Courts to Decide Whether Governor has Unlimited Power in a Disaster

by | Sep 20, 2021 | Attorney General Opinions and Legislative Support | 0 comments

Since the pandemic began, at least 28 lawsuits have been filed challenging the constitutionality of Governor Abbott’s coronavirus-related executive orders and proclamations. Most of these challenges have failed procedurally—for mootness, lack of standing, or lack of subject matter jurisdiction. But recently, plaintiffs challenging Governor Abbott’s executive order prohibiting local mask mandates have had some success, obtaining temporary injunctions against enforcement of the order. Have the tides begun to turn against the governor’s emergency powers?

Related blog post: Texas Legislature endorses Governor’s unilateral and unchecked use of emergency powers

Since March 2020, at least 28 lawsuits have been filed in state and federal court challenging the constitutionality of Governor Abbott’s coronavirus-related executive orders and proclamations.

Texas courts have generally dismissed these cases based on mootness, lack of standing, or lack of subject-matter jurisdiction, and have generally denied plaintiffs’ requests for temporary injunctions and temporary restraining orders—effectively approving the governor’s use of expansive powers during a pandemic.

Plaintiffs have invoked a broad variety of constitutional provisions and statutes, including equal protection, due process, free speech, and religious freedom. Plaintiffs have also claimed that Governor Abbott’s executive orders and proclamations are ultra vires (outside the scope of his authority) and that the Texas Disaster Act violates the suspension clause and the separation of powers clause of the Texas Constitution.

The suspension clause is found in Article I, Section 28 of the Texas Constitution, which provides that: “No power of suspending laws in this State shall be exercised except by the Legislature.” As we discuss in our October 2020 paper, The Texas Disaster Act—This is What Democracy Looks Like?, the suspension clause exists to prevent the Governor’s attempt to unilaterally suspend laws without legislative authority.

While litigants have been generally unsuccessful so far in challenging the governor’s COVID-19 executive orders, “a different case may require courts to confront head-on the constitutional extent of gubernatorial power under the Texas Disaster Act.” Tex. League of United Latin Am. Citizens v. Hughs, 20-50867, 2020 WL 6023310, at *5 n.7 (5th Cir. Oct. 12, 2020).

Governor Abbott’s executive order prohibiting local mask mandates (GA-38) may have gone too far for Texas courts. In August 2021, Texas courts granted plaintiffs’ requests for temporary injunctions in three cases challenging GA-38. In each of these three cases, the trial court also denied the Governor’s plea to the jurisdiction, affirming the court’s jurisdiction to hear the dispute. Governor Abbott has appealed in each case, and the appeals remain pending as of the date of this blog post.

Whether any Texas court will find Governor Abbott’s coronavirus-related executive orders and proclamations to be unconstitutional remains to be seen.

Masks / face coverings

CaseStatus
Harris County, Texas, et al. v. Abbott, et al., No. D-1-GN-21-003896, 345th Judicial District Court of Travis CountyPENDING. On August 27, 2021, the trial court denied Defendants’ plea to the jurisdiction and granted Plaintiffs’ request for a temporary injunction. Defendants have appealed (Third Court of Appeals, No. 03-21-00429-CV).
La Joya Independent School District, et al. v. Abbott, No. D-1-GN-21-003897, 353rd Judicial District Court of Travis CountyPENDING. On August 27, 2021, the trial court denied Governor Abbott’s plea to the jurisdiction and granted Plaintiff’s request for a temporary injunction. Defendants have appealed (Third Court of Appeals, No. 03-21-00428-CV).
City of San Antonio and Bexar County v. Abbott, No. 2021CI16133, 45th Judicial District Court of Bexar CountyPENDING. On August 16, 2021, the trial court denied Governor Abbott’s plea to the jurisdiction and granted Plaintiff’s request for a temporary injunction. Governor Abbott has appealed (Fourth Court of Appeals, No. 04-21-00342-CV).
E.T., by and through her parents and next friends, et al. v. Abbott, et al., No. 1-21-CV-00717-LY, Western District of Texas, Austin DivisionPENDING. On September 15, 2021, the federal district court denied Plaintiffs’ Emergency Motion for Temporary Restraining Order to enjoin Defendants from prohibiting local school districts from requiring masks for their students and staff.
The Southern Center for Child Advocacy v. Abbott, No. D-1-GN-21-003792, 53rd Judicial District Court of Travis CountyPENDING. On August 27, 2021, the trial court denied Plaintiff’s request for a temporary injunction. No appeal has been filed.

Business Closures

CaseStatus
6th St. Bus. Partners LLC v. Abbott, 1-20-CV-706-RP, 2020 WL 4274589 (W.D. Tex. July 24, 2020)DISMISSED. The federal district court granted Abbott’s Motion to Dismiss and denied Plaintiffs’ Amended Request for a Temporary Restraining Order. Case dismissed for lack of subject-matter jurisdiction. (Order)
BMB Dining Services (Fuqua) Inc. dba Bombshells Houston-South v. Texas Alcoholic Beverage Commission; A. Bentley Nettles, in his official capacity as Executive Director of the TABC; Governor Greg Abbott, in his official capacity, D-1-GN-20-004109, 353rd Judicial District of Travis CountyDISMISSED. The trial court denied Plaintiff’s temporary injunction and granted Defendants’ plea to the jurisdiction on 8/25/20.
Ector County All. of Businesses v. Abbott, 11-20-00206-CV, 2021 WL 4097106 (Tex. App.—Eastland Sept. 9, 2021, no pet. h.)DIMISSED. The trial court granted Defendants’ pleas to the jurisdiction and Plaintiff appealed. The court of appeals affirmed the trial court’s order dismissing Plaintiff’s first cause of action against the governor and dismissed Plaintiff’s second-fifth causes of action against the Governor for want of jurisdiction.
Abbott v. Stirr Dallas, LLC, 05-20-00694-CV, 2020 WL 7053655 (Tex. App.—Dallas Dec. 2, 2020, no pet.), reh’g denied (Dec. 31, 2020)  DISMISSED. On December 2, 2020, the Dallas Court of Appeals granted Governor Abbott’s unopposed motion to dismiss for want of jurisdiction, vacated the trial court’s July 24, 2020 order denying Governor Abbott’s plea to the jurisdiction, and dismissed the case.
BMB Dining Services (Fuqua), Inc. d/b/a Bombshells Houston-South v. The Texas Alcoholic Beverage Commission, A. Bentley Nettles, in his official capacity as Executive Director, and Greg Abbott, No. 2020-46705, 215th Judicial District Court of Harris CountyVOLUNTARILY DISMISSED. On August 10, 2020, Plaintiff voluntarily dismissed all its claims.
Tune Up Salon Holdco, LLC v. County of Montgomery, State of Texas, Governor Greg Abbott, No. 20-06-07436, 248th Judicial District Court of Montgomery CountyVOLUNTARILY DISMISSED. On January 15, 2021, Plaintiff voluntarily dismissed all its claims.  
Galovelho, LLC v. State of Texas, Collin County, City of Frisco, and Greg Abbott, 219-02595-2020, 219th Judicial District Court of Collin CountyPENDING. The trial court granted the Defendants’ pleas to the jurisdiction on Plaintiff’s takings claim on August 14, 2020. Plaintiff filed a notice of appeal, then later moved to dismiss the appeal. The motion to dismiss the appeal was granted. (Order) The case is still pending before the trial court, on Plaintiff’s equal protection and due process claims.
Stand for Something Group Live, LLC dba The Rail Club Live, et al. v. Greg Abbott, Texas Alcoholic Beverage Commission, and State of Texas, No. D-1-GN-20-004403, 200th Judicial District Court of Travis County  PENDING. On December 18, 2020, the trial court denied Plaintiff’s Application for Temporary Injunction and granted the Defendants’ plea to the jurisdiction. Plaintiffs have appealed. The appeal is pending before the 13th Court of Appeals in Corpus Christi (No. 13-21-00017-CV).

Nursing Home Visitation

CaseStatus
Marcy Renneberg, et al. v. Abbott, et al., No. D-1-GN-20-004719, 53rd Judicial District Court of Travis CountyVOLUNTARILY DISMISSED. On December 1, 2020, Plaintiffs voluntarily dismissed all their claims against Abbott and the other state defendants. The claims against the nursing homes remain pending.

Religious Services

CaseStatus
In re Hotze, 20-0430, 2020 WL 4046034 (Tex. July 17, 2020)DISMISSED. Relators challenged all of the Governor’s COVID-19 executive orders through an original mandamus petition to the Texas Supreme Court. The Court dismissed the petition for want of jurisdiction. Justice Devine issued an opinion concurring in the dismissal. (Concurring Opinion)
Steven Hotze, MD, et al. v. Greg Abbott in his capacity as Governor of the State of Texas; Ken Paxton in his capacity as Attorney General of the State of Texas, D-1-GN-20-002146, 98th Judicial District of Travis CountyVOLUNTARILY DISMISSED. On April 21, 2021, Plaintiffs voluntarily dismissed their claims against Governor Abbott. 

Abortion

CaseStatus
Planned Parenthood Center For Choice, et al. v. Abbott, et al., No. 1-20-cv-00323-LY, Western District of Texas, Austin Division  VOLUNTARILY DISMISSED. Plaintiffs obtained two consecutive temporary restraining orders, each of which was overturned by the Fifth Circuit. On January 25, 2021, the U.S. Supreme Court granted the petition for writ of certiorari, vacated the Fifth Circuit’s judgment, and remanded with instructions to dismiss the case as moot. On March 5, 2021, Plaintiffs voluntarily dismissed all their claims.
Marcy Renneberg, et al. v. Abbott, et al., No. D-1-GN-20-004719, 53rd Judicial District Court of Travis CountyVOLUNTARILY DISMISSED. On December 2, 2020, Plaintiffs voluntarily dismissed all their claims against Governor Abbott, the Texas Health and Human Services Commission, Cecile Young, and the State of Texas. Plaintiffs removed to federal court their claims against the remaining private defendants.

Voting

CaseStatus
Texas League of United Latin American Citizens, et al. v. Abbott, et al., No. 1-20-CV-1006-RP, Western District of Texas, Austin DivisionDISMISSED. On March 24, 2021, the federal district court dismissed Plaintiffs’ claims as moot.
Mi Familia Vota, Texas State Conference of The National Association for the Advancement of Colored People, and Guadalupe Torres v. Greg Abbott, Governor of Texas; Ruth Hughs, Texas Secretary of State, No. 5-20-CV-00830, Western District of Texas, San Antonio DivisionVOLUNTARILY DISMISSED (MOOT). The federal district court granted Defendants’ Motion to Dismiss. (Memorandum Opinion and Order) Plaintiffs appealed. On October 14, 2020, the Fifth Circuit affirmed the judgment of the district court in part, reversed the judgment with respect to the Voting Rights Act claim, and remanded that claim. On November 23, 2020, after the election that was the subject of the lawsuit passed, Plaintiffs voluntarily dismissed all their claims.
Milton Irving Fagin v. Greg Abbott, in his official capacity as the Governor of Texas, and Ruth Hughs, in her official capacity as Texas Secretary of State, No. 5-20-CV-00765-XR, Western District of Texas, San Antonio DivisionVOLUNTARILY DISMISSED (MOOT). On December 20, 2020, after the election that was the subject of the lawsuit passed, Plaintiff voluntarily dismissed all his claims.
The Anti-Defamation League Austin, et al. v. Greg Abbott, in his official capacity as the Governor of Texas, and Ruth Hughs, in her official capacity as Texas Secretary of State, No. D-1-GN-20-005550, 353rd Judicial District Court of Travis CountyVOLUNTARILY DISMISSED (MOOT). On November 9, 2020, after the election that was the subject of the lawsuit passed, Plaintiffs voluntarily dismissed all their claims.
Texas NAACP v. Greg Abbott, in his official capacity as the Governor of Texas, and Ruth Hughs, in her official capacity as Texas Secretary of State, No. 1-20-CV-1024-RP, Western District of Texas, Austin DivisionVOLUNTARILY DISMISSED. On October 16, 2020, Plaintiff voluntarily dismissed all its claims.
Texas Democratic Party, et al. v. Ruth Hughs, et al., No. SA-20-CA-438-FB, Western District of Texas, San Antonio DivisionPENDING (but claims against Abbott dismissed). On July 2, 2021, Plaintiffs dismissed their claims against Governor Abbott. Claims remain pending against the Texas Secretary of State.

Ending Federal Unemployment Benefits

CaseStatus
Stephen J. Dickerson; Ashley Robinson; and Naila Jackson, individually and on behalf of all others similarly situated v. The State of Texas; Greg Abbott; and The Texas Workforce Commission, No. 4-21-CV-2729, Southern District of Texas, Houston DivisionDISMISSED. On September 15, 2021, the federal district dismissed Plaintiffs’ claims for failure to state a claim.
John Stancu v. Governor Greg Abbott and the State of Texas, No. DC-21-11577, 134th Judicial District Court of Dallas CountyPENDING. Plaintiff’s original petition was filed on August 27, 2021.

Contact Tracing

CaseStatus
Steven F. Hotze, et al. v. Abbott, et al., No. 4-20-CV-2104, Southern District of Texas, Houston DivisionVOLUNTARILY DISMISSED. On July 23, 2020, Plaintiffs voluntarily dismissed all their claims.

Contract Procurement

CaseStatus
Mike Lang, et al. v. Texas Health and Human Services, Phil Wilson, acting executive commissioner, Greg Abbott, as governor, State of Texas, and MTX Group, Inc., No. D-1-GN-20-003980, 261st Judicial District Court of Travis CountyDISMISSED. Plaintiffs sued to invalidate a $295 million contract for a statewide tracing program, claiming that Governor Abbott exceeded his powers in awarding the contract without following competitive bidding rules. On March 12, 2021, the trial court granted Defendants’ pleas to the jurisdiction.

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