The judge in the case, Travis County district court judge Amy Clark Meachum, halted the state’s investigation into the DFPS employee’s family on March 2 and later blocked all such investigations statewide on March 11.
The state then appealed to reverse this order. Texas Attorney General Ken Paxton announced the appeal on March 11, though the notice of appeal was filed yesterday in the Austin-based Third Court of Appeals.
In their original petition, the anonymous mother and the psychologist, Megan Mooney, claim the governor and DFPS violated the constitution by authorizing the new investigations without any new laws being passed.
“After the Texas legislature failed to pass legislation criminalizing well-established and medically necessary treatment for adolescents with gender dysphoria, the Texas Governor, Attorney General, and Commissioner of the Department of Family and Protective Services have attempted to legislate by press release,” the petition reads.
“The Governor has circumvented the will of the legislature and, in so doing, he and the Commissioner have run afoul of numerous Constitutional and statutory limits on their power. Additionally, by their actions, Defendants have trampled on the Constitutional rights of transgender children, their parents, and professionals who provide vital care to transgender children.”
During the regular legislative session, some Republican lawmakers filed several bills that would have banned surgeries and endocrine treatments meant to aid a child’s sex transition. Due to legislative bottlenecks — namely in the House Public Health Committee, chaired by Rep. Stephanie Klick (R-Fort Worth), and the Calendars Committee, chaired by Rep. Dustin Burrows (R-Lubbock) — none of these bills made it to the floor of the Texas House for a vote.
Rep. Matt Krause (R-Fort Worth), the author of one of these bills, later submitted an official opinion request to Paxton asking if these procedures constitute child abuse under current Texas law.
Paxton issued his opinion on February 21, particularly noting that some of these procedures have the effect of sterilizing the child. Abbott directed the DFPS to begin investigating the use of puberty blockers and other procedures as child abuse on February 22.
On the following day, the DFPS employee was placed on leave from employment and informed on February 24 that her family would be investigated. An investigator visited the home on February 25.
The state argued in court that Abbott’s directive did not apply to all child gender transition procedures.
“None of these three incidents conclusively determined that each and every incident of treatment using these gender-affirming therapies for young people constitutes child abuse, and none of these three incidents constituted, or purported to be, a change in existing law,” the state argued in a court brief, referring to Paxton’s opinion, Abbott’s directive, and the DFPS acknowledgment as the “three incidents.”
Additionally, the state claims that the threat of investigation does not meet the threshold of actual harm to justify a lawsuit.
“Dr. Mooney does not allege DFPS is investigating her or has taken any action against her, and the mere existence of investigative power is not an actionable injury,” the state wrote.
“And the Does do not allege that any investigative findings have been made or that any actions have been taken against them. When any investigations are concluded, and if any subsequent actions are taken, Plaintiffs will have every opportunity to defend against any prosecution or raise any other challenge. But Plaintiffs’ claims are simply premature at this juncture.”
Since the case originated in Austin, Paxton’s appeal will proceed through the Texas Third Court of Appeals, which previously slapped down the state officials’ request to consider their appeal of Meachum’s March 2 temporary restraining order.
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