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 the court to hold off on deciding the issue and allow the case to move forward. The trial court agreed, taking the State’s challenge under advisement and later proceeding toward trial without ruling on it. The Supreme Court said no; when the government challenges the court’s authority to hear a case, the trial court cannot simply leave that challenge unresolved and proceed to the merits. Paxton v. City of Austin, No. 24-1078 (Tex. May 22, 2026); Tex. Civ. Prac. & Rem. Code § 51.014(a)(8), (b).

That creates a particular concern for businesses that need the court to act quickly before government action becomes difficult to undo. How Paxton applies to requests for temporary injunctive relief remains an open question. The case involved proceeding to trial, not a request for a temporary injunction, and other Texas courts have considered requests for temporary relief at the same time as the government’s challenge to the court’s authority. But once the government appeals an adverse ruling, the trial court may no longer be able to take the next step. A business seeking an injunction therefore needs a plan for how the government’s challenge, the request for emergency relief, and a potential appeal will fit together. Winning each issue individually may not be enough if they are addressed in the wrong order.

The Supreme Court was unusually candid about the potential for strategic delay. It recognized that the law could become a tool of “governmental gamesmanship causing undue delay” and that a governmental entity “intent on delay” could use the process knowing that “even a denial will trigger an automatic stay pending interlocutory appeal.” The Court called the potential for abuse “real.” But it also made clear that judges cannot rewrite the system to prevent that result. The rules remain in place “until the Legislature decides otherwise.”

That leaves businesses and industries facing the problem with two complementary strategies. In an individual case, the focus should be on navigating the existing rules and sequencing the litigation to preserve the best opportunity for timely relief. But businesses that face this problem repeatedly—or trade associations whose members could be affected across an industry—should also consider whether the statutory framework warrants legislative attention. Paxton v. City of Austin does not answer what a different rule should look like, but it makes clear where that broader policy debate belongs.

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