DFPS doesn’t have to listen to Abbott or Paxton, says Texas Supreme Court

by | May 13, 2022 | Courts, LGBTQ Rights

The Texas Supreme Court on Friday partially blocked the Texas Department of Family and Protective Services from being forced to follow Gov. Greg Abbott’s order to investigate the parents of trans children for abuse.

In February, the governor penned a letter to DFPS Commissioner Jaime Masters telling her to investigate gender affirming healthcare for minors as child abuse. To explain why Masters needed to take on the new directive, Abbott cited an accompanying legal opinion by Texas Attorney Ken Paxton. 

Now, Texas’ highest court has issued an opinion that both the governor’s letter and the state attorney general’s opinion are non binding, or don’t have to be followed by DFPS. 

“Unlike the federal constitution, the Texas Constitution does not vest the executive power solely in one chief executive,” the ruling reads. “Instead, the executive power is spread across several distinct elected offices, and the Legislature has over the years created a wide variety of state agencies — including DFPS — whose animating statutes do not subject their decisions to the Governor’s direct control.”

“Nor does the Attorney General have any formal legal authority to direct the investigatory decisions of DFPS,” the ruling continues. “In sum, we are directed to no source of law obligating DFPS to base its investigatory decisions on the Governor’s letter or the Attorney General’s Opinion. The Governor and the Attorney General were certainly well within their rights to state their legal and policy views on this topic, but DFPS was not compelled by law to follow them.”

Following the decision to partially uphold the injunction blocking investigations into trans children and their families, the American Civil Liberties Union, ACLU of Texas, and Lambda Legal (the civil rights groups who brought the case) issued a joint statement.

“Today’s decision is a win for our clients and the rule of law,” the statement read. “The Texas Supreme Court made clear that the attorney general and governor do not have the authority to order DFPS to take any action against families that support their children by providing them with the highest standards of medical care. The court rejected the attorney general’s arguments that our lawsuit should be dismissed and affirmed that DFPS is not required to follow the governor’s directive or the attorney general’s non-binding opinion.”

“By upholding the injunction, the court left in place the lower court’s decision that investigations based solely on the provision of medically necessary health care cause irreparable harm,” they said. “It would be unconscionable for DFPS to continue these lawless investigations while this lawsuit continues, and we will not stop fighting the protect the safety and lives of transgender youth here in Texas.” 

fernando@texassignal.com | + posts

Fernando covers Texas politics and government at the Texas Signal. Before joining the Signal, Fernando spent two years at the Houston Chronicle and previously interned at Houston’s NPR station News 88.7. He is a graduate of the University of Houston, Jack J. Valenti School of Communication, and enjoys reading, highlighting things, and arguing on social media. You can follow him on Twitter at @fernramirez93 or email at fernando@texassignal.com

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