## In the Court of Appeals Secon d Appellat e District of Texas at Fort Worth

___________________________
No. 02

- 22

- 00347

- CV

___________________________

On Appeal from the 431st District Court Denton County, Texas Trial Court No. 22

- 2100

- 431

Before Birdwell, Bas sel, and Walker, JJ. Memorandum Opinion by Justice Bassel Concurring Memorandum O pinion by Justice Birdwell 

### T EXAS 

### E QUAL 

### A CCESS 

### F UND 

### , Appellant

V



### .

A SHLEY 

### M AXWELL 

### , Appellee2 MEMORANDU M OPINION

I. Introduction

T his appeal is o ne skirmish among the generation s

- lon g conflict s over Texas

abo rtion law . T he skirmish that underl ie s this appeal is a challeng e to what is know n
colloquially as the Texas Heart beat A ct (the Act) or S enate B ill 8 (SB 8)

. See Te x

.

Heal th & Safety Co de Ann. § § 1 71.201

– .212

. I n the short time since its passage, the

Act has produced a unique and complex history of litigati on

. Thoug h complex , that

h istory has not yielded what oppon ent s of t he Act, such as App ella nt Texas Equal

Access Fun d ( the Fund) , seek

— a res olution of their host of challenges to the Act ’ s
private civil

- enforcement remedy.

Below, Appellee A shley Maxwe ll filed a Rule 202 petition to take the Fund ’ s

e xecutive dir ector ’ s deposition to inve stiga te w hether the Fund had violated the Act.

The Fund took this as an ope ning to r aise its chal lenge s and responded to the Rule

202 petition with a separa te suit ( the Declaratory

- Judgment Petition) that sought

d ec lara tions to invalidate the Ac t a nd t o enjoin Max well from filing suit unde r the Act

. Maxwell respon ded by filing a motion to dismi ss ( the Dismissal Motion) , which

inv oked the Texas Citizen Parti c ipation Act (TCPA) and Te xa s Rule of Civil

Proce dure 91a. The trial court frustra ted the Fund ’ s effort s by granting Maxwell ’ s

Dismissa l Motion. T he trial court pro per ly dismissed the Fund ’ s suit under Tex as

Ru le of Civ il Procedu re 91a because t he Fund ’ s declaratory

- judgment requ est s
improperly preempt Maxwe ll ’ s ability to d ecide bo th whether she would follow3 through wit h a s uit under th e Act and where she wou ld file

, sho uld she decide to do

so. And b ecaus e the trial court properly dismissed the Fund ’ s Declaratory

- Judgment

Petiti on under Texas Rule of Civ il Procedu re 91a , we further hold that the trial court

did not err by awar ding Maxwell attorney ’ s f ees. A c cordingly, we affirm. 1

II

. Backg roun d of the Heartbeat Act , th e Case , and Texas Abortion Law

A. We set for t h the g eneral n ature of the H eartbeat Act and the hist ory of challenges to it.

I n grossly oversimplified terms, th e Act prohibits abortion after a fetal

heartbeat is detected

. To avoid pre

- e n forcemen t revi ew o f the Act by the federal

courts and to ad dress the legal env ironment that existed before the overruling of Roe

v. Wade

, Texas state official s are sp ec ifically no t permit ted t o enforc e its prohibition

.

I n ste a d, the Act provi de s that “ th e requ irem ents of this subchapter shall be enforced

exclusively throu gh the priv ate civil actions described in Sect ion 171.208

. ” Tex.

Health & S afety Code A nn. § 171.207(a)

. We will d iscuss th e private ci vil

enforcem ent mechanis m more fully below.

Is sue s regardi ng the Act ’ s enforcement mechanism and whether the Act ’ s

p rovision s wou ld be p ermitted to go into effect on its ef fect ive date of Septembe r 1

,

2021

, spawned litigatio n that traveled like light ning th rough the fe deral court s and

1 In an amicus brief, th e Te xas Civil Justice Leag ue urges us to a ddr ess the constituti onal issues raised by SB 8 and pass over the procedural issues that may stand in the way of reaching those q uestion s. We appreciate the concerns expresse d by the amicus but conclude that the r ecor d in this matter makes resolution of t hos e issues inappropr iate at th is time.4 g enera ted an opinion on a ce rtif ied question by the Texas Supreme C ourt. A concise

summary of th at litigation ’ s path is found i n a n opin ion from the federal district co urt

in which several sui ts cha llenging t he Act w e r e filed:

I n July 2021, a group of ab ortio n serv ice providers and advocacy organizations filed a pre

- enforcement challenge, seeking i njun ctive relief to stop S. B . 8 from taking effect. Who le Wom e n ’ s Health v. Jackson

, 55 6 F. Su pp. 3 d 595 (W.D. Tex.

. . . ) [( order)]

, aff ’ d in p art, rev ’ d in part [, ] 5 95 U.S. 30 , 142 S. Ct. 522

. . . (2021). Defendants filed a motion to dismiss,

w hich this [c] ourt denied on August 25, 2 021. Id

. The Fifth C ircuit then issued a temporary admin istr at ive stay of proceedings in the cas e. Hours before S.B. 8 took effec t, Plain tiffs filed an emergency application for injunctive relief or to vacate the stay with the S upreme Court. W h o l e W o m a n ’ s Health v. Jackson

, 595 U.S. 30, 141 S. Ct. 2494

. . . (20 21). I n a brief opinion, the Supre me Court denied the emerg ency ap plication, wi th Justices Breyer, Kagan, [and] Sotomayor [] and Chief Justice Roberts each filing a dissenting opinion. Id

. In [h is] d issent, Chi ef Justice Rober ts noted that “[t]he statutor y schem e b efore the Court is not only unusu al, bu t un precedented,” because “[t] he le gislat ure has imposed a prohibition on abortions after roughly six weeks, and th en essen tially delegated enforcemen t of that pr ohibition to the populace at large [] ” with the “desi re d conse quence appear[ing] to be to insula te the State fro m responsibil ity f or imp lementing and enforcing the regulatory regime.” Id

. The Supreme Court th en granted cert before judgment and, i n an opin ion written by Jus tice Gorsuch, explained its r eason in g a t gre ater length. Whole Woman ’ s Health

. . . , [595 ] U.S. [ at 35

– 5 1 ], 1 42 S

. Ct. [at 529

– 39 ]

. The Court held that Ex [ p

] ar te Young barred suit against t he Attorney General [of Tex as] but tha t Plain tiffs had sufficiently alleged the enf orcement a utho r i ty of Texas executive officials wi th discipl inary authori ty over medic al li c ensee s. Id

. at [43

– 44 , 142 S. Ct. at] 535. On remand to the Fifth Circuit, th e remai ning defe ndants moved to certi fy a quest ion as to whether state officials could enforce any pr ovision o f S.B. 8. Whole Woman ’ s Health v. Jackson , 23 F .4th 380 (5th Cir. [ 2022 ] ). The Fifth Circuit grante d the motion for certification. Id

. On Marc h 11, 2022, the Te xas Supre me Court held that n o ne of the remain ing defendan ts could enforce S.B. 8

, effectively bringing the case to a halt. Wh ole Woman ’ s H ealth v. Jack son , 642 S. W.3d 569 (Tex. 2022).5 Also duri ng the fall of 2021 and pre

- Dobbs , the Uni t ed States filed

a s eparate action against the St ate of Texas, ch allenging S. B. 8 as being in “open d efiance of the Consti tution.” U ni

ted States v. Texas , 56 6 F. Supp. 3d 605 (W.D. Tex. 2021) [(order)]

. This [c] ourt granted th e United States’ motion for a preliminary injunction and denie d Texas ’ s mot ion to dismiss. Id

. In a per cur iam, three

- s entence order, t he Fifth Circuit granted a te mporary st ay of t he case, and the Supreme C ourt later dismissed the writ of cert. United Sta tes v. Texas , No. 21

- 5094 9 , 2021 WL 4706452 (5th Cir. Oct. 8, 2021) [ ( pe r curiam) ( not designated for publication ) ]

. . . .

Fund Tex

. C hoice v. Pa xton , 658 F. Supp. 3d 3 77, 387

– 88 (W.D. Tex. 2023) (order)

. Facing fru stration from the federal c ourts in their challenges

, opponents o f the

Act shifted their attacks to the forum of Texas s tat e c ou rts

. At this ju ncture, the pace

of t he litigation slowed. None of th e state

- court litigation h as yielded a definit ive

answer t o the attacks on the A ct

.

A host of the suits filed by opponen t s of the Act that involved the T e xas Right

to L ife or ganization were transfe rr ed to mult id istrict li tigation (MDL) c ourt

. S ee Tex

. Right to Life v. Van Stean

, No. 03

- 2 1

- 00650

- CV, 2023 W L 3687408 , at *2 (Tex. App.

—

Aus tin May 26, 2023, pet. filed) (mem. op

. ) (describing the procedu ral history of this

MDL proceeding )

. In December 2 021, t he MDL court rend er ed an order t hat

con cluded severa l aspects of t he Act ’ s pri v ate civil

- enforcement r emedy were

uncon st itutional or invalid. B ut t he order als o denied a TC P A moti on to d ismiss fi led

by T e xas Right to L ife

. Id

. ( stating that “ [ o] n December 9, 2021, the MDL court

signed an ord er d enying Texas Right to Life ’ s plea to the j urisd iction an d granting in

part and denying in part the Plan ned Parenthood and Van S t ean appellees’ summ ary

-6 ju dgment motions ” and further stating that “ [r] eleva nt to this ap pe al, the MDL c ourt

in the same orde r de nied Texas Right to Life ’ s TC PA motion to dismi ss ”).

Th e denial of Texas Right to Life ’ s TCPA mot ion enabled it t o file an

interl o cutory appeal challenging the MDL cou r t ’ s denial order but whi ch d id no t

in clude a review of the M DL c ourt ’ s order concluding th at various aspec ts of the Act

were unconstit utional

. Id

. a t *3. T he Austin Court of Appeals conclu ded that the

MDL court had p roperly de n ie d the TCPA motion to di smiss by decidin g that the suit

by the A c t ’ s opponen ts w as not a response to T e xas Ri ght to Lif e ’ s exer cise of its

TCPA

- protected co nstitutional rights but was instead a valid exercise of the

opponent s ’ right s und er th e D e cl arator y J udgment s A ct to de termi ne whether their

constitutional rights w e re violated by the e nactment of the Heartbeat Bill

. Id

. at * 5. A

petition for r eview remain s pendin g bef ore the Texa s S upreme C ourt. S ee generally

Tex. Right to Life v. Van St e an , No. 23

- 0468, availab le at
https://search.txcourts.gov /Ca se. aspx?cn=23

- 0468&coa= cossup (last visited Feb. 20,

2024)

. Also, a district court in Bexar County dismissed a suit by a Heartbeat Act

plaintiff based on the plaintiff’s lack of standing. Specif ically, the district court held

that a plaintiff could not bring suit under SB 8 unless he or she had suffered some

actual injury resulting from the law’s violation. See Gom ez v. Br aid , No. 2022CI 0 8302

( 4 5 th Dist. Ct.

, Bexar County, Tex. Dec. 8, 202 2 ). T he San Antonio Court of

Appeals’s opinion reviewing the order dismissing the suit primarily addresses whether7 the trial court should h a ve provided the a ttorney general with notice of the underlying

suit pursuant to Section 402.010(a) of the Government Code and holds that the

failure to give notice was not error

. See Gomez v. Baird

, No. 04

- 22

- 00829

- CV, 2024

WL 697105, at *3 (Tex. App.

— Sa n Antonio Feb. 2 1, 2024, no pet. h.) (mem. op.). In

a footnote, the opinion also affirms the trial court’s order dismissi ng the suit for lack

of standing based on the appellant’s failure to raise an issue challenging the ground of

lack of standing raised b y the appellee’ s plea to the jurisdiction. Id . at *3 n.4

. Thus,

the opinion provides no substantive analysis of the Act or challenges to it

. 2

2 Liti gation has not stopp ed in feder al court s. O ppon ents of the A c t su e d M a xwe l l in the federal district cou rt for the W es t e rn Dis tr ict of Texas

. See Davis v

. S ha rp , 656 F. Supp. 3d 687 ( W

. D. Tex. 2 0 23) (order). T he plain tiffs in this federal suit cl aim e d that Max w ell had vio late d their cons tituti onal rights by “ hav [ing ] ma de credib le threa ts to e nforce S. B. 8 again st Texas a bo rtion f unds a nd the ir associates ” throu gh actio ns such as Max well ’s f ilin g of the Rule 20 2 p eti tion at issue i n thi s appeal

. Id

. at 688 . Maxwe ll filed a dec lara ti on disavowin g an intention to s u e the plain t iff s in th e fe der al suit

, and the court dismissed th e suit f or a l ac k of stand i ng

. Id

.
a t 690

.

A suit was also filed i n the federal di str ict court for the District of Columbia by the Fund against legal couns el that ha d once represented Max well ; the su it claim ed

t hat her counsel ’ s actions in attempting to f omen t H eart b eat Act lawsu its violated a right to p romote a bortion r i gh ts. See N

. T e x

. Equal Access Fund v. Am

. F irst Legal Found

. , Civ. Action No. 22

- 0728 (ABJ)

, 20 23 W L 7002675 ( D. D. C

. Oct. 24, 202 3 ) (mem. op.)

. Th at suit wa s dismis sed on the basis tha t the p lai n t iff s la cked s tandin g to pr o se cute th ei r claims

. Id. at *10.

A n other fe der al suit “ con cerns severa l Texas abortion advocacy gr oups that seek to fund or support aborti on [s] for Texans in stat es where it r emai ns legal ” and

was initially bro ugh t aga inst th e At t orn ey General of Texas and certain Aus tin

- area district attorneys

. S ee Fund Tex . Choice v . Deski

, No. 1 :22

- CV

- 859

- RP

, 2023 WL 885605 2 , at * 1 ( W

. D. Tex. Dec

. 21, 2023) (order)

. T he plaint iffs sou ght a pre lim inary injunction, and the federal co urt res olve d th at request as follows:8 B. We set forth t he l itigati o n that generated this appeal and the

cour se of the proceeding s b elow.

T o force a n answer to t hei r challenges to the Ac t , t he op pon ents of the Act

also turn ed to the proceeding below and a d ec laratory

- ju dgment action filed in

an o ther county that is addre ssed in a separate a ppeal to this court 3 in an attem p t to

create a forum for their c ha lle nges to the A ct.

T he [c] ourt issued its order on Plaintiffs ’ m otion for a prelim in ary injun ction and Pa xton ’ s motion to dismiss on F eb ruary 24, 2023. In its

or der, the [c] ourt f ound tha t Pax ton cou ld only enforce Texas ’ s abortion restrictio n s t h rou gh H.B. 128 0 (als o know n as the “Tr igger Ban ”). 2021 Tex. Sess . L aw Serv. ch. 800 (H.B . 1280), Sec. 3 (West); Tex. Healt h & Safety Code [Ann.] § 170A.001, et seq. Howeve r, it found th at H.B. 1280 does not regul ate out

- of

- state abortions, and therefo re , Paxt o n

w ould have no authority to prosecute Pla intiffs for funding or as sisting

out

- of

- s tate abortions. Accordingly , the [c] ourt granted Paxton ’ s motion to dismis s.

A s to the Austin [

- ] area p rosecu tors , the [c] our t determined that they did ha ve enfo rcement pow e r u nder the pre

- Roe laws. Moreover, t he [ c ] our t rule d that th e language o f the p re

- Roe laws could be a rguably interpreted to cover out

- of

- sta te abortions, meaning that Plaintiff s could vi ably cla im a genuine threat of pro se cut ion from the Austin [

- ] area pro s ecu tors. T he [c] ourt foun d that it wa s bound by the Fifth Ci rcuit ’ s h olding in McCorvey v. Hill , 3 85 F.3d 846 (5th Cir. 2004), which held that the pre

- Roe laws had been repeale d b y implicat ion. Accord i ng ly, it preliminarily e njoined the Austin [

- ] area pro s e cut ors from enforcing t he pre

- Roe laws agai nst Plaintif f

s. [ Docket citat ions omitted.]

I

d

. at * 3. The se plaintiff s joined Maxwell in th e suit

, and th e federa l court recently denied her o bjec tion to joi nd er in that su it and t o venue. Id

. at * 9

– 1 3.

3 S ee Weldon v

. Lil it

h Fu nd f or R eproductive Equ ity
, No. 02

- 2 2

- 0 0413

- CV, available a t https://search.txcourts.gov/Case.aspx?c n=02

- 22

- 00413

- CV&coa=coa02 (la st visit ed Feb. 20, 2024)

.9 The f ou ndation of this appe al has its genesis from a sworn declaration filed by

Kamyon Co nne r, the e xecutive d ire ctor of the Fund in t he MDL pro ceedi ngs

described above. The declaration sta te d that during t he perio d of the s h ort

- li v e d

inju nc tion iss ued by th e feder al d istri c t court in United States v. Texas

, the Fund ha d

engaged in conduct pr ohibi ted b y t h e Act

. Co nn er ’ s declarati on stated

,

Since Se ptember 1 , 2021 [the ef f

e ctive date of the H eart beat Act ]
, [t he ] Fund has enga ge d i n c onduct with t he i ntent to assist pregnant Tex ans [i n ] obtain [ing] abor t ions after the detection of car diac activity. Spe cifica lly, fol lowing the entry of an injun ction by the Honora ble Rober t P i tman on October 6, 2021, and wh i l e t ha t in junction was sti ll in pl ace, [th e] F und paid for at least one abo rtion after confirming the
g estational age of the fetus was beyo nd the tim e when ca rdiac ac tivity is usually detected. In doing so, it was [the] Fu nd ’s i ntention to pay for the abo r tio n even if c ardiac acti vi t y was de te cte d.

The statements in the dec l aration pr ompted actio n b y Maxwell. I n Den ton

C ounty

— the county where the Fu nd ’ s executive d irecto r claimed in her de claration

tha t she resi de d

— Maxwell so ught a pre

- s uit depos i tio n of Conner und er Texas Rule

o f C ivil Procedure 202 through th e filing of a “ Verified Peti tion to Take Dep os ition

to Investigate a Lawsuit ” ( hereinafter 202 P roceeding). The 2 02 Proceeding ’ s petit ion

stated the purpose of t h e d iscov ery that Maxwell sough t w as

to i n vestigate the p ossi bilities for future civil actions brought u n der [ S ] ection 171 .208 of the Texas H ealth and Sa fety Code [] against individuals and organizations that perfor med or ai ded or abetted abortion s in v iola t i on of the Texas H eartbea t Act, al so kn o w n as Senate B ill 8 or SB 8. In her capacity as executive director o f the North Te xas Equal Access Fund ( [ the] Fu nd [] ), Kamy on Conne r has state d in a sworn declaration that her or ga nization knowin gly and i nten tio na ll y aided or10 abetted at le ast one pos t

- h e a rtbeat abortion in viola tio n of the Texas H eartbeat Act. [ 4 ]

T he Fund ’ s im mediate response to the 202 Proceeding was th e fil ing of its

Declar atory

- Judgment Petition

, a separate lawsuit ag ainst Maxwell t ha t was initiated

by its o ri g inal p e tit i on , r eques t fo r d eclarat or y j u dgmen t , and a ppli c ation f or

t empor ary i njunction a n d a n ti

- s u it i njunction. Rely ing o n statements made by

Maxwell and the cou nse l that represented her at that time

, th e F un d s tated tha t the

basis f or its suit wa s as follows :

M axwell’s R ul e 202 [p] etiti on is even more chilling th an the direct thr eats that have given rise to previous SB8 litigation. [Max well ’ s] Rule 202 [ p] etitio n demonstrates tha t [she] intends to sue [the] F u n d (and others) [] and is seeking inf o rmation about e xact ly how b road that suit s hould be. [Maxwell] necess arily presumes tha t SB8 is a valid exercise of government authority, while [th e] Fund believes that SB8 is unconstitutio n al and void. A court’s i nt er ve nt ion is necessary t o resolve tha t disagreeme nt. And [Maxw el l ’ s] present, imminen t threat of enf orcemen t of the unconstitutio nal l aw ag ainst [the] Fund i s a separate, independent de monstration of the con crete injury [the] Fund wi ll suffe r unless it is p ro vided d eclaratory relief against [ Maxwell] and [she] i s

en j oi ned from any a ttempts to sue [the] Fund (an d to obtain discovery f

rom it , or from Ms. Conner, its [e] xecutive [d] irector, by these means).

4 T he trial cour t has deferred a ruling on the Rule 202 petition , stating at a hear in g on Maxw e ll’ s Dismiss a l Motion that

I will postpo ne any decision on Ru le 202. I think it needs to be a separate hearing. And I will abate that to decide the scope of a deposit ion that would be permitted in the event t hat the [Second] Court [of Appeals] comes back and agr ees w ith me as oppo sed to rever s es me. So we can dec ide that at that time.11 Th e Declaratory

- Judgment Petition noted the e xi stence o f the MDL proceedi ng
( whic h remains pending and subject to app eal ) a nd t he MDL court ’ s previous order

,

whi ch concluded that ma n y aspects of the Act were in valid

.

The Fund ’ s Declaratory

- Judgm en t Petiti on r aised it s own host of constitution al

objecti on s to the private civil

- en for cement remedy and o ther asp ects of t he A ct ; t ho se

o b j e ctions were predicated on (1 ) the right to free s peech

, ( 2 ) the right to o pe n courts,
(3) due

- process rights, (4) the prohib ition of retroac tive s tatut e s, (5) lack of standing

by H ea rtbeat Act plaint iffs , (6) se parat ion of powers, and (7 ) vag uenes s. The

Declaratory

- Judgment Petition relied on the A ct ’ s al leged co n stit utional infirmities to
support a declaration “ [t] h at any cla ims asserted by

. . . Maxwell under any provis io n

of SB8 decl ared to be i nval id ar e invalid and frivolo us as a matter o f la w and have no

basis in l aw. ” It continu ed that M axwe ll should be enjoined b ecause the Fun d would

suffer irreparable harm i f “ Maxwell is not en joi ned from organizing and pl annin g to
bring lawsuits a gainst it a n d ot hers like [Conner ] who speak abo u t and pr o vi de funds

to organizations that help peo p le ac cess abortions and o th er reproductive health

services. ”

The d ay af ter the filing of its Declaratory

- Judgment Petition

, the F und filed a

“ Notice of Transfer of T ag

- A l o ng C ase to Multidistri ct Pre tr ia l Court ” st ating that its

s ui t was deeme d transf e rred to the MDL court that had previously found the A ct

constit utionall y inf irm

. T h e attempt t o transfer the case was ineffectual. Th e MDL

court subs e qu ent ly ordered a remand of both Maxwe ll ’ s 202 Proceeding and th e12 Fund ’ s Declaratory

- Judgment Petition t o the Denton County District C ourt in which

they were filed

, and the ord er noted th at

[t] he p a ne l co nsciously in t ended to lim it th e kinds of cases that may be tagg e d i nto this pretrial court: Fi rst there must be the q u oted [ T e xas Right to Life ] c onnection
, and second there must be an e nforcement case

. A Rule 202 petition does n ot qual i fy as an e n fo rcem ent case. Ru le 202 allow s pre

suit investigation f or “ ant icipated ” and “ potential ” lawsuits. Such investigations o ft en d o result in lawsuits that se ek to enfo r ce a legal duty. But a Rule 2 02 investigation does not by itself go that far an d theref o re is not within th e sp ecified limit s of the panel ’ s orde r, which speaks o f

cases “ enforcing ” SB 8.

The record also co n t a ins a later “ Notice t o Cou rt of Fili n g of Motion to Transfer

Unde r Rule 13, Rules of Judicial Administration ” by which th e F un d so u ght to

ex pan d the scope of t h e MDL proceeding and to s tay proceeding s initiated by its

Declaratory

- Judgment Petition “ and r el ated cases

. ” The record contains no indication

of any a ction taken b y the MDL co urt on th is filing.

A s th e sparring co ntin u ed ov er moving t he li tigation t o the MD L court ,

Maxwell f iled her Dismissal Motio n u nder the TCP A and Rule 91a a nd p lea in

a bate me n t

. The Dis missal Motion offe re d Maxwell ’ s views of th e c urren t s ta te of

Texas a bortio n law

. The Dismissal M otion th en invo ked th e T CPA an d claimed t ha t

the Declaratory

- Judgment Petition was a response to Maxwell ’ s exe rcis e of various

r i ghts pr otected by the TCPA, including her right s to free speech, to peti tio n , an d o f

association. I n what was app arent ly an ef f

ort to pre empt the F un d ’ s claim that it

could offer prima facie proof of t he invalidit y of the A ct ’ s pri vate civ il

- enforcement13 remedy , the Dism is sal Motion challenged each of the grounds at ta ck ing the Act that

were raised by the Fun d in its Declaratory

- Judgment Peti tion

.

Ma xwell ’ s Dismissal Motion a lso in voked Texa s Rule of C i vil P rocedure 91a

and attac ked the Declaratory

- Judgment Petition bec aus e it was an effort (1 ) to raise

m at ters already put at i ssue by the f iling of Maxwell ’ s 202 p e ti tion

, (2 ) to deprive

Maxw e l l of her right to select t he tim ing an d ven ue of a suit b rought under the A c t ,

and (3 ) to i nterfere with a previously filed s uit t hat required the declarato ry

- jud gment

pro cee ding to be abated

. Because the Declaratory

- Judgment Petition w as subject to

dis missal

, Ma xwell al s o asserted t hat t he Fund was not entitle d to an anti

- suit

inju n ctio n

.

Maxwell attached her own decla ration to t he Di smissal Motion

. That

d eclarati on stated how tentative her dec ision was to bring a Hear tbe at Act suit

b ecause abortion law was i n a state of f lux pending the determination whether t he

Un ited Sta tes Supreme Co urt would ove rrule Roe in the Do bbs ca se

. Maxwe ll stated

,

4. I h ave f i led a Rule 202 petit ion tha t seeks to depose Kam yon C onn er, the executive d irector o f the North Texas Eq ual Access Fund, who has admitted in a sworn declaration th at the N o rt h Texas Equal Access Fund has paid for “at le a st one” post

- heartbeat abor ti o n in O ctober of 2021, in v iolatio n of Senate Bill 8.

5. I am atte mpting to disc over inf o rmation abou t this v iolation of SB 8, as well as information about the North T ex as Equal Ac cess Fund’s employees, volunte ers, and do nor s

— a ll of whom could be h eld l i a ble

un d er SB 8 or prosecut ed under [A] rticle 4512.2 of the Rev ised Ci vil Statutes

.14 6. I ha ve not yet de cided whether to file a private civil

enforcement lawsuit under SB 8 against th e North Texas Equal Access Fun d [] or i ts e mp loyees, volunteers, and d on o rs

.

7

. I d o not wish to sue under SB 8 at this time becau se the Supreme C ourt h as not ye t ov erruled Roe v . W ade , 410 U.S. 113 (1973). I want to wait and see what the Supre me Court s a ys in Dobbs v. Jackson Wom e n’s H ealth O r gan ization , No. 19

- 1392, bef o r e dec id ing wh e ther to fol low through with an SB 8 enf orcemen t l awsuit.

8. I h ave also n ot yet decided the v enue in which I will sue, in the event that I decide to sue the N or th Texas Eq ual Access Fund, or any of its emp lo y e es , volunteers, and donors, un der S B 8’s pr i vate civil

enforcement mech anism.

9. I will de cide whether and whe re and w hom to sue under SB 8 in consultation with my attorneys after Dobbs is announced and a ft er we
ta k e discovery from the North Texas Eq ua l Ac cess Fund in the Rule 202 pro ceedi ngs.

Maxw ell ’ s declaration t rigg ered th e F und to file a mot ion for discovery und er

the TCPA in a n ef fort to depose her. I n the Fu nd ’ s view

, [a] t the time her declaration was filed,

. . . Maxwell t es ti fied tha t s he had no pre sent int ention to enforce SB8 because she wante d to se e what hap pe ne d with the Do bbs v. Jackson Wo men’s Health O rganization case.

. . . Maxwell cites to this testimony to support the argument in her [Dismissal] Motion

. . . t hat because she has not yet de cided to file a lawsuit un der SB8, [the] Fu nd cannot p reem pt ive ly seek a de clarat ion that such a suit would be improper, void

, and unconstitu tional.

. . . Maxwell’s curren t in tention to sue and her immediate plans in the wak e of Dobbs , which sh e herself relie s [ up on] in support of he r [Dismissal] Motion

. . . , a re fact quest ions on whic h [the] Fund must be e nt it led to exami ne her i n ord er to respond to the argument she herself makes in her [Dismissal] Motion

. . . . [Citations to t he Dismis sal Motion omitte d.]

Maxwell re sponded that the Fund did no t nee d a de position f or the trial court

to decide that the fili ng of the Fund ’ s Dec laratory

- Judgment Petition violated the ru le15 in Abor v. Black

, holding that a declaratory

- jud gment action can not be use d to depri ve

a plaintiff o f t he right to dec ide the ti me and place of filing c er t ain s ui t s

. 695 S. W.2d

564 (Tex. 1985 ) (orig. proceeding)

, abrogated on other grounds by In re Prudenti al Ins. Co

. , 148 S.W.3d 124 (Tex. 2004) (orig. proceeding)

. The resp o nse noted th at
Maxwell’s argument does not in any way hinge on whethe r sh e has decided to fi le suit aga inst the

. . . Fu nd

. The pro blem wit h th e

. . . F u nd’ s lawsuit

— and the reaso n it violates Abor v. Black

— is that it deprives

. . . Maxwe ll of the abilit y to decide when a nd where she will litigate these issues against the

. . . Fund, i n the event that s h e decides to

sue at all. T hi s argumen t holds rega rd less o f w hether

. . . Maxwe ll has

a lready decided to sue the

. . . Fund, has decided not to s ue the

. . . Fund, or is still consi dering whether to do so.

After a non

- evidentiary hear in g , the t ri al c our t denied the Fund ’ s discover y moti on.

A fte r denial of i ts request for discovery

, th e Fund ma de the attempt to expa nd

the s cope of the MDL proceeding tha t we have re ferenced previously and responded

to Max w el l ’ s Dismissal Motion

. To justify th e f iling o f the Declaratory

- Ju dgment

Petition in r espon se to Maxwe ll ’ s 202 Proceeding

, the Fund ’ s response summar ized

Maxwe ll ’ s action s and those of the counsel who h ad at one time rep resented h er :

A s all eged in the [ F und ’ s De cla ratory

- Judgment Petition ]
, and [as]

c on firmed by addit i on al evidenc e a ttached to th is [r] e sponse, [Maxwell] is among those private citizens deputiz ed under SB8 to bring lawsuits. Prior to the filing o f [the] Fund’s [p] etiti o n, [Ma xwell] mad e clear that

s he int ended to enforce the l aw a ga inst [the] Fund, its s ta ff, it s

v olunteers, its do nors, and any one else she perceive d to be violatin g SB8. [Maxwell] has not forsworn br inging a law suit under SB8, an d her Rule 202 petition spe cif i c al ly indicates th at is wh at s h e i s seeking informat ion to do. [Maxwell] ’s coun se l has publ icly sta te d uneq uivocally tha t [Maxwell ] intends to file lawsuits under SB 8. As a self

- identi fied SB8 enforcer w ho is invest i gating the possib il it

y of filin g a n SB 8 l awsuit o r16 l awsuits of h er o wn, [Maxwell] is parti cularly in ter ested in any ju d i cial de termination a bout t he validity o f SB8. [Exhibit references omitted.]

With thi s prefa ce in place, the re sponse raised the fol l owing arguments :

• Th e T CPA did not protect M a xwell fr om t he Fu nd ’ s suit

.

• I f th e TCPA d id appl y, the Fund a sserted that it ha d met its burde ns to

avo id di sm issal un der e ith er the TCPA or T e xas Rule of Civil Procedure 91a

. T he Fund ’ s specific argument s we r e as follows :

o Th ere wa s a c ont rover s y supportin g th e Fund ’ s declaratory

ju dgm ent suit because Maxw el l “ be l iev e s SB 8 is constitutional and valid and that she will use its civil [

- ] enforc em ent provisions to punish [the] Fund ” and because there were the r ip e n ing seeds of a
cont rov e rsy by vir tue of Maxwel l ’ s b e lief that S B 8 was constit utional and the Fund ’ s view that it wa s n ot (wi th th at view

s upported by the MDL court ).

o A temporary injunction w as war ra nted based on the Fund ’ s probable right of recovery f o rmed by the MDL cour t ’s vie w of the unconstitu tiona li ty of the Act ’ s private civil re medy a nd the ha rm that th e F und w ou l d suf fer if M axwell went forw ard with a suit under the Ac t

.

o An a n ti

- suit injunction was warr anted to protect the Fund and its staff

, v olu nte ers, and donors from vexatious li ti gat ion

.

o The Fund then o utlined the host of constitu tional infir mi ties t hat it c onte nded were prese nt i n the private civil

- remedy provi sions of the Act

.

• The Fund then argued t hat its constitutional claim s c ould n o t be l itig ated

as part of M a xwe ll ’ s 202 Proceeding

, arguing t hat

[Maxwell ’ ] s 202 [Proce eding ] does not afford [the] Fu n d

t he op portunity t o o btain relief against the threat [Maxwell] has re peated ly posed. Resisting a Ru le 202 [ p] etition does

n ot and ca n not pr ovid e the same relief as sou g ht in this la wsuit to prot ect [the] Fund’s constitutio n al rights to be17 free from th e threat of repe ated c ivil s uits used to enforce Texas law.

• The Fund next ar gued that M axwell ’ s Rule 202 petition w as moo ted because l i t ig ation was t hen occ urring betwe en t he parties due to the fil ing of the Fund ’ s Declaratory

- Judgment Petition

.

• I n resp onse t o M a xwell ’ s a s sert i on that the Fund ’ s suit was a preemptive stri ke that d epr ived her o f the right to choose the time a nd p lace of the filing of her su it , should she decide to f il e on e, the Fund argu ed tha t th e Abor case rel ied on by Maxwell did not a pply outs ide a t o r t cont ext and th at the Fund should not be delayed in its abil ity to challenge the civ il

enforcement provi sion of the A c t

.

• The Fund dismiss e d Maxwell ’ s argument that the Declaratory

- Judgment Petition s h ould be abate d by arguing that th e 202 P roceeding cou ld not b e c onsidered as establ ishing dominant jurisdiction becaus e both i t and the Fund ’ s Declaratory

- Judgment Peti t ion we re fi led in the sam e court

. N o r , in the Fund ’ s view , was a Rule 20 2 p roceeding a suit on the merits th at co uld es t ablish dominant jur isdictio n

.

• Finally, the F und a rgued that it should be awarded i ts atto r ney ’s fees and

costs.

Maxwell filed a r eply to the Fund ’ s response t hat in ma n y ways reiterate d the

a rgume nts made in he r origi nal Dismis sa l M oti on. She b egan b y arguing that the

MDL court ’ s order was of no legal effect and tha t it w as t he responsibility of the tri al

judge who was going to he a r the Fund’s Declaratory

- Judgment Petition to decide the

co n sti tutionality of t he Act ’ s private civi l

- enfor cement remedy

. She c hallenged t h e

Fund’s argumen t s that the TCPA did not apply

. Her r e ply also challenged t h e
premis e of the Fund ’ s response that t he 202 P roceeding was not a f oru m in which the

const itutionality of the pri vate civil

- enfor cement re m edy of the Act coul d be raise d18 and that th e filing of the Fund ’ s Declaratory

- Judgment Petition m ooted the 202

P roceeding

.

The re pl y th en pivoted to the a rgument that t he F und ’ s Declaratory

- Judgment

Petition im properly deprived M axwell of he r right to se lect the time and pl ace of the

f i lin g o f her claims. Maxwell c hallen ged the Fu nd ’ s contention s t h at i t s sui t should

not be abat e d in favor of the 202 P roc e eding

. Maxwell also ch alle nged the Fund ’ s

request f or an anti

- suit injunction by asking how a suit could be vexati ous w hen the

Fund h ad adm itted that it had viol ated T e xas law

, and e ven if M a xwel l could not sue,

an a nti

- suit injunction would have no effi c acy because o ther private p laintiffs could

file an actio n unde r the Act and a prosecuto r could fil e criminal charg es

. M axw ell

concluded h er r ebu ttal of the Fund’s re spons e by contendi ng that the c ons titutional

challenges raised b y the Fund were meritless

. She ended her rep ly by seeking her own

aw ard of attor ney’s fees.

T h e trial court conducte d a n o th er non

- evid entiar y h e aring on Maxwell ’s

D i smi ssal M otion . T hou gh th e trial c ourt stated on the record its belief that the

privat e civil

- remedy provi si ons o f the A ct were constitutio nal

, the trial court granted

in gen eral terms Maxwell ’ s Dismissal Motion u nder the T CPA and T e xas Ru le of C ivil

Pr o cedure 91 a. The trial court also conc luded that Maxwell was entitled to re cover

her att o rney ’ s fees under the TCP A and Rule 91a.7

. T he t rial cou rt subseque ntly

signed a n o r der awardi ng Maxwel l $ 35,165. 2 6 in fees i n acc ord ance with a Rule 11

agreement si gned by the parties ; the partie s stipulate d to the sum but not the propriety19 of th e fee award

. In response to a mo t ion to modify, correct, or reform the judgment,

t h e tr ial court l ater si gned an other order c la ri fyin g both the date that i t had s igned the

o rd er awardin g Maxwell a specific sum of fe es and the date that the clerk had entered

the order

. The Fu nd filed a m o t ion for new trial that was over rule d b y operation o f

la w and also filed a not ice of ap peal and a n a mended noti ce o f app eal

.

C. We explain t he changin g landsca pe of Texas a bortion law.

O bviously

, the litigation below coincided with a sea change in abort i on law.

The U nite d S tates Suprem e C ourt overrul ed Roe in Do bbs v. Jackson Women ’ s He alth

Org aniz ati on , 597 U.S. 215

, 14 2 S. C t. 2228 (2 022)

. Wi th in weeks of the trial court ’ s

si gn ing its order of dismissal in this case, statutes imposing specific c rim in a l and civi l

pe nal ties on thos e w ho perf or m a bortions in Texas be came effective unde r wha t is

kn own c olloquially as th e T ri gger Ban

— a ban th a t took effect af ter the overruling o f

R o e

. See Act of May 2 5

, 2021, 87 th Leg., R.S., ch. 800, § 3, 2021 Tex. Gen. L aw s 188 6,

188 7 (H.B. 1280 ) (codified at Te x. Health & Safety Code § 1 70A) ; s ee als o Tex. Health

& Sa fety Code A nn. § 170 A.002 (a)

– (b) ; Fund T ex

. Choice

, 6 58 F. S u pp. 3d at 385

. The

performance of an abort ion became a t leas t a se cond

- degree fe lony and was m ade

subject to a civil

- pen alty provi sion tha t can be enforced by th e Texas Att or ney

General. See Tex. Health & Safety C ode Ann. § § 170A .004

, . 00 5. N ot unexpec ted ly,

more re cent app eals address ing a bortion ha ve de alt wit h st at utory provi sio ns that

prohib i t abortion rather than the A ct. S ee I n re State

, No. 23

- 0994

, 2023 WL 8540008

,

at *1

– 3 (T ex . Dec. 11, 2023) (orig. proc eeding) ( addressing the medical

- ne cessity20 exception to the abo rtion pr ohibition i n Texas Health a n d S af ety Cod e Secti on
170A.002(b) (2) ) ; Texa s v. Z urawski

, No

. 23

- 0629

, avai lab le at
https://search.txcourts.gov/ Case.as px?cn=23

- 0629&coa=cossup ( last v isit ed Feb. 20,

2024) ( a ppe al of temporary injun ct ion dealing with the medical

- necessity exception s in

He alth and Safety Code C hapter 170 A and th e Act).

How ever, th is c hange in the law d oes not repeal t he Act ’ s civil

- enfor cem ent

provisions

. T he chapter of the H ealth and S afety Cod e co nt aining the n ew criminal

and civil penalties also pr ovide s that “ [t] he fact that con duct is subjec t to a civi l o r
criminal pen alty u nder this chapter do es not abolish or impair any remedy for th e

conduct that is available in a civi l suit. ” Tex. He alt h & Safety Code Ann. § 170A.00 6

. 5

III. A Detailed Expla natio n of the Heartbeat Act

The Act pr ohibits conduc t and t hen p rovides a remedy to penalize those who

engage in that conduct. It is a uni que free standing scheme that defines the legal duty

created by the Act, outlines the remedy available to en force the Act , carefully

des crib es enforcement a nd defenses to the Ac t, an d has a unique venue provision

integrated into it. As context for why we c onclude that the Act should accord

5 Further, Texas of ficials have expressed the view that th e pre

- Roe statutory scheme p r ohib iting abortion in Texas was never r epealed and that Dobbs revitalized it. See Fun d Te x

. Choice

, 658 F. Supp . 3d at 386

– 8 7

. But that conclusi on is anoth er a rea of controversy

. Re lying on a Fifth Circui t opinion

, the federal d istrict court for the Wes t ern District of Texas made a preliminary c onclusion tha t the p re

- Roe scheme was

re peal ed b y implication. Id

. a t 411

– 12 (cit in g McCorve y , 385 F.3 d a t 84 9 ).21 Maxwe ll the autonomy to d ecided when and if she will file suit under the Act, we

detail the Act’s u niqu e statutory sche me.

A

. We set f orth t he c onduct that is prohibited by the Heartbeat A c t.

The Act es tablis h es a prelim ina ry d eterminati on that a physic ian mus t make

before perfor ming an abortion : “ a physician may not knowing ly pe rform or induce

an abo rtio n on a pregnant woman unless th e phy si cian has determined, in accordance

with this section, wheth er the woman ’ s unborn ch il d has a de te ctable fetal h eartbe at. ”

Id. § 17 1

. 2 0 3 (b)

. In turn , “ a physician may not knowingly perfo rm or ind uce an

abortion on a preg nant woman if th e physician d et ec te d a fet al heartbeat for the

unbo rn child as required by Se ction 171. 20 3 or f aile d to p erform a test to detect a

fetal he artbeat. ” Id. § 171

. 204 (a)

. A physician is free d from the str ictur es of the Act only “ if a phy sici an believes a

me dical emergency e xi sts t ha t prevents compliance wi th ” the Ac t. Id. § 171.20 5 (a)

.

T he Act also imp oses reco rd keeping req uirements o n a phy sic ian to document t he

pe rformance of required testing and the r eason (s) wh y a phy sicia n belie ves a medi cal

emergency pr event s comp lia n c e with the Act. Id. § § 171.20 3 (d),

. 20 5 (b), (c)

. 6

6 In anticipation of the changing lands cape r egarding abortion , the Act

s pecifi call y n oted th a t it di d “n ot c reate or rec ogni ze a right to abortion before a fetal he artb eat is detec ted. ” Id. § 1 71. 2 0 6 (a)

. I t a lso s pecified tha t it created no ca use of action against a woman upon whom an abortion is per forme d

, t h a t it did not r epeal

“ any o ther statute tha t re gulates or pr ohibits abortion

, ” a nd t hat it did not “ r estrict a po l itical sub divisi on fr o m re gulatin g or p roh ibiting abo rti on in a manner tha t is at least as stri ngent as the laws of this state. ” I d. § 171 .20 6 ( b )

.22 B. We set forth th e reme dy tha t the Hea rtbeat Act pro vides for i ts violation.

A s we n oted in the background section , the Act has a unique enforcement

mechanism

. Th e Act is explici t as to who m a y not s eek t o enforce i t:

No twi th standing Secti on 171.005 or any other law, the require men ts of this subchapt er shall be enf orc ed exclusively t hrou gh the private civil actions described in Se ction 1 71.208. No enforcem e nt of t his subcha pter, and no enforcem ent of Chap te rs 19 and 22, P ena l Code, in respo nse to violations of this subchapter, m ay be taken or threaten ed by this sta te, a political subd ivi sion, a district or county attorney, or an

e xecutiv e or adm inistrative o ffi cer or employe e of t his state or a poli ti cal

s ub division a gains t a ny person, excep t as provided in Section 171.208.

Id. § 1 71.20 7(a)

. I n a subsequent provis ion , the Act re i nforces th is prohibition by

providing that “ [n ] otwi thstand i ng any other law, this stat e, a state offic ial, or a distr ict

or c oun ty attorney may not intervene in an action brought under this section. ” Id.

§ 171.208 ( h

).

Next, th e Act provid es who may sue for its violation :
(a) Any person, other than an of ficer o r employee o f a state or loc al
governme ntal ent ity in this stat e, may bring a civil a ction against any perso n who:

(1) performs or induces an ab ort ion in viol ation of this subchapte r;
(2) knowingly engag e s in conduct that aids or abets t he pe rform ance or inducement of an aborti on, incl uding pa ying for

or reimbur sing t he co sts of an abortion through insurance or otherwise, if the abortion is perfo rme d or induced in violation of this sub c hapter, regardless o f whether th e person knew or shou ld ha ve kn own tha t the abortion would be perf orme d or ind uced in vio lation o f th is subc hapter; or23 (3) intends to engage in the conduct described by Subdivision ( 1) or (2).

I

d. § 171.20 8 (a).

The p ers on who bring s a civi l action m ay obtain injunctive relief ; “ st at utory

da m ages i n an amo unt of n ot l ess than $10,000 for each abort ion th at th e defendant

perfo rmed or induced in violation of this subchapter, and for e ach abortion

performed or induced in v i o lation of t his subch apter that the defendant aided or

abett ed ” ; and cost s and a ttorney ’ s fees. Id. § 171.208( b ).

T h e A ct then dea l s w it h var ious aspects of its enforcement and def enses to the

liability it creates by pr oviding as follows:

• A court may not a war d relief i f a def endant has “ pre viously pa id the full

am o unt of s tat ut ory damages under Subs ecti on (b)(2) [of Se ction 171.208] in a p revio us action for that particular abortion performed or induced in violation of th is subchapter, or for the particular conduct that aided o r ab etted an abortion performed or i ndu ced i n violati on of th is subch apt er

. ” I d. § 171.208( c ).

• “ [A] person m ay b ri ng an action under th is section not later than the fourth anniversary of the dat e t he cause of action accrues. ” Id. § 1 71.208 ( d ).

• The Act e nume rat es a number of act ions th at “ ar e not a defense to an action brought und er this section

, ” including

o i gnora nc e of the law;

o belief the A ct is unconstitutional ;

o reli ance on an overruled cou rt decision

, even i f th e de cision had

no t be en over ruled whe n t he def en da nt enga ged in c onduct t hat viol ated the A ct ;24 o “ reliance on any sta te or fe deral co urt decision th at is n ot b inding on the court in which the action has been brought ” ;

o “ non

- mutual iss ue preclusion or non

- mutual claim preclu s io n ” ;

o “ the consent of th e unborn c hild ’ s mother t o the ab ort io n ” ; and

o “ any claim that the en forc ement of th is su bchapter or the impo si tion of civil lia b ility against the def endant will violate the constitutional r igh ts of third parties

. ” Id. § 171.208( e ) ( 1 )

– (7)

.

• The Act p rovides an affir mative d efe nse , which must be proved by a preponderance of the evidence , if a person sued und er th e A c t

“ reasonably belie ved, after conducting a reasonable investigation, that the ph ysician perfo rming or ind u cing the abo rt ion had co mplied o r would c omply ” w ith the Act

. Id. § 1 71.20 8( f ) , (f

– 1)

.

• The Act prohibits the imposition of l ia b ility under the A ct “ on any speech or conduct protected by ” the First Amendment to the United Stat e s Con s tituti o n and Article I , Section 8 of the Texas C onstit ut ion

. Id. § 171.208( g)

.

• The Act pro hibit s an award to a defendant of at torn ey ’ s f ees under the Rules of Ci vil P r o cedure o r a rule adopted by t he Texas Supreme Court under its r ule

- m aking p o wer

. Id. § 171 .208( i )

.

• The Act prohibits “ a pers on who impregn ated the abortion patient through an a ct of rape, sexual assault

, incest, or a ny o th er act prohibi ted by Sect ions 22 .011, 22 .021, or 25.02, Penal Code ” fr om bri nging a civi l acti on under t he A ct. Id. § 171. 208( j )

.

The Act then control s the mechanics of i f an d how a person sued under the

Act m a y h ave standing to assert a n affir mati ve d efense that the relief soug ht wi ll

impose an undue burde n

. Id. § 171.20 9 (a)

– (c ). Th is defense was abro gated bec ause

t h is section of the Act goes on to s t at e t hat the d efens e “ is not avail able if the United

Stat es Su preme Court overrules Roe v. Wa de

, 410 U.S. 113 (1973) [ ,] or Plann ed25 P

a re nthood v . Casey , 505 U.S. 833 (1992)

. ” Tex. H ealth & Safety Code Ann.

§ 171.20 9 ( e ). The sec tion con cludes

, “ Nothing in this section shall in any way limit or
preclude a defenda nt fr om asserting the defendant ’ s pe rson al c onstitutional ri ght s as a

d efens e to liabi lity ” under the Act. Id. § 171.209 ( f ).

Proper v enue of a n action is specified to b e as follows :
( a) Notwithst anding any ot her law , including S e ction 15.002, Civil Prac tice and Remedies Code, a civil acti on b roug ht unde r Secti on 171.20 8 sh all b e broug h t in:

(1 ) the coun ty in wh i ch all or a substa nti al part of the

events or omissions giv ing rise to the claim occur red;

( 2 ) the county of resi dence f o r any one of the natur al pe rson defendants at the time the cau se o f actio n accrued;

( 3) the cou nt y of the p r incipa l office in this s tat e of an y one of the defe nda nts that is not a natural pers on; or
(4) the county of r esidence for the cla imant if the cla i m ant is a natural per son r esiding in this state.

(b) If a ci vil action is brought under Sec tion 17 1.208 in a n y on e of the venues desc rib ed by S ubse ction (a), the acti on may not be transferred to a different venue witho ut the writte n conse nt of all parties.

Id. § 171.2 10.

Ne xt , t he Act provides that it “ prevai ls o ver any co n flicting la w , in clud ing []

( 1 ) the Uni form Decla rat ory Judgments Act [ (UDJA)] ; and (2) Chapter 37, Civil

Pr actice and Rem edies Code. ” Id. § 171

. 21 1 (a). And the sectio n contain in g this

provision also pre serve s governmental immunity for “ any act i on, claim, o r

counterclai m or a ny ty pe of lega l o r eq uitable action tha t challenges the validity of any26 provision or application of this chapter, on constitut i o nal grounds or oth erwise

. ” Id.

§ 171.211( b ).

Fi nally , the A c t addre s ses severab i lity to na rrow the effec t of a dec i si on t hat

find s a section of the Act is i nva lid or unconstitutional

. Id. § 171.21 2

.

Outs ide th e prov ision s o f the Act, the Civil Practi ce and Remedies Code

expands the list of parti es fr om whom atto r ney ’ s fees may be re cove red f or a vi ola tion

of the Act and ot her la ws re gulating abortion by providing that

[n] otwithstanding any other la w, any person , in cluding an entity, attorney, o r law f irm, who seeks decla ratory or injunc tive relief to prevent this state, a p olit ical subdivis ion, any gover nmen tal entity or publ ic o ffi ci al in this state, or any person in thi s state from enforcing any

s tatute, ordin ance , rule, regulation, or any oth er type of law that regulat es or restricts abort ion or that limits taxpayer fundi ng f or i n dividual s or entities that perform o r promot e a b ort io ns, in any state or federal court,

or that represents any litigant seekin g such rel ief in any state or federal

co urt, is jointly and several ly liable to pay the costs and attorney ’ s fees of the prev aili n g party.

T ex. Civ. P rac. & R e m. Co de Ann. § 3 0 .02 2( a). Th at se ct ion permits the reco very of

fees by a prevailing part y if t he cas e is dismissed “ regardless of the reason for

dismissal ” or by judgment, p rovide s an extension of the t ime to recove r fe e s o f three

years a fter jud gmen t or the t ime for a ppe lla te revi ew for a prevailing party that did not

seek to recover them in t he u nde rly ing action

, and li mits the defense s that may be

raised to the fee claim

. Id. § 30.02 2( b ) , ( c), (d).27 IV. Analysi s

As p art o f its first issue, t he F und chall enges whether th e tria l court properly

gra n ted Maxwell ’ s Rule 91a Dismissal Motion

. On e basis fo r Maxwell’s Rule 9 1 a

Dismissal M otion was that a declaratory

- judgment act ion sh ould not be used as a

vehicle to d epri ve h er of the ability t o deci de w here and if she would fil e suit under

the A c t

. The rule invoked by Maxwell has its orig in in the Texas Su preme C ourt

opinio n in Abor , and for e ase of re ference, we wi l l refe r to the principl e in question as

t he A bor rule. 695 S.W.2d at 566

. Un doubtedly , the Fu nd ’ s Declaratory

- J ud gment

Petition preempted Ma xwell ’ s decis ion regarding whethe r s he would file a n action

und er the Act a n d

, if s o , where s he would file it. T he Fund, however, argues that no

m atte r th is e ffect, the Abor rule is o f such limited applica tion th at it h old s no s way.

The fact remains that th e Act accords the decision regarding where to fil e suit to

Maxw e l l a s a p la intiff who may i nvok e its r emed y

. Indeed, Maxwell a ver r ed tha t

be cause of the flux in the lega l status of abortion

, she ha d not decided w hether to fi le

a sui t ag ainst the Fund. Thus, as expla ined in more detail below

, we concl u de that th e

A bo r rule provides protec tion to Maxwell ’ s abi lity to control the destiny of her

lit igation de cision s tha t sho uld no t be thwarted by the Fund ’ s Declaratory

- Judgmen t

Petition

. We c onclude tha t the trial court was correct in c onclu ding t hat the Abor rule

warranted granting Maxwell ’ s Ru le 91a Dismissal M oti on

.

A. We set forth the s ta ndard of review

.

We recen tly se t out the standard o f review of a Rul e 91 a ruling as fo ll ows :28 Rule 91a allows a party to move to dism iss a claim brought a g ai nst it i f

t he claim h a s “no basis in law or fact.” Tex. R. Civ . P. 91a .1

. “A cause of acti on h as n o basis in law if the all egations , taken as true, t ogether with inferences reasonably dr awn from them, do not entitle the claim ant
to the relief sought.” Id

. “A c aus e of action ha s no basis in fact if n o

re asonable perso n could believe the facts plea ded. ” Id. We review the

mer its of a Rul e 91a ruli ng d e novo. In re Farmers Tex. Cnty. M ut

. Ins.

, 621 S.W.3d 261, 266 (Tex. 2021) (orig. proc eeding).

Quin n v. S ta te Far m Lloyds , N o. 02

- 22

- 00191

- CV, 2023 WL 37 4 9932, at * 9 (Tex.

App

. — Fo rt Worth June 1 , 20 23, no pet. ) (mem. op.). Th e Texas S upreme Court has

a pplied the Abor rule in the context o f a Rule 91a motion to dismiss. See In re Hous

. Specialty Ins. Co. , 5 69 S.W.3d 138, 140

– 4 1 (Te x. 2019) (per curiam) (or ig. proceeding).

B. W e set forth t he typ es o f c a ses to wh ich the Abor rul e applie s and why we con cl ude t hat it should apply here

.

T he supreme cou rt has explained the rat ion ale of the Abor rule

, it s opini on s
apply i ng th e rule

, an d an exce pti on to it a s f ollows:

The issue [in Abor ] was “whether a p oten tial defe n dant in a negli gence

ac tion can choose th e time and forum for trial by b eati ng the potenti al plaintiff to the cour tho use and fi ling suit seek ing a d eclaratio n of n on

liabili ty under [th e UDJA].”

. . . 695 S.W.2 d at 565

. After her daught er d ied fr om being i njected with the wron g drug during a ch emotherapy session, Abor filed a wr on gful [

- ] death act ion in Harris County di s trict

court a gainst the drug ’ s manufact urer, th e hospit al where the inj ection

oc c ur red, and seve ral h ospital staff membe rs. Id

. The case was r emoved

to federal court but then re mand ed for lack of diversity jurisd ic tion. Id

. Before t he case was redocke ted i n Harris Coun ty, th e defen dants fil ed a dec l aratory [

- ] judgment action in Bel l Count y seeking a de c laration of nonlia bili ty. Id

. Abor f iled a pl e a i n abatem ent in the Bell Co unty suit, arguing that the defenda nt s ’ cla ims were improper under the UDJA. Id

. The Bell County t rial co urt denie d the plea

. Id

. We stated that “[b]ecau se [the UDJA ] appears to give the courts jur isdi ction over decl arations o f non

- li ability of a poten tial defendan t in a29 tort action, .

. . the Bell County District Co urt had ju risdiction ove r the suit .” Id

. at 566. But we we nt on to h ol d

— in no uncertain t erms a nd consist en t w ith the rule in oth er j uris dictions

— “that the trial cou r t sh ould have declined to exercise such jurisdiction beca us e it deprived the real plaintif f of the traditional rig ht to ch oose th e time an d place of suit. ” Id

. Five years later, in BHP Petroleum C o. v. Millard , 800 S. W.2d 838 (Tex. 1990) (orig. proce edin g ), we commented on Ab o r ’ s significance, explaining that we had “eschewed use of a declarat ory [

- ] j udgment action to ‘ depri ve the r eal plai ntiff of the tra ditiona l r ight to [choose ] the tim e and plac e of suit.’ ” Id

. at 841 (quo ting Abor , 695 S.W.2d at 566). I n the years since, we have never recogn ized any excep ti on or nuance to t he rule that a pot enti al tort defendant ma y no t seek a declara tion of nonl iabi lity in tor t. Cf. MBM Fi n. Corp. v. Woodlands O perating Co. , 292 S.W .3d 660, 668 (Tex. 2009) (de c lining t o extend the rule of Abor to breach

- of

- c ontract cases a nd explaining that “[t]he ‘real’ pla int iff in a tort action is the inj ure d part y,” whereas in a contract ca se, “each par ty [usually ] claims t he other breached”)

.

Id

. a t 1 40

. On appeal , the F und t ries to cabin the rule o f Abo r , arguing t hat it app lies on ly

to a t o rt defen da nt ’ s ef f

ort to use a declaratory

- judgment action to obtain a

d ec laration of no n

- liability in tort an d not i n g th at t he sup reme court it self has held

that the rule does not apply in a contrac t action

. A s the Fund argue s , “ T he languag e

o f four supreme court cases consistently limiting the rule to tort cases and the absence

of any case s to the contrary is s uffi cient to estab li s h” the limitation that it cannot

apply to a “non

- tort” case

. But the F und does not explai n why the und erlying

pr in ciple of Abor has no application in thi s case.30 F i rst, a suit unde r the A ct s h ares the c entral character istic of a tor t suit ; it is a

suit for violatio n o f a duty u nder the law. As t he Fifth Cir cuit noted, a tort act io n i n

Texas i s usually define d by th e source that creates the duty at issue :

Texas courts character ize act io ns as t ort or con tract by focusin g on t he

source of liability and th e na ture of the plaintif f

’ s loss:

As one prominent auth ority has ex plained [,] “T ort

o bligati ons are in general ob li gations th at are imposed by law

— apart from and independent of p romises m ad e an d ther efore apart from the ma nife sted inte ntion of the parties

— t o avo id injury to other s .” If the defendant ’ s conduct

— su ch as neglig ently bu rn ing d o wn a h ouse

— would give rise to liability independent of the fact that a contract exists betwe en the par t i es, the pl aint iff ’ s claim may als o s ound in t ort. Conversely, if the defe ndant ’ s conduct

— suc h as failing to publish an adver tisement

—
wou ld give r ise t o liabi lity o nly because it br eaches the p arties ’ agreement, the plaintiff ’ s claim ordinarily sounds onl y in contrac t.
In determining whet he r the pla intiff may recover on a t ort
t heory, it is al so instructive to examine the natur e of the pla intiff ’ s loss. W hen the onl y loss or dama ge is to the

su bject matter of the contract, the plaintiff ’ s acti on is

o rdin a ri l y on the co ntract.

Sw. Bell Tel

. Co. v. D eLanney , 809 S.W.2d 4 93, 4 94

– 95 & n. 2 (Tex. 1 991) (citing W. Keeton et al., Pross er and Keeto n on t he Law of Tort s § 92, at 655 (5th e d. 1984)); see F ormosa Plastics Corp. USA v. Presidio Eng ’ rs & Co ntracto rs , In c. , 960 S.W. 2 d 41, 45 (Tex. 1998) [ (op. on r eh ’ g)] ; I nt ’ l Printin g Pressmen & Assistants ’ Union of N. Am. v. Smi th

, . . . 198 S.W.2d 729 , 735 ( [Tex.] 194 [6] ) ; see al so Hyund ai Mo to r Co . v. Rodriguez ex rel. Rodrig uez , 995 S.W.2d 661, 664 (Tex. 1999) (“Liabili ty for per sona l i n j uries caus ed by a prod uct ’ s defe c tive desig n can be imposed under

se v eral l egal theori es, among them negligence, breach of warr anty , a nd stri ct products lia bi lity.”); Am. Nat ’ l Petroleum Co. v. Transcon [ t ’ l ] Gas Pipe Line Corp. , 798 S.W. 2d 274, 283 (T ex

. 1 990 ) (“[W] heth er a pur chaser may

sue f or br each of warranty or stric t liabi lity for a defe ct ive product31 depends on whether t he produc t m erely did n ot perfor m as pr omised (contract) or whether it caused physical harm to person or property (tort) .”). B ut o f co urse, “[ t]h e diffic ulty in determ ini ng w hether the action is in to r t or i n contract is in the application of the rule,” In t ’ l Prin ting Pressme n , 198 S.W. 2d at 73 5, and thus the process of ch aracterization resists rigid categories in f avor of an ana lysi s th at

accou nts for all of a claim ’ s par ticu lar contours.

Century Sur

. Co. v. Hardscape Co nst r. Specialties, Inc. , 578 F.3d 2 6 2, 267

– 6 8 (5th Cir.

2 009)

.

T he Fund ’ s argum ent turns a blind eye to whether the A bor rule exte nd s to

protect a plain tiff ’ s auto nomy regarding whether and where to f il e a c laim tha t has the

earmarks of a tort claim . Th e autonomy to decide whether an d whe re to f ile suit is as
clearly ve sted in a plaintiff ’ s seeking to rec over for a violation of the legal duty crea ted

by the Act as it i s for the p laintiff in a tor t sui t. Th u s, we are unpersuaded by the

Fund’s argument th at the application of the Abor rule to tort cases means t hat it ha s

no application to the f acts presented here

.

No r do t h e limitations tha t the Fund in vokes a nd t hat the s u prem e co urt h as
place d on t he Abor rule apply t o the situation be fore us. T he Ab or ru le is not applied

in contract c ases be cau se the nat u re of the c au s e of action makes it difficult to d ecide

wh o s hould be accorded the status o f the r eal pla inti ff

. I n MBM F in ancial

, the Texas

S upr eme C ou rt explained

, [T] he “real plaintiff” and the “t ra ditional right to choose the time and pla ce of suit” ar e mate r ia ll y d iff erent in contr act and tort cases. The “rea l” plaintiff in a t ort action is the injured par ty, yet both pa rties of ten suffer inj ury if a contract collap ses

. When each party claims t he o ther breached (as is usually the case), it is hard to say who ou ght to b e the32 “real” p laintiff. Here, for example, why should [ appellant] get to choo se the time and place of s uit rath er than [appel lee] ? The [UDJA] itself specific ally contemplates declar ations that are negative (non

- liabili ty) as well as affir mative ( lia bili t y). And historically, declarations of non

liability under a contra ct h ave been a mong th e mo st c ommon suits file d under the [UDJA]

. . . . ”

292 S.W.3d at 668 (footnotes omitted )

. T h oug h the Fund a rgues again st the

conclusion, there is no con cep tu al cha llenge in determ ining who the real plaintiff is in

a Heartbe at Act suit. Th e legislat ure has mad e th at status c le ar

.

W e are also n o t p ersuaded by t he Fund ’ s argument th at atte m pt s to t urn the

table s on M axwe l l by a rguing that in our conte xt it is d iffi cult t o determine who the

“ rea l ” plaintiff is and th at t h e Fund

, ra ther t han Maxw ell

, s hould occu py t hat status :
Maxwell argues that t he essen ce of the Abo r rule is to prevent an “effort to deprive the ‘re al pl aintiff ’ of his traditional right to ch oose the time

an d p lace of su it.” She also note s that “the ‘r eal’ party in a t ort case is

t he inju red part y.” But he r i nability to apply t h at logic to this situation dem onstrates why Abor is l imited to tort cases an d has n ot been

ex tend ed to cases w her e “it is d iffic ult to determine who the ‘real ’ pla intiff is.” Here,

. . . Maxwel l has suffere d n o in jury , an d , therefor e, can mak e no claim t o the favored “rea l plaintiff” status, by her own test

. Just because the draf t ers of SB8 to ok the unpr ecedented an d unconstitu tional step of allow ing “ any person” to sue to enforce SB8, that does not make tha t p erso n an “in j ured party .”

On the other hand, if SB8 is unconst itutional, as at least two

state [

- ] c ourt judges and one fed era l j u dge have held, then [the F u nd] w ill be in jured by s ubmitt ing to Rule 20 2 dep ositions, being sued, and possibly being subject to jud gmen t s i n unlimite d a mounts. By

. . . Ma x well’s test, [the Fund] is, or will b e, the injured pa rty and is the “real p laintif f” in a suit c hal lenging th e c on stitut ionality of SB 8. Altho ugh SB8 creates seve ra l ven ue options for people s uing to enforce SB8, [th e F u nd] did not s ue to enforce SB8 [] b ut to challenge its constituti onality. There is no re ason why it, as the “r eal pla intiff” in that actio n, shou ld b e deprived of its right to cho ose wher e an d when to sue by a Rule 20233 petitione r who has not y et de cide d wh et her to file s uit. [Briefing

re f erences and f ootnote omitt ed

. ]

A g a in, at this point, t he Texa s Legis lature has made it cl ear who the “ r eal ” pla in tiff is

in a Heartbeat A ct case and ha s also made it clear in its venue pr ovi si on t ha t such a
plaint iff has the autonomy to decide where to f ile su it. Tex. Health & Safety Co de

Ann. § 171.210. Th e Fund may well have a defens e to a suit, but the ques tio n s remain

(1 ) why the Abor rule do es no t forestall the assert ion of the de fens e u nt il l itig ation is

actu ally filed and (2) why a pl ainti ff invo king the A c t should no t have the ability to

decide w hether it w ants to go t o the expens e of litigatin g the claims a nd

, i f so , to

select the venue where it will be litigated

. 7

Also , as not ed in the q u ote, the F und argues that it should not h ave to wai t for

Maxwell ’ s decis ions becau se “ if SB8 is unco nstituti onal , a s at lea st two state [

- ] court
judges and on e federal ju dg e have held, then [the F u nd] will be injured by submitting

to Rule 202 dep ositi ons, b eing sue d, and possibly b eing subje ct to judgments in

7 T he Fund also argues that

M axw ell atte mpts to establish a lin k to A bor by i naccurately clai ming that

“ [the] Fun d is suing

. . . Maxwel l for a de claration of n on

- liability for past conduct.” That is d emonstrably false. [The Fund ’ s] suit for d e claratory and injunctive relief list s s pecific dec laratio ns t hat it is seeking. Th ere i s no requested dec l aratio n that [th e Fund] is not liable f

or past co nduct. In fac t, ne ither “ [the Fund ] ” nor any form of the word “liabil ity” appears anywh er e i n the r eques ted declarations. [Briefing and

r ecord r efer ences omitted.]

T his is a distinctio n wi thout a di fference. The obvious e ffect of t he Fu nd ’ s Declarator y

- Judgment Pet iti on is to free it a n d others o f liability under t he Act.34 un limit ed a mounts

. ” [Footnote omitted .] S imply

, the decision of the state district

courts and the federa l court ar e not definitive on th e constitutiona lity of th e Act

, and

it appears th at much li ti g ati on is ah ead on th at question

. No r is there cer tain t y th at

the para de of horrib le s tha t the Fund lists will co m e to pass. W e d o not kn ow if the

Fund will actually be su ed by Maxwell o r , s hould that possibility come to pass, how

the court hea ring t h a t suit w ould reso lve th e Fund ’ s claims th a t the Act is

uncons t itutio nal

. Again , Maxw ell may not w ant to take on the burden of re sponding

to wh a t she now k nows will be the ful l

- throated defense that the Fun d will raise and

the attendant expense and t rav a il t o he rself of suc h a s u it

. And i ndeed

, her cal culus in

wheth er to file suit m ay wel l be di ffer en t in a post

- Dobbs wor ld than it was when

Texa s law was co ntrolled by Roe

. Th e Abor rule gives Maxwell the ab ility to make that

choice. Further, though M a xwe l l ha s never sued an yo ne under the Act an d has only

sought to determine whether she might f ile su it

, the Fund seeks to hold her liable for

the att orney ’ s fees it incurs for th e prosecution of its Declaratory

- Judgment Petition

,

whether its challenge is s ucc e ssfu l or not

. 8

Adm it tedly, Max w ell s tar ted the ball r ol ling b y filing h er 202 Proceedi ng but

di d not do so based on the venue provi si on of the Act ; inst ead , she filed the pe ti tion

in th e county where the Fund’s e xec utive director clai med to reside

. T he F und di d

8 I n i ts petition, the Fund “ specifically req uests the recovery of reason able

attorne ys’ fees in advancing this ac tion und er Tex. Civ. Prac. & Rem. Code § 37.009. ” Section 37.009 pro vides that “ [i ] n any proceeding und er this chapter, the court may

aw ard costs and reasonable and necessary atto rney ’ s fees as are equitable and ju st. ” Tex . Ci v. Prac. & Rem. Code Ann. § 3 7.009.35 not file a c o unter claim in t h e 2 02 P roceeding

, presum ably because the rule s th a t we

cite below demonstrate that a Rule 202 p roceed ing cannot be a bas is for substanti v e

claims

. Even so, the Fund is using that proceeding as the anchor for it s s u bst a ntiv e

claims against Maxwell

. The q uest io n is whethe r t he f i ling of an ancillary proceed ing

th at m a y never result i n a lawsuit should subject Maxwe ll to the Fund’s Declarato ry

Judgment Petition

, deprive her of the r ight to both decide whether to fil e a c ivil action

under the Act a nd to exercise her broad choice of the venue where to file the action

,

and potentially make her liable f or the fees incurred in litigati n g the Act ’ s v alidity. W e

conclude tha t it should not

.

For ex ample, t he Cor p us C hris ti

– E din burg Court of Appeal s deal t with

w hether an intervention co u l d be filed to li ti ga te s ubstantive claims in a Rule 202

proceeding

. See Rodrigu ez v. Cantu , 5 81 S.W.3d 859, 869 ( Te x. App.

— Corpus Christi

–

E dinburg 2019

, orig. proceeding ) (“ Cantu has i mpr o perl y at tempt ed to use a p ending

R

ule 202 proce eding to ins titute su bstantive claims fo r relief rega rding the removal of

an elected official from office

. ” ). To support i ts holding, t he court in Rodriguez

ex plained the limited pu rp ose that a Rule 2 0 2 proce edin g s e rves and how it do es not

p lace un fi led claims be fore the tri al court:
A Rule 202 proceeding “ is not a separa te indep endent lawsuit” but is instead “i n aid of and incident to a n anticipated s uit.” Lee v. GST Transp

. Sys., LP , 334 S.W.3d 1 6, 19 (Tex . A p p.

— D allas 2008, pet. d enie d); see Off ic

e Em ps. In t ’ l Union Loc [

. ] 277 v. Sw. Drug Corp. , 391 S.W. 2d 404, 406 (Tex. 1965) ( interpreting the predecessor ru le to Rule 202); Comb s [ v. Tex. Civil Rights Project ]
, 410 S.W.3d [ 529, ] 534 [ (Tex. App.

— Austin 201 3, p et

. denied) ] ( concludi ng that a Rule 202 pe tition is not a “s uit ”); see al so36 Patton Boggs LLP [ v. Moseley ] , 394 S.W.3d [ 565, ] 571 [ (Tex. App.

— Dallas 2011 , no pe t.) ] ( concluding th at the tri al court lack ed jurisdiction to gran t a motion to c ompel arbitr atio n fi led in a Rule 202 proceedi ng). S tated differently, a Rule 2 02 proceeding is an ancill ary pro ceeding. In re Wo lfe

, 341 S.W. 3d [932,] 932 [ (Tex. 2011 ) (per curiam) (orig. pr oc eeding)]

. A Rule 202 p etit ion “asserts no substan tive clai m or cause of act ion upon

w hich r el ief can be granted .” Comb s , 410 S.W.3d at 534; see Hughes v. Giammanco

, . . . 579 S.W.3d 672 , 678

– 79

. . . (Tex . App.

— Housto n [1st Dis t.]

. . . , no pet. [)

, ju d g

ment set aside without vacating op

. , 2019 WL 3331124 (Tex. App.

— Houston [ 1 st Dist. ] Ju l y 2 5, 2019 , no pet. ) (mem. op

. ) ]

. Therefore , “a Rule 202 petition doe s not place unfiled claim s before the trial court for adjudication on the merits. ” Caress v . Forti er

, . . . 576 S.W.3d 778, 782

. . . ( Tex. App.

— Hou ston [1 st Dist.]

. . . 201 9

, [p et. de ni ed] ). Instead , a successf u l Ru le 202 pe titioner “si mply acquires the right to obtain discove ry

— discovery that may or may not lead to a claim

or caus e of action ” upon which relief can be granted. Combs , 410 S.W.3d at 534 ; se e Hugh es , 579 S.W.3d at 678

– 7 9

. . . .

Id

. at 86 8

– 69 ; se e als o In re A S I C S Am. C or

p. , No. 05

- 22

- 00994

- CV

, 2023 WL 333711

,

a t * 5 (T ex . App.

— Dallas Jan. 20, 2023

, or ig

. proceeding) (mem. op.) ( holdin g that an

att empt to assert a su bstantive claim in an anci l lary discover y proceed i ng is

i mproper )

. 9

9 We acknowledge the split of authority r egarding whether a R u le 202 proceed ing is a legal action under the TCP A. The El Paso Court of Appeals re centl y summarized the split as f ollows :

T he TCPA defines “lega l ac t io n” as a “lawsui t, cause of actio n, p etitio n,

co mplaint, cross

- claim, or count erclai m [,] or any o ther j u dicial p leadin g

o r f iling t hat r equ ests l egal o r e quitable r elief. ” See Tex. Civ. Prac. & R em. Code Ann. § 27.001(6). Be cause R ul e 202 sp ecifica lly s tate s, “ A p e rson may pe tition the cou rt for an order authorizing the taking of a depo sition

. . . ,” it a ppears that a Rul e 202 petition mee ts th e plain

language definition of “legal action” est abl ished by the [Texas] Legislature in the T CPA. Se e Tex . R. Civ. P. 202. 1; Tex. Civ. Prac . & Rem. Code A nn. § 27.00 1(6). Three intermediate courts of appeals in Tex a s have held a Ru le 202 petition wa s a “legal action” s u bj ect to37 possible dismissal under the TCPA. See In re Krause Landscape Contracto rs , In c

. , 595 S.W. 3d 8 31

, 836 (Tex. App.

— Am ar il lo 2 020, no pet.); DeAng eli

s v. Protective Parents Coal [

. ] , 556 S.W.3d 8 3 6, 84 8

– 49 (Te x. App.

— Fort Worth 20 18, no pet.); In re E l li

ott , 504 S.W.3d 455, 463 (Te x. App.

— Aus tin 2016, [orig. proceeding] ). However, our two s is ter courts i n Ho usto n h e ld othe rwise, dete rm ining [that] “Rule 202 pet ition [s] do[ ] not assert a substant ive claim or c aus e of act ion[ ]” and to require Rule 202 petitioners to pres e nt prima facie evidenc e of a clai m which they hope to invest igate via pr e

- suit depo s it ion in o rd e r to su r vive a TCPA motio n to dis miss “ would r ender Rule 202 a nullity.” Hous [

. ] T ennis Assoc., Inc . v. Thi bodeaux , 6 02 S.W.3d 712, 718 (Tex. App.

— Houston [14 t h Dist.] 2020, no pe t.) (citing Hughes , 579 S.W.3d at 685 )

.

T he Aus ti n C ourt of App e als und er t ook a th oro ugh analysis of th e ap plicabili ty o f t he TCPA ’ s definition of “legal act ion” to Rule 20 2 p etition s in

. . . Elliott , 504 S.W.3d at 464

– 65. We will not r eh ash their entir e examinati on here. Suffice to say, in addi tion t o t he plain la ngu a ge

o f t he statu tory definition includi n g “petition, ” w hich is the method described in the Rules of Civil Pro cedure fo r obta ini ng a pre

- suit deposition, see Tex. R. Civ. P. 20 2 .1 , a Rule 20 2 petition seeks equitable relief. See [ Elliott

, 504 S.W.3d ] at 4 64

– 65; s e e also

. . . Krause , 595 S.W.3d

a t 836 (noting that R ule 202 pe titions seek an equi table remedy an d h olding they, there fore, meet t he T CPA definition of “legal action”). It therefo re squ a re ly falls within the statute ’ s definitio n of “legal acti on. ” Se e T ex. Civ. Prac . & Rem. Code Ann. § 27.001(6) (de finitio n of “l egal action” includes a “petition .

. . or any other judic ial pleading or f ilin g that requests legal or equitable relief [] ”); see

. . . E ll iott , 504 S.W.3d at 464

– 65. We de cline to fo llow the n a rro wer d efinition adopted by our sister courts i n Houston. See Hous [

. ] Tennis , 602 S.W.3d at 718 (li miting the TCPA de finition of “legal a ctio n” to assertions of “substantive claim [s] or caus e[s] of ac tion”); Hughes , 579 S.W.3d at 68 5 (same).

W e, t here fo r e, h old Appellee ’ s Rule 202 petit ion to depose A ppellants i s a “le gal a ction” for p urposes of dete rmi ning applicability of the TCPA.

F

lorez v. Olibas

, 657 S.W.3d 31, 38

– 3 9 (Tex. Ap p.

— El Paso 2022, pet. denied ) . As noted by a co nc urr ence to t h a t op inio n, a TCPA m ot i on directed at a Rule 2 0 2 pet i tion is limited as follows :38 I nde e d, when it su it s its argument, th e F und inv okes the limi ted nature of a

Rul e 202 proceeding to argue that “ a Rule 202 petition can result in n othing more

than an order compelling a pre

- sui t dep osition. It does no t adjudicate clai ms, ca nn ot

result in a f i n a l judg ment, ha s no preclusive eff ect, and is no t considered a lawsuit. ”

[Footnote omitted.] A s noted, when the Fund attempted to use the 20 2 Proce eding

to tran sfer this controversy to the MDL court, th at court viewed the limite d n a tu re of

the proceedin g as not provi di ng the basis for th e transfer and concluded th at

M axwell ’ s 2 02 Proceeding was not an attempt to enforce the A c t.

At bottom, w e are d ealing with a venue provision by which the legislature has

not on ly spec ifi e d th e v enu e bu t has al so spe cified th at the plaintiff’s choice of venue

ma y not be overridden wit h out the co nsent of all the par t ies. See Tex. Hea lth &

Safety Code Ann. § 1 71.210

. We see no logical rea son why the Abor rule would not as

a gene ral pr in ci pl e pr ev ent t he us e of a declara tory

- ju dgment action to deprive a

p laintiff of the right to choose the time and place for bringing a ci vil action to enforc e

A s our decisi on makes clear, th e “essential e leme nts of the claim” are not the elements of the potential l egal a ction that the Rule 202 movant proposes to inve s ti ga te

. Otherwi se, th e TC PA would requ ire the rather absurd r e sult t hat a p arty must have clear and specific evidence for a cl aim that they m ay never file. At the Rule 202 stage, the movant is only inv e stig ating wheth er they do have a basis in fact to b r in g a cl aim. So

, th e “e ss ential e lements of the claim” in t his c ontext woul d be limited to the predicates fo r a Rule 202 ac tio n.

I

d

. at 44 ( A l l e y , J
., concurring)

. Thus , the fact that a Rule 202 petit ion ma y p r ompt a TCPA moti on to dismiss does not alte r t he rule that s u ch a pe ti tion doe s not p ut substant ive clai ms before t h e cour t.39 the legal duty cre ated by the A ct. Maxwell did file her 202 Proceeding, but s uch a

pro ce ed ing is n o t an a nchor f or su bstantive claims. Con trary to that rule, the Fu nd is

using that proce eding as the a n chor for its substantive claims

. Indeed, the trial court

has not ruled regard ing w hether Maxwell will be permi tted to take the deposition t ha t

she s o ught in the 202 P roceeding

. A h o st of contingen cies stand between th e current

s tate of affairs and the filing of a suit ag ains t the Fund under the A c t or even having

its execut ive dir ector s it f or a deposition

. We con clude that the r at io nale o f the Abor

rule for estalls the burden place d on M axwell by way of the Fu nd ’ s Dec laratory

Judgment Petition

— a burden that she may or may not assume by going forwa rd with

a suit under the Ac t

.

W e h old tha t the trial court properl y granted Maxwell ’ s Rul e 91 a 10 Dis missal

M otion and ove r rule the p ortio n of t he Fund ’ s fi rst issue challenging that r u ling

. 11

10 O u r holdin g that the F und ’ s de clara tory

- jud gment suit was pro per l y dismissed obviate s the need to discuss the Fund ’ s re quest fo r a temp orary and anti

- suit injunction. The Fu nd describes i ts r eque st for inj uncti ve relief as ancillar y to its Declaratory

- Judgment Petition : “ Its req uest for injunc tiv e relief prohibiti ng

. . . Ma x w ell from enforcing SB8 is ‘ ancillary, ’ as it is ba sed on the declaratory [

- ] judgment claim. ” Th e Fun d a lso states

, “ The anti

- s uit injunction that [the] Fund se e ks is ancillary to i ts request for a pr o specti v e te mporary inj unc tion prohibiting

. . . Maxwell from enforcing SB8 agai n s t it. ” Thus , the reque st for injunctive reli ef stands on th e

s houlder s of t h e u nder l y ing claim and fall s when t h e u nder l y

ing claim falls. See Frey v. DeCordova Ben d Est s

. Owners As s ’

n , 63 2 S.W .2d 87 7, 881 (Tex. App.

— Fort Worth 1982) (holding that in order to b e entitled to injuncti ve relief, an applicant must dem onstra te “th e ex i s tence of a wrong ful act, ” and “[w]ithout unlawful c onduct or pro of of intent to commi t such con duct, any remedy is i mpr ope r”), aff ’ d

, 647 S. W.2d 246 (Tex. 1983).40 V. Co nclusion

Having overrule d the portion of the Fund ’ s first issue chall enging the tri al

c ourt ’ s gra nting of Maxwell’s D ismiss al Motion and denying discovery un de r th e

TC P A and havin g overrule d the F und ’ s second issue challenging the tr ia l c ourt ’ s fee

award t o Maxwell , we affirm t he trial court ’ s “ Order Aw arding Defendant Atto rney s ’

Fees Under the Tex as C itizens Pa rticipat ion Act and Rule 91a of th e Texas Rule s of

C ivi l Procedure

, ” wh ic h was si gned on August 16, 2022 ; which was entered an d

recorded on August 1 7, 2022 ; and which was initially reference d in the trial court ’ s

orde r si gn ed A ugust 11 , 2022

. /s/ Dabney Bassel

Dab n ey B asse l J ustic e

Deli v ere d: February 2 9, 2024

Further, the Fund ’ s argument that the 202 Proceeding is moot feels contrad ictory. Th e F u n d argues that the 202 Proc eeding triggers its ability to subje ct Maxwell to its D eclaratory

- J udgment P eti tion but then a rgu es that the procee ding has evapo rated. But whether now moot or not, we remain unconvi nced that the 202 Pr oceeding deprives Maxw ell o f the auto nomy to deci de w hether she would file an SB 8 s uit a nd, if so, where.

11 Th is resolution obvi ates the need to di scu s s the arguments r aised by the Fu n d in its first issue challenging th e basis for the order granting dismis sal unde r the T CPA. I t als o obviates the nee d to add ress the F und ’ s argument under its f irst is sue that it was entitled to take Max wel l ’ s depositi on u nder the TCP A. S ee Tex. C iv

. Prac. & R e m

. Code Ann. § 27.006(b). Th e Fu nd argues under i ts secon d iss ue tha t the tr ial

c ourt e rred by gr a ntin g Maxwell fees and by den ying it a f ee award because the tri a l court should not have granted Ma xwe ll ’ s R ule 9 1a Dismissal M otion. W e disagree and thus o verrule the Fund ’ s s econd issue.