Fifteenth Court of Appeals Affirms Temporary Injunction Against Attorney General’s Prosecutor-Reporting Rules as to Named Plaintiffs, Reverses It as to Nonparties

The decision

On December 30, 2025, the Fifteenth Court of Appeals affirmed in part and reversed in part a temporary injunction barring Attorney General Ken Paxton and the Office of the Attorney General from enforcing administrative rules that require district and county attorneys in Texas’s most populous counties to file reports on criminal matters. In an opinion by Justice Scott K. Field, the court held that Section 41.006 of the Texas Government Code, the only statute the Attorney General relied on, does not confer rulemaking authority on the Attorney General, and that the trial court did not abuse its discretion in finding probable, imminent and irreparable injury. The court reversed the injunction to the extent it reached nonparties, limiting relief to the prosecutors who sued, and remanded.

The opinion frames the question narrowly: “This appeal concerns only whether the Attorney General had authority to promulgate the Rules at issue, not whether the Attorney General has authority to obtain information on criminal matters from local district attorneys on an ad hoc basis.”

Background

Section 41.006 provides: “At the times and in the form that the attorney general directs, the district and county attorneys shall report to the attorney general the information from their districts and counties that the attorney general desires relating to criminal matters and the interests of the state.”

According to the opinion, relying solely on that statute, the Attorney General adopted rules, codified at 1 Tex. Admin. Code §§ 56.1–56.10, requiring district and county attorneys in counties with a population of 400,000 or more to file initial, quarterly and annual reports calling for categories of information including counts of certain prosecution events, “case files” for certain categories of cases, and “all correspondence” on certain topics. The rules create an Oversight Advisory Committee that may issue notices of overdue reports and request entire case files. Under the rules, noncompliance is “official misconduct” under Section 87.011 of the Local Government Code and permits the Attorney General to seek a prosecutor’s removal by quo warranto. The rules were adopted in March 2025 and took effect April 2, 2025.

Before the first reporting deadline, district and county attorneys from Travis, El Paso, Dallas, Bexar, Harris, Fort Bend and Williamson counties filed three suits, later consolidated, seeking declaratory and injunctive relief. They argued that the Attorney General lacked rulemaking authority under Section 41.006 and, alternatively, that the rules exceeded the statute’s scope, were not adopted in substantial compliance with the Administrative Procedure Act, violated separation of powers, and were ultra vires. At the temporary-injunction hearing in the 459th District Court of Travis County, the plaintiffs presented two live witnesses and twenty-three exhibits without objection; the Attorney General presented no evidence. The trial court granted the injunction, the Attorney General appealed, and the court of appeals temporarily stayed the reporting requirements pending the appeal.

The court’s reasoning

Applying Butnaru v. Ford Motor Co., the court stated that a temporary-injunction applicant must plead and prove a cause of action, a probable right to the relief sought, and a probable, imminent and irreparable injury in the interim, and that review is for abuse of discretion.

Rulemaking authority

The Attorney General argued that Section 41.006 expressly grants rulemaking authority and, alternatively, impliedly does. The court disagreed on both points: “Based on the plain language of Section 41.006, the Legislature did not expressly grant rulemaking authority to the Attorney General, nor can rulemaking power be implied where no such authority is expressly granted.”

Citing PUC of Texas v. City Public Service Board of San Antonio, the court stated that agencies are creatures of the Legislature with no inherent authority, and that “[t]he basic rule is that a state administrative agency has only those powers that the Legislature expressly confers upon it.” Although the Attorney General is a constitutional officer, the court reasoned, the office is part of the executive branch and has rulemaking power only if the Legislature grants it. The court acknowledged that agencies hold implied powers reasonably necessary to carry out express responsibilities, but stated: “In every case in which courts have implied rulemaking power, the Legislature had already granted the agencies express rulemaking power.” Implied rulemaking power, it said, is analyzed only when deciding whether an agency exceeded the scope of express rulemaking power, not whether such power exists at all.

The court noted that, unlike the Public Utility Commission or the Railroad Commission, the Office of the Attorney General has no enabling legislation granting broad rulemaking power, and it set out a table of statutes in which the Legislature expressly directed the Attorney General to adopt rules on particular subjects. Because the Legislature “clearly knows how to expressly grant rulemaking authority when it intends to do so,” the court declined to read such a grant into Section 41.006, citing Laidlaw Waste Systems (Dallas), Inc. v. City of Wilmer: “When the Legislature employs a term in one section of a statute and excludes it in another section, the term should not be implied where excluded.”

On the word “directs,” the Attorney General offered dictionary definitions; the plaintiffs offered competing definitions and argued the term is not a substitute for words like “adopt” or “rules.” The court stated that the Attorney General had not cited, and that it had not located, any case holding that “directs” grants express rulemaking authority. Whether the term lets the Attorney General request and receive information from local prosecutors “is not the question before us,” the court said, adding that the word “provides some type of authority, even if not rulemaking authority.” The question, it said, was “whether Section 41.006 clearly and unmistakably delegates express rulemaking authority, and we conclude it does not.”

The court distinguished Pruett v. Harris County Bail Bond Board, on which the Attorney General primarily relied, because that case addressed the scope of a board’s undisputed express rulemaking power rather than whether such power existed.

Irreparable injury

The court found “ample evidence” for the trial court’s findings. Deadlines for the initial and first quarterly reports were imminent when the plaintiffs sought relief, and testimony and declarations showed that the initial report, covering events since January 1, 2021, required substantial staff and attorney time. The opinion states: “For the Travis County Attorney’s Office alone, over 10,000 cases are implicated involving at least 130 terabytes of data.” El Paso County estimated 12,000 hours to comply. The court cited evidence that these efforts “divert time and resources away from prosecuting crimes,” and that the required case files contain privileged and confidential material protected by state and federal laws carrying civil and criminal penalties, leaving prosecutors to weigh those laws against the rules and the threat of quo warranto removal.

The Attorney General argued that the balance of equities favored him because noncompliance was ultra vires and harmed the State, and that the plaintiffs could have sought exceptions or extensions. The court responded: “These arguments assume, however, that the Rules were validly promulgated.”

Scope of the injunction

The court agreed with the Attorney General that the injunction was overbroad because it barred enforcement against anyone subject to the rules. Its July 17, 2025 order had already limited relief to the named plaintiffs, relying on In re Abbott, in which the Supreme Court of Texas concluded that Texas Rule of Appellate Procedure 29.3 permits a court of appeals to issue a temporary stay only to “preserve the parties’ rights.” Although In re Abbott did not decide a district court’s power to enjoin a rule, the court reasoned that the same principles apply to temporary injunctions. “Because there is no proof of a probable, imminent, and irreparable injury in the interim to nonparties, the temporary injunction cannot extend beyond the parties to the case.”

Issues not decided

Having found no rulemaking authority, the court did not address the plaintiffs’ remaining theories, citing Texas Rule of Appellate Procedure 47.1, and it did not decide whether the Attorney General may obtain information from prosecutors on an ad hoc basis.

Separate opinions

Chief Justice Scott A. Brister joined the court’s opinion and judgment and wrote separately. He agreed that the absence of express rulemaking language in Section 41.006, alongside dozens of statutes expressly granting such power, “makes it highly unlikely that the Legislature intended to grant that authority here.” Responding to the Attorney General’s point that those other statutes are recent while Section 41.006 dates to 1879, he wrote: “But if that were the whole story, it is odd that no attorney general for almost 150 years ever thought to adopt rules like those before us.”

He added that the statute “likely authorizes the attorney general to request some of the information at issue on an individual basis” but “does not authorize the same by statewide rules.” He also pointed to two 2023 enactments that in his view “seem to repudiate the Attorney General’s interpretation of § 41.006”: Article 2A.213 of the Code of Criminal Procedure, requiring a written request for court-record information on a criminal matter, and the amendment to Local Government Code Section 87.011 redefining official misconduct, as to which he wrote that the Legislature “authorized local residents to file a petition to remove a local prosecutor in court.”

Status

The court affirmed the temporary injunction as to the named parties, reversed it as to nonparties, and remanded “for further proceedings consistent with this opinion.” The court did not reach the plaintiffs’ alternative theories. The decision was widely reported, including by The Dallas Morning News, KERA News and WFAA.