They request immediate relief from the court prohibiting the TABC from enforcing closures, arguing, “a) those orders are irrational and unconstitutional, and b) based on alleged emergencies when the TABC could, should and is obligated to follow a notice and hearing process according to Texas law.”
In a past lawsuit ruled on by the Fifth Circuit Court of Appeals, the court decided the power to issue orders and the enforcement responsibility are separate from one another — meaning that the plaintiffs lacked standing on which to sue Abbott.
This brief addresses this assertion, saying, “Plaintiffs expect Defendant Abbott to assert that his proclamations and orders are not the same as enforcing non-laws and thus he should be permitted to dodge responsibility for the wanton economic destruction he is causing.”
“Plaintiffs acknowledge the Fifth Circuit’s ruling and recognize that Abbott did not physically appear at Plaintiffs’ businesses on a white steed and armed with a Colt .45 to ensure compliance with his executive orders,” the brief says, further emphasizing this to be an intra-state jurisdiction and not a federal one — and thus that this lawsuit should pass muster where the other one faltered.
The brief also accuses the TABC of enforcing rules not passed by the Texas Legislature — an accurate assertion but one that must be pointed out in the context of whether the governor has that authority under the Texas Disaster Act of 1975.
Abbott has asserted that the legislature vested this authority in him by the passage of that law. Opponents allege that his actions have gone much further than the statute allows.
The document further adds, “His emergency declarations have created a situation where he need not bother with a state legislature or this Court – he is all three branches of government, based on a declared emergency regarding a virus which appeared six months ago and which is too deadly to allow a neighborhood bar to operate, but is not so deadly that a Humperdinks, Applebee’s, or Chili’s cannot operate almost normally.”
Lately, Texas’ coronavirus data has been improving after a peak in July.
Hospitalizations are down, and so are daily new cases and the positivity rate, which spiked a couple of weeks ago due to a system error.
“Without GA-28,” the governor’s June order, reads the brief, “the TABC would not be enforcing vague, ad hoc rules and would not be suspending licenses, especially given the rigorous adherence to safety shown by Plaintiffs.”
The suit also accuses Abbott of violating the equal protection clause of the Texas Constitution (Article 1, Sec. 3).
The governor has defended his decision to close bars specifically, citing that inserting alcohol into the equation leads to a breach in safe decision-making with social distancing. Alcohol can still be purchased at restaurants open for dine-in service.
And bars, like all other businesses, were eager to outline social distancing protocols to preserve their ability to remain open. Abbott, however, maintains that the nature of bars inhibits the ability to safely socially distance.
The legislature has not been convened for a special session, something only the governor has the authority to do. The Texas Supreme Court (SCOTX), in their injunctive ruling on the case involving Dallas salon owner Shelley Luther, explicitly stated that such broad executive powers should be reaffirmed in some way other than by the governor’s pen.
“Any government that has made the grave decision to suspend the liberties of free people during a health emergency should welcome the opportunity to demonstrate — both to its citizens and to the courts — that its chosen measures are absolutely necessary to combat a threat of overwhelming severity,” the SCOTX order read.
In late June, the TABC began clamping down on Texas bars for violation of social distancing protocols — suspending the permits for 17 bars the first weekend after the new order.
Ever since, the state has been ironing out problems with the 51-percent classification, its metaphorical line in the sand. Establishments have been locked into their pre-coronavirus revenue category, regardless of how their business model was adjusted after the initial closure order in March and April.
Oddly enough, the 51-percent classification is, in code, related to whether an establishment must post a “firearms prohibited” sign, not to explicitly distinguish a restaurant from a bar in the eyes of the state as it pertains to their respective business models.
Alcohol manufacturers like breweries, distilleries, and wineries have been closer to opening in a more normalized capacity, but bars have remained much more strictly regulated.
Bar owners across the state are becoming more desperate by the day as their coffers dry up and revenue continues to dissipate, feeling unfairly targeted by the state’s presiding elected official at a time when the line between “essential” and “non-essential” is increasingly blurred.
Read the full brief below.
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Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.