Suing The Government In Texas Requires Thinking Beyond The Merits

Suing the government in Texas often begins with a fight over whether the court can hear the case at all. Counterintuitively, winning that fight can put the rest of the case on hold. That’s because Texas law gives governmental defendants the right to immediately appeal certain rulings on that threshold question, preventing the case from moving forward while the appeal plays out. For a business trying to stop a new regulation, preserve a license or government contract, or prevent some other government action that cannot easily be undone, that delay can be consequential.

The Texas Supreme Court’s recent decision in Paxton v. City of Austin illustrates the problem. The State challenged the court’s power to hear a dispute involving Austin’s Project Connect. Austin Transit Partnership saw the risk, even in winning: if the trial court rejected the State’s challenge, the State could immediately appeal and the case would be put, as ATP’s lawyer told the court, “on ice.” ATP therefore asked