The Austin Court of Appeals has declined a request by Governor Abbott and Attorney General Paxton (the “state”) to order a Travis County trial court to withdraw a temporary injunction against enforcement of Harris County’s mask mandate, which, with certain exceptions, applies to county buildings and employees and licensed schools and childcare centers. In August Harris County Commissioner Rodney Ellis and the Harris County Local Health Authority filed suit in Travis County for permanent relief against the enforcement of Governor Abbott’s emergency order prohibiting local governments from issuing mask mandates, including those affecting only its own premises and employees (GS-38). The Harris County plaintiffs allege that the Governor acted ultra vires in issuing GA-38 because it exceeds his authority under the Texas Disaster Act (Ch. 418, Government Code). The trial court denied the state’s plea to the jurisdiction and issued a temporary injunction keeping the mandate in place pending the determination of the county’s ultra vires claim. This appeal, Greg Abbott, in his official capacity as Governor of Texas; and Ken Paxton, in his official capacity as Texas Attorney General v. Harris County, Texas; Rodney D. Ellis, in his official capacity as a Harris County Commissioner; and Janeana White, M.D., in her official capacity as Harris County Local Health Authority (No. 03-21-00429-CV), ensued.
With respect to the state’s plea to the jurisdiction, the court of appeals determined that Harris County has alleged sufficient facts for a valid ultra vires claim, which under Texas law justifies a narrow exception to the state’s sovereign immunity (citing Hall v. McRaven, 508 S.W.3d 282, 238 (Tex. 2017)). It further held that Harris County has standing to pursue its claims because it made the necessary showing that: “(1) the plaintiff was personally injured, (2) the alleged injury is “fairly traceable” to the defendant’s conduct, and (3) the alleged injury is ‘likely to be redressed by the requested relief’” (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The court rejected the state’s argument that because neither the Governor nor Attorney General have the power to enforce GA-38, only local district attorneys. Noting that the OAG has filed suit against several local governments, including El Paso County, the City of Austin, and the Round Rock Independent School District, the court agreed with Harris County’s claim that “the likelihood of state enforcement against Harris County is high.” The court further ruled that, if granted, the relief sought by Harris County would resolve the dispute between the parties, i.e. whether the state could block the Harris County mask mandate.
Turning to the propriety of the trial court’s issuance of a temporary injunction against GA-38, the court of appeals determined that Harris County made the requisite showings that the county: (1) had a cause of action against the defendants, (2) had a probable right to the relief sought, and (3) would probably suffer imminent and irreparable injury pending the outcome of the lawsuit. After conducting a detailed analysis of the scope of the Governor’s authority under the Texas Disaster Act, the court concluded that the Legislature did not intend for the Governor’s authority to “suspend provisions ‘of regulatory statute[s] prescribing procedures for conduct of state business”” under §418.016(a), Government Code, to preempt the authority of local governments to “react to local disasters and address local public-health concerns” (the San Antonio court of appeals issued a similar ruling). The court thus found that Harris County had a probable right to relief under its ultra vires claim. It further ruled that Harris County had demonstrated the probability of imminent and irreparable harm based on testimony of the number of cases and positivity and hospitalization rates in Harris County, the significant amount of workers’ compensation benefits paid by Harris County to employees suffering from COVID-19, the impact of an outbreak at the Harris County juvenile detention facility, and other impacts. The state, on the other hand, made no showing of harm from the injunction against GA-38 pending the outcome of the lawsuit.
The basis of Harris County’s claim—that Chapter 418 limits the scope of the Governor’s authority to state-level business—will undoubtedly find its way to SCOTX but might not be decided until the current pandemic has substantially subsided (at least we hope so).