harm): Traditionally, temporary injunctive relief requires a showing of probable right to relief (likelihood of success) and probable, imminent, and irreparable harm without the injunction. The concurrence explains appellate Rule 29.3 relief must mirror these core inquiries when it counteracts the State’s supersedeas.
Balance of harms: A comparative assessment: the court weighs the applicant’s injury if relief is denied against the opposing party’s (and public/third parties’) injury if relief is granted.
Ultra vires claim: A claim that a government official acted beyond legal authority. Here, prosecutors argued the Attorney General lacked authority to promulgate the reporting rules.
Quo warranto: A legal proceeding used to challenge whether a person unlawfully holds a public office. The rules at issue purportedly allowed the Attorney General to treat noncompliance as “official misconduct” and seek forfeiture through quo warranto.
Work product / privileged and confidential information: Protections that shield attorney mental impressions, litigation strategy, and confidential materials from compelled disclosure. The prosecutors argued the rules risk forcing disclosure of protected information.

5. Conclusion

Justice Bland’s concurrence—rooted in In re State—reinforces that Rule 29.3 stays affecting the State’s statutory supersedeas cannot be granted on urgency and status quo alone. Appellate courts must (1) give “some consideration” to the likelihood of success on the merits and (2) explicitly balance the harms, while also being afforded (and exercising) a reasonable time to perform these tasks in complex, expedited disputes.

The broader significance is practical and institutional: it tightens the analytical discipline required for emergency appellate relief, encourages more transparent reasoning in stay orders, and aims to ensure interim remedies preserve rights without casually displacing legislatively granted protections for the State during appeal.