Attorneys for the City of San Antonio, Bexar County, Dallas County, and Harris County all contend that Abbott’s executive order barring local officials from implementing mask mandates exceeded his statutory authority.
Counsel representing the state contends that Abbott’s orders were well within his authority.
The Case Briefs
The challenges allege that Abbott’s executive order prohibiting local governments from implementing mask mandates, as well as other mandates, exceeds the authority of the governor under the Texas Disaster Act (TDA).
Specifically, the governor may not preemptively restrain local disaster responses under the TDA; rather, he may only expand their power. The plaintiffs argue the governor’s usage of a controversial law allowing him to suspend regulatory statutes was wrongfully used by suspending non-regulatory statutes, in addition to violating the Texas Constitution.
Attorneys for Abbott and the State of Texas claim that a provision in the TDA designating mayors and county judges as the governor’s “agents” for emergency management purposes during a state of disaster prevents those local officials from taking actions that contradict the governor.
They also argue several more points to substantiate the legality of Abbott’s orders.
The TDA allows the governor to control the “ingress and egress” of people during a disaster, which the defendants say can be construed to require people to wear masks or prohibit local governments from implementing mandates.
They also point to provisions allowing the governor to suspend regulatory statutes proscribing procedures for the conduct of state business, in addition to a clause that gives his orders the “force and effect of law.”
Oral Arguments Before the Court
Attorneys for both sides took turns answering a battery of questions from eight justices. While Justice Debra Lehrmann wasn’t present, Chief Justice Nathan Hecht announced she would be participating in the final ruling.
In each separate case before the high court, both the trial courts and intermediate appeals courts sided with the local governments, granting injunctions against the enforcement of Abbott’s executive order. The Supreme Court lifted those injunctions after the state appealed, pending their review of the case.
In her opening remarks, attorney Lanora Pettit with the Office of the Solicitor General defended the governor’s orders and addressed several concerns from justices, including questions from Justice Jimmy Blacklock regarding whether state health statutes provided a “simpler and less constitutionally problematic” avenue for the governor to regulate local health authorities in responding to a disaster as opposed most of what had been briefed regarding the TDA.
Blacklock explained that under the health code, the governor could have declared himself the commander and chief of the Texas Health and Human Services Commission, which has explicit preemptive authority to regulate local health authorities.
Several justices also questioned the state’s lawyer regarding the Texas Constitution’s prohibition on any entity outside of the legislature holding the power to suspend statutes, as a provision in the TDA allows exactly that.
“How do you reconcile this with Article 1, Section 28 of the Texas Constitution?” asked Justice John Devine, following a line of questioning from Justice Jane Bland on the issue.
“The suspension clause in the context it was written in 1876 appears to refer to the declaration of martial law, and this is not that,” Pettit responded, prompting more questions.
Blacklock further questioned Pettit to clarify her position that the suspension clause only prohibits suspension of laws in the context of martial law, and asked whether the 2020 lockdowns would have qualified as a prohibited suspension of law.
This line of questioning led the justices to inquire about the governor’s power under Texas law to declare martial law before turning back to questioning the governor’s power to control the ingress and egress of people under the TDA.
“What if a governor declared a climate change disaster and prohibited people from driving cars on Tuesdays and Thursdays to reduce emissions?” Blacklock asked.
Pettit argued in response that such a scenario wouldn’t be allowed due to the right to travel being protected by the U.S. Constitution’s 14th Amendment, whereas Abbott’s limitations on the right to travel were a justified exception for quarantine purposes.
Emergency Powers Reform Emergency For Abbott
Legislation to rein in emergency powers under the TDA during the 2021 legislative session failed. Abbott was mostly quiet on the issue while still imposing pandemic restrictions.
Now with the Supreme Court primed to rule on any number of the legal challenges to the existing law, Abbott has become highly visible on the issue, adding reform to the TDA to his list of emergency items for the Legislature to take up.
Sen. Brian Birdwell (R-Granbury) has introduced legislation to do just that, filing Senate Bill (SB) 1104 that addresses many aspects of the TDA being challenged, including the governor’s power to suspend laws, declare certain disasters without review by the Legislature, clarify that state orders supersede local orders, and place heavy limitations on business closures.
The bill specifically addresses numerous statutory codes that may not be suspended, and provides clarifying language regarding what types of laws regarding the operation of state agencies may be suspended.
Future disaster declarations affecting a significant portion of the state would be subject to review by a special session of the Legislature if extended beyond 30 days, and one of the most sweeping portions prohibits any emergency declaration forcing the closure of private businesses — reserving that power to the Legislature alone.
Abbott’s emergency item also calls for legislation banning the COVID-19 vaccine and mask mandates.
Birdwell’s legislation presently carries support from a bipartisan group of 13 senators, giving it a strong posture in the upper chamber. Identical legislation by Rep. Shelby Slawson (R-Stephenville), HB 2654, is pending in the House of Representatives.
The Legislature’s sudden interest to revisit the TDA in light of its review by the state’s highest court sets the stage for an interesting dynamic, especially if the law changes before or after the court renders its verdict.
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Matt Stringer is a reporter for The Texan who writes about all things government, politics, and public policy. He graduated from Odessa College with an Associate Degree in Paralegal Studies and a Bachelor’s Degree in Management and Leadership. In his free time, you will find him in the great outdoors, usually in the Davis Mountains and Big Bend region of Southwest Texas.