in Re the Texas Education Agency Mike Morath, Commissioner of Education in His Official Capacity And Doris Delaney, in Her Official Capacity

IN THE SUPREME COURT OF TEXAS
══════════
No. 20-0404
══════════

IN RE THE TEXAS EDUCATION AGENCY; MIKE MORATH, COMMISSIONER OF
EDUCATION IN HIS OFFICIAL CAPACITY; AND DORIS DELANEY, IN HER OFFICIAL
CAPACITY, RELATORS

══════════════════════════════════════════
ON PETITION FOR WRIT OF MANDAMUS
══════════════════════════════════════════

Argued October 27, 2020

JUSTICE GUZMAN delivered the opinion of the Court, in which JUSTICE LEHRMANN, JUSTICE
BOYD, JUSTICE DEVINE, JUSTICE BLACKLOCK, JUSTICE BUSBY, JUSTICE BLAND, and JUSTICE
HUDDLE joined.

CHIEF JUSTICE HECHT filed a dissenting opinion.

When a state agency or department head files a notice of appeal, enforcement of an adverse

judgment or order is automatically suspended without bond or other security. 1 Section 22.004(i)

of the Texas Government Code provides that this supersedeas right “is not subject to being

counter-superseded” under Texas Rule of Appellate Procedure 24.2(a)(3) “or any other rule”

except in “a matter that was the basis of a contested case in an administrative enforcement action.” 2

In this ultra vires dispute, state regulators appealed an adverse temporary injunction, but the trial

1
TEX. R. APP. P. 24.2(a)(3); see TEX. CIV. PRAC. & REM. CODE § 6.001(b)(1)-(3).
2
TEX. GOV’T CODE § 22.004(i); see TEX. R. APP. P. 24.2(a)(3).
court allowed the plaintiff school district to counter-supersede the injunction so the regulators

could not undertake any unauthorized actions absent success on appeal.

The court of appeals reversed the counter-supersedeas order as contrary to Rule 24.2(a)(3)

and Section 22.004(i). 3 But to preserve the status quo and prevent irreparable harm, the court

issued its own temporary order continuing the injunction pending disposition of the appeal. 4 The

purely procedural question presented in this mandamus proceeding is whether the appellate court’s

temporary order conflicts with Section 22.004(i). We hold it does not and therefore deny

mandamus relief. Section 22.004(i)’s prohibition against counter-supersedeas is textually limited

to the supersedeas context and does not purport to constrain an appellate court’s power to issue

temporary orders under other authority. The court of appeals’ temporary order may have the same

practical effect as denying supersedeas of the trial court’s injunction, but it is not

counter-supersedeas relief within the meaning of the statute.

I. Background

In the underlying suit, the Houston Independent School District (HISD) seeks a declaration

that the Texas Education Agency (TEA), Commissioner Mike Morath, and Dr. Doris Delaney

(collectively, Relators) lack authority to assume control of the entire school district to rectify

performance deficiencies at 1 of the district’s 280 schools and to address concerns about

open-government compliance and discord among HISD’s publicly elected board of trustees.

Among the actions HISD challenges are Commissioner Morath’s decision to (1) install Dr.

Delaney as a district-level conservator, (2) replace HISD’s elected trustees with an appointed

3
609 S.W.3d 569, 575 (Tex. App.—Austin 2020) (per curiam).
4
Id. at 578 (citing inherent authority and TEX. R. APP. P. 29.3).

2
board of managers, and (3) lower HISD’s accreditation status. HISD contends these actions would

be ultra vires and, on that basis, seeks injunctive relief barring their implementation.

After a hearing, the trial court temporarily enjoined the proposed actions, finding (1) HISD

established a probable right to recovery on its claim that the challenged actions are without legal

authority and ultra vires, (2) HISD made a sufficient showing that the alleged ultra vires actions

would irreparably harm HISD, and (3) injunctive relief is necessary to maintain the status quo

pending a final judgment. The trial court set a prompt trial date on HISD’s request for permanent

injunctive relief and denied supersedeas on interlocutory appeal. In allowing HISD to

counter-supersede the interlocutory order if the Relators appealed, the court stated that unless the

temporary injunction remained in force on appeal, Commissioner Morath would be free to engage

in ultra vires conduct that, once undertaken, would constitute final, unappealable administrative

action. 5

After perfecting an interlocutory appeal, Relators filed a motion to vacate the trial court’s

counter-supersedeas order, citing Texas Rule of Appellate Procedure 24.2(a)(3). 6 Relators argued

that their notice of appeal automatically superseded the trial court’s temporary injunction and,

under Rule 24.2(a)(3), trial courts have no discretion to deny supersedeas to a state agency or the

head of a state agency. HISD opposed Relators’ motion to vacate the counter-supersedeas order

and, in the alternative, filed a cross-motion urging the court of appeals to exercise its authority

under Texas Rule of Appellate Procedure 29.3 to “make any temporary orders necessary to

5
See Morath v. Sterling City Indep. Sch. Dist., 499 S.W.3d 407, 413-14 (Tex. 2016) (Hecht, C.J., plurality op.)
(finality provisions precluded judicial review of Commissioner of Education’s actions even if ultra vires); id. at 414
(Brown, J., concurring) (same).
6
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4); TEX. R. APP. P. 28.1.

3
preserve the parties’ rights until disposition of the appeal.” 7 HISD argued that temporary relief

was necessary to protect the parties’ rights during the appeals process and to prevent

Commissioner Morath from taking a final and unappealable administrative act that would divest

the court of jurisdiction to reach the merits.

The court of appeals granted Relators’ motion and vacated the portion of the trial court’s

order granting HISD’s counter-supersedeas request. The court agreed with Relators that the trial

court’s denial of supersedeas violated Rule 24.2(a)(3). 8 However, to preserve the status quo, to

prevent HISD from suffering irreparable harm, and to protect its jurisdiction to decide the appeal

on the merits, the court also granted HISD’s cross-motion and ordered that the trial court’s

temporary injunction would remain in effect pending disposition of the interlocutory appeal. 9 The

court explained that,

under the particular circumstances presented here, where the appellee alleges
irreparable harm from ultra vires action that it seeks to preclude from becoming
final, to effectively perform our judicial function and to preserve the separation of
powers, we must exercise our inherent authority and use Rule 29.3 to make orders
“to prevent irreparable harm to parties that have properly invoked [our] jurisdiction
in an interlocutory appeal.” 10

The court emphasized, “We are not allowing the trial court to counter-supersede the temporary

injunction; we are exercising our power to issue temporary orders.” 11

7
TEX. R. APP. P. 29.3.
8
609 S.W.3d at 575.
9
Id. at 578.
10
Id. (quoting In re Geomet Recycling LLC, 578 S.W.3d 82, 90 (Tex. 2019) (orig. proceeding)) (alteration in
original).
11
Id.

4
The court of appeals has since ruled on the merits of the temporary injunction, affirming

the trial court in a split decision. 12 But prior to disposition of the interlocutory appeal, Relators

filed this original proceeding seeking to vacate the appellate court’s order temporarily continuing

the injunction. The validity of the court of appeals’ temporary order remains live and mandamus

relief remains effective because the court has not lifted its temporary order.

II. Discussion

This original proceeding presents our first opportunity to consider the meaning and reach

of Section 22.004(i) of the Government Code, which prohibits this Court from adopting procedural

rules authorizing counter-supersedeas of orders and judgments against certain governmental

defendants except as to a narrow class of administrative cases. 13 Relators contend

Section 22.004(i) creates a right to supersedeas that is substantive, absolute, and unavoidable.

HISD argues to the contrary, finding support for interim appellate relief in Texas Rule of Appellate

Procedure 29.3, Texas Government Code provisions authorizing courts to protect their

jurisdiction, and the judiciary’s inherent authority. HISD further urges that the statutory scheme

and the rules of appellate procedure cannot be construed as neutering judicial power in the way

Relators suggest without violating the separation-of-powers doctrine established in Article II,

Section 1 of the Texas Constitution.

We hold that the court of appeals’ temporary order does not conflict with

Section 22.004(i)’s limitation on procedural rules authorizing counter-supersedeas. The

12
Tex. Educ. Agency v. Hou. Indep. Sch. Dist., No. 03-20-00025, 2020 WL 7757365, at *1 (Tex. App.—Austin
Dec. 30, 2020, pet. filed) (mem. op.); id. at *9 (Baker, J., dissenting). The appeal in the ultra vires action has been
docketed in this Court as Cause No. 21-0194, which remains pending.
13
See TEX. GOV’T CODE § 22.004(i) (prohibiting counter-supersedeas as to certain state parties under Rule
24.2(a)(3) or “any other rule”).

5
temporary order is not counter-supersedeas relief within the meaning of the statute even though

the order may have the same effect. “Supersedeas” is a trial-court process for suspending

enforcement of the judgment. Under the rules of appellate procedure, supersedeas is subject to

review by the appellate courts, but the supersedeas process occurs in the trial court. 14

Section 22.004(i) does not purport to limit the power of appellate courts, including this Court, to

issue temporary orders under other authority, like the Rule 29.3 order issued here.

It is not uncommon for procedurally different processes to produce the same substantive

effect. That is the case here where an injunctive effect may be achieved in multiple ways, but

Section 22.004(i) uses precise and technical language to prohibit only one of those procedural

mechanisms. We cannot presume the Legislature intended Section 22.004(i) to carry broader

preclusive force than the enacted language describes. Rather, “[w]e must take the Legislature at

its word, respect its policy choices, and resist revising a statute under the guise of interpreting it.” 15

Judicial restraint in this regard is all the more important if expanding a statute’s reach has the

potential to impermissibly encroach on the judiciary’s constitutionally separate domain.

A.

The purpose of supersedeas is “to preserve the status quo by staying the execution or

enforcement of the judgment or order appealed from pending the appeal.” 16 Supersedeas not only

prevents a judgment creditor from levying execution on a judgment while an appeal is pending 17

14
See TEX. R. APP. P. 24.1–.4 (subject to review by the court of appeals and further review by mandamus to the
Supreme Court of Texas, the trial court determines the type and amount of security required to suspend enforcement
of a judgment and that court’s clerk issues the writs of supersedeas that halt enforcement).
15
Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013).
16
Shell Petroleum Corp. v. Grays, 62 S.W.2d 113, 118 (Tex. 1933).
17
Supersedeas, BLACK’S LAW DICTIONARY (11th ed. 2019).

6
but also prevents a judgment, injunction, or other order from being enforced by contempt. 18 When

superseded, compliance with an injunction is not required until all appeals have been exhausted

and the mandate has issued. 19

Merely appealing an interlocutory order does not suspend enforcement “unless . . . the

appellant is entitled to supersede the order without security by filing a notice of appeal.” 20 TEA

and Commissioner Morath fall within the stated exception because Section 6.001 of the Texas

Civil Practice and Remedies Code exempts a department of the State of Texas and the head of

such department from filing “a bond . . . for an appeal . . . in a civil suit.” 21 Accordingly, the notice

of appeal automatically suspended enforcement of the trial court’s order. 22 Instead of preserving

the status quo, however, suspension of the temporary injunction would, in this case, have the

contradictory effect of permitting the status quo to be altered, because if compliance with the

injunction were not required, HISD’s manner of governance and accreditation rating could be

changed from “the last, actual, peaceable non-contested status [that] preceded the pending

controversy.” 23

18
See, e.g., In re Long, 984 S.W.2d 623, 626 (Tex. 1999) (orig. proceeding) (a superseded injunction is not
enforceable by contempt until all appeals related to the judgment have been exhausted; options to allow enforceability
pending disposition of an appeal include a request to deny supersedeas); In re Sheshtawy, 154 S.W.3d 114, 123-24
(Tex. 2004) (orig. proceeding) (examining cases involving the authority of the courts to enforce by contempt
temporary injunctions or final judgments that have been appealed but not superseded).
19
In re Long, 984 S.W.2d at 626; see TEX. R. APP. P. 24.1(f) (“Enforcement of a judgment must be suspended if
the judgment is superseded.”).
20
TEX. R. APP. P. 29.1.
21
As the court of appeals observed, the temporary injunction effectively includes the TEA by enjoining
Commissioner Morath and “his agents, servants, representatives, employees, designees, and officials acting in concert
with him.” 609 S.W.3d 569, 573 n.2 (Tex. App.—Austin 2020) (per curiam).
See In re State Bd. for Educator Certification, 452 S.W.3d 802, 804 (Tex. 2014) (orig. proceeding); Ammex
22

Warehouse Co. v. Archer, 381 S.W.2d 478, 485 (Tex. 1964).
23
Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 555 (Tex. 2016) (quoting Janus Films, Inc. v. City of Fort
Worth, 358 S.W.2d 589, 589 (Tex. 1962)).

7
For reasons like this, the extent to which the state’s “automatic” right to supersedeas is also

“absolute” has been the subject of much debate centered on the text of Texas Rule of Appellate

Procedure 24.2(a)(3), which governs suspension of orders “for something other than money or an

interest in property.” 24 In a former iteration of the rule, trial courts generally had discretion to

deny supersedeas if the judgment creditor filed a counter-supersedeas bond, but it was unclear

whether the discretion to deny supersedeas extended to orders and judgments against governmental

defendants the Legislature has exempted from filing an appeal bond. 25 We settled the issue in

In re State Board for Educator Certification by holding that the former version of Rule 24.2(a)(3)

gave trial courts discretion “to decline supersedeas if the judgment creditor posts security.” 26

In that case, the State Board for Educator Certification revoked a schoolteacher’s teaching

certificate after a contested-case hearing, but in a subsequent judicial-review proceeding, the trial

court reversed the revocation and refused to allow the board to supersede the judgment pending

appeal. Construing the language in Rule 24.2(a)(3) as it existed at the time, we said:

TRAP 24.2(a)(3) gives the trial court discretion, quite sensibly, to prevent the State
from re-revoking Montalvo’s certification—the ultimate professional sanction—
while it spends years appealing the court’s reversal of the State’s first revocation,
something the trial court found “arbitrary and capricious.” The State—as yet
unsupported by a victory on the merits in any court—wants to strip Montalvo of his
livelihood while the appellate process grinds on, and if he manages to regain his
professional license after having been kicked out of his profession for years—well,
bygones. [Enforcing administrative orders a trial court has reversed would be] a
striking assertion of unbridled executive power [and] TRAP 24.2(a)(3) recognizes
the judiciary’s authority to say no. 27

24
See TEX. R. APP. P. 24.2(a)(3), 29.1–.2.
25
State Bd. for Educator Certification, 452 S.W.3d at 806 n.22.
26
Id. at 808.
27
Id. at 808-09.

8
A few years later, the Texas Legislature instructed this Court to adopt rules curbing judicial

discretion to issue “counter-supersedeas” orders. Adopting Section 22.004(i) of the Texas

Government Code, the Legislature required the Court to adopt rules ensuring that the right of select

governmental entities “to supersede a judgment or order on appeal [without bond] is not subject to

being counter-superseded under Rule 24.2(a)(3), Texas Rules of Appellate Procedure, or any other

rule.” 28 Under Section 22.004(i), the only permissible exclusion to the general prohibition is for

“[c]ounter-supersedeas . . . in a lawsuit concerning a matter that was the basis of a contested case

in an administrative enforcement action.” 29 This exception encompasses the situation that existed

in In re State Board for Educator Certification, so our holding that the trial court had discretion to

grant counter-supersedeas relief in that case remains intact.

Responding to Section 22.004(i)’s directive, we amended Rule 24.2(a)(3) to its current

form, which deprives trial courts of authority to deny supersedeas for non-monetary,

non-property-interest judgments “[w]hen the judgment debtor is the state, a department of this

state, or the head of a department of this state.” 30 As to those governmental actors, “the trial court

must permit a judgment to be superseded except in a matter arising from a contested case in an

administrative enforcement action.” 31 Notably, we did not view Texas Rule of Appellate

Procedure 29 as involving the supersedeas or counter-supersedeas process and thus made no

changes to that rule in response to Section 22.004(i)’s directive.

28
TEX. GOV’T CODE § 22.004(i). Section 6.001 lists several governmental entities and actors who are exempt
from filing an appeal bond, but the Legislature immunized only a limited few from counter-supersedeas: (1) this state;
(2) a department of this state; and (3) the head of a department of this state. TEX. CIV. PRAC. & REM. CODE
§ 6.001(b)(1)-(3).
29
TEX. GOV’T CODE § 22.004(i).
30
TEX. R. APP. P. 24.2(a)(3).
31
Id. (emphasis added).

9
B.

The dispute here is whether the legislatively mandated prohibition on counter-supersedeas

grants Relators a substantive right to supersedeas that constrains courts of appeals from effectively

granting the same relief under Texas Rule of Appellate Procedure 29.3 or otherwise. Relying on

Government Code Section 22.004(i) and the conforming revision to Rule 24.2(a)(3), Relators

claim an unequivocal and unconditional supersedeas right that cannot, under any circumstances,

be denied through counter-supersedeas or any equivalent action. Relators contend that the court

of appeals’ temporary order directly conflicts with Section 22.004(i) because the statute explicitly

prohibits denial of supersedeas under any procedural rule, not just counter-supersedeas orders

issued by the trial court. And because a rule of procedure can never take precedence over a

statute—especially a statute that expressly disallows incompatible rules—Relators take exception

to the court of appeals’ reliance on its authority under Rule 29.3 to issue temporary orders.

HISD’s central argument to the contrary is that neither Section 22.004(i) nor

Rule 24.2(a)(3) circumscribes an appellate court’s authority to issue temporary orders under

(1) statutory grants of authority to preserve jurisdiction, 32 (2) the court’s inherent authority to

protect the status quo and preserve the parties’ rights, 33 or (3) Rule 29.3, which it argues is

32
See TEX. GOV’T CODE §§ 21.001 (“A court has all powers necessary for the exercise of its jurisdiction . . .
including authority to issue the writs and orders necessary or proper in aid of its jurisdiction.”), 22.221(a) (“Each court
of appeals . . . may issue . . . writs necessary to enforce the jurisdiction of the court.”); see also Dallas Morning News
v. Fifth Court of Appeals, 842 S.W.2d 655, 658 (Tex. 1992) (orig. proceeding) (holding that, to protect its jurisdiction
to decide the merits of an appeal involving denial of a Rule 76 motion to seal, the court of appeals had power to issue
a temporary order limiting disclosure of disputed documents pending disposition of the appeal); Madison v. Martinez,
42 S.W.2d 84, 86 (Tex. Civ. App.—Dallas 1931, writ ref’d) (holding that under Section 22.221(a)’s identically worded
predecessor, the court of appeals had authority to protect its jurisdiction over the subject-matter of the appeal by giving
effect to a temporary injunction the trial court had denied).
33
See Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979) (explaining that a court’s inherent powers
derive “from the very fact that the court has been created and charged by the constitution with certain duties and
responsibilities”).

10
inclusive of the court’s statutory and inherent authority to issue temporary orders. 34 HISD

maintains that, at a minimum, Section 22.004(i) does not prevent courts from exercising their

statutory authority to prevent Commissioner Morath from taking actions that could moot the appeal

and divest the court of the jurisdiction he invoked by filing a notice of appeal in the first instance.

HISD warns that construing Section 22.004(i) as carrying the prescriptive force Relators advocate

would allow governmental defendants to orchestrate a favorable outcome, not on the merits but by

evading review entirely—victory achieved by procedural gambit rather than under the law.

Due to Section 22.004(i)’s prohibition against counter-supersedeas under “any other rule,”

the parties focus on the court of appeals’ reliance on Rule 29.3, which governs an appeals court’s

authority to issue temporary orders preserving the rights of the parties on interlocutory appeal.

This rule of appellate procedure states that “[w]hen an appeal from an interlocutory order is

perfected, the appellate court may make any temporary orders necessary to preserve the parties’

rights until disposition of the appeal and may require appropriate security.” 35 HISD contends the

court of appeals’ broad authority to preserve the parties’ rights is materially distinct from a trial

court’s supersedeas authority, as described in Rule 24.2(a)(3) and as circumscribed by

Section 22.004(i). And rather than conflicting, HISD describes supersedeas and the temporary

order here as deriving from distinct reservoirs of power that are directed to different concerns,

even when they would have the same effect. Relators acknowledge that appellate courts are

generally empowered to issue orders protecting the parties’ rights and preserving their ability to

34
See In re Geomet Recycling LLC, 578 S.W.3d 82, 90 (Tex. 2019) (orig. proceeding) (“[Rule 29.3’s] scope
plainly extends well beyond the power to protect the court’s jurisdiction.”). The other arguments HISD made in the
court below were not briefed here.
35
TEX. R. APP. P. 29.3.

11
resolve the dispute on appeal, but they view Section 22.004(i) and Rule 24.2(a)(3) as specific and

unqualified constraints on this power, even in aid of a court’s jurisdiction.

Both parties find support for their respective arguments in our recent opinion in In re

Geomet Recycling LLC. 36 That case involved an appellate court’s Rule 29.3 temporary order

partially lifting a statutory stay of all trial-court proceedings for the limited purpose of allowing

the trial court to conduct a hearing on the plaintiffs’ request for a temporary injunction and motion

for contempt, which asserted Geomet had violated the trial court’s temporary restraining order.37

We held that the language of the interlocutory-appeal statute, Section 51.014(b) of the Civil

Practice and Remedies Code, unambiguously stays all trial-court proceedings and admits of no

exceptions. 38 As “procedural rules cannot authorize courts to act contrary to a statute,” Rule 29.3

did not authorize the court of appeals to lift the stay to allow further proceedings in the trial court,

even to the limited extent requested. 39 We explained, however, that plaintiffs had recourse and

the possibility of a remedy from the appellate court under Rule 29.3. 40 And because the statutory

stay imposed by Section 51.014(b) only applies to trial-court proceedings, the statute did not

prohibit the court of appeals from preserving the plaintiffs’ rights under Rule 29.3 in other ways. 41

The plaintiffs’ error was that they asked the court of appeals to allow the trial court to take an

action the interlocutory-appeal statute specifically prohibited. 42

36
578 S.W.3d 82 (Tex. 2019).
37
Id. at 85.
38
Id. at 87.
39
Id. at 88.
40
Id. at 89.
41
Id.
42
Id.

12
Relators argue that, similar to Geomet, the court of appeals here lacked authority to issue a

temporary order under Rule 29.3 that violates a statute, Section 22.004(i). In the Relators’ view,

the court of appeals’ temporary order strikes at the heart of Section 22.004(i)’s protection of a

governmental entity’s supersedeas right, because the order effectively allows the temporary

injunction to be enforced pending disposition of the Relators’ appeal.

HISD asserts that the court of appeals’ action is entirely consistent with the ruling in

Geomet. Instead of enforcing the trial court’s counter-supersedeas order, which the court of

appeals agreed was impermissible, the court issued its own order preserving HISD’s rights on the

separate basis of preserving the status quo and protecting the court’s own jurisdiction, 43 which it

is authorized to do not only under a general rule, but also by statute. HISD maintains that the

temporary order is not a counter-supersedeas order merely because it has the same effect as an

order denying supersedeas. But if Section 22.004(i) were construed as abrogating judicial

authority to issue orders protecting the parties and preserving the status quo, HISD argues the

statute would violate the Texas Constitution’s separation-of-powers mandate, a concern we

alluded to in Geomet. 44

This case is quite dissimilar from Geomet but it shares the same root question: what does

the statute actually prohibit? The precise question we must answer is whether the Legislature

intended to restrain the specific process identified in the statute—the supersedeas process

controlled by Texas Rule of Appellate Procedure 24—or whether the Legislature intended to

constrain any judicial power that could produce the same effect.

43
609 S.W.3d 569, 578 (Tex. App.—Austin 2020) (per curiam) (granting temporary relief “to effectively perform
our judicial function and to preserve the separation of powers”).
44
In re Geomet, 578 S.W.3d at 90 (stating that “if parties . . . truly had no way to seek relief from irreparable
harm during an interlocutory appeal, we would take very seriously” the plaintiffs’ separation-of-powers arguments).

13
C.

The polestar of statutory construction is legislative intent, which we determine from the

enacted language. 45 In doing so, we construe the Legislature’s chosen words and phrases within

the context and framework of the statute as a whole, not in isolation. 46 We apply the plain meaning

of statutory language unless (1) the Legislature has prescribed definitions, (2) the words have

acquired a technical or particular meaning, (3) a contrary intention is apparent from the context,

or (4) a plain-meaning construction leads to nonsensical or absurd results. 47 We presume the

Legislature knows the law 48 and drafts statutes with care, choosing each word for a purpose and

purposefully omitting all other words. 49 That being the case, we endeavor to afford meaning to all

of a statute’s language so none is rendered surplusage, 50 but we remain ever mindful of our

obligation to avoid constructions that give rise to constitutional infirmities. 51

Applying these well-established principles, it is clear that Section 22.004(i)’s language

evinces the Legislature’s intent to restrict the supersedeas process and is silent about

appellate-court orders issued under other authority that might have the same effect.

Section 22.004(i) provides in its entirety:

The supreme court shall adopt rules to provide that the right of an appellant under
Section 6.001(b)(1), (2), or (3), Civil Practice and Remedies Code, to supersede a
judgment or order on appeal is not subject to being counter-superseded under

45
State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).
46
Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 326 (Tex. 2017).
47
Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010); FKM P’ship, Ltd. v. Bd. of Regents of
Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008).
48
City of Dallas v. Stewart, 361 S.W.3d 562, 593 n.7 (Tex. 2012).
49
In re D.S., 602 S.W.3d 504, 514 (Tex. 2020).
50
Marks, 319 S.W.3d at 663.
51
City of Fort Worth v. Rylie, 602 S.W.3d 459, 468 (Tex. 2020).

14
Rule 24.2(a)(3), Texas Rules of Appellate Procedure, or any other rule.
Counter-supersedeas shall remain available to parties in a lawsuit concerning a
matter that was the basis of a contested case in an administrative enforcement
action. 52

The statute’s terms refer specifically to the supersedeas process, as prescribed by Rule 24.

As an initial matter, we note that the Legislature limited the statute to ensuring the rights

of appellants under Section 6.001(b)(1)-(3), which generally exempts the state and certain state

agents from filing cost and appeal bonds. 53 Under the appellate rules, the trial court determines

the amount and sufficiency of an appeal bond in accordance with the requirements outlined in

Rule 24, subject to modification only through appellate review of the trial court’s supersedeas

order. 54

Further, and more notably, the statute references the right to “supersede” a judgment or

order and prohibits the same from being “counter-superseded.” At the same time, the statute

allows “counter-supersedeas” in a specified circumstance. Supersedeas and counter-supersedeas

are terms of art that refer to a particular process for suspending enforcement of a trial court’s

judgment or order. Neither term refers to appellate-court orders that have the same practical effect.

The statute also references Rule 24.2(a)(3), a specific subsection of the rules governing the

supersedeas process. The express citation to Rule 24.2(a)(3) reinforces the Legislature’s singular

focus on that process. While we cannot ignore the legislative prohibition against

counter-supersedeas under “any other rule,” that phrase cannot be read in isolation. Construed in

connection with the linguistically precedent context, the phrase refers to rules applicable to the

52
TEX. GOV’T CODE § 22.004(i) (emphases added).
53
TEX. CIV. PRAC. & REM. CODE § 6.001(a), (b).
54
TEX. R. APP. P. 24.2, .4.

15
supersedeas process. 55 The court of appeals’ temporary order preserving the status quo and

ensuring the court’s ability to decide the case on the merits is not a supersedeas order. The order’s

effect does not change its nature.

The distinction between supersedeas and temporary orders suspending enforcement of a

judgment may seem a fine one, but the processes are distinct, and the appellate rules, both currently

and at the time Section 22.004(i) was enacted, make the same distinction. Rule 29, which applies

to orders on interlocutory appeal, treats the supersedeas process in the trial court under Rule 24

differently from an appellate court’s temporary orders. Rule 29.2 refers to trial court orders

“supersed[ing]” an interlocutory order on appeal, while Rule 29.3 permits an appellate court to

enter temporary orders except one that “suspends the trial court’s order if the appellant’s rights

would be adequately protected by supersedeas or another order made under Rule 24.” 56

Importantly, Rule 29.1 exempts from the supersedeas process those appellants who are not

required to file an appeal bond, but does not exempt those same appellants from being subject to

an appellate court’s temporary orders, a materially different process with materially different

inquiries and objectives. 57 We presume the Legislature was aware of this distinction in enacting

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Rule 24.4(a)(4) and (5), which allow an appellate court to review the trial court’s “determination whether to
permit suspension of enforcement” and “exercise of discretion under Rule 24.3(a),” are “other [counter-supersedeas]
rules” Section 22.004(i) constrains. See TEX. R. APP. P. 24.4(a)(4)-(5) (allowing for appellate review of the trial
court’s supersedeas rulings).
56
TEX. R. APP. P. 29.3.
57
The difference in enforcement of the trial court’s order, which remains superseded, and enforcement of the
court of appeals’ temporary order illustrates that the two are neither procedurally nor functionally equivalent. If the
court of appeals had not vacated the trial court’s counter-supersedeas order, the temporary injunction would be
enforceable by either the trial court or the court of appeals until the conclusion of the appellate process. See In re
Sheshtawy, 154 S.W.3d 114, 124-25 (Tex. 2004) (orig. proceeding) (holding that the trial or the appellate court may
entertain a contempt motion if a final judgment has not been superseded). In contrast, the court of appeals’ temporary
order is enforceable only by that court. Procedurally speaking, it is not the reinstatement of the trial court’s order;
rather, it is a new order of the court of appeals. This is not the type of order the Legislature intended to prohibit in
requiring the Court to adopt rules prohibiting denial of supersedeas to certain state actors.

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Section 22.004(i), and we must give effect to the Legislature’s choice to prohibit

counter-supersedeas and not all types of orders that might have the same practical effect.

This result derives directly and necessarily from a text-based review of the statutory

language. Though applying text as written can sometimes give rise to an outcome that appears

punctilious, reading the statute exactly as it is written in this case has the salutary effect of a

reasonable result that avoids raising separation-of-powers concerns. The reason the Legislature

might take such a nuanced approach would be mere supposition on our part, and it cannot change

what the statute says in any event. But one obvious motivation for limiting only the supersedeas

process could be concern that 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.

Giving effect to Section 22.004(i)’s plain language, we conclude the statute only prohibits

counter-supersedeas orders, which occur within a specific procedural context, and does not apply

to orders issued by an appellate court under separate and distinct procedural mechanisms. The

dissent reaches the opposite result by isolating the words “any other rule” in Section 22.004(i) to

advance a presumed but unarticulated statutory purpose. 58 This runs counter to bedrock statutory

construction principles, which require us to discern legislative intent from the statutory language

construed as a whole. 59

58
Post at 8.
59
Similarly, although courts must construe statutes to avoid constitutional infirmities whenever possible, the
dissent embraces a categorical bar on appellate court power to prevent irreparable harm without regard to the
constitutional ramifications of doing so. See generally post at 6-10.

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D.

We are sensitive to Relators’ concerns that protracted litigation without suspension of the

temporary injunction could delay remedial measures designed to protect students and improve

academic achievement. 60 However, Relators were not without options for hastening conclusion

of the litigation on the merits. Relators could have asked the court of appeals for an expedited

briefing schedule and ruling, 61 but they elected not to request either. Relators sought expedited

disposition of their motion to set aside the trial court’s counter-supersedeas order but did not seek

expedited disposition of the appeal even after the court of appeals granted temporary relief. To

the contrary, they sought, and were granted, a briefing extension. Relators then waited nearly a

month to seek mandamus relief from this Court and even then did not request a stay of the court

of appeals’ temporary order or expedited disposition of the mandamus petition.

Notwithstanding Relators’ strategic decision not to seek expedited relief here or in the court

below, the dissent chides the court of appeals for granting temporary relief in lieu of sua sponte

expediting disposition on the merits. 62 While courts certainly have authority to do so, 63 the

60
Whether remedial measures are warranted is disputed, unadjudicated, and immaterial to the disposition of this
procedural dispute as well as the underlying ultra vires action. For dramatic flair, the dissent assumes disputed facts
in the Relators’ favor, see post at 1-3, but even if those facts were an accurate reflection of the record and relevant to
the issues in this original proceeding, it would be inappropriate to assume facts contrary to the lower courts’ ruling in
the procedural posture of this case.
61
See In re Geomet Recycling LLC, 578 S.W.3d 82, 90 (Tex. 2019) (orig. proceeding) (“In addition, Geomet
correctly observes that parties in cases subject to the stay can ask the court of appeals for an expedited ruling in what
is already an accelerated appeal.”); TEX. R. APP. P. 2 (“On a party’s motion or on its own initiative an appellate court
may—to expedite a decision or for other good cause—suspend a rule’s operation in a particular case and order a
different procedure[.]”); see also State of Texas v. El Paso County, No. 08-20-00226-CV (Tex. App.—El Paso, Nov.
9, 2020) (per curiam) (order granting the State of Texas’s motion to expedite the appeal), available at
https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=dbeea787-cbd0-4f77-a64f-36900ee097bc&coa=coa
08&DT=Order&MediaID=575e4e4e-4527-4255-aa82-afe0d2d880aa.
62
Post at 12-13.
63
TEX. R. APP. P. 2 (authorizing an appellate court “on its own initiative . . . to expedite a decision”).

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dissent’s argument is confounding because (1) the power to expedite proceedings is irrelevant to

whether appellate courts are empowered to issue temporary relief; (2) the availability of an

expedited disposition does not change what Section 22.004(i) means; (3) courts have no obligation

to expedite the proceedings on their own initiative; and (4) the dissent does not explain how

expediting relief would have adequately protected HISD from unreviewable executive action and

irremediable harm.

More to the point, Relators had every opportunity and incentive to seek a stay or expedited

disposition on their own accord but, for whatever reason, chose not to do so. As the dissent notes,

on the same day this original proceeding was filed, Relators’ counsel filed a mandamus petition in

this Court challenging a Rule 29.3 order in another case involving the State’s supersedeas rights

and sought an emergency stay of that order, which we granted. 64 In a separate mandamus

proceeding involving a different issue filed two days earlier, Relators’ counsel requested expedited

disposition on the merits, which we also granted. 65 In stark contrast, Relators’ counsel did not

request either in this case, nor did this Court expedite the proceedings on our own initiative. The

dissent incorrectly asserts that we sua sponte expedited disposition of one of the aforementioned

mandamus petitions, 66 but that is simply untrue. The relators in that case expressly requested

expedited disposition. 67 Here, Relators have never done so at any point.

64
Cause No. 20-0401, In re State of Texas.
65
Cause No. 20-0394, In re State of Texas.
66
Post at 12.
67
Post at 11-12. The Relators’ petition in Cause No. 20-0394, In re State of Texas, requested expedited disposition
as follows:
Relator respectfully requests relief within 14 days of this filing. For the July 14 elections, the deadline for
early-voting clerks to provide mail-in ballots to military and overseas applicants is May 30. See TEX. ELEC.

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E.

The dissent devotes more attention to collateral issues that require no response than it does

to the statutory text. Even so, we would be remiss if we did not address the dissent’s

misrepresentation that the Court “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.” 68

Whether by design or inadvertence, the dissent presents two separate and distinct mandamus

proceedings as one, and in doing so, distorts the public record to support a contention that is

demonstrably inaccurate. Our construction of Section 22.004(i) and the outcome in this case is in

no way inconsistent with our disposition of In re State of Texas, Cause No. 20-0394, which

presented a statutory-construction issue under the Texas Election Code that we decided on the

merits, 69 or our disposition of In re State of Texas, Cause No. 20-0401, which involved a

procedural issue that we dismissed on the State’s motion without reaching the merits. 70 These

cases were unrelated to each other with different parties, distinctly different legal issues, and

materially different procedural postures.

Cause No. 20-0394, which we will refer to as State 1, was a mandamus petition filed in

this Court in the first instance. There were no prior proceedings in the lower courts and thus no

Rule 29.3, supersedeas, or injunction issues. The only question was the proper construction of the

CODE § 86.004(b). Many clerks provide ballots to other applicants at the same time or sooner. See id.
§ 86.004(a). An expeditious decision is needed to prevent irreparable harm.
Petition for Writ of Mandamus at ix.
68
Post at 10.
69
See In re State, 602 S.W.3d 549, 551-52, 560 (Tex. 2020) (orig. proceeding).
70
In re State of Texas, No. 20-0401, (Tex. July 24, 2020), available at https://www.txcourts.gov/supreme/orders-
opinions/2020/july/july-24-2020/ (order granting unopposed motion to dismiss).

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Election Code, and the relators requested expedited disposition of the petition in light of impending

run-off elections. 71 None of the issues overlapped with this case.

Cause No. 20-0401, which we will refer to as State 2, was a mandamus petition that arose

from pending litigation that had been instituted in the trial court and was then on appeal in the

Fourteenth Court of Appeals. The underlying case involved the same Election Code issue as

State 1, but the trial court in State 2 had issued a temporary injunction that was both prohibitory

and prescriptive. The temporary injunction there did not merely maintain the status quo like the

temporary injunction and Rule 29.3 order in this case; rather, the temporary injunction ordered the

State to undertake certain actions with respect to the elections.

The day after State 1 was filed in this Court, the court of appeals in State 2 issued a

Rule 29.3 order maintaining the trial court’s injunction pending disposition of the appeal. 72 In the

State 2 mandamus petition filed here the following day—the same day this original proceeding

was filed—the appellate court’s authority to continue the injunction under Rule 29.3 was the only

issue. We granted the State’s motion for temporary relief in State 2, but we never reached the

merits of the mandamus petition because our opinion on the Election Code issue in State 1 resolved

the merits of the underlying dispute in State 2. As a result, the State 2 litigation was nonsuited in

the trial court; the court of appeals dismissed the underlying appeal as moot; and we granted the

State’s unopposed motion to dismiss the mandamus petition.

As the dissenting justice is fully aware, neither State 1 nor State 2 decided the merits of

any issue presented in this case. Nor have Relators asked the Court for temporary relief, as the

71
See supra n.66.
72
No. 14-20-00358-CV, 2020 WL 3022949 (Tex. App.—Houston [14th] May 14, 2020, no pet.).

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relators in State 2 did. It is thus impossible for any inconsistency to exist between this case and

those cases, let alone any “opposite” conclusions.

III. Conclusion

We deny Relators’ request for mandamus relief because Section 22.004(i)’s prohibition on

counter-supersedeas refers to a particular procedural process, not an appellate court’s temporary

orders under other authority. Accordingly, the court of appeals was not without power to issue

temporary relief.

____________________________________
Eva M. Guzman
Justice

OPINION DELIVERED: March 19, 2021

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