Texas Gov. Greg Abbott and Texas Attorney General Ken Paxton have no legal authority to order state child-abuse investigators to act against parents and doctors who participate in medical and mental-health actions involving transgendered minors, the Texas Supreme Court ruled Friday.
The justices, in a 12-page fractured opinion that was mostly confined to procedure, upheld an injunction issued by the lower courts in Texas stopping the state’s child welfare agency investigation into the decision by one set of parents to allow their child to be treated with puberty blockers.
But the justices ruled that the lower courts exceeded their constitutional authority and jurisdiction when they issued a statewide injunction prohibiting the Texas Department of Family and Protective Services from conducting such investigations.
The controversy ignited in February when Paxton, who is running for re-election, issued an opinion stating that certain “sex change procedures and treatments . . . when performed on children, can legally constitute child abuse under several provisions” of the Texas Family Code.
Abbott, who is also running for re-election, sent a letter to the Family and Protective Services commissioner stating that “a number of so-called ‘sex change’ procedures constitute child abuse under existing Texas law.” The governor stated that “DFPS and all other state agencies must follow the law as explained in” Paxton’s opinion.
Days later, DFPS issued this public statement: “In accordance with Governor Abbott’s directive today to Commissioner Masters, we will follow Texas law as explained in Attorney General opinion KP-0401.”
“The Legislature has granted to DFPS, not to the governor or the attorney general, the statutory responsibility to make a prompt and thorough investigation of a report of child abuse or neglect,” Justice Jimmy Blacklock wrote. “When deciding whether and how to exercise that authority, DFPS — not the governor or the attorney general — naturally must assess whether a report it receives is actually a report of child abuse or neglect.”
“Neither the governor nor the attorney general has statutory authority to directly control DFPS’s investigatory decisions,” Blacklock wrote. “They have every right to express their views on DFPS’s decisions and to seek, within the law, to influence those decisions — but DFPS alone bears legal responsibility for its decisions.”
Neither Abbott nor Paxton returned calls seeking comment.
Justice Debra Lehrmann concurred in the court’s reasoning, arguing that the court’s decision was narrow. Justice Evan Young did not participate in the decision.
Despite Abbott contending that he has the authority to order the investigations and DFPS’s statements that the agency acted because of the governor’s directive, the state Supreme Court – in a section of the opinion authored by Justice Jane Bland in which Justice Blacklock dissented – lifted the lower order’s injunction against Abbott, stating, “there is no allegation that he is taking, or has authority to take, the enforcement actions the order enjoins.”
“Because the Governor lacks the authority to investigate or prosecute the plaintiffs, and no party alleges that he has threatened to do so, an order prohibiting him from engaging in such conduct has no support in this record,” Justice Bland wrote. “In all other respects, the Court denies mandamus relief as to the order’s application to the defendants’ conduct with respect to these plaintiffs, while the appeal is pending.”
Justices Jeff Boyd and John Devine joined Blacklock in his dissent of that part of the decision.
Justice Blacklock wrote that the “central role played by courts in the child-welfare system should also be clarified.”
The justice points out that DFPS’s “preliminary authority to investigate allegations does not entail the ultimate authority to interfere with parents’ decisions about their children, decisions which enjoy some measure of constitutional protection whether the government agrees with them or not.” He wrote that DFPS “generally must seek court orders authorizing it to intervene.”
“In other words, DFPS does not need permission from courts to investigate, but it needs permission from courts to take action on the basis of an investigation,” Blacklock wrote. “At that stage, before issuing orders, a court would have to decide whether the child abuse investigated and alleged by DFPS qualifies as such under Texas law. The normal judicial role in this process is to act as the gatekeeper against unlawful interference in the parent–child relationship, not to act as overseer of DFPS’s initial, executive branch decision to investigate whether allegations of abuse may justify the pursuit of court orders.”
Multiple legal experts who regularly practice before the Texas Supreme Court, speaking on the condition that they not be identified, said the justices’ opinion today ignores the legal rights of parents to be able to seek relief in the courts when state investigative agencies conduct abusive investigations based on race, gender, religion and other protected classes.
“Lives and families are often ruined because of DFPS investigations even when the agency ends up taking no action,” a lawyer who handles pro bono matters for families involving DFPS cases told The Texas Lawbook.
The state Supreme Court sent the case back to the lower courts to address remaining issues.
The Texas Attorney General’s office is being led in the litigation by Judd E. Stone II. The parents facing the investigation are represented by Paul D. Castillo and Shelly L. Skeen for the Lambda Legal Defense and Education Fund, as well as Baker Botts lawyers Derek R. McDonald, Maddy R. Dwertman and David B. Goode.