MARIA MARGARITA ROJAS MATERNAL MATERNAL AND CHILD HEALTHCARE AND RESEARCH CENTER LLC CLINICA LATINOAMERICANA CLINICAS LATINOAMERICANS CLINICA WALLER LATINOAMERICANA CLINICA TELGE LATINOAMERICANA CLINICA DE LA MUJER HOUSTON BIRTHHOUSE v. STATE OF TEXAS (2026)

CONCURRING OPINION

I fully join in the Court's opinion, but add this brief concurring opinion to point out that the problem it highlights is one that only the Texas Supreme Court can correct.

The two affidavits at issue here were the State's only probative evidence about what was going on at three clinics operated by Maria Rojas. Both affidavits were sworn to by Lt. Edward Wilkerson, a licensed Texas Peace Officer with the Office of the Attorney General with long experience in law enforcement investigations. Each was a single-spaced 25-page affidavit—one addressing the likelihood that abortions were being performed on site, and the other addressing the likelihood that Rojas and others were practicing medicine without a license. Both are replete with overwhelming details supporting the alleged offenses, including observations by numerous officers over many hours at the clinics, copies of internet postings by those who worked at the clinics showing they were not licensed to practice medicine in Texas, and reports of items found by search warrants at the facilities, including Oxycodone, an empty bottle of Misoprostol (used for purposes including as an abortifacient), and various digital devices showing “sign-in records and payment entries for a significant number of young Hispanic female patients.” The affidavits quoted interviews with two woman who confirmed receiving abortions on specific dates and positively identified Rojas as the person who performed the procedures. The trial court admitted the two affidavits in evidence, excluding only the statements by the two witnesses with personal knowledge that Rojas was performing abortions.

These affidavits might be inadmissible in a criminal case, but Rule 803(8) expressly provides that as “public records” they are not excluded by the rule against hearsay in a civil case if they set out “factual findings from a legally authorized investigation” and “the opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness.”¹

As a matter of law, the Office of the Attorney General is a public office, and the affidavits here consist of extensive “factual findings from a legally authorized investigation.” The trial court found, and Rojas has not disputed, that the circumstances did not indicate any lack of trustworthiness. Rojas had notice of everything alleged in the two affidavits, and could have denied, explained, or excused every fact if she chose. Since she instead invoked her right to remain silent, the record here more than adequately supports the State's burden to show a probable right to relief and probable injury—all other things being equal.

But all other things are not equal. Due to a Texas Supreme Court opinion from almost 60 years ago, our hands are tied from making this evident conclusion. In Millwrights Local Union No. 2484 v. Rust Engineering Co., the Supreme Court plainly declared: “the proof required to support a judgment issuing a writ of temporary injunction may not be made by affidavit.”² No statute or rule expressly says so, not in 1968 and not today. Instead, the Court drew an inference from the single word “hearing” in Rule 680 governing TROs, which states: “In case a temporary restraining order is granted without notice, the application for a temporary injunction shall be set down for hearing at the earliest possible date.”³ Based on the way courts conducted business in the 1960s, the Court held this must mean a plenary hearing conducted according to the standard evidentiary rules as if it were a trial:

The conduct of a ‘hearing’ implies that evidence will be offered. There is no basis in the language of Rule 680, or elsewhere that we have been able to discover, for holding that the ‘application’ for a temporary injunction will constitute evidence at the hearing, or that proof may be made in any manner other than according to standard rules of evidence.4

Yet that is not the way courts conduct “hearings” today. As the Supreme Court wrote 37 years later in 2005 in Michiana Easy Livin' Country, Inc. v. Holten: “For some years now the trend has been away from full evidentiary hearings in open court for most pretrial matters.”⁵

Many pretrial “hearings” take place entirely on paper, while others involve a personal appearance in court. In some the parties must file all evidence with the clerk; in others they must present it in open court; in most the manner of presentation is discretionary; in at least one the answer is unclear.6

The Michiana court adopted a rebuttable legal presumption that when evidence is submitted in writing, reviewing courts should presume in-person “pretrial hearings are nonevidentiary absent a specific indication or assertion to the contrary.”⁷

In the 20 years since Michiana, this trend has only grown. In some courts today, it has become difficult to get any oral hearing at all. Especially in cases like this, it is impractical to require all the officers, clinic employees, and women who obtained abortions to testify in open court on the expedited basis that temporary injunctions require. Many important judicial decisions today are based on affidavits,⁸ and no statute or rule outlaws proof by affidavit in a temporary injunction hearing, so the Court may wish to reconsider whether Millwrights is correct.

But it is not our role to make such a change. “It is not the function of a court of appeals to abrogate or modify established precedent. That function lies solely with [the Supreme] Court,” which when circumstances change “may modify judicially created doctrines.”⁹ While the Millwrights rule seems to be an anachronism, we are “obliged to follow it as precedent” until that Court sees fit to change it.¹⁰ “Respectful observations of that sort are salutary because they help identify inconsistencies in Texas law, which in turn assists this Court in determining whether resolving an issue is important to the jurisprudence of the State.”¹¹

FOOTNOTES

1.   TEX. R. EVID. 803(8).

2.   433 S.W.2d 683, 686 (Tex. 1968) (emphasis added).

3.   See id. at 686–87 (quoting former TEX. R. CIV. P. 680); see also current TEX. R. CIV. P. 680 (stating same).

4.   Id. at 687.

5.   168 S.W.3d 777, 782 (Tex. 2005) (emphasis added).

6.   Id. at 781–82 (see id. nn.6–10).

7.   Id. at 782–83.

8.   See, e.g., TEX. R. CIV. P. 87(3) (motion to transfer venue); R. 120a(3) (special appearance objecting to personal jurisdiction); R. 166a (motion for summary judgment); R. 185 (suit on account); see also TEX. CIV. PRAC. & REM. CODE § 27.006(a) (motion to dismiss per TCPA).

9.   Lubbock Cnty. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002).

10.   Robinson v. Home Owners Mgmt. Enterprises, Inc., 590 S.W.3d 518, 528 (Tex. 2019).

11.   Mitschke v. Borromeo, 645 S.W.3d 251, 258 n.12 (Tex. 2022).

Scott A. Brister Chief Justice