# United States Court of Appeals **for the Fifth Circuit**

No. 22-50882

In re Ken Paxton,

Petitioner

.

Petition for a Writ of Mandamus to the United States District Court

for the Western District of Texas USDC No. 1:22-CV-859

Before Higginbotham, Duncan, and Wilson, Circuit Judges

. Stuart Kyle Duncan, Circuit Judge : The panel sua sponte recalls the mandate, withdraws its previous opinion, In re Paxton , --- F.4th ---, 2022 WL 16921697 (5th Cir. Nov. 14, 2022), and substitutes the following:
Believing Texas intends to enforce its abortion laws to penalize their out-of-state actions, Plaintiffs sued Texas Attorney General Ken Paxton. Paxton moved to dismiss the suit for lack of subject matter jurisdiction. Plaintiffs then issued subpoenas to obtain Paxton’s testimony. Paxton moved to quash the subpoenas, which the di strict court initially granted. On reconsideration, however, the district court changed course, denied the motion, and ordered Paxton to testify ei ther at a deposition or evidentiary hearing. Paxton petitioned our court for a writ of mandamus to shield him
from the district court’s order. We co nclude the district court clearly erred United States Court of Appeals Fifth Circuit 

### FILED February 14, 2023
Lyle W. Cayce Clerk Case: 22-50882 Document: 00516646187 Page: 1 Date Filed: 02/14/2023No. 22-50882

2 by not first ensuring its own jurisdicti on and also by declining to quash the subpoenas. We therefore grant the writ.

I.
Plaintiffs are organizations that pa y for abortions and an abortion provider (collectively, “Plaintiffs”). They sued Paxton and other officials, claiming the anticipated enforcement of Texas’s abortion laws violates their First Amendment rights and their right to interstate travel. 1 Primarily, they seek to enjoin the enforcement of thes e laws “for any behavior undertaken by Plaintiffs in connection with any abortion that occurs outside the state of Texas[.]” Paxton promptly moved to dismi ss the suit for lack of subject matter jurisdiction, arguing that he is en titled to sovereign immunity and that Plaintiffs lack standing.
Before the district court ruled on Paxton’s motion to dismiss, Plaintiffs separately subpoenaed Pa xton in his official and individual capacities. They contended they were en titled to examine Paxton personally to clarify his power to enforce the challenged laws be cause his public statements—including official advisor ies, campaign statements, and tweets—allegedly contradicted his court filings on that point. Paxton moved to quash the subpoenas, and the district court granted the motion. Plaintiffs
then moved for reconsideration.
On reconsideration, the district court changed course and ruled Plaintiffs had shown the “exceptional ci rcumstances” necessary to subpoena a high-level official like Paxton. The court thought Paxton’s testimony was

1 Plaintiffs challenge both Texas’s pre- Roe prohibition on abortion, see Tex. Rev. Civ. Stat. art. 4512–.2, .6, as well as the Huma n Life Protection Act (HLPA), Tex. Health & Safety Code ch. 170A, which was enacted in 2021 and became effective upon the overruling of Roe v. Wade , 410 U.S. 113 (1973). See Dobbs v. Jackson Women’s Health Org. , 142 S. Ct. 2228, 2242 (2022) (overruling Roe ). Case: 22-50882 Document: 00516646187 Page: 2 Date Filed: 02/14/2023No. 22-50882

3 necessary because he “possesses unique , first-hand knowledge” about his intentions to enforce the challenged laws. His intentions were relevant, the court continued, because Paxton had si multaneously publicly promised to enforce the laws while arguing in court th at he lacked the authority to do so. Having “inserted himself into this disp ute by repeatedly tweeting and giving interviews about [the challenged laws ],” the court concluded that “Paxton alone is capable of explaining his thoughts and statements.”

The court also determined that test ifying would not unduly burden Paxton. While recognizing that high-level officials have significant duties, the court stated: “It is challenging to square the idea that Paxton has time to give interviews threatening prosecutions but would be unduly burdened by explaining what he means to the very parties affected by his statements.” Paxton’s “many public statements and interviews,” the court thought, belied the notion that testifying would burden his time.
Accordingly, the district court reversed its initial decision, denied the motion to quash, and ordered Paxton “to meaningfully confer on or before October 11, 2022 to agree on the partic ulars of Paxton’s testimony, whether by deposition or evidentiary hearing. ” The court also stayed Plaintiffs’ deadline to respond to Paxton’s moti on to dismiss “pending Paxton’s testimony.” That motion remains pending.
Paxton then petitioned us for a wr it of mandamus and a stay of the district court’s order. He separately filed an interlocutory appeal, arguing that the order constructively denied him sovereign immunity. We granted a temporary administrative stay to cons ider the petition. We now grant it.

II.
Federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreea ble to the usages and principles of law.” 28 U.S.C. § 1651(a). One such writ is mandamus, an extraordinary Case: 22-50882 Document: 00516646187 Page: 3 Date Filed: 02/14/2023No. 22-50882

4 remedy used to correct “a judicial usur pation of power” or a “clear abuse of
discretion.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (citations and internal quotation mark s omitted). Typically, the writ serves as a means of “confining the inferior court to a lawful exercise of its prescribed jurisdiction, or of compelling it to exercise its authority when it is its duty to do so.” In re Gee , 941 F.3d 153, 158 (5th Cir. 2019) (per curiam) (quoting Ex parte Republic of Peru , 318 U.S. 578, 583 (1943)).
Before the writ can issue, three conditions must be met: (1) the petitioner must show his right to the writ is clear and indisputable; (2) the petitioner must have no other adequate means of obtaining relief; and (3) the issuing court must be satisfied in its own discretion that the writ is appropriate under the circumstances. Cheney , 542 U.S. at 380–81; In re Gee , 941 F.3d at 157. Those stringen t standards are satisfied here.

A.

We turn first to Paxton’s asserted right to relief from the order to testify. Our mandamus cases distingu ish a court’s discretionary and nondiscretionary duties. In re Gee , 941 F.3d at 158. For discretionary duties, “a clear and indisputable right to the issu ance of the writ of mandamus will arise only if the district court has clearly abus ed its discretion, such that it amounts to a judicial usurpation of power.” Id. at 158–59 (quoting In re First S. Sav.
Ass’n , 820 F.2d 700, 707 (5 th Cir. 1987)). By co ntrast, violating a nondiscretionary duty necessarily creates a clear right to relief because the court lacked authority to de viate from that duty. Ibid.
Paxton argues he has a right to re lief under each basis. He contends
the district court violated a non-di scretionary duty to ensure its own jurisdiction by failing to rule first on hi s motion to dismiss. Paxton also argues the court abused its discretion by deny ing his motion to quash. We address argument each in turn. Case: 22-50882 Document: 00516646187 Page: 4 Date Filed: 02/14/2023No. 22-50882

5 1

. “A district court’s obligation to cons ider a challenge to its jurisdiction is non-discretionary.” In re Gee , 941 F.3d at 159. An a ppropriate jurisdictional challenge triggers a “duty of making furt her inquiry as to [the court’s] own jurisdiction.” Ibid. (quoting Opelika Nursing Home, Inc. v. Richardson , 448 F.2d 658, 666 (5th Cir. 1971)). Paxton raised such a challenge by moving to dismiss for lack of jurisdiction on both standing and sovereign immunity grounds, well before Plaintiffs subpoenaed him. The district court failed to rule on that motion before refusing to quash the subpoenas. Indeed, in the same order compelling Paxton to testify, the court stayed Plaintiffs’ deadline to respond to the motion to dism iss “pending Paxton’s testimony.”
A court has a fundamental duty to examine its jurisdiction. The
district court’s failure to do so here extends beyond a “mere jurisdictional error” or “mere failure to spot a jurisdictional issue.” Id. at 159. Indeed, the district court’s order explicitly post pones Paxton’s assertion of sovereign immunity pending his deposition. But sovereign immunity provides immunity from suit, not mer e immunity from damages. Russell v. Jones , 49 F.4th 507, 512 (5th Cir. 2022); see also Ex Parte Ayers , 123 U.S. 443, 505 (1887) (“The very object and purpose of the eleventh amendment were to prevent the indignity of subjecting a stat e to the coercive process of judicial tribunals at the instance of private pa rties.”). As such, we have vacated the perfunctory denial of a motion to dism iss predicated on sovereign immunity
and remanded for consideration of the motion before any further litigation, even though the district court prefe rred to put off the motion until “other legal issues were resolved and fu rther discovery was conducted.” Texas v. Caremark, Inc. , 584 F.3d 655, 657 (5th Cir. 2009); see also Russell , 49 F.4th at 514 (“Where sovereign immunity applies, it applies totally. Plaintiffs stop at the Rule 12(b)(1) stage and don’t get discovery. They don’t pass go.”). Case: 22-50882 Document: 00516646187 Page: 5 Date Filed: 02/14/2023No. 22-50882

6 Our recent decision in Carswell v. Camp , No. 21-10171, 2022 WL 17335977 (5th Cir. Nov. 30, 2022), withdrawing and replacing Carswell v. Camp , 37 F.4th 1062 (5th Cir. 2022), conf irms the district court should have first ruled on Paxton’s assertion of immunity. 2 There, the plaintiff sought to depose defendants who had asserted qualified immunity, relying on the district court’s scheduling order that allowed limited discovery “if the plaintiff believes discovery is necessary to resolve the [qualified immunity] defense” or if discovery was in the defendant’s capacity as a “witness.” Id. at *2. We held that the scheduling orde r was an abuse of discretion because it allowed discovery against defendants while deferring resolution of their asserted immunity. Id. at *3. We explained that “[t]he Supreme Court has now made clear that a plaintiff assert ing constitutional claims against an officer claiming QI must survive the motion to dismiss without any discovery.” Ibid. (emphasis in original). In so doing, we emphasized that a defendant’s entitlement to immunity “s hould be determined at the earliest possible stage of the litigation.” Id. at *4 (citation omitted). The only exception to this rule is where the plai ntiff has pleaded facts which, if true, would overcome immunity, but the court “f inds itself ‘unable to rule on the immunity defense without further clarification of the facts.’” Id. at *3 (citation omitted). Under those circumst ances, the district court may allow discovery “narrowly tailored to uncover only those facts needed to rule on the immunity claim.” Ibid. (citation omitted). Those circumstances are not present here because, as explained belo w, no clarification of the pleaded facts
is needed to evaluate Paxt on’s immunity defense.

2 Carswell addressed qualified immunity but is pertinent here because, like sovereign immunity, qualified immunity provi des “immunity from suit rather than a mere defense to liability.” Pearson v. Callahan , 555 U.S. 223, 237 (2009) (quoting Mitchell v. Forsyth , 472 U.S. 511, 526 (1985)). Case: 22-50882 Document: 00516646187 Page: 6 Date Filed: 02/14/2023No. 22-50882

7 Plaintiffs insist Carswell is inapposite because their subpoenas are “to obtain hearing testimony,” not discover y, and because Paxton is being called as a “witness” with relevant knowledge, not as a party. We disagree. Even assuming such distinctions make any difference, 3 Paxton is a defendant, not a third party, and to the extent his statements are relevant to Plaintiffs’ claims, it is because of his status as a defendant. Moreover, Carswell already rejected similar arguments. The plaint iff there brought two sets of claims: § 1983 claims against the individual defendants and a Monell claim against the county. The plaintiff tried to couc h deposing the immunity-asserting defendants as obtaining their te stimony as “witnesses” for the Monell claim, not as defendants for the § 1983 claim. Id. at *5. We rejected this gambit, explaining that it “turn[ed] qualified immunity on its head” by opening the defendants to deposition before adjudi cation of their immunity defense. Ibid

. So too here.
Finally, we reject Plaintiffs’ argu ment that Paxton’s testimony is somehow necessary to decide jurisdiction. Whether Paxton may be sued
under the Ex parte Young exception to sovereign immunity does not turn on Paxton’s campaign statements or tweet s. Rather, it turns principally on whether Paxton “is statutorily tasked with enforcing the challenged law.” City of Austin v. Paxton , 943 F.3d 993, 998 (5th Cir. 2019). The same inquiry also informs the standing question. See id. at 1002. In other words, Paxton’s jurisdictional defenses can be asse ssed by reference to Texas law. His personal deposition answers are i rrelevant, and therefore the narrow exception recognized by Carswell when further factual development is necessary does not apply.

3 But see Russell , 49 F.4th at 515 (holding sovereign immunity barred subpoenas even against third-party judges because subpoenas are a “coercive judicial process” that “issue under the court’s authority and are enforced by court order”). Case: 22-50882 Document: 00516646187 Page: 7 Date Filed: 02/14/2023No. 22-50882

8 The district court had a non-di scretionary duty to ascertain its jurisdiction by ruling on Paxton’s motion to dismiss before allowing Paxton to be subpoenaed. See In re Gee , 941 F.3d at 159. Because the district court failed to do so, Paxton has a clear right to relief.

2. Apart from the jurisdictional questi on, the district court also clearly abused its discretion by refusing to quash the subpoenas. “[E]xceptional
circumstances must exist before the in voluntary depositions of high agency officials are permitted.” In re Off. of Inspector Gen., R.R. Ret. Bd. , 933 F.2d 276, 278 (5th Cir. 1991) (per curi am). Before requiring such “apex” testimony, courts must consider: (1) the deponent’s high-ranking status; (2) the substantive reasons for the dep osition; and (3) the potential burden the deposition would impose on the deponent. In re FDIC , 58 F.3d 1055, 1060 (5th Cir. 1995); see also In re Bryant , 745 F. App’x 215, 218 n.2 (5th Cir. 2018) (per curiam). A district court commits a “clear abuse of discretion” when it compels apex testimony absent extraordinary circumstances. In re FDIC , 58
F.3d. at 1062. No such circumstances exist here.
Only the second and third factors are disputed. As for the second factor, substantive need, the district court found Paxton’s testimony was necessary to clarify his enforcement po licy due to purported contradictions between his court filings and public statements. It concl uded testimony was
needed from Paxton himself because he had “unique, first-hand knowledge” from “ha[ving] inserted himself into th is dispute by repeatedly tweeting and giving interviews about the [challenged law].” “Paxton alone,” the district court thought, could “explain[] his thou ghts and statements.” We disagree.
The district court ignored the ration ale for limiting apex testimony to exceptional circumstances. High-rankin g officials—state attorneys general being the paradigm case—are often drawn into lawsuits. They cannot Case: 22-50882 Document: 00516646187 Page: 8 Date Filed: 02/14/2023No. 22-50882

9 perform their duties if they are not per sonally shielded from the burdens of litigation. In re Bryant , 745 F. App’x at 220–21; see also In re Stone , 986 F.2d 898, 904 (5th Cir. 1993) (per curiam) (“Obviously, high-ra nking officials of cabinet agencies could never do their jo bs if they could be subpoenaed for every case involving their agency.”). Accordingly, a “key aspect” of the analysis “is whether the [sought after] information . . . can be obtained from
other witnesses.” In re Bryant , 745 F. App’x at 221. Where it can, apex testimony is justified only in the “rarest of cases.” In re FDIC , 58 F.3d at
1062. This is not one of those rare cases.
The district court conceded the “p lain fact that lawyers at the Attorney General’s Office may arti culate the Office’s [enforcement] policies.” So, by the court’s own admission , if there is a need to clarify the office’s enforcement policy, a represen tative can do so on the Attorney
General’s behalf. The court nonethele ss treated Paxton as having unique information merely because he made public statements about a matter that later became the subject of litigation. Th at does not follow. Paxton’s personal “thoughts and statements” have no bear ing on his office’s legal authority to enforce Texas’s abortion laws or any othe r law. To accept the district court’s position would undermine the exceptiona l circumstances test. It is entirely unexceptional for a public official to comment publicly about a matter of public concern. If doing so imparts unique knowledge, high-level officials will routinely have to testify.
Similarly, the district court erred in holding that compelling Paxton’s testimony would not unduly burden him. The court reasoned that if Paxton has time to give public statements, he has time to testify: “It is challenging to square the idea that Paxton has ti me to give interviews threatening prosecutions but would be unduly burdened by explaining what he means to the very parties affected by his stat ements.” Again, this reasoning would eviscerate the exceptional circumst ances test. “High ranking government Case: 22-50882 Document: 00516646187 Page: 9 Date Filed: 02/14/2023No. 22-50882

10 officials have greater duties and time constraints than other witnesses.” In re
United States , 985 F.2d 510, 512 (11th Cir. 19 93) (per curiam). Those duties often involve communicating with the pu blic on matters of public interest. The fact that a high-ranking official talks to his constituents does not ipso facto mean he also has ample free time for depositions.
In sum, the district court committe d a “clear abuse of discretion” by finding that exceptional circumstances ju stified ordering Paxton to testify. In
re FDIC , 58 F.3d. at 1062. Paxton ha s therefore shown a clear and indisputable right to relief.

B.
Because mandamus is a remedy of la st resort, the writ cannot issue unless the petitioner has no other adeq uate means of obtaining the relief he
seeks. Cheney , 542 U.S. at 380. Here, not only has Paxton sought the writ, he has also filed a separate interlocutory ap peal. Plaintiffs argue that this appeal is an adequate alternative avenue for re lief, making the writ inappropriate.
Our precedent forecloses that argu ment. We have held that an interlocutory appeal does not constitu te adequate relief where the party opposing the writ also ch allenges the jurisdictional basis for the appeal. In In
re FDIC , we issued the writ to quash notice s of deposition issued to members
of the Board of Director s of the Federal Deposi t Insurance Corporation (“FDIC”). 58 F.3d at 1057. The official s filed an interlocutory appeal while simultaneously seeking the writ. Id. at 1060 n.7. Notwit hstanding the appeal, we held that that the officials had no other adequate means of obtaining relief because the opposing party had moved to dismiss the appeal for lack of jurisdiction. Ibid. As we explained, “[w]e do no t think [the opposing party] can at once move to dismiss the appe al and urge that the FDIC has an adequate means of obtaining relief.” Ibid. We issued the writ and dismissed the appeal as moot. Id. at 1063 n.10. Case: 22-50882 Document: 00516646187 Page: 10 Date Filed: 02/14/2023No. 22-50882

11 In re FDIC controls here because Plaint iffs have moved to dismiss Paxton’s appeal for lack of jurisdicti on. On the one hand, they argue that
Paxton should not receive the writ beca use he can receive relief via his appeal. On the other, they seek to prevent th e appeal’s resolution on the merits by challenging our jurisdiction. Under In Re FDIC , they cannot do both. Paxton’s appeal is thus not an adequate alternative.
Paxton’s only remaining source of relief is the writ. Without it, he will be compelled either to submit to testifying or risk contempt charges for violating the court’s order.

C.
Finally, we exercise our discretion to decide whether to issue the writ. The writ is always discretionary: “Discr etion is involved in defining both the circumstances that justify exercise of writ power and also the reasons that may justify denial of a writ even th ough the circumstances might justify a grant.” 16 Alan Wright, Arthur Miller, & Edward H. Cooper, Fed. Prac. and Proc. § 3933 (3d ed. 2012); see also Duncan
Townsite Co. v. Lane , 245 U.S. 308, 311 (1917) (“Mandamus is an extraordinary remedial process which is awarded, not as a matter of right, but in the exercise of a sound judicial discre tion.”). We are satisfied that the writ
should issue.
We sometimes deny the writ as a matter of prudence even when the district court erred, see In re Depuy Orthopaedics, Inc. , 870 F.3d 345, 347 n.4 (5th Cir. 2017) (collecting cases), but we typically do so wh en two conditions are met, neither of which is present here . First, our prudential denials involve
a district court’s mistaken resolution of a novel or thorny question of law. See, e.g. , In re JPMorgan Chase & Co. , 916 F.3d 494, 504 (5th Cir. 2019) (denying the writ where the district court “followed numerous others in errantly applying” the re levant legal standard); In re Dean , 527 F.3d 391, 394 Case: 22-50882 Document: 00516646187 Page: 11 Date Filed: 02/14/2023No. 22-50882

12 (5th Cir. 2008) (per curiam) (denying th e writ where “the district court, with the best of intentions, misapplied the law” on a legal question involving a circuit split); In re Kleberg Cnty. , 86 F. App'x 29, 34 (5th Cir. 2004) (denying
the writ where the district court “handled a delicate and novel legal issue but nevertheless [ran] afoul of controlling law”); In re Stone , 986 F.2d at 901 (denying the writ where the district court erred as to an “important, undecided issue”); Landmark Land Co. v. Off. of Thrift Supervision , 948 F.2d 910, 911 (5th Cir. 1991) (denying the wr it after the erroneous interpretation of a “question of first impression”). These types of mistakes, made under difficult circumstances, may not rise to the level of a clea r and indisputable error, as required for mandamus relief. See In Re JPMorgan Chase , 916 F.3d

at 504.
Our prudential denials also involve the kind of errors that the district
court can correct once we have clar ified the proper legal standard. For instance, we declined to issue the writ when the district court improperly delayed crime victims from exercising their statutory right to participate in the offender’s plea agreement process. In Re Dean , 527 F.3d at 396. Despite this error, we were “confident . . . th at the conscientious district court will fully consider the victims’ objections and concerns in de ciding whether the plea agreement should be accepted.” Ibid. Similarly, we denied the writ where the district court erroneously required a representative of the government with settlement authority to be present at all settlement
conferences without consider ing more tailored measures. In re Stone , 986 F.2d at 905. In denying the writ, we no ted that “[t]he able district judge has
indicated that he welcomes this court’ s exposition of this issue, and we are confident that he will abide by our decision and adjust his directives accordingly.” Ibid. ; see also In re Kleberg Cnty. , 86 F. App’x at 34 (denying
writ where the district court would ha ve the opportunity to “reconsider its [error] in light of the standa rds we have articulated”). Case: 22-50882 Document: 00516646187 Page: 12 Date Filed: 02/14/2023No. 22-50882

13 Neither circumstance is present here . The district court’s twin errors occurred in areas of the law gove rned by well-settled standards. See In re Volkswagen of Am., Inc. , 545 F.3d 304, 319 (5th Cir. 2008) (en banc) (suggesting that discretion counsels i ssuing the writ wher e the court reached a “patently erroneous result”). Moreover , the errors are ones that cannot be rectified as the case progresses. Pa xton’s compelled testimony cannot be undone or corrected by the district cour t or a reviewing court once it occurs. We are therefore satisfied that, under th e circumstances, we should exercise
our discretion to issue the writ.

III.
The petition for writ of mandamus is GRANTED , directing the district court to vacate its October 4, 2022 order and gran t Paxton’s motion to quash. Paxton’s interlocutory appe al, No. 22-50889, and motion for stay

are DISMISSED as MOOT . Finally, our temporary stay of October 10, 2022, is LIFTED

. Case: 22-50882 Document: 00516646187 Page: 13 Date Filed: 02/14/2023No. 22-50882

14 Patrick E. Higginbotham , Circuit Judge , concurring:
I agree that the district court must resolve the question of whether the parties before it have standing and join in the remand for further proceedings.
The energy driving this case is generated by its subject—not its complexity. Plaintiffs proceeding under § 1983 seek injunctive and declaratory relief—a declaration that Texas’s Human Life Protection Act ( HLPA ), among other anti-abortion stat utes, cannot be enforced against persons assisting Texans to obtain abortion healthcare in states where abortion is permitted. 1 HLPA makes abortion a felony unless a woman’s pregnancy creates a “life-thre atening physical condition.” 2 The statute
grants inter alia the Attorney General the powe r to enforce its terms by imposing a fine of “n o[] less than $100,000.” 3 Plaintiffs fear that Attorney General Ken Paxton will pursue civil liab ility for assisting Texans to obtain abortion healthcare in states not proh ibiting abortion, chilling their exercise of free speech and their constitutional righ t to interstate trav el. On the extant record, these assertions are not fanciful. Plaintiffs’ briefs cite to statements assertedly made by Attorney Genera l Paxton in media interviews, press releases, and twitter posts promising, among other things, “to make people pay if they’re going to do abortions;” 4 that Attorney General Paxton clarified

1 As detailed in their original complaint, Pl aintiffs “seek to enjoin Defendants from applying Texas’s anti-abortion laws to Plaintiffs for the legal exercise of their rights.” They “also seek a declaratory judgment declaring un constitutional, null and void the retroactive application of the Pre- Roe Statutes and to enjoin Defendan ts from applying them against Plaintiffs, their staff, volunteers, and/or donors for conduct that preceded the Dobbs decision.”

2 Tex. Health & Safety Code Ann. § 170A.002.

3 Id. § 170A.005.

4 Several witnesses stated that they under stood these statements to cover out-ofstate abortion care but could not be sure because the statements were unclear. Case: 22-50882 Document: 00516646187 Page: 14 Date Filed: 02/14/2023No. 22-50882

15 in his briefings that the State’s inte rest in protecting unborn Texans
“continues whether the Texan mother seek s an abortion in Denver or Dallas, in Las Cruces or Lamesa.” Plaintiffs also point to statements by other state officials, who while lacking specific enforcement authority under state law nonetheless fuel a climate of fear of suit or prosecution. 5
While it appears on the face of the complaint that Plaintiffs may have an adequate stake in providing out-of- state abortion access, their standing— injury and redressability—here is not self-evident, and as a threshold matter jurisdiction must be addressed. This is rote. My colleagues go further, applying Carswell v. Camp ’s strictures on discovery prior to the
determination of qualified immunity to the determination of sovereign immunity. 6 Whatever its reach, the Apex doct rine does all the work here and it is not apparent that discovery from th e Attorney General is essential to thiscase. “Exceptional circumstances” do not exist to justify deposing a highranking official when the information de sired from testimony can be obtained
elsewhere. 7 Plaintiffs seek testimony from A ttorney General Paxton while at the same time urging that his statemen ts—their content and inconsistency, including in these proceedings—chill thei r constitutionally protected rights. It signifies that these inferences are drawn from the present record: Indeed, Attorney General Paxton argues to this Court that the potential liability Plaintiffs fear is “nonexistent,” while at the same time he argues that when “procurement takes the form of a bus ti cket for the pregnant Texan to an

5 Plaintiffs cite, for example, a letter se nt by a group of State legislators who threatened an organization with criminal liab ility for “reimburs[ing] the travel costs of employees who leave Texas to murder their unborn children.”

6 Cf. Carswell v. Camp , 54 F.4th 307, 311 (5th Cir. 2022) (addressing district courts’ rulings on “qualified immunity” questions).

7 In re Bryant , 745 F. App’x 215, 221 (5th Ci r. 2018) (unpublished per curiam). Case: 22-50882 Document: 00516646187 Page: 15 Date Filed: 02/14/2023No. 22-50882

16 abortion clinic, or the paying from Te xas of the cost of a pregnant Texan’s hotel room adjacent to that clinic, it does not matter if the travel and hotel are in Albuquerque or Austin” for the State to have an interesting in protecting the unborn.
The point is that on the record at ha nd a trier of fact could find there
is sufficient evidence of an unse ttling and chilling want of clarity in statements by officials with enforcement authority made ag ainst a chorus of state officials without enforcement power to allow this case to proceed. Those issues and the jurisdic tional issue of Pl aintiffs’ standing, including any discovery they may enta il, remain for the district court.
As for mandamus, we need only remi nd that Plaintiffs cannot move to dismiss the interlocutory appeal while also arguing that it affords the Attorney General another adequate means of obtaining relief, 8 as they do in this case. I would end the mandamus inquiry here.

8 See In re FDIC , 58 F.3d 1055, 1060 n.7 (5th Cir. 1995). Case: 22-50882 Document: 00516646187 Page: 16 Date Filed: 02/14/2023