Abbott v. City of San Antonio

648 S.W.3d 498

Greg ABBOTT, in his Official Capacity as Governor of Texas, Appellant

v.CITY OF SAN ANTONIO and County of Bexar, Appellees

No. 04-21-00342-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: November 10, 2021

APPELLANT ATTORNEY: Michael R. Abrams, Assistant Solicitor General, Brent Webster, First Assistant Attorney General, Kenneth Paxton, Attorney General of Texas, P.O. Box 12548 (MC 059), Austin, TX 78711-2548, Kimberly Gdula, Assistant Attorney General, P.O. Box 12548, Capitol Station, Austin, TX 78711, Bill Davis, Office of The Attorney General of Texas, Austin, TX 78711-2548.

APPELLEE ATTORNEY: Deborah Lynne Klein, Marianne W. Nitsch, William Christian, Graves, Doughtery, Hearon & Moody, P.C., 401 Congress Avenue, Suite 2700, Austin, TX 78701, Joe D. Gonzales, Bexar County District Attorney, 101 W. Nueva St., Suite 370, San Antonio, TX 78205, Robert W. Piatt, 101 W. Nueva 7th Floor, San Antonio, TX 78205, Andrew Segovia, Office of the City Attorney, Litigation Div., 203 S. St. Mary's St, 2nd Floor, San Antonio, TX 78205.

Sitting: Rebeca C. Martinez, Chief Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice

Opinion by: Rebeca C. Martinez, Chief Justice

In this interlocutory appeal, Texas Governor Greg Abbott challenges a temporary injunction restraining him and his agents and employees from enforcing sections of Executive Order GA-38 to the extent it prohibits local officials and governmental entities from requiring masks or face coverings be worn in certain settings within the City of San Antonio and Bexar County. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4). In two issues, the Governor contends (1) the trial court abused its discretion in issuing the temporary injunction; and (2) the trial court lacked jurisdiction to enjoin GA-38. We affirm the trial court's order.

BACKGROUND

On July 29, 2021, the Governor signed Executive Order GA-38, which provides, with some exceptions, that: "No governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering ...."¹ The Order also suspends the following statutes "[t]o the extent necessary to ensure that local governmental entities or officials do not impose any such face-covering requirements": (i) sections 418.1015(b) and 418.108 of the Texas Government Code ; (ii) chapter 81, subchapter E of the Texas Health and Safety Code; (iii) chapters 121, 122, and 341 of the Texas Health and Safety Code; (iv) chapter 54 of the Texas Local Government Code; and (v) any other statute invoked by any local governmental entity or official in support of a face-covering requirement.²

On August 10, 2021, the City of San Antonio and Bexar County filed a declaratory judgment suit against the Governor, in his official capacity as Governor of Texas, challenging Executive Order GA-38. The City and County's suit alleges that the Governor acted ultra vires and outside the scope of his authority under the Texas Disaster Act of 1975 (the "Texas Disaster Act" or the "Act") and, alternatively, that the Act violates the Texas Constitution. The City and County's suit also includes an application for a temporary injunction.

On August 16, 2021, the trial court held a hearing on the temporary injunction application and heard evidence from Dr. Junda Woo, who is the Medical Director and Local Health Authority for the City of San Antonio Metro Health, San Antonio City Manager Erik Walsh, Bexar County Manager David Smith, and two other witnesses. After the hearing, the trial court signed an order granting the temporary injunction. In its order, the trial court stated its reasons for enjoining the enforcement of the provisions of Executive Order GA-38 disallowing local governmental entities from requiring individuals to wear face coverings as follows:

[T]he Court finds that unless Defendant Greg Abbott, in his official capacity as Governor of Texas, is temporarily restrained as described below, Plaintiffs will suffer irreparable injury before trial on the merits through the inability to impose masking requirements to control the spread of the COVID-19 virus that threatens to overwhelm the capacity of the healthcare system in the City and County and to cause the City and County to reduce services to the community and furlough workers. The Court further finds that Plaintiffs have shown a probable right to relief on the merits of their claims.

The temporary injunction order specifically restrains the Governor, in his official capacity,

and each of his agents, employees, or those in active participation or concert with him, from enforcing [s]ections 3(b), 3(g), 4, and 5(a) of Executive Order GA-38 to the extent those provisions (1) prohibit the City of San Antonio and Bexar County from requiring City and County employees or visitors to City- and County-owned facilities to wear masks or face coverings; or (2) prohibit the San Antonio and Bexar County Public Health Authority from requiring masks in public schools in the City and County.

The temporary injunction order also sets the case for trial on the merits on December 13, 2021.

After the trial court signed the temporary injunction order, the Governor filed a notice of appeal in this court stating that "[u]pon filing of this instrument[,]" the temporary injunction order "is superseded" pursuant to Rule 29.1(b) of the Texas Rules of Appellate Procedure and section 6.001 of the Texas Civil Practice and Remedies Code. See TEX. R. APP. P. 29.1(b) ; TEX. CIV. PRAC. & REM. CODE ANN. § 6.001(b). The City and County filed an emergency motion with our court asking us to preserve their rights by issuing an order reinstating the trial court's temporary injunction. We granted the City and County's emergency motion and reinstated the trial court's temporary injunction pending final disposition of the appeal. The Governor subsequently sought emergency relief from the Texas Supreme Court, which granted emergency relief to the Governor, staying this court's order for altering the status quo.

STANDARD OF REVIEW

A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Walling v. Metcalfe , 863 S.W.2d 56, 57 (Tex. 1993) (per curiam). A temporary injunction serves 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). Accordingly, the only question before the trial court is whether the applicant is entitled to preservation of the status quo pending trial on the merits. Walling , 863 S.W.2d at 58 ; Blackthorne v. Bellush , 61 S.W.3d 439, 442 (Tex. App.—San Antonio 2001, no pet.). At the hearing for a temporary injunction, the applicant is not required to establish that it will prevail on final trial. Walling , 863 S.W.2d at 58. A temporary injunction should only issue if the applicant establishes (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim if the injunction is not granted. Butnaru , 84 S.W.3d at 204.

The decision to grant a temporary injunction lies in the sound discretion of the trial court and is subject to reversal only for a clear abuse of that discretion. Id. ; Walling , 863 S.W.2d at 58. The trial court abuses its discretion when it misapplies the law to the "established facts, or when the evidence does not reasonably support the conclusion that the applicant has a probable right of recovery." State v. Southwestern Bell Tel. Co. , 526 S.W.2d 526, 528 (Tex. 1975). All legitimate inferences from the evidence are drawn in favor of the trial court's judgment. City of San Antonio v. Rankin , 905 S.W.2d 427, 430 (Tex. App.—San Antonio 1995, no writ). An abuse of discretion does not exist when the trial court bases its decision on conflicting evidence and the evidence reasonably supports its conclusion. Butnaru , 84 S.W.3d at 211 ; see Khaledi v. H.K. Glob. Trading, Ltd. , 126 S.W.3d 273, 281 (Tex. App.—San Antonio 2003, no pet.) ("An injunction is not improper merely because the evidence presented below conflicted; it need only reasonably support the movant's complaints.").

PROBABLE RIGHT TO RECOVERY

The Governor first asserts the trial court abused its discretion in concluding that the City and County have a probable right to relief on their ultra vires claim seeking a declaratory judgment that the Governor's ban on the adoption of mask mandates by local governments in GA-38 is outside the scope of his authority under the Texas Disaster Act. The Governor asserts that under the Act, he has the authority to manage statewide disasters, which allows him to issue executive orders suspending statutory provisions that the City and County rely on to manage the COVID-19 pandemic. We hold that the trial court did not abuse its discretion in concluding that the City and County have a probable right to relief on their ultra vires claim.

An ultra vires claim must be brought against a government officer in his or her official capacity. City of El Paso v. Heinrich , 284 S.W.3d 366, 373 (Tex. 2009). The plaintiff must plead and prove "that the officer acted without legal authority or failed to perform a purely ministerial act." Id. at 372. "[A] government officer with some discretion to interpret and apply a law may nonetheless act ‘without legal authority,’ and thus ultra vires , if he exceeds the bounds of his granted authority or if his acts conflict with the law itself." Houston Belt & Terminal Ry. Co. v. City of Houston , 487 S.W.3d 154, 158 (Tex. 2016).

The City and County's ultra vires claim requires construction of the Texas Disaster Act. Statutory construction is a question of law that we review de novo. Galbraith Eng'g Consultants, Inc. v. Pochucha , 290 S.W.3d 863, 867 (Tex. 2009). Our primary objective in construing statutes is to give effect to the...