The Ector Cnty. All. of Businesses v. Abbott
| Decision Date | 09 September 2021 |
| Docket Number | 11-20-00206-CV |
| Parties | THE ECTOR COUNTY ALLIANCE OF BUSINESSES, Appellant v. GREG ABBOTT, IN HIS OFFICIAL CAPACITY ASGOVERNOR OF THE STATE OF TEXAS; JOHN W.HELLERSTEDT, IN HIS OFICIAL CAPACITY AS THECOMMISSIONER OF PUBLIC HEALTH OF THE STATE OFTEXAS AND/OR AS COMMISSIONER OF THE TEXAS DEPARTMENT OF STATE HEALTH SERVICES; AND THE STATE OF TEXAS, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 358th District Court Ector County, Texas Trial Court Cause No. D-20-07-0749-CV
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
Pursuant to the Texas Disaster Act of 1975, Tex. Gov't Code Ann §§ 418.001-.261 (West 2019 & Supp. 2020), on March 13, 2020, Appellee Greg Abbott, in his official capacity as the Governor of the State of Texas (the Governor), proclaimed that a state of disaster existed in Texas due to COVID-19. On March 19, 2020, Appellee John Hellerstedt, in his official capacity as the Commissioner of the Texas Department of State Health Services (the Commissioner), declared a state of public health disaster from COVID-19 under the Communicable Disease Prevention and Control Act, Tex. Health & Safety Code Ann. §§ 81.001-.408 (West 2017 & Supp. 2020). In each subsequent month, the Governor renewed the state of disaster through a series of proclamations, [1] and the Commissioner extended the public health disaster through a combination of new declarations and the renewal of existing declarations.[2]
The Governor also issued a series of executive orders including as relevant to this appeal, orders that placed restrictions on an individual's ability to patronize bars for in-person service. Appellant, the Ector County Alliance of Businesses (the Alliance), an organization comprised of three members who operate bars in Ector County, sued and, in five causes of action, alleged that two sections of the Disaster Act are unconstitutional, that eight specific executive orders issued by the Governor are unconstitutional, and that the Governor and the Commissioner acted ultra vires when they issued certain executive orders, proclamations, and declarations. The Alliance requested both retrospective and prospective declaratory and injunctive relief. The trial court granted Appellees' pleas to the jurisdiction and dismissed the Alliance's claims.
In two issues, the Alliance argues that the trial court erred when it granted Appellees' pleas to the jurisdiction and when it granted the Commissioner's plea to the jurisdiction without affording the Alliance an opportunity to amend its pleadings. Appellees filed a motion to dismiss the case as moot because the complained-about executive orders have been superseded and there are no longer any COVID-19-related restrictions imposed through an executive order on individuals patronizing bars for in-person service. We notified the parties that we would carry the motion to dismiss until the appeal was submitted.
We grant Appellees' motion to dismiss, in part; vacate the trial court's order granting the Commissioner's plea to the jurisdiction and dismiss all of the Alliance's claims against the Commissioner for want of jurisdiction; and vacate the trial court's orders granting the Governor and the State's plea to the jurisdiction as to the Alliance's second, third, fourth, and fifth causes of action and dismiss the Alliance's second, third, fourth, and fifth causes of action against the Governor and the State for want of jurisdiction. We affirm the trial court's orders granting the Governor and the State's plea to the jurisdiction as to the Alliance's first cause of action.
The 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. Houston Cmty. Coll. v. Hall Law Grp., PLLC, No. 01-20-00673-CV, 2021 WL 2369505, at *11 () (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 government in prevention of, preparation for, response to, and recovery from disasters." Gov't § 418.002(4).
A "disaster" is "the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause," including an epidemic. Id. § 418.004(1). The governor of Texas is responsible for meeting "the dangers to the state and people presented by disasters." Id. § 418.011(1). 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. at § 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, .016(a).
The Disease Control Act authorizes the Department of State and Health Services to impose control measures to prevent the spread of disease. Health & Safety §§ 11.001(3); 81.081. As relevant in this case, control measures can include restriction, isolation, quarantine, and prevention. Health & Safety § 81.082(f).
During the relevant time period, the Disease Control Act defined a "public health disaster" as:
Act of June 2, 2003, 78th Leg., R.S., ch. 198, § 2.167, 2003 Tex. Gen. Laws 611, 713 (amended 2021) (current version at Health & Safety § 81.003(7)). During the time period relevant to this appeal, the commissioner was statutorily authorized to declare a public health disaster that continued for not more than thirty days and to renew the declaration one time for an additional thirty days. Act of June 2, 2003, 78th Leg., R.S., ch. 198, § 2.179, 2003 Tex. Gen. Laws 611, 715 (amended 2021) (current version at Health & Safety § 81.082(d)).
On March 13, 2020, the Governor issued a proclamation under Section 418.014 of the Disaster Act certifying that "COVID-19 pose[d] an imminent threat of disaster" for all counties in Texas. In each subsequent month, the Governor renewed the disaster proclamation.[3] The Governor signed the most recent disaster proclamation on August 29 2021.[4]
On March 19, 2020, the Commissioner declared a public health disaster in Texas from COVID-19. The Commissioner determined that people, businesses, and communities in Texas should take certain steps to reduce and delay the spread of COVID-19. The Commissioner renewed a declaration of a public health disaster or issued a new declaration every month through May 2021.[5]
The Governor also issued a series of executive orders that mandated restrictions on certain activities by individuals and businesses in Texas. The Alliance specifically complains about Executive Orders GA-08, GA-14, GA-16, GA-18, GA-21, GA-23, GA-26, and GA-28.[6] These orders were issued between March 19, 2020, and June 26, 2020, and placed restrictions on the ability of people to patronize and to be served in bars, as defined in the orders. The majority of these executive orders referred to the Commissioner's declarations.
The Alliance sued the Governor; the Commissioner; the State of Texas; Adrian Bentley Nettles, in his official capacity as Executive Director of the Texas Alcoholic Beverage Commission; and John Lopez, in his official capacity as an Agent of the TABC. The Alliance nonsuited its claims against Bentley and Lopez after they filed a motion to transfer the case to Travis County.
As to Appellees, in five causes of action, the Alliance sought declarations (1) that two sections of the Disaster Act are unconstitutional and the remainder of the statute is unenforceable; (2) that GA-08, GA-14, GA-16, GA-18, GA-21 GA-23, GA-26, and GA-28 are unconstitutional because the Governor improperly purported to enact and suspend laws and that the Governor acted ultra vires in decreeing those executive orders; (3) that GA-28 is unconstitutional because it infringed on the constitutional rights of the members of the Alliance and of the public and constituted an unreasonable seizure and taking of the Alliance members' property without adequate compensation; and (4) that the Commissioner's first declaration had expired and was no longer valid; that the Commissioner's subsequent declarations were ultra vires acts; and that to the extent the Governor purported to rely on the Commissioner's subsequent declarations as authority for any executive order, that executive order was void. The Alliance also sought injunctive relief (1) that prohibited the Governor from enacting or decreeing any executive order under the Disaster Act, (2) that prohibited the Governor from enacting GA-08, GA-14, GA-16, GA-18, GA-21, GA-23, GA-26, or GA-28; (3) that prohibited the Governor from decreeing any...
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