Statewide NewsLong-Running Challenge to COVID Executive Orders Dismissed by Texas Supreme Court

On Friday, the state’s highest civil court dismissed the lawsuit, which was filed in November 2020 by Kendall County resident David Howell.

Howell sued Abbott and Kendall County Judge Darrell Lux over dictates issued by the state and local authority that restricted movement of persons in public spaces, shuttered businesses, and mandated masks.

Specifically, Howell challenged the efficacy of Abbott’s orders ranging from the March 19, 2020 GA-08 that first introduced restrictions on social gatherings, operations of certain businesses, and the availability of visiting nursing homes to the March 2, 2021 GA-34 that pared back most of the previously operating restrictions.

The state and local governments derived the authority to issue the orders from the Texas Disaster Act — law first passed nearly 50 years ago to establish a method of disaster response.

In his challenge, Howell asserted that these directives violated his civil rights to move and do as he pleased.

“The authors of both Constitutions never envisioned a health emergency where Governor Abbott could define health emergencies, remove Howell’s civil rights and dictate virtually every aspect of Howell’s life in perpetuity just like a serf or slave,” read his petition.

The Fourth Court of Appeals ruled that Howell lacked standing to challenge the orders because his “interest in the [matter] is not distinct from that of the general public.”

Appealed to the Texas Supreme Court, Howell’s appeal met the same fate but for a different reason.

The concurring opinion written by Justice Jimmy Blacklock, joined by Justice John Devine, states, “This case is moot because the relief Mr. Howell sought — removal of allegedly unlawful coronavirus measures such as gathering restrictions, business closures, and mask mandates — has already been achieved…through the political process by a decision of the Governor, not through the judicial process by a decision of judges, but it was achieved nonetheless.”

“When challenged government action has ceased and no credible threat of its reinstatement exists, courts lack jurisdiction to determine its legality because doing so remedies no concrete injury.”

Blacklock and Devine agree with the dismissal but wrote the opinion to ensure “the court of appeals’ misapplication of the law of standing [does] not go without comment.”

“[T]he court of appeals held — and the State now contends — that when a government order operates directly against everybody, then nobody has standing to challenge it,” the pair writes. “The opposite is true. When a government order operates directly against everyone at the same time, then everyone has standing to challenge it.”

While the state’s disaster declarations continue — Abbott renewed the 30-day declaration again on November 18 — GA-34’s “reopening” of the state remains in operation. It has since been followed by orders prohibiting vaccine and mask mandates.

More than once now, the Texas Supreme Court has had the opportunity to rule materially on the state’s disaster powers and the efficacy of their use during the last three years. Each time, it has declined.

In an April 2021 concurring opinion — written by Blacklock, joined by Devine and two other justices — issued in the Shelley Luther case that, “Any government that has made the grave decision to suspend the liberties of a 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.”

“When properly called upon, the judicial branch must not shrink from its duty to require the government’s anti-virus orders to comply with the Constitution and the law, no matter the circumstances,” they added.

This ruling brings an end to a 25-month-long legal challenge against the directives that consumed so much political oxygen over the last few years.