Abbott v. City of El Paso

GREG ABBOTT, in his official capacity as Governor of Texas, Appellant, v. CITY OF EL PASO, Appellee.

No. 08-21-00149-CV

Court of Appeals of Texas, Eighth District, El Paso

September 30, 2021

Appeal from the County Court at Law No. 7 of El Paso County, Texas (TC# 2021-DCV-2805)

ORDER

PER CURIAM.

The City of El Paso, Appellee, has filed a Rule 29.3 emergency motion for temporary relief seeking reinstatement of the temporary injunction order granted on September 2, 2021, by the Honorable Ruben Morales, Judge of the El Paso County Court at Law No. 7, in City of El Paso, Plaintiff v. Greg Abbott, in his official capacity as Governor of Texas, Defendant, Trial Court Cause No. 2021DCV2805 pending resolution of this interlocutory appeal on the merits. See Tex.R.App.P. 29.3. The trial court's temporary injunction enjoined the Governor from enforcing Executive Order GA-38, issued on July 29, 2021 "paragraphs (3)(b), (3)(g), and (4) of GA-38 to the extent those provisions prohibit the Local Health Authority Hector I. Ocaranza, M.D., MPH, from requiring persons in El Paso City and County to wear masks or face coverings to address the particularized local disaster in El Paso[.]"

On August 26, 2021, the Texas Supreme Court issued an order staying the Fourth Court of Appeals' grant of a similar Rule 29.3 motion in a like appeal filed by the Governor challenging the temporary injunction obtained by the City of San Antonio and Bexar County. Order, In re Greg Abbott, In His Official Capacity as Governor of The State of Texas, No. 21-0720 (Tex. Aug. 26, 2021). Because the court of appeals' reinstatement order altered the status quo preceding the controversy, the Supreme Court stayed the effect of that order. Id. (citing In re Newton, 146 S.W.3d 648, 651 (Tex. 2004)). In that stay order, the Supreme Court stated:

This case, and others like it, are not about whether people should wear masks or whether the government should make them do it. Rather, these cases ask courts to determine which government officials have the legal authority to decide what the government's position on such questions will be. The status quo, for many months, has been gubernatorial oversight of such decisions at both the state and local levels. That status quo should remain in place while the court of appeals, and potentially this Court, examine the parties' merits arguments to determine whether plaintiffs have demonstrated a probable right to the relief sought.

Id.

In short, where courts are asked to determine which government officials have the legal authority to decide whether a mask mandate applies within a local jurisdiction, the Supreme Court has determined the status quo is "gubernatorial oversight of such decisions at both the state and local levels." Id. Based on the stay order of In re Abbott, we DENY the City's motion for emergency relief. The interlocutory appeal remains pending before this Court, and all other deadlines set by previous orders remain in effect.

Chief Justice Rodriguez, respectfully, dissents from this Order. She finds the Texas Supreme Court's temporary order of August 26th is not precedent and maintains we are not bound by it. Further, she finds the City's arguments persuasive and a substantial risk to public harm has been shown to such a degree the automatic stay should be lifted. Chief Justice Rodriguez would vote to reinstate Dr. Ocaranza's order.

IT IS SO ORDERED.

Before Rodriguez, C.J., Palafox, J., and Alley, J.

Palafox, J. concurring.

Alley, J., concurring.

Rodriguez, C.J., dissenting.

CONCURRING STATEMENT

JUSTICE ALLEY

The City of El Paso asks us to exercise our discretion under Tex.R.App.P. 29.3 to reinstate the trial court's temporary injunction which was automatically stayed by the State of Texas's notice of appeal. The request is denied.

A person's view of the motion before this Court likely depends on their perspective. For some, all that is important is decreasing the spread of the COVID-19 infection and its variants. So, for them, imposing a mask mandate, however effective it may be, is a no-brainer. For others, the issue is personal freedom and autonomy over one's own body, so they too see no room for legitimate dispute. And another group looks at the dispute only through the lens of which unit of government is best situated or empowered to deal with the pandemic. While these viewpoints are worthy of consideration if we were resolving the merits, jurists must weigh other considerations. Here, for instance, I am compelled to decide the motion on principals of this Court's place in the judicial system, and the role of stare decisis, a doctrine named for the "Latin maxim 'stare decisis et non quieta movere,' which means to stand by the thing decided and not disturb the calm." Ramos v. Louisiana, 140 S.Ct. 1390, 1411 (2020) (Kavanaugh, J., concurring). Stated otherwise, when a court enunciates a rule of law to be applied in the case before it, "it not only establishes a precedent for subsequent cases under the doctrine of stare decisis, but it establishes the law, which other courts owing obedience to it must [also apply]." James Wm. Moore & Robert Stephen Oglebay, The Supreme Court, Stare Decisis and Law of the Case, 21 Tex.L.Rev. 514, 540 (1943). And here, because the Texas Supreme Court has already decided the core question before us, and because we are bound by that decision, the City of El Paso's motion must be denied.

Why do we place so much emphasis on deciding cases based on precedent? Courts generally adhere to their prior decisions, even if of questionable soundness, "because doing so 'promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.'" Alleyne v. United States, 570 U.S. 99, 118 (2013) (Sotomayor, J., concurring) quoting Payne v. Tennessee, 501 U.S. 808, 827, (1991); see also In re Caballero, 441 S.W.3d 562, 576 (Tex.App.--El Paso 2014, no pet.) ("We also must emphasize that stare decisis results in predictability in the law, which allows people to rationally order their conduct and affairs.")." The [stare decisis] doctrine reflects respect for the accumulated wisdom of judges who have previously tried to solve the same problem." Ramos, 140 S.Ct. at 1411 (Kavanaugh, J., concurring). The doctrine "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact." Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986). Its "greatest purpose is to serve a constitutional ideal-the rule of law." Citizens United v. Federal Election Comm'n, 558 U.S. 310, 378, (2010) (Roberts, C.J., concurring).

Courts differentiate between horizontal and vertical stare decisis. Horizontal stare decisis refers to a court's respect for its own prior decisions, or those of courts of equal stature. Andrew T. Solomon, A Simple Prescription for Texas's Ailing Court System: Stronger Stare Decisis, 37 St. Mary's L.J. 417, 439 (2006). Vertical stare decisis, however, addresses a lower court's obligation to follow the rulings of those higher courts to which they answer. And while a court under the appropriate circumstances might overrule its own precedents, "vertical stare decisis is absolute, as it must be in a hierarchical system with 'one supreme Court.'" Ramos, 140 S.Ct. at 1416 n.5 (Kavanaugh, J. concurring); see also Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 Tex.L.Rev. 1711, 1712 (2013) ("Vertical stare decisis is an inflexible rule that admits of no exception.").

From our perspective, vertical stare decisis operates two ways. The district and county courts found within the seventeen counties comprising the eighth judicial district are bound to follow our precedents. But likewise, we are bound to follow the precedents of the Texas Supreme Court in civil matters and the Texas Court of Criminal Appeals in criminal matters. See Lubbock County, Texas v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) ("The court of appeals in this case followed established law. It is not the function of a court of appeals to abrogate or modify established precedent. That function lies solely with this Court.") (internal citation omitted); Barstow v. State, 742 S.W.2d 495, 501 n.2 (Tex.App.--Austin 1987, writ denied) (noting that "[t]he doctrine of stare decisis requires that all courts adhere, as a general rule, to the principles and rules laid down on a question of law by any court to which obedience is owed in the matter") (emphasis original).

None of these concepts can be seriously questioned. Our court has often acknowledged that we are bound by higher court decisions. See e.g. Michelin N. Am., Inc. v. De Santiago, 584 S.W.3d 114, 128 (Tex.App.--El Paso 2018 no pet.) (noting our obligation to follow Texas Supreme Court's articulation of the stream of commerce test); Texas Dep't of Family and Protective Services v. Parra, 503 S.W.3d 646, 657-58 (Tex.App.--El Paso 2016, no pet.) (noting that it is not our function to abrogate or modify established Texas Supreme Court precedent as that function lies solely with that court). At most we sometimes face the thorny issue of whether the rule pronounced in an earlier Texas Supreme Court governing one set of parties, under one set of facts, and answering one specific question, is the same question as that before us. See Texas Propane Gas Assn. v. City of Houston, 622 S.W.3d 791, 806 (Tex. 2021) (Blacklock, J., concurring and dissenting) quoting City of Los Angeles, California v. Patel, 576 U.S. 409, 429-30 (2015) (Scalia, J., dissenting) ...