in Re State Board for Educator Certification

This mandamus action poses one procedural question: Does a trial court have discretion to deny suspension of a non-money judgment when the State files a notice of appeal?

Here, a schoolteacher sought judicial review of the State Board for Educator Certification’s revocation of his teaching certificate. The trial court reversed the revocation and refused to allow the Board to supersede the judgment pending ap*803peal. Importantly, the merits of the underlying appeal are not before us; they remain pending in the court of appeals. We deal solely with the State’s request for a writ of mandamus directing the trial court to supersede its judgment.

Untangling the various rules applicable to appellants generally and to government appellants specifically, we hold that a trial court has discretion to deny any party — even the State — the right to supersede a non-money, non-property judgment. Put in practical terms, a trial court has discretion to prevent the Board from re-revoking a teacher’s professional license while the Board appeals, for however long, the court’s rejection of the Board’s initial revocation.

Government’s right to supersede a judgment may be automatic, but it is not absolute. We deny relief.

I. Background

In 2011, the Board initiated administrative proceedings to revoke Erasmo Mon-talvo’s teaching certificate over allegations of improper educator-student contact. An administrative law judge weighed‘the evidence and determined no discipline was warranted. The Board adopted the ALJ’s findings of fact, but concluded the ALJ “failed to appropriately interpret and apply [the Board’s] policies and rules.” Believing Montalvo was “unworthy to instruct or supervise the youth of this state,”1 the Board revoked his educator certificate.

Montalvo sued to overturn the revocation,2 and the trial court agreed, concluding the Board’s decision was not supported by substantial evidence and was arbitrary and capricious. The trial court issued a permanent injunction prohibiting the Board from “treating as revoked or revoking” Montalvo’s certification. Montalvo posted security with the trial court, prompting the court to order, “pursuant to Rule 24.2(a)(3) of the Texas Rules of Appellate Procedure, that any appeal taken of this Judgment ,.. will not supersede this Judgment during the pendency of such appeal.” In other words, the Board could not revoke Montalvo’s professional certification, thus depriving him of his livelihood, during the potentially years-long pendency of the appeal.

The Board appealed the trial court’s revocation reversal and separately sought mandamus relief challenging the trial court’s denial of supersedeas. The court of appeals denied mandamus relief,3 and it abated the merits of the Board’s appeal pending our resolution of the narrow procedural issue: whether the trial court had *804discretion to deny suspension of its judgment.

II. Discussion

The relevant rules include:

1. Texas Rule of Appellate Procedure (TRAP) 24-. 1(a): A judgment debtor can supersede enforcement of an adverse judgment by posting security with the trial court.4

2. Civil Practice and Remedies Code (CPRC) section 6.001: Governmental entities, like the Board, are exempt from bond requirements.5

3. TRAP 24.2(a)(3): When, as here, the judgment is not for money or property, the judgment creditor can post security that gives the trial court discretion to “decline to permit the judgment to be superseded.”6

4. TRAP 25.1(h): Enforcement of a judgment can proceed unless the judgment is suspended under TRAP 24, or “the appellant is entitled to supersede the judgment without security by filing a notice of appeal.”7

Since 1838, the State and its departments have been exempt from filing a bond to appeal an adverse judgment.8 Our rules have long recognized this,9 and CPRC section 6.001 codifies it: “A governmental entity ... may not be required to file a bond ... for an appeal ... in a civil suit.”10 In effect, the State’s notice of appeal automatically suspends enforcement of a judgment. But that doesn’t necessarily mean governmental entities have an absolute right to automatic super-sedeas, which is where TRAP 24.2(a)(3)— applicable where “the judgment is for something other than money” — enters into our analysis.11

How do these rules interact? Specifically, what happens to the Board’s entitlement to automatic suspension of an adverse judgment (triggered by filing its notice of appeal) if Montalvo posts security? The Board insists that CPRC section 6.001 and TRAP 25.1 control, and that TRAP 24.2 is inapplicable against governmental entities. Montalvo counters that TRAP 24.2(a)(3) tempers TRAP 25.1(h), *805and plainly empowers trial courts to deny suspension of non-money judgments.

This is our first opportunity to squarely address which rule trumps. Is the Board still entitled to an automatic right to su-persedeas? Or does the trial court retain discretion — in effect, “superduperse-deas” — to deny it?

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We addressed the State’s right to suspend a trial-court judgment during appeal 50 years ago in Ammex Warehouse Co. v. Archer.12 In that case, relators argued they were exempt from state regulation covering whiskey and other liquor sales.13 The trial court had permanently enjoined the Texas Liquor Control Board from enforcing or attempting to enforce state liquor laws against the relators pending appeal.14 But the court of appeals issued a writ forbidding enforcement of the trial court’s order, deeming it interference with the appellate court’s own jurisdiction over the case.15 We observed, “it is readily seen that the purpose of the temporary order was to prevent supersedeas and restrain enforcement” of state liquor laws pending appeal.16

Ammex involved provisions predating CPRC section 6.001, but the case is illustrative.17 In Ammex, we noted the Legislature “was' well within its constitutional boundaries” in exempting the State from giving bond to suspend enforcement of a trial-court judgment pending appeal.18 Specifically, we held, “The State has a valid statutory right to a supersedeas without filing a bond upon perfecting its appeal by giving proper notice. Unless a contrary intention is made known to the Court, the State’s notice of appeal operates as a supersedeas.”19 Ammex plainly recognized the State’s right to supersedeas upon filing a notice of appeal,20 and that power, also reflected today in TRAP 25.1(h), is undisputed. But is it unlimited?

Since Ammex, we have twice indicated that trial courts have discretion to prevent the State’s automatic suspension of an ad*806verse non-money judgment. First was our 1998 decision In re Dallas Area Rapid Transit,21 which examined whether, under TRAP 24.2(a)(3)’s predecessor,22 a governmental body ordered to produce information under the Public Information Act23 was entitled to suspend the trial-court order requiring production.24 We said yes,25 troubled that the trial court’s refusal to stay its judgment effectively denied DART any appeal whatsoever, “for once the requested information is produced, an appeal is moot” — a result “the rule does not permit.” 26

We observed, though, that while trial courts lack limitless discretion to deny the State supersedeas, they do have “a measure of discretion” in appropriate circumstances.27 In fact, we directed the trial court to stay its judgment requiring production “unless the court determines that the News should be permitted to post the security required by TRAP 24.2(a)(3)”28— just as Montalvo did in today’s case. The Court was careful to note that whether that specific determination would be an abuse of discretion “is not an issue before us,”29 but we were united that such discretion existed in the first place.

We said the same thing a year later in In re Long.30 In Long, the Dallas County District Clerk sought relief from a judg*807ment of contempt for violating an injunction.31 While noting that the Clerk’s “notice of appeal operates as a supersedeas bond,”32 we observed that the opposing party “could have sought denial of suspension of the injunction” under TRAP 24.2(a)(3).33 But he failed to do so, unlike Montalvo in today’s case.

Importantly, both DART and Long were per curiam opinions decided shortly after the Court adopted modern TRAP 24.2(a)(3) in 1997. And while neither case involved an appellee that had in fact posted security to thwart a government appellant’s supersedeas, the Court plainly saw TRAP 24.2(a)(3) as a mechanism for avoiding automatic suspension of a non-money judgment.34 Both cases accept as given that trial courts have discretion to deny supersedeas to a governmental appellant.35 And this understanding, coming on the heels of the Court’s adoption of TRAP 24.2(a)(3), is also the settled understanding of leading commentators on Texas civil procedure, who agree the rule confers trial-court discretion that may be used against the State.36

*808Today the question is squarely presented: Does TRAP 25.1(h) remove the trial court’s discretion to deny supersedeas under TRAP 24.2(a)(3)? In arguing yes, the Board discusses only part of the rule. The Board relies heavily on TRAP 25.1(h)’s statement that enforcement may proceed “unless ... the appellant is entitled to supersede the judgment without security by filing a notice of appeal.” The Board insists this right to automatic suspension is absolute. But that provision- cannot bear the weight the Board places on it. That language merely acknowledges what we have long known, that the State’s notice of appeal automatically supersedes a final judgment. It doesn’t eviscerate a trial court’s discretion under TRAP 24.2(a)(3) to decline supersedeas if the judgment creditor posts security.37

We see no merit in the Board’s argument that its right to supersedeas removes a trial court’s discretion to enforce its non-money judgments against the State pending appeal. CPRC section 6.001 simply restates settled law that the State may appeal without filing a bond. Neither it nor TRAP 25.1(h) confers unfettered power to force suspension of the judgment. The Board may appeal without security— this is undisputed — but it has no unqualified right to supersedeas in light of the trial court’s discretion under TRAP 24.

One final point: The State’s position— boundless entitlement to supersede adverse non-money judgments — would vest unchecked power in the executive branch, at considerable expense to the judicial branch, not to mention the wider public we both serve. The Texas Constitution divides governing power among three branches, and power seized by one branch necessarily means power ceded by another. Our State Constitution, like Madison’s Federal handiwork,38 is infused with Newtonian genius: three rival branches locked in synchronous orbit by competing interests — ambition checking ambition.39 These are abstract principles, but they have real-world ripple effects on the lives of everyday Texans. This case is Exhibit A. TRAP 24.2(a)(3) gives the trial court discretion, quite sensibly, to prevent the State from re-revoking Montalvo’s certification — the ultimate professional sane*809tion — while it spends years appealing the court’s reversal of the State’s first revocation, something the trial court found “arbitrary and capricious.” The State — as yet unsupported by a victory on the merits in any court — wants to strip Montalvo of his livelihood while the appellate process grinds on, and if he manages to regain his professional license after having been kicked out of his profession for years— well, bygones. That’s a striking assertion of unbridled executive power — to enforce administrative orders that a trial court has reversed — and TRAP 24.2(a)(3) recognizes the judiciary’s authority to say no.

III. Conclusion

This case does not delve into the underlying merits, which remain at the court of appeals. The issue presented is innately and exclusively procedural: Do governmental entities have an absolute, overriding right to supersedeas that nullifies trial-court discretion? We answer no. A governmental entity’s notice of appeal does not deprive a trial court of discretion to refuse suspension of its judgment if the appellee posts security in accordance with TRAP 24.2(a)(3). Accordingly, we deny the Board’s petition for writ of mandamus.