As it did in a parallel case earlier this year, the Third Court of Appeals has affirmed a trial court’s exercise of subject matter jurisdiction and grant of temporary injunctive relief in a suit brough by local governmental entities against the Governor and Attorney General. Abbott v. La Joya Independent School District, et al. (No. 03-21-00428-CV) arose from a suit brought in Travis County district court by several school districts, a community college district, and parents of students seeking declaratory and injunctive relief against the enforcement of the Governor’s Executive Order GA-38, which, among other things, purports to prohibit local governmental entities and officials from imposing mask mandates. The trial court issued a temporary injunction, from which the Governor and Attorney General took an interlocutory appeal.

In the prior case, Abbott v. Harris County, __ S.W.3d __, No. 03-21-00429-CV, 2022 Tex. App. LEXIS 64 (Tex. App.—Austin Jan. 6, 2022, pet. filed), the court of appeals held that the Governor exceeded his authority under the Texas Disaster Act (Chap. 418, Government Code) in issuing GA-38 and thus acted ultra vires. Reiterating its reasoning in that case, the court of appeals determined that the Act does not grant the Governor absolute authority to preempt orders issued by local governmental entities and officials because the statute authorizing the suspension of “any regulatory statute prescribing the conduct of state business” does not apply to “grant-of-authority” statutes that empower local governments to make decisions in the best interests of their jurisdictions. Additionally, the suspension provision refers to the conduct of “state business,” not the business of local jurisdictions with their own ordinance or rule-making authority under Texas law. The court thus concluded that the school districts demonstrated a probable right to relief on their ultra vires claim.

The court of appeals further held that the districts met their burden of showing irreparable harm if temporary injunctive relief were not ordered and the no-mask mandate put into effect. The court based this determination on the uncontroverted evidence presented at the trial court that the spread of the Delta variant to school staff, teachers, students, and visitors causes severe disruption of school operations and student learning and financial loss to the districts, and that masks are effective in mitigating the spread of the virus in a school setting. Finally, the court of appeals found that the trial court properly exercised subject matter jurisdiction over the state officials. Since the districts demonstrated a probable right to relief on the ultra vires claim, they established an exception to sovereign immunity. They also established standing to bring their claims because they are challenging the validity of GA-38, not the threat of state enforcement for non-compliance (though the court noted that the state had already brought lawsuits against a number of local entities under GA-38). And in response to the state’s argument that only SCOTX may compel the performance of a judicial, ministerial, or discretionary act or duty that by state law an officer of an executive department is authorized to perform, the court of appeals that a suit to restrain an unlawful act by a state officer is not a suit to “compel performance of an act or duty.”

As it has done in the Harris County case, the state will certainly seek SCOTX review. With local mask mandates already lifted in so many jurisdictions, it will be interesting to see how SCOTX looks at the issues. Even though the operation of GA-38 may be largely moot, the underlying issue of the Governor’s authority under Chapter 418 remains. We will soon see whether SCOTX wants to deal with that issue right now or leave it for another day.

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