Recently, Texas governor Greg Abbott has reversed course on his administration’s reopening plan for Texas, as coronavirus cases in the state have seen a sharp rise. This has included his recent executive order which shut bars back down and scaled back restaurant capacity to 50%.Most recently (though not the subject of this article), Gov. Abbott has also issued an executive order mandating the use of masks in public.
The executive order has come as unwelcome news to bar owners already struggling to stay afloat in the midst of the coronavirus pandemic. Accordingly, just four days after Governor Abbott issued Executive Order No. GA-28, lawsuits were filed by collections of bars and bar owners against the governor. We took a look at two such cases — a federal case filed in the Western District of Texas, and a state case filed in the Travis County District Court. In this article, we analyze their factual and legal claims, and explore the nature and limit of the emergency authorities the governor possesses to address the public health crisis.
The Lawsuits Against Gov. Abbott
The federal lawsuit against Abbott — 6th Street Business Partners, LLC et. al. v. Gregory Wayne Abbott,1:20-cv-00706-RP (W.D.TX. June 30, 2020) — unsurprisingly bears significant similarities to the state case filed in Travis County — Tony Allen Parker et. al. v. Governor Gregg Abbott et. al., D-1-GN-20-003413, 200th Judicial District Court of Travis County.
Both lawsuits are what is known in the law as ultra vires claims. Latin for “beyond the powers.” an ultra vires claim is a claim seeking to require state officials to comply with statutory or constitutional provisions.See, City of El Paso v. Heinrich, 284 S.W.3d 366, 371 (Tex. 2009). Typically, claims against the state are barred by sovereign immunity. However, an ultra vires claim is not barred by sovereign immunity because the claim alleges not that a governmental officer erred in exercising his or her discretion, but rather that the officer acted without legal authority or failed to perform a purely ministerial act. Because governmental entities remain immune from suit in declaratory actions brought to determine a plaintiff’s rights under a statute, a plaintiff is limited to bringing ultra vires suits against government officials in their official capacity.See id., at 368-69, 372-73. Accordingly, Governor Abbott is a named as a defendant in the suit within his official capacity as governor of Texas.
Factually, while the identity of the plaintiffs differs between the two suits, both lawsuits consist of bars and bar owners who take umbrage with what they allege is the Governor “picking winners and losers” — complaining that while bars are shut down, establishments like hair salons and barbershops are able to remain open. Both suits also focus on the distinction of 51% licenses — in which Texas differentiates between licensees that have more than 51% of their revenue from alcohol sales and those who have licenses who have less than 51%. The federal suit in particular argues against the rationality of the Governor’s executive order, which purports to be a restriction on people visiting bars, but also shuts down restaurants who operate with a 51% license.
Both suits allege violations of the Texas Constitution and violations of the State Constitutional Right to Assembly (which is not analogous to the Federal Right to Assembly), and the State Constitution’s prohibition against any suspension of law by the Defendant. The federal lawsuit also cites 42 U.S.C. § 1983 as the basis of allegations that the Governor’s executive order is a violation of the Fifth and Fourteenth Amendment protections for due process and equal protection under the federal constitution, as well as violating Plaintiffs’ substantive due process rights.
Finally, both suits are asking for the same relief: injunctive relief and a declaratory judgment. A declaratory judgment is a binding judgment from a court defining the legal relationship between parties and their rights in a matter before the court; here, the plaintiffs are looking for a declaratory judgment on whether or not the Governor’s executive order is valid and can shut them down. An injunctive order would seek to restrain the Governor’s actions and prohibit from enacting a shut down of bars.
The Governor’s Authority and Power
While we understand measures taken to combat the sharp rise of coronavirus in Texas, we also understand the intense financial reality that these small businesses are facing during this pandemic. Nevertheless, it is unlikely that their lawsuits can successfully challenge Gov. Abbott’s authority to issue the executive order.
On March 13, Texas Gov. Greg Abbott declared a statewide disaster/emergency, activating powers pursuant to the Texas Disaster Act of 1975, codified in Title 4, Chapter 418. Section 418.014 of this act gives the governor the power to proclaim or declare a state of emergency if a disaster has occurred or is imminent. A state of emergency concludes when the disaster has been deemed to have passed, if the legislature decides to terminate it, or if the declaration is not renewed by the governor after thirty days. Section 418.015 provides that:
[d]uring a state of disaster and the following recovery period, the governor is the commander in chief of state agencies, boards, and commissions having emergency responsibilities. To the greatest extent possible, the governor shall delegate or assign command authority by prior arrangement embodied in appropriate executive orders or plans, but this chapter does not restrict the governor’s authority to do so by orders issued at the time of the disaster.
Section 418.0155 also allows the governor’s office to suspend laws during a state of emergency but also requires that the governor have “a comprehensive list of regulatory statutes and rules that may require suspension during a disaster.” Section 418.016 adds that “[t]he governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.”
Section 418.017 also allows the governor to “use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster.” This includes the power to temporarily reassign resources, personnel, or functions of state executive departments and agencies or their units for the purpose of performing or facilitating emergency services, and the power to commandeer or use any private property if it is necessary to cope with a disaster and the owners are appropriately compensated. Sections 418.018 and 418.019 allow the governor (during an emergency) to evacuate areas that he deems to be dangerous to the population and to suspend the sale or distribution of alcohol and firearms.
While caselaw interpreting the Texas Disaster Act is relatively limited, precedent exists to uphold Gov. Abbott’s executive order. For instance, Texas courts have held property owners do not have a vested property right to use their property for a particular purpose.See, City of La Marque v. Braskey, 216 S.W.3d 862, 864 (Tex. App. 2007) (property owner did not have vested property right to use property for animal shelter); Hang On III, Inc. v. Gregg County, 893 S.W.2d 724, 726-27 (Tex. App. 1995) (property owner did not have vested property right to use property for sexually-oriented business). So, for example, the Texas Appellate court upheld the use of the Disaster Act in a prohibition on businesses selling fireworks during a time when drought conditions had created an extreme fire hazard.Fireworks v. Comal County, No. 03-06-00638-CV (Tex. App. Mar. 31, 2010).
Accordingly, the State of Texas’ possesses significant executive authorities to address the pandemic which will likely lead to EO GA-28 being upheld by both the Western District and the Travis District courts.