In re Abbott

• Decision Date: 23 April 2020
• Docket Number: No. 20-0291,20-0291
• Citation: 601 S.W.3d 802
• Parties: IN RE Greg ABBOTT, Governor of the State of Texas, and Ken Paxton, Attorney General of the State of Texas, Relators
• Court: Texas Supreme Court

601 S.W.3d 802

IN RE Greg ABBOTT, Governor of the State of Texas, and Ken Paxton, Attorney General of the State of Texas, Relators

No. 20-0291

Supreme Court of Texas.

OPINION DELIVERED: April 23, 2020

Kyle D. Hawkins, Office of the Attorney General, Solicitor General, Joseph David Hughes, Assistant Solicitor General, Philip A. Lionberger, Office of the Attorney General, Assistant Solicitor General, Trevor W. Ezell, Office of the Attorney General, Austin, for Relators.

Adriana Pinon, David Donatti, Andre Segura, American Civil Liberties Union of Texas, Brian Klosterboer, American Civil Liberties Union Foundation of Texas, Houston, Emily Gerrick, Karly Dixon, Nathan Fennell, Texas Fair Defense Project, Austin, for Real Parties in Interest Austin Criminal Defense Lawyers Association, Texas Criminal Defense Lawyers' Association.

Adriana Pinon, David Donatti, American Civil Liberties Union of Texas, Andre Segura, ACLU of Texas, Brian Klosterboer, American Civil Liberties Union Foundation of Texas, Rachel Fraser, Vincent R. Ryan Jr., Harris County Attorney's Office, Houston, Emily Gerrick, Karly Dixon, Nathan Fennell, Texas Fair Defense Project, Austin, for Real Party in Interest Capital Area Private Defender Service.

Rachel Fraser, Vincent R. Ryan Jr., Harris County Attorney's Office, Houston, Sherine Elizabeth Thomas, Travis County Attorney's Office, Austin, for Real Party in Interest Harris County Criminal Court at Law Judges.

Adriana Pinon, David Donatti, Andre Segura, American Civil Liberties Union of Texas, Brian Klosterboer, American Civil Liberties Union Foundation of Texas, Houston, Emily Gerrick, Karly Dixon, Nathan Fennell, Texas Fair Defense Project, Nicholas B. Bacarisse, Wallace B. Jefferson, Alexander Dubose & Jefferson LLP, Austin, Edward G. Caspar, Committee for Civil Rights under Law, Arthur Ago, Washington, DC, for Real Party in Interest NAACP Texas.

Ron Beal, pro se.

Jessica Brand, Wren Collective, Austin, for Amici Curiae Certain Texas District Attorneys, Law Enforcement Action Partnership, Pretrial Justice Institute.

Edward G. Caspar, Committee for Civil Rights under Law, Washington, DC, Jessica Brand, Wren Collective, Austin, for Amicus Curiae Fair and Just Prosecution.

Wolfgang P. Hirczy De Mino PhD, pro se.

Andrew M. Williams, Sherine Elizabeth Thomas, Travis County Attorney's Office, David A. Escamilla, Travis County Attorney, Sharon Kay Talley, Travis County Attorney, Austin, for Amici Curiae Margaret M. Moore, Travis County Court at Law Judges, Travis County Justices of the Peace.

Cynthia Orr, San Antonio, for Amicus Curiae National Association of Criminal Defense Lawyers (NACDL).

Ken W. Good, Law Office of Ken W. Good, PLLC, Tyler, for Amicus Curiae Professional Bondsmen of Texas.

Andrew M. Williams, Travis County Attorney's Office, David A. Escamilla, Travis County Attorney, Sharon Kay Talley, Travis County Attorney, Austin, for Amici Curiae Travis County, Travis County District Judges.

PER CURIAM

The Constitution is not suspended when the government declares a state of disaster. Nor do constitutional limitations on the jurisdiction of courts cease to exist. One such limitation is the requirement that a plaintiff establish standing, which is always an essential component of a court's subject-matter jurisdiction. If plaintiffs lack standing to seek orders from a court, the court lacks power to issue those orders.

Executive Order GA-13 changes the rules applicable to judges' decisions regarding pretrial bail. It suspends certain statutes authorizing trial judges to release jail inmates with violent histories during the current state of disaster. The plaintiffs allege GA-13 is unconstitutional and exceeds the governor's statutory emergency powers. Sixteen of the plaintiffs are Texas trial judges, who allege GA-13 improperly interferes with their judicial authority to make individualized bail decisions. At their request, the trial court issued a temporary restraining order blocking enforcement of GA-13 against judges. The other plaintiffs in the case are public interest organizations and lawyer associations, and the TRO does not grant any relief as to those plaintiffs. None of the plaintiffs are inmates who cannot obtain release because of GA-13, and the plaintiffs do not identify any such person by name. The State filed this mandamus petition seeking review of the TRO.

On the record before the Court, we conclude the judges lack standing, which means the trial court lacked jurisdiction to order their requested relief, even temporarily. Suspending statutes that govern judges' decisions in particular cases does not amount to a personal, legally cognizable injury against the judges. We are aware of no precedent authorizing a judge to file suit against the executive or legislative branches to ask another judge to clarify or invalidate rules governing decisions the plaintiff judge must make. Our adversary system of justice envisions that disputes over which rules govern court procedures like bail will be settled through proceedings involving parties with a direct stake in the outcome, proceedings such as actual bail hearings involving inmates denied release because of GA-13. If a judge overseeing such a hearing follows the executive order (or concludes it is invalid and does not follow it), that ruling can be challenged. The question of GA-13's legal effect when weighed against the Constitution and other sources of law is a question for judges to decide when properly asked by parties to do so. It is not a question for judges to ask other judges to decide.

We acknowledge the plaintiff judges' allegation that they face a threat of criminal prosecution if they do not follow the executive order. Any threat to prosecute a judge for his or her judicial decisions raises grave separation-of-powers concerns. The judges, however, do not explain why well-established principles of judicial immunity are insufficient to counter such threats. Troubling as these threatened prosecutions would be, the defendants have disclaimed any such intention, and the judges have not shown a credible threat they actually will be prosecuted. As a result, even if a threat of prosecution could give a judge standing to challenge a substantive legal standard, the alleged threat of criminal prosecution in this case does not give the judges standing to seek the invalidation of GA-13. We therefore conditionally grant mandamus relief.

BACKGROUND

Executive Order GA-13 followed the Governor's March 13, 2020 declaration of a state of disaster due to the threat of the novel coronavirus. Issued on March 29, GA-13 limits the release of inmates from jails who are "charged with, convicted of, or hav[e] a history of offenses involving physical violence or threats of physical violence." GA-13 was issued in response to the concern that "several counties are now reportedly considering the broad-scale release of arrested or jailed individuals as a result of COVID-19 ...." The State explains that GA-13 was intended to safeguard the public "by ensuring that alleged violent criminals are not released en masse." It partially suspends several statutory provisions "to the extent necessary" to comply with its terms. One of the suspended provisions is article 17.03 of the Code of Criminal Procedure, which grants trial courts discretion to release inmates before trial without requiring monetary bond.

On April 8, the real parties in interest, which include sixteen judges of the Harris County Criminal County Courts at Law, sued the Governor and the Attorney General. They allege that GA-13 violates two provisions of the Texas Constitution and exceeds the Governor's statutory emergency powers. According to the petition, the judges sued in their "official capacity" because they "have been directly harmed by [the] issuance of this Order and impeded from exercising their judicial authority pursuant to the Texas Constitution." The NAACP and three groups representing criminal defense attorneys are also plaintiffs in the suit. The plaintiffs requested a TRO, a temporary injunction, and permanent injunctive relief to prevent the enforcement of GA-13, as well as declaratory relief and attorneys' fees. The sixteen judicial plaintiffs specifically alleged that they "are now caught between fulfilling their obligations to decide bail in individual cases as prescribed by the Constitution and Legislature, or obeying an Executive Order."

The Governor and Attorney General filed a plea to the jurisdiction on April 10. They contended that the judicial plaintiffs lacked standing because they have alleged no injury in fact. In their view, an injury characterized by one government actor encroaching on the duties of another is too generalized to create standing. And when an institutional plaintiff sues to redress an institutional injury, the entire institution must file suit, not individual members of the institution.

Late on April 10, the trial court issued a TRO restraining "[d]efendants from enforcing Executive Order GA-13 against judges." In a letter to counsel for the parties, the court specified that the TRO was granted only "as it applies to the independently elected judicial officers (the judges) who are Plaintiffs in this cause." The letter also explained that "many of the orders in Executive Order GA-13 strip away the discretion of the judiciary and potentially subject its judges to mandamus or criminal action with little or no rationale in coping with the current health crisis." The TRO was scheduled to expire on April 24. The trial court has not explicitly ruled on the relators' plea to the jurisdiction.

On April 11, the Governor and Attorney General filed a petition for writ of mandamus and motion to stay directly in this Court.¹ The petition argued that the trial court lacked the necessary subject-matter jurisdiction to issue a TRO and that the trial court abused its discretion by issuing a TRO when the plaintiffs are unlikely to succeed on the merits. We granted the motion to stay...