Greg Abbott, in his Official Capacity as Governor of Texas, and State of Texas v. City of San Antonio and County of Bexar, 04-21-00342-CV (Tex. App. – San Antonino, November 10, 2021).
This is a COVID-19 declaratory judgment (ultra vires) action brought against Texas Governor Gregg Abbott where the Fourth Court of Appeals held the Governor does not have the power to prevent certain local regulations during a disaster.
Bexar County and the City of San Antonio sued Governor Abbott after the Governor signed Executive Order GA-38, which provides, with some exceptions, that: “No governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face-covering or to mandate that another person wear a face covering . . . .” The local entities sued asserting the order exceeded the Governor’s authority. The trial court issued a temporary injunction order enjoining the enforcement of certain provisions of Executive Order GA-38 disallowing local governmental entities from requiring individuals to wear face coverings. The Governor filed an interlocutory appeal.
The City and County’s ultra vires claim requires construction of the Texas Disaster Act. The entities have different powers, but both have the ability to adopt reasonable rules and regulations to protect public health. These powers are granted to the entities at all times and are especially relevant during times of disaster. The Governor invoked § 418.016(a) of the Texas Government Code as support for his authority. Under the section, the Governor may “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.” After analyzing the language the Fourth Court held the statutes the Governor purports to suspend are not “regulatory statutes,” subject to suspension under the Act. Regulatory statutes “prescribe the procedures” for the conduct of state business, such as procedures for the proper return of mail-in ballots. The statutes do not address state-level procedure or business; instead, they are “grant-of-authority statute[s] giving local authorities the leeway to act in their best independent judgment within the confines of their own jurisdictions.” Further, the Governor may only suspend regulatory statutes proscribing procedures for state business. The health and safety laws at issue are not procedural but grant authority to local governments to act on matters of local public health and do not pertain to “state business.” It would “strain credulity to suppose the Legislature intended to abdicate its legislative prerogative, beyond the narrow regulatory and procedural matters specified, and permit the Governor to suspend all legislated grants of local authority on matters of public health without stating so directly.” The court then examined the injury elements in the interim, the status quo elements of an injunction, and standing of the local entities. In the end, the court held the local entities were entitled to legally seek a temporary injunction and such injunction was proper under the standards indicated in the rules.