Stand for Something Grp. Live v. Abbott, 13-21-00017-CV

CourtCourt of Appeals of Texas
Docket Number13-21-00017-CV
Decision Date20 October 2022



No. 13-21-00017-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

October 20, 2022

On appeal from the 200th District Court of Travis County, Texas.

Before Chief Justice Contreras and Justices Hinojosa and Silva



Appellants Stand for Something Group Live, LLC, d/b/a The Rail Club Live, et al.


(the Bars) filed suit against appellees, Texas Governor Greg Abbott (the Governor), the Texas Alcoholic Beverage Commission (TABC), and TABC executive director Bentley Nettles. The suit challenges several executive orders issued by the Governor and enforced by TABC that restricted the ability of people to patronize bars during the early stages of the COVID-19 pandemic. The Bars appeal the trial court's orders denying their application for a temporary injunction and granting appellees' plea to the jurisdiction.

In four issues, the Bars argue that: (1) their claims challenging rescinded executive orders are not moot; (2) they have standing to sue appellees; (3) sovereign immunity is waived as to each appellee; and (4) the trial court should have granted the Bars' request for a temporary injunction. We dismiss as moot the Bars' appeal as it relates to their declaratory and injunctive relief claims. We affirm the trial court's dismissal of the Bars' regulatory takings claim.

I. Background[1]

A. Texas Disaster Act

The Texas Disaster Act (Disaster Act) establishes a detailed, comprehensive framework that, in the case of a disaster, allocates powers, duties, and responsibilities across various levels of state government and multiple agencies. See Tex. Gov't Code Ann. §§ 418.001-.307; see also Hous. Cmty. Coll. v. Hall Law Grp., PLLC, No. 01-20-00673-CV, 2021 WL 2369505, at *11 (Tex. App.-Houston [1st Dist.] June 10, 2021, pet. denied) (mem. op.). One of the statute's stated purposes is to "clarify and strengthen the roles of the governor, state agencies, the judicial branch of state government, and local


governments in prevention of, preparation for, response to, and recovery from disasters." Tex. Gov't Code Ann. § 418.002(4).

If the Governor finds that a disaster has occurred or that occurrence or threat of a disaster is imminent, he may declare a state of disaster by either executive order or proclamation. Id. § 418.014(a). The state of disaster may not continue for more than thirty days unless renewed by the Governor. Id. § 418.014(c). However, "[t]he legislature by law may terminate a state of disaster at any time." Id. The Disaster Act authorizes the Governor (1) to issue executive orders, proclamations, and regulations that have the "force and effect of law"; (2) to amend or rescind the executive orders, proclamations, and regulations; and (3) to suspend certain statutory provisions if compliance with those provisions would hinder or delay actions necessary to cope with the disaster. Id. §§ 418.012, 418.016(a).

B. Governor's Executive Orders

On March 13, 2020, the Governor issued a statewide disaster declaration, certifying that "the novel coronavirus (COVID-19) poses an imminent threat of disaster for all Texas Counties," and he has renewed that proclamation every month since. See In re State, 602 S.W.3d 549, 550-51 (Tex. 2020) (orig. proceeding) (noting that the first reported case of COVID-19 in the United States was January 2020 and that the virus can cause extreme symptoms, requiring hospitalization, use of ventilator, and long stays in intensive care unit). In addition, the Governor has issued a series of executive orders for the stated purpose of, among other things, "protecting the health and safety of Texans, ensuring uniformity throughout Texas, and achieving the least restrictive means of


combating the evolving threat to public health by adjusting social-distancing and other mitigation strategies." See, e.g., The Governor of the State of Tex., Exec. Order GA-28, 45 Tex. Reg. 4589 (2020). The Governor issued several executive orders between March 19, 2020, and June 26, 2020, that included stay-at-home provisions, including restrictions on the ability of people to patronize and be served in bars. The first executive order that the Bars found objectionable was GA-28, which provided that:

People shall not visit bars or similar establishments that hold a permit from the Texas Alcoholic Beverage Commission (TABC) and are not restaurants as defined above in paragraph number 6;[[2] provided, however, that the use by such bars or similar establishments of drive[-through], pickup, or delivery options for food and drinks is allowed to the extent authorized by TABC

Id. at 4590.

Exercising its purported authority under § 11.614 of the alcoholic beverage code (allowing TABC to issue emergency orders suspending alcoholic beverage licenses and permits), TABC issued temporary suspensions to establishments that violated the Governor's executive orders. See Tex. Alco. Bev. Code Ann. § 11.614. At least three of the Bars were subject to temporary emergency suspensions of their licenses for operating in violation of GA-28, which have since expired. On September 17, 2020, the Governor issued executive order GA-30, which renewed the restriction on bar patronage. See The Governor of the State of Tex., Exec. Order GA-30, § 8, 45 Tex. Reg. 6821, 6823 (2020).

C. The Bars' Suit

On November 9, 2020, the Bars filed their live pleading[3] seeking declarations that


the enforcement of GA-28 and GA-30 violate the Texas Constitution's (1) prohibition against retroactive laws; (2) takings clause; (3) equal protection clause; (4) free assembly clause; and (5) substantive due course of law provision. The Bars requested temporary and permanent injunctive relief enjoining enforcement of GA-28, GA-30, and § 11.614 of the alcoholic beverage code. Finally, the Bars sought monetary damages for their takings claim only.

While the suit was pending, the Governor issued executive order GA-32, which provided county judges the discretion to open bars for in-person services, depending on whether their counties were located within an area with high COVID-19 hospitalizations. See The Governor of the State of Tex., Exec. Order GA-32, § 7, 45 Tex. Reg. 7348, 7348- 49 (2020).

Appellees filed a plea to the jurisdiction, arguing that (1) the Bars' challenges to executive orders that are no longer in effect are moot, as are the claims brought by the Bars that were permitted to receive customers in person under GA-32; (2) the Bars lacked standing to sue the Governor; (3) the Bars' claims were entirely barred by sovereign immunity; and (4) only the Texas Supreme Court had authority to enjoin the Governor. Appellees also argued that the Bars failed to establish any of the elements of a temporary injunction claim.

After a hearing, at which the trial court received evidence on the Bars' request for a temporary injunction, the trial court signed orders denying the Bars' application for a temporary injunction and granting appellees' plea to the jurisdiction. The Bars now



D. Intervening Orders

On March 2, 2021, during the pendency of this appeal, the Governor issued GA-34, which superseded GA-32, effective March 10, 2021. See The Governor of the State of Tex., Exec. Order GA-34, 45 Tex. Reg. 1567, 1568 (2020). In GA-34, the Governor noted that "COVID-19 hospitalizations and the rate of new COVID-19 cases have steadily declined due to" the voluntary efforts of Texans, including their "adherence to safe practices like social distancing, hand sanitizing, and use of face coverings." Id. GA-34 lifted the COVID-19 related operating limits on businesses, including the prohibition on visiting bars. See id. Appellees have placed no restriction on bar patronage since.

III. Mootness

As a threshold issue, we must address appellees' argument that the Bars' claims for injunctive and declaratory relief have been rendered moot by subsequent executive orders allowing for the full reopening of bars in Texas.

A. Standard of Review & Applicable Law

"Under the Texas Constitution's separation-of-powers doctrine, courts lack jurisdiction to issue an advisory opinion, the 'distinctive feature' of which is that it 'decides an abstract question of law without binding the parties.'" Abbott v. Mexican Am. Legis. Caucus, Tex. House of Representatives, 647 S.W.3d 681, 689 (Tex. 2022) (quoting Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)); see Tex. Const. art. II, § 1. Therefore, an appellate court lacks jurisdiction to issue an opinion on a moot controversy. See Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). "A


case becomes moot if, since the time of filing, there has ceased to exist a justiciable controversy between the parties-that is, if the issues presented are no longer 'live,' or if the parties lack a legally cognizable interest in the outcome." Id. (citations omitted). In other words, "a case is moot when the court's action on the merits cannot affect the parties' rights or interests." Id.

"A case can become moot at any time, including on appeal." State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018). "[A]ppellate courts have a duty to assess their own jurisdiction sua sponte . . . and we may ascertain facts necessary to the exercise of our jurisdiction." Ward v. Lamar Univ., 484 S.W.3d 440, 450-51 (Tex. App.-Houston [14th Dist.] 2016, no pet.) (internal citation omitted); see Tex. Gov't Code Ann. § 22.220(c) ("Each court of appeals may, on affidavit or otherwise, as the court may determine, ascertain the matters of fact that are necessary to the proper exercise of its jurisdiction."). But a case "is not rendered moot simply because some of the issues...

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