Texas High Court Tosses Challenge to Covid Shutdown Orders

Visitors wearing masks to protect against the spread of Covid-19 pose for photos at the closed Alamo in San Antonio on June 24, 2020. (AP Photo/Eric Gay)

AUSTIN, Texas (CN) — The Texas Supreme Court on Friday dismissed a lawsuit disputing Republican Governor Greg Abbott’s executive orders closing nonessential businesses during the Covid-19 pandemic, but one justice expressed concern he is improperly taking the role of state lawmakers.

The Republican-controlled high court dismissed without comment the lawsuit filed by lead plaintiff and Republican activist Dr. Steven Hotze for a lack of jurisdiction.

Justice John Devine agreed with the dismissal, concluding a lawsuit against the governor is the incorrect vehicle. Nonetheless, Devine said Abbott’s emergency actions are not “categorically immune” from review by the courts and he finds it “difficult to square” the governor’s orders and state law.

“I share relators’ concern in what they describe as ‘an improper delegation of legislative authority’ to the executive branch,” his five-page concurring opinion states. “During declared states of ‘disaster,’ the Texas Disaster Act of 1975 bestows upon the governor the power to issue executive orders that have ‘the force and effect of law.’ Disaster or not, the Texas Constitution doesn’t appear to contemplate any circumstances in which we may condone such consolidation of power.”

Devine, a Republican, said the constitution’s ban on a branch of government exercising another branch’s powers “is not simply a suggestion.”

“In the first article, it states: ‘No power of suspending laws in this state shall be exercised except by the Legislature,’” he wrote. “This provision means what it says. The judiciary may not suspend laws. Nor may the executive. Only the Legislature.”

The Texas Legislature is only in regular session once every two years for 140 calendar days beginning in January. Abbott has so far ignored calls by state lawmakers to call a month-long special session to replace his executive orders during the pandemic.

Devine wrote the court’s dismissal “should not be misperceived as a judicial kowtow” to Abbott, saying there is no “pause” button to the Texas Constitution. He expressed worry that more executive orders will come when a second wave of the virus hits, resulting in “short-term orders could continually escape” the court’s review.

Hotze, the plaintiff in the case, has filed at least eight lawsuits against Texas, Houston and Harris County officials since April 6, disputing closure orders against churches, businesses and mandatory mask orders. Last week, the Texas Supreme Court dismissed his lawsuit over Houston’s refusal to allow the Texas Republican Party to go ahead with an in-person convention at the George R. Brown Convention Center this week.

Abbott and Hotze’s offices did not immediately respond to email messages requesting comment Friday afternoon.

Hotze was harshly criticized by fellow Republicans when a voicemail he left for Abbott was made public two weeks ago where he demanded National Guard soldiers be sent to Houston to shoot and kill rioters in the wake of the death of George Floyd at the hands of Minneapolis police.

“I want you to give a message to the governor,” Hotze told Abbott chief of staff Luis Saenz. “I want to make sure that he has the National Guard down here and they have the order to shoot to kill if any of these son-of-a-bitch people start rioting like they have in Dallas and start tearing down businesses. Shoot-to-kill the son of a bitch. That is the only way you restore order. Kill ‘em. Thank you.”

Hotze later posted on Facebook his comments were “not about race but [had] everything to do with the future” of the country.

“It’s about those who burn homes and businesses, including those owned by African-Americans, and attack law enforcement,” Hotze said. “Enough is enough.”

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