Joining its sister courts in Dallas and Austin, the San Antonio Court of Appeals has affirmed a trial court’s denial of the State’s request for a temporary injunction barring enforcement of the San Antonio Independent School District’s employee COVID-19 vaccine mandate. State of Texas v. San Antonio Independent School District and Pedro Martinez, in his Official Capacity (No. 04-21-00419-CV) follows the reasoning of the Austin court in Abbott v. La Joya Independent School District, et al. (No. 03-21-00428-CV) and Abbott v. Harris County, 641 S.W.3d 522-27 (Tex. App.—Austin Jan. 6, 2022, pet. filed), in which the court 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. Last November the Dallas Court of Appeals issued a similar decision in Abbott v. Jenkins (No. 05-21-00733-CV).

Each of these opinions (the Austin and Dallas cases involve mask mandates) turns on statutory construction of the relevant provisions of Chapter 418 and concludes 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. In the San Antonio case, the State failed to demonstrate a probable right to relief on its claim that SAISD acted without legal authority when it mandated that its employees receive a vaccination.

As it has done in the Harris County case, the state will certainly seek SCOTX review. Though local mask mandates have already been lifted in most places, vaccine mandates have not. The underlying issue of the Governor’s authority under Chapter 418 remains undecided, even while GS-38 remains in effect. Don’t forget that Governor has not terminated the state of emergency for COVID-19 and continues to wield considerable executive authority under Chapter 418. The Legislature could have terminated the emergency during the 2021 session but chose not to, and proposed legislation to place temporal limits on emergency declarations failed. It should also be noted that disaster declaration for Hurricane Harvey, which struck Texas in 2017, is likewise still in effect (in part to facilitate federal disaster relief).

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