“Your order conflicts with the Governor’s order and, as such, is unenforceable,” Paxton wrote in a letter on behalf of the coalition of businesses.
“We trust you will amend your order to be consistent with the Governor’s order.”
A temporary injunction, in this case sought at the 34th District Court of El Paso, would hold Samaniego’s order until the lawsuit reaches a decision.
The lawsuit targets the county for Samaniego’s Order No. 13, issued October 29, though Samaniego’s previous Order No. 12 had already established a curfew four days earlier. The order establishes a shelter-in-place mandate, requiring all those in El Paso County to stay at home unless involved in election activities or essential work. It also prohibits “all public or private gatherings of any number of people occurring outside a single household or living unit.”
The order does not apply to religious services or outdoor activity, though it does close all county parks.
Paxton and the defendants argue that Samaniego’s orders conflict with the orders of Governor Greg Abbott, especially Executive Order GA-32, better known as the order that allowed county judges to partially reopen bars and other businesses that had been closed.
Abbott’s order, which “shall supersede any conflicting order issued by local officials,” also cautiously tamps down business occupancy in areas with high hospitalizations. In any hospital region where COVID-19 patients amount to more than 15 percent of the hospital capacity, businesses must reduce their occupancy from three-quarters to half occupancy.
The lawsuit takes a three-pronged stab at Samaniego.
Paxton first argues that the Texas Disaster Act, under which authority the governor has issued his orders, does not give county judges the authority to issue their own emergency orders carrying the force of law.
The lawsuit then alleges that EO-13 conflicts with GA-32, which should preempt it, by prohibiting a number of activities that GA-32 allows. Most notably, while GA-32 encourages the elderly to stay at home, it does not require anybody to do so.
Thirdly, Paxton argues that EO-13 is unconstitutional because it violates the separation of powers principle. The Texas Legislature wields lawmaking power, but loaned this power to the governor for emergency purposes; local government officials, Paxton argues, may exercise this power as agents of the governor but cannot usurp his authority by issuing conflicting orders.
The lawsuit further argues that Samaniego’s order “leaves El Paso County residents with no choice but to ignore GA-32 and comply with the stricter EO-13,” even though Abbott’s GA-32 allows for fines of up to $1,000 while Samaniego’s fine only runs up to $500. However, Samaniego’s order does make a point to hold citizens to the strictest possible standard.
“To the extent that there is a conflict between this Order and any executive order of the Governor, the strictest order shall prevail,” it reads.
El Paso Mayor Dee Margo, a Republican, has publicly crossed Samaniego on his orders and prioritized the livelihood of workers and business owners over risk-averse safety measures like EO-13.
“I am the mayor of all who are ill with this deadly virus,” Margo said at a press conference the day after Samaniego issued EO-13. “But I am also the mayor of the 32,000 unemployed El Pasoans, and I am the mayor of the 148,000 El Pasoans needing to feed themselves through our food banks.”
“Pursuant to Texas Government Code §418.1015(a), the County Judge serves as the Emergency Management Director for the Count of El Paso; and… Texas Government Code, Chapter 418 authorizes the Emergency Management Director to issue Orders, which are necessary for the protection of life and property in the County,” Samaniego’s order reads.
The exact text of the code dealing with “Declaration of Local Disaster” authorizes county judges to order evacuations and “control ingress to and egress from a disaster area,” as well as “control the movement of persons and the occupancy of premises in that area.” The section that Samaniego specifically cites puts him under the authority of the governor, “as the governor’s designated agent.”
El Paso’s 34th District Court heard a motion on the injunction yesterday.
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