665 S.W.3d 675
Tex. App.2021Background
- Gov. Greg Abbott issued Executive Order GA-38 (July 29, 2021) forbidding governmental entities from requiring face coverings and purporting to suspend conflicting local law.
- Dallas County Judge Clay Jenkins (after declaring a local disaster) issued an August 11, 2021 order requiring universal indoor masking for employees and visitors at commercial entities and county facilities in Dallas County due to a Delta-variant surge.
- Dallas County Commissioner J.J. Koch sued Jenkins; Jenkins counterclaimed against Abbott seeking declaratory relief and a temporary injunction that would prevent Abbott from enforcing GA-38 provisions that ban local mask mandates.
- The State (Attorney General) intervened seeking injunctions barring Jenkins from enforcing his mask order; the trial court entered a TRO and later granted Jenkins a temporary injunction restraining enforcement of GA-38 paragraphs 3(b), 3(g), and 4 to the extent they prohibit Jenkins from imposing mask requirements in Dallas County.
- Abbott/State appealed arguing lack of jurisdiction (sovereign immunity, standing, and original-jurisdiction limits) and that the trial court abused its discretion in granting the temporary injunction; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Jenkins) | Defendant's Argument (Abbott/State) | Held |
|---|---|---|---|
| Sovereign immunity / ultra vires | Abbott acted ultra vires by using GA-38 to strip Jenkins’s statutorily conferred local authority; ultra vires suit allowed against state officer in official capacity. | Sovereign immunity bars suit against the governor in his official capacity. | Court: Jenkins adequately pleaded ultra vires claim; sovereign immunity does not bar prospective equitable relief for ultra vires acts. |
| Standing | Jenkins alleged concrete injury: GA-38 constrains his statutory authority to protect Dallas County (injury, traceable, redressable). | Jenkins lacks standing to sue the governor. | Court: Jenkins has standing under Lujan/Heckman framework. |
| Original jurisdiction under Tex. Gov’t Code §22.002(c) | Relief sought is prohibitory (enjoin unlawful executive action), not to compel the governor; trial court may enjoin ultra vires executive acts. | Only the Texas Supreme Court may issue injunctions or mandamus against executive officers. | Court: §22.002(c) does not bar a district court from issuing an injunction prohibiting unlawful executive action; trial court had jurisdiction to enjoin alleged ultra vires acts. |
| Statutory scope: Does GA-38 (and §418.016 suspension power) preempt/suspend county judge authority under §418.108? | §418.108 grants county judges autonomous local disaster powers (including movement/occupancy controls); §418.015(c) commander-in-chief language is limited to state agencies; governor may not unilaterally suspend §418.108 to block local mitigation like mask mandates. | Governor’s executive orders have force of law (§418.012); as commander in chief for statewide disasters and via suspension authority (§418.016), governor can impose statewide rules and suspend conflicting local restrictions. | Court: The Disaster Act’s text does not establish that the governor’s orders automatically trump county judges; §418.015(c) is limited to state agencies; the governor exceeded authority insofar as GA-38 attempts to suspend §418.108 for the purpose of banning local mask mandates. |
| Temporary injunction (probable right, irreparable harm, status quo) | Jenkins presented evidence that mask mandates reduce transmission, prevent hospital overload, and that GA-38 unlawfully impairs his statutory duties; he will suffer imminent, irreparable harm without injunction. | Court should defer to governor’s statewide policy and uniform response; injunction upends status quo. | Court: Trial court did not abuse discretion—Jenkins showed probable right and irreparable injury based on record evidence; preserving the status quo does not include continuing alleged ultra vires action. |
Key Cases Cited
- Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339 (Tex. 2019) (ultra vires suit standard and availability of prospective relief)
- Tex. S. Univ. v. Villarreal, 620 S.W.3d 899 (Tex. 2021) (sovereign immunity principles for state officers)
- Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) (temporary injunction elements)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (jurisdictional-plea standards)
- In re CenterPoint Energy Houston Elec., LLC, 629 S.W.3d 149 (Tex. 2021) (rules of statutory construction and avoiding adding words to statutes)
- Abbott v. The Anti-Defamation League Austin, 610 S.W.3d 911 (Tex. 2020) (governor’s disaster powers and policymaking discretion)
- Heckman v. Williamson Cty., 369 S.W.3d 137 (Tex. 2012) (standing doctrine and its elements)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (constitutional standing framework)
- State v. El Paso Cty., 618 S.W.3d 812 (Tex. App.—El Paso 2020) (similar conflict between state and local disaster orders)