### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00107
- CV

Greg Abbott in h is Official Capacity as Governor of the State of Texas; Jaime Masters in h er Official Capacity of Commissioner of the Department of Family and Protective Services; an d the Texas Department of Family and Protective Services , Appellant s

v. Jane Doe, individually and as parent and next friend of Mary Doe, a minor; John Doe, individually and as parent and next friend of Mary Doe, a minor; and Dr. Megan Mooney , Appellee s

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
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- 000977 , THE HONORABLE AMY CLARK MEACHUM , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

P ER CURIAM Greg Abbott , in his official capacity as Governor of Texas , Jaime Masters, in her offi c ial capacity as Commission er of the Department of Family and Prot ective Services (Department) , and the D e partment ( collectively , the State Parties ) , appea l the district court ’ s interlocutory order granting a tempora ry restraining o rder

. Appellees have fi l ed an emergency motion to dismiss the appeal for want of jurisdiction

. W e will grant the motion

. This app eal arises out of a dispute over the legality of pr ov iding gender

- affirming healthcare to children. On February 22, 2022, Governor Abbott sent a let t er to Commissioner
Masters enclosing an Attor ney General opinion determining that certain types of2 gender

- affirming care might constitute child abuse . He directed the Department to investigate any reports of children receiving those types of treatments

. Hi s letter also referenced statutory

re quirements that licensed professionals who have direct contact with children report suspected child abuse. App ellees

— the pa rents of a transgender child re ceiv ing gender

- af firming care and a psychologi st who treats t r ansgender child ren

— sued the State Parties s eeking declaratory and injunctive relief. On March 2, 2022, t he district court granted a temporary restrai ning order (TRO) enjoining the State Parties from taking any action against the plaintiffs based solely o n the Governor ’ s letter or the Attor ney General ’ s opinion. The order set a hearing on ap pellees ’ request for a temporary injunction on March 11, 2022. The S tate Parties filed a not ice of interlocutory a ppeal from that o rder, which they characterize as ha v ing “ implicitly denied [the ir ] plea to the jurisdiction

. ” Se e Tex. Civ. Prac. & Rem. Code § 51.014 ( a)(8) (authorizing interlocuto ry appeal of order t hat “ grants or denies a plea to the jurisdiction by a governmental unit ” ). A ppellee s then filed a motion to dismiss this appeal fo r want of jurisdiction.
W hether we have jurisdiction is a question of law that we consider de novo. Bonsmara Nat. Beef Co. v . Hart of Tex. Cattle Feeders , LLC , 603 S.W.3d 385, 390 (T ex. 2020)

. “[ T ] he general rule, with a few mos t ly statutory exceptions, is that an appeal may be taken only from a final judgment. ” Lehmann v. Har

- Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001)

. We strictl y construe s tatu tes authorizing interlocutory appeals because they “ ‘ are a narrow exception to the g e neral rule ’ that ‘ appellate courts generally only have jurisdiction over final judgments. ’ ” Bonsmara Nat. Beef , 603 S.W.3d at 390 ( quoting CMH Homes v. Per ez , 340 S. W.3d 444, 447 (Tex. 2011) ). The statute re levant here provides that a person may appeal f rom an order that

“ grants or denies a plea to the jurisdiction by a governmental unit

. ” Tex. Civ. Prac. & Rem. Code § 51.014 ( a)(8)

.3 The parties agree that the dist rict court never e xplicitly ruled on the plea to the jurisdiction

. However , denia l of a pl e a to the jurisdiction need not be explicit but m a y be implied from the context. Bass v. Waller C nty

. Sub

- Reg ’ l Planning Comm ’ n , 514 S.W.3d 908, 914 (Tex. App.

— Austin 201 7, no pet.)

. An implicit ruling i s “ one that, though unspoken, reasonably can be inf e rred from something else. ” Trevino v. Ci ty of Pearland , 531 S.W.3d 290, 299 (Tex. App.

— Houston [14th Dist.] 2017, no pet.)

. The supreme cou rt addressed an i mplicit denial of a plea to the jurisdiction in Thomas v. Long , 207 S.W.3d 334 (Tex. 2006)

. In t h at case,
t he trial court did not rule on the defendant ’ s plea to the jurisdiction but granted partial judgment on the merits of some of claims challenged by the plea. I d. at 339. The supreme cou rt held t hat “because a trial court cannot reach the merits of a case without subject matter jurisdiction, a trial court that rules on the merits of an issue without explicitly rejecti ng an asserted jurisdictional
att ack has implici tly denied the jurisdictional challenge. ” Id. at 339

– 40 (internal citation omitted ) . The State Parties ar gue that this case is like Thomas be cause the court ’s issuance of the
TRO “ necessarily implies a finding by the trial court that it likely has subjec t

- matter jurisdiction, and that conclusion necessarily rejects the State’s jurisdic t ional arguments. ” We disagree. An applicant f or a TRO must show , among other things, a

“ probable right to the relief sought

. ” In re Abbott , 628 S.W.3d 288, 291 (Tex. 20 21) (orig. proceeding). Making this showing requires the applica nt to demonstrate a p robable right to the relief sought which can include jurisdictional issues, such as standing. Id. at 295 n.8 (citing Abbott v. Anti

- Defamati on League Austin, Sw., & Texoma Regions , 610 S.W.3d 911, 917 (Tex. 2020) ). However , a court does not necessaril y r each the merits of a party ’ s claims by concluding that an applicant has made that preliminary showing and is entitled to a T RO

. S e e Fernandez

v. Pimentel , 360 S.W.3d 643, 646 (Tex. App.

— El Pa so 2012, no pet.) ( “ Because a TRO is4 merely a precursor to a tem porary in junction, it does not constitute a ruling on the merits. ” ( citing Iranian Muslim Org. v. City of San Antonio , 615 S.W.2d 202, 208 (Tex. 1981) ) )

. Nor can we infer from th e grant in g of the TRO that the court denie d the State Parties ’ plea to t he ju risdiction. T he State Parties argue that this Court has recognized a “ trial court’s silence as to a jurisdictiona l challenge is an implicit denial whenever the court issues any order that requires subject

- matter jurisdiction. ” However, they cite a c ase i nvolving an order that specifi cally de fe rred consideration of a plea to the jurisdiction

. Bass , 514 S.W.3d at 9 15

. This Court has refused to extend Thomas to hold that trial court s imp liedly deny pleas to t he jurisdiction by taking actions that do not r e ach the merits

. E .g., W est Travis C nty

. Pub. Util. Agency v. CCNG Dev. Co. , 514 S.W.3d 770, 775 (Tex. App.

— Austin 2017, no pet.) (finding no support for “ the notion that an order granting a motion to reinstate necessarily constitutes an implicit den ial o f a pending jurisdictional challenge ”); Tex as Dep ’ t of Pub. Safety v. Salazar , No. 03

- 11

- 00206

- CV, 2011 WL 1469429, at *1 (Tex. App.

— Austin Apr. 19, 2011, no pet.) (mem. op.) (holding o rder continuing p lea to jurisdiction and allowing disc overy not im plici t denial of plea ). W e will do the same here. A p pellees argu e that the State Parties filed the plea to the jurisdiction “ mere minutes ” before the T RO hearing , the district court was not even aware of the filing un til an attorney mention ed it , and th at no one requested a ruling on the plea

. The
S t ate Parties do not dispu te any of these assertions. Viewing the district court ’ s order in context,

we conclude that it is not an implied rulin g on the State Parties ’ jurisdictional plea. S e e CCNG
Dev. , 514 S.W. 3 d at 775 ; Salazar , 2011 WL 1469429, at *1

. As an alternative, the State Parties argue that the order is appealable as a temporary injun ction. While t he grant or denial of a temporary res training order is not an appealable order , In re Tex as Nat. Re s. Con s ervation Comm ’ n , 85 S.W.3d 201, 205 (Tex. 2002) ,5 a n order that grants or refuses a temporary injunction is an appealable order , Tex. Civ. Prac.
& Rem. Code § 51.014 (a) (4) . Whether an ord er is a temporary restraining or der or a temporary injunction “ depen d s on the order ’ s characteristics and function, not its title. ” Tex as Nat. Res.
Conservation Comm ’ n , 85 S.W.3d at 20 5

. “ A temporary restraining order is one entered as part of a motion f or a temporary injunction, by which a party is restrained pend ing th e hearing of the motion. A temporary injunction is one which operates until dissolved by an interlocutory order or until the final hearing. ” Id. (citing Del Valle Indep. Sch. Dist. v. Lo p ez , 845 S.W.2d 808, 809 (Tex. 1992) ). T he State Parties argue that t he orde r is appealable as an injunction because it alters the status quo. S ee id. at 206 ( citing cas es holding tha t “ an order that does more than protect the status quo for the allowable p eriod under Rule 680 is functionally an appealable temporary injun c tion ” ). We disagree. The status quo is the “ last, actual, peaceable, non

- contested status which preceded the pending controversy

. ” Clint Indep. Sch. Dist. v. Marquez , 487 S.W.3d 538,
555 (Tex. 2016)

. The S t ate Parties argue that the order “ radica lly al t ers ” the status quo by prohibiting the Department from carrying out it s legal obligations to investigate allegations of child ab use and neglect

. In particular, the order obligate s the Departme nt to cease an investigation of the Does and to not unde rtake f urther investigations that meet certain criteria. Because the validity of and effect of the Go vernor ’ s letter and the A ttorney General ’ s opin ion is
contes ted by the parties , t he order r eturns the parties to the status quo before the issuance of bo t h docu m ents

. See Tex as Nat. Res. Conservation Comm ’ n , 85 S.W.3d at 206 ( observing that TRO

re straining agency from giving immediate effect to executive direc tor ’ s action did “ no t alter the status quo ” )

. W e conclude that the district court ’ s order is not appeal a ble as a temporary injunction

.6 We grant appellees ’ motion and dismiss the State Parties ’ appeal for want of jurisdiction

. See Tex. R. App. P. 42.3(a)

.

Before Chief Justi ce Byrne , Justice s Kelly , and Smith Dismissed for Want of Jurisdiction Filed: March 9, 2022