State v. City of Austin

Decision Date08 April 2021
Docket NumberNO. 03-20-00619-CV,03-20-00619-CV
PartiesThe State of Texas, Appellant v. City of Austin, Texas; County of Travis, Texas; Steve Adler, in his Official Capacity as Mayor, City of Austin, Texas; and Andy Brown, in his Official Capacity as County Judge, County of Travis, Texas, Appellees
CourtCourt of Appeals of Texas

The State of Texas, Appellant
City of Austin, Texas; County of Travis, Texas;
Steve Adler, in his Official Capacity as Mayor,
City of Austin, Texas; and Andy Brown,
in his Official Capacity as County Judge, County of Travis, Texas, Appellees

NO. 03-20-00619-CV


April 8, 2021



The State of Texas sought to stop appellees, City of Austin, the City's Mayor Steve Adler, Travis County, and County Judge Andy Brown (collectively, "local officials"), from enforcing emergency pandemic-related orders that the local officials issued requiring businesses to temporarily suspend dine-in food and beverage service from 10:30 p.m. to 6:30 a.m., beginning December 31, 2020, and ending January 3, 2021—the duration of New Year's weekend. The State appeals from the trial court's order denying its application for temporary injunctive relief. For the reasons explained below, we conclude that we lack jurisdiction over the appeal because the State's claims are moot and not ripe, and we dismiss the appeal for want of jurisdiction.

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On December 30, 2020, the State sued the local officials, seeking declaratory and injunctive relief as to the validity and enforcement of the County Judge's Order 2020-24 and the Mayor's Order No. 20201229-24 (collectively, "local orders"). The local orders were issued late on December 29, 2020, and they required businesses in the City of Austin and Travis County to suspend "indoor and outdoor dine-in food and beverage service at 10:30 p.m." each night until 6:00 a.m. the following morning, beginning on December 31, 2020, and ending on January 3, 2021. The local orders established that a business's violation of this requirement would constitute a misdemeanor criminal offense punishable by a fine of up to $1,000.

The State asserts in its trial-court petition that issuance and enforcement of the local orders are invalid, unlawful, and constitute ultra vires acts because: (1) Governor Abbott suspended the only statutes that would have allowed the local officials to issue the local orders; (2) the local officials were acting as the Governor's designated agents when they issued the local orders, and as agents, they could not ignore the will of their principal; and (3) the local orders conflict with the Governor's Executive Order GA-32. The Governor issued GA-32 on October 7, 2020, as one of a series of orders issued "[r]elating to the continued response to the COVID-19 disaster as Texas reopens." The State alleges that by prohibiting indoor and outdoor dine-in food and beverage service during the period from 10:30 p.m. to 6:00 a.m. on the designated days, the local orders conflict with GA-32 because they "force[] restaurants and business[es] to close when they would otherwise be allowed to operate under GA-32." GA-32 addresses what businesses and services can remain open under what circumstances. Among other things, it specifically provides that "[r]estaurants that have less than 51 percent of their gross receipts from the sale of alcoholic beverages, and whose customers eat or drink only while seated, may offer

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dine-in services" and provides that bars or similar establishments "may offer on-premises services" under certain listed circumstances. GA-32 does not explicitly address hours of operation for any businesses. GA-32 states that it shall supersede a conflicting local order but only to the extent that the local order "restricts services allowed by [GA-32]." The State seeks a declaration that the local orders are invalid and unconstitutional, as well as temporary and permanent injunctions ordering the local officials to: (1) stop, or order stopped, all enforcement efforts of the local orders; (2) rescind the local orders; and (3) refrain from issuing any new emergency orders more restrictive than, or conflicting with, GA-32.1

On December 31, the trial court held a hearing on the State's application for a temporary injunction. The trial court took judicial notice of its entire file, including copies of the local orders and GA-32 that were attached to the State's petition. The State did not call any witnesses, and the local officials' only witness was Mark Escott, M.D., who serves as the Interim Health Authority for the City and County and is one of the individuals in charge of the local response to the COVID-19 pandemic. Dr. Escott testified about the specific level of COVID-19 risk in the Austin and Travis County area at that time and about the local officials' public-health concerns that led to issuing the local orders to temporarily suspend dine-in hours at 10:30 p.m. during the New Year's weekend. He testified that the goal was to mitigate "th[e] risk—of large numbers of people crowded together to celebrate and—and, hopefully, [to] help us to flatten the curve" of a projected post-holiday surge in COVID-19 cases.

In particular, Dr. Escott testified that the community was at Stage 5—"the highest stage of risk"—"which indicates widespread, uncontrolled community transmission of COVID-

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19" and that the local orders were "targeting that area of risk in a very surgical way." He explained that "[t]he two most important things are masking and distancing" to reduce the transmission of COVID-19 and that restaurants were a "challenge" because eating or drinking requires removing masks. Dr. Escott also testified about the disconcerting trends in Austin and Travis County at that point with increasing hospitalizations, limited staffing resources, and limited availability of intensive-care units in the area to handle the projected post-holiday surge in COVID-19 cases. Dr. Escott described a "surge" as a time when "demand outpaces the resources that are available," and he explained that the community already had "more than 100 [medical] staff requests that have gone unfilled because there aren't more staff. They're very difficult to find." He further noted the concern specific to the Austin and Travis County community that other major metropolitan areas in Texas were still surging, including Dallas, Fort Worth, San Antonio, and Houston, meaning that Austin and Travis County would "be fifth or sixth in line of that surge."

That same day, the trial court denied the State's request for temporary injunctive relief. The State immediately appealed to this Court and sought temporary relief under Texas Rule of Appellate Procedure 29.3. See Tex. R. App. P. 29.3 (authorizing appellate court to make "any temporary orders necessary to preserve the parties' rights until disposition of the appeal"). After this Court denied the State's request, the State filed a petition for writ of mandamus with the Texas Supreme Court, which conditionally granted the State's requested relief on January 1, 2021. See In re State, No. 21-0001, 2021 Tex. LEXIS 1, at *1 (Tex. Jan. 1, 2021, order). The Texas Supreme Court directed this Court "to issue relief under Texas Rule of Appellate Procedure 29.3, instanter, enjoining enforcement of [the local orders] pending final resolution of the appeal." Id. Accordingly, this Court immediately enjoined enforcement of the local orders

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pending final resolution of this interlocutory appeal. See State v. City of Austin, No. 03-20-00619-CV, 2021 WL 22007, at *1 (Tex. App.—Austin Jan. 1, 2021, order) (per curiam). The underlying proceeding remains pending before the trial court.

We also granted the State's motion to consider the appeal on an expedited basis. In our letter to the parties granting that motion, we requested that the parties address this Court's jurisdiction over the appeal and raised the question of whether the appeal is moot. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (noting that generally a "controversy must exist between the parties at every stage of the legal proceedings, including the appeal" or the "case becomes moot"). The parties addressed the jurisdictional issue in their briefing on the merits of the appeal.

While this appeal was pending but after briefing was complete, Governor Abbott issued Executive Order GA-34 on March 2, 2021.2 The Court takes judicial notice of GA-34. See Tex. R. Evid. 201(a), (b)(2), (c)(1), (d); Office of Pub. Util. Counsel v. Public Util. Comm'n of Tex., 878 S.W.2d 598, 600 (Tex. 1994) ("A court of appeals has the power to take judicial notice for the first time on appeal."); see also Tex. Gov't Code § 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."). Among its other provisions, GA-34 superseded GA-32, as well as certain other prior executive orders.


The sole issue presented by the State on appeal is whether the trial court abused its discretion by refusing to enjoin enforcement of the local orders. The purpose of the

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extraordinary remedy of a temporary injunction is to preserve the status quo of the litigation's subject matter pending trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). To obtain a temporary injunction, an applicant must plead and prove three elements: (1) a claim against the opposing party; (2) a probable right to the relief sought; and (3) probable, imminent, and irreparable injury in the interim. Id.

We address mootness as a threshold issue because it concerns our subject-matter jurisdiction. See, e.g., Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005); Hughs v. Dikeman, 609 S.W.3d 602, 611 (Tex. App.—Houston [14th Dist.] 2020, pet. filed). "[A] suit can become moot at any time, including on appeal," and "courts have an obligation to take into account intervening events that may render a lawsuit moot." Heckman v. Williamson County, 369 S.W.3d 137, 166-67 (Tex. 2012).

In response to our request for briefing on mootness, the...

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