Greg Abbott, in His Official Capacity as Governor of Texas v. Harris County ( 2023 )

Supreme Court of Texas
══════════
No. 22-0124
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Greg Abbott, in His Official Capacity as Governor of Texas, et al.,
Petitioners,
v.
Harris County, et al.,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════
Argued February 22, 2023
JUSTICE BLACKLOCK delivered the opinion of the Court.
JUSTICE LEHRMANN filed a concurring opinion.
Texas is nearly two hundred years old. Born, like our Nation, in
a revolutionary war, our State has since endured the Civil War, the
turmoil of Reconstruction, two World Wars, the Spanish flu, riots,
droughts, floods, freezes, hurricanes, and now the coronavirus
pandemic. These emergencies have come and gone. Others will come
and go. Our Constitution endures. We owe a duty to those who came
before us, and to those who will come after us, to uphold the “essential
principles of liberty and free government” established by our
Constitution, which are the birthright of every new generation of
Texans. 1
The temptation to relinquish our enduring legacy of
constitutional government is strongest in the face of life-threatening
emergencies like the recent pandemic. In times like these, when calls
for robust, expedient government action may sound more urgent than
calls for proper constitutional process, adherence to our Constitution is
more necessary than ever. “[W]e must not forget that few indeed have
been the invasions upon essential liberties which have not been
accompanied by pleas of urgent necessity advanced in good faith by
responsible men.” Hirabayashi v. United States, 320 U.S. 81, 113 (1943)
(Murphy, J., concurring).
We are asked about the scope of the power granted to the
Governor by the Texas Disaster Act. As the State acknowledges, that
power is not unlimited, even in a pandemic. Nor could it be. The Texas
Constitution, a far higher source of authority than the Disaster Act or
an executive order, gives both the power to make laws and the power to
suspend laws to the Legislature. TEX. CONST. art. III, § 1; art. I, § 28.
Our Constitution’s strong separation-of-powers provision, like
everything else in our Constitution, “is not suspended when the
government declares a state of disaster.” In re Abbott, 601 S.W.3d 802,
805 (Tex. 2020). It says that “no person” in another department of
1 TEX. CONST. art. I (“That the general, great and essential principles of
liberty and free government may be recognized and established, we
declare . . . .”).
2
government “shall exercise any power properly attached to” the
legislative department. TEX. CONST. art. II, § 1. If the Disaster Act
handed over to the Governor unlimited law-making authority or
unlimited law-suspending authority during a disaster—no matter how
all-consuming the disaster seemed to be—there can be little doubt the
Act would be unconstitutional.
As explained below, we need not read the Disaster Act so
expansively in order to conclude that it grants the Governor the
authority to prohibit local governments from requiring the wearing of
masks in response to a contagious disease. 2 The judgment of the court
of appeals is reversed, the temporary injunction is dissolved, and the
case is remanded to the district court for further proceedings consistent
with this opinion.
I.
On January 20, 2020, the United States reported its first
confirmed case of a new coronavirus that soon came to be known as
2 Whether the Governor has the disputed authority under current law
remains a live controversy as of the issuance of our judgment today. The 88th
Legislature recently passed—and the Governor signed—a statutory
prohibition on governmental mask-wearing requirements, but the new statute
does not take effect until September 1, 2023. Act of May 28, 2023, 88th Leg.,
R.S., ch. 336, § 2, 2023 Tex. Sess. Law Serv. ch. 336 (to be codified at TEX.
HEALTH & SAFETY CODE §§ 81B.001, et seq.). Although the new statute will
provide the governing rule when it becomes effective in the future, there
remains a justiciable dispute today regarding the Governor’s authority under
current law to prohibit local mask requirements and the validity of the district
court’s injunction attempting to prohibit him from so doing. See infra n.19 &
n.23.
3
“Covid-19.” 3 Less than two months later, citing authority granted by
the Disaster Act, the Governor issued his first coronavirus-related
executive order. 4 This statewide emergency measure was intended to
supersede an assortment of local-government orders already in
circulation. 5 It contained extraordinary temporary measures that
aimed to “slow the spread” of the virus. 6 Later executive orders soon
loosened some of these restrictions. 7 Beginning in July 2020, the
gubernatorial orders required Texans to wear masks in many public
settings. 8
Over three years have passed since the Governor issued his first
emergency order, and daily life in Texas has returned to normal. Even
so, virus-related executive orders issued by the Governor remained in
place as late as June 2023. As of March 2021, however, the Governor’s
3 United States Centers for Disease Control and Prevention, CDC
Museum COVID-19 Timeline (last reviewed Mar. 15, 2023),
https://www.cdc.gov/museum/timeline/covid19.html.
4The Governor of the State of Texas, Exec. Order GA-08 (issued Mar.
19, 2020), 45 Tex. Reg. 2271, 2271 (2020).
5The order stated: “This executive order supersedes all previous orders
on this matter that are in conflict or inconsistent with its terms . . . .” Id. The
only orders in place at the time were local orders in various jurisdictions.
6 Id.7 See, e.g., The Governor of the State of Texas, Exec. Order GA-18
(issued Apr. 27, 2020), 45 Tex. Reg. 2933, 2934 (2020) (reopening certain retail
establishments and restaurants for dine-in services with capacity restrictions);
The Governor of the State of Texas, Exec. Order GA-26 (issued June 3, 2020),
45 Tex. Reg. 3943, 3943–44 (2020) (loosening capacity restrictions).
8The Governor of the State of Texas, Exec. Order GA-29 (issued July 2,
2020), 45 Tex. Reg. 4849, 4849 (2020).
4
executive orders ceased to require masks or to impose any other
significant statewide restrictions. 9 Since that time, the Governor’s
orders sought primarily to preserve the liberties his earlier orders
curtailed by prohibiting local governments from imposing any
virus-related restrictions of their own. 10 One of the Governor’s executive
orders, known as GA-38, prohibited local mask requirements. GA-38
remained in effect until June 2023, and it is the subject of the three cases
now before this Court. It stated: “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.” 11
Acting apart from the Governor, many local government officials
issued their own orders in response to the virus. They too relied on the
Disaster Act for authority, as well as on various provisions of the Health
and Safety Code. Despite GA-38, some local jurisdictions continued to
maintain orders or policies requiring mask-wearing, although to our
knowledge none of these local requirements has been actively enforced
for some time.
9 The Governor of the State of Texas, Exec. Order GA-34 (issued Mar.
2, 2021), 46 Tex. Reg. 1567, 1568 (2021).
10 See, e.g., id. (prohibiting locally imposed restrictions, with
exceptions); The Governor of the State of Texas, Exec. Order GA-38 (issued
July 29, 2021), 46 Tex. Reg. 4913, 4914–15 (2021) (prohibiting all locally
imposed restrictions).
11The Governor of the State of Texas, Exec. Order GA-38 (issued July
29, 2021), 46 Tex. Reg. 4913, 4915 (2021). Like Senate Bill 29, GA-38 contained
exceptions for state-supported living centers, hospitals owned or operated by
the government, and prisons and jails.
5
Claiming independent authority to require masks in their
jurisdictions in contravention of the Governor’s orders, several local
governments sued the Governor—and in some cases the Attorney
General as well—to prevent enforcement of GA-38 and to block future
gubernatorial orders prohibiting local mask mandates. Cases brought
by Harris County, Dallas County, and the City of San Antonio are now
before this Court. This opinion addresses the Harris County litigation,
and we address the other two argued cases in brief opinions also issued
today.
We conclude that gubernatorial Disaster Act orders
countermanding local mask mandates lawfully preempt local
government orders to the contrary. We reach that decision not because
the Disaster Act gives the Governor carte blanche to issue any
virus-related order of his choosing. But neither can we endorse the local
governments’ expansive view of their autonomy during a statewide
pandemic. All involved exercise limited authority, defined by statute
and constrained by the Constitution.
The question, in the end, is who has the final say when the state
government disagrees with a local government about how best to strike
the balance between respecting the liberties of the People and
attempting to reduce the spread of a contagious disease. The answer is
certainly not the judges. When properly called upon to say whether the
balance struck by other officials comports with the law and the
Constitution, judges must answer. But we are not empowered to strike
the balance ourselves. “The People elect legislative and executive
branch officials—not judges or ‘experts’—to make judgments about the
6
costs and benefits of government action and to balance competing policy
goals in light of those judgments.” Abbott v. Anti-Defamation League
Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 926 (Tex. 2020)
(Blacklock, J., concurring).
As we read the relevant statutes, the orders of local officials about
contagious-disease response must yield to conflicting orders at the state
level, including the Governor’s orders during a declared disaster. Local
government authority is derived from the State’s authority. Rarely in
Texas law would a direct conflict between state authority and local
authority be resolved in favor of local authority, and the statutes at issue
do not dictate such an upside-down result here. As explained in more
detail below, both the Disaster Act and the Health and Safety Code
demonstrate that the Legislature has reserved the ultimate authority to
make policy judgments about how best to respond to a regional or
statewide health emergency to the state government rather than
authorizing a variety of local responses that conflict with statewide
policy.
As a practical matter, this result should hardly be surprising. A
coherent governmental response to a widespread contagious disease
naturally requires coordination across arbitrary local jurisdictional
lines, of which viruses are oblivious. The Legislature has therefore,
quite unremarkably, given state officials the authority to control
governmental contagious-disease response on a regional or statewide
basis. The Disaster Act empowers the Governor to exercise similar
control over local governments during a declared disaster. We hold that,
during a declared disaster, the Governor has the lawful authority to
7
prohibit local officials from imposing mask requirements in response to
a contagious disease.
II.
On March 11, 2020, Harris County Judge Lina Hidalgo declared
a state of local disaster. See TEX. GOV’T CODE § 418.108(a). Her first
mask order, issued on April 22, 2020, required “all persons over the age
of ten” to “wear some form of face covering that covers the nose and
mouth” “[w]hen leaving one’s residence and when in a public place.” 12
Later orders loosened this rule, requiring masks in fewer circumstances.
While this appeal was pending, these restrictions loosened further.
Three local mask requirements issued by various authorities in
Harris County have been the primary subject of this litigation. First,
Judge Hidalgo’s August 17, 2021 order, which relies for its authority on
the Disaster Act, requires masks in county-owned buildings. 13 Second,
a May 2021 order of the Harris County Commissioners Court requires
county employees to wear masks in county buildings. 14 Harris County
relies primarily on section 121.003(a) of the Health and Safety Code as
the basis for the Commissioners Court’s actions. That provision grants
the “governing body of a municipality or the commissioners court of a
12 Harris County Judge Lina Hidalgo, Order on Use of Face Coverings
(issued Apr. 22, 2020).
13 Harris County Judge Lina Hidalgo, Eighth Order Authorizing Fever
and Health Screening and Face Coverings in County Buildings (issued Aug.
17, 2021).
14 Harris County Commissioners Court, Order Requiring Fever and
Health Screening and Face Coverings in County Owned or Controlled
Buildings (issued May 25, 2021).
8
county” authority to “enforce any law that is reasonably necessary to
protect the public health.” Third, an order issued by former Harris
County Health Authority Janeana White requires schools to follow the
CDC’s mask recommendations. 15 That order relies on sections 81.082
and 121.024 of the Health and Safety Code.
Harris County 16 sued both the Governor and the Attorney
General, 17 seeking an injunction against enforcement of GA-38 as well
as an injunction against future, similar executive orders. The district
court granted a temporary restraining order. The State filed a plea to
the jurisdiction, which the district court denied. At the same time, the
district court granted a temporary injunction prohibiting both the
Governor and the Attorney General from enforcing GA-38 in Harris
County. The injunction also enjoined both defendants with respect to
“any subsequent executive order” suspending any of the laws relied upon
by the County as authority for its local mask requirements. The State
appealed, which stayed the injunction and all other proceedings in the
district court. TEX. R. APP. P. 29.1(b); TEX. CIV. PRAC. & REM. CODE
§ 51.014(a)(4), (a)(8), (b). The court of appeals affirmed the temporary
injunction and the denial of the plea to the jurisdiction. 641 S.W.3d 514,
530 (Tex. App.—Austin 2022). The temporary injunction has remained
15 Harris County Health Authority, Order of the Local Health Authority
for Harris County Regarding Public Schools (issued Aug. 12, 2021).
16 The plaintiffs also include Harris County Commissioner Rodney Ellis
and former Harris County Health Authority Janeana White. We refer to the
plaintiffs collectively as Harris County when the distinction is immaterial.
17 We refer to the defendants collectively as the State when the
distinction is immaterial.
9
stayed throughout the proceedings in this Court. TEX. R. APP. P.
29.1(b). 18
The State petitioned for review. We granted the petition and
consolidated the case for argument with similar cases involving Dallas
County and the City of San Antonio. 19 As described below, we resolve
the Harris County appeal by dissolving the temporary injunction and
reversing the judgment of the court of appeals. 20
18 In the related litigation from San Antonio, the court of appeals issued
a Rule 29.3 order reinstating the temporary injunction at the County’s request.
Abbott v. City of San Antonio, No. 04-21-00342-CV (Tex. App.—San Antonio
Aug. 19, 2021) (order). We reversed that action. In re Abbott, No. 21-0720
(Tex. Aug. 26, 2021) (order). None of the injunctions against GA-38 has been
in effect during the pendency of the appeals now before this Court.
19 After oral argument, on June 2, 2023, the Governor signed into law
Senate Bill 29, under which “a governmental entity may not implement, order,
or otherwise impose a mandate requiring a person to wear a face mask or other
face covering to prevent the spread of COVID-19.” Act of May 28, 2023, 88th
Leg., R.S., ch. 336, § 1, sec. 81B.002(a), 2023 Tex. Sess. Law Serv. ch. 336 (to
be codified at TEX. HEALTH & SAFETY CODE § 81B.002(a)). The bill does not
take effect until September 1, 2023. Id. § 2. It therefore does not resolve—at
least for the intervening two-month period—the parties’ ongoing dispute about
the Governor’s authority to supersede local mask requirements under current
law or the parties’ dispute about the validity of the temporary injunction. This
case therefore remains a live and justiciable one. Our resolution of it now is
consistent with our settled practice of disposing of all pending causes each year
by the end of June.
20 In the court of appeals, the State challenged both the temporary
injunction and the denial of the plea to the jurisdiction. TEX. CIV. PRAC. &
REM. CODE § 51.014(a)(4), (a)(8). The court of appeals affirmed on both counts.
641 S.W.3d at 530. In so doing, the court correctly noted that the
probable-right-to-relief inquiry in the temporary-injunction appeal overlaps
with the plea-to-the-jurisdiction inquiry into whether the County has stated a
valid ultra vires claim; both inquiries may require preliminary consideration
of the parties’ competing interpretations of the law. Id. at 521. In this Court,
the State’s briefing requests only reversal of the temporary injunction and does
10
III.
In general, appellate review of an order granting injunctive relief
is for abuse of discretion. Anti-Defamation League, 610 S.W.3d at 916.
However, the trial court “has no ‘discretion’ to incorrectly analyze or
apply the law.” Id. Because the propriety of the injunction in this case
turns on a proper understanding of the Disaster Act and other statutes,
which are pure questions of law, review is de novo.
To obtain a temporary injunction, an applicant must “plead and
prove three specific elements: (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.” Butnaru v. Ford Motor Co., 84
S.W.3d 198, 204 (Tex. 2002). If any one of these required showings is
lacking, the injunction should be denied (or reversed on appeal). The
parties focus most of their attention on whether Harris County has
established a probable right to relief on its claim that the Governor lacks
authority to prohibit local officials from requiring masks. We will do the
same. 21
A.
As a threshold matter, the State contends that Harris County
lacks standing to sue the Governor. Earlier in the litigation, the State
not ask for reversal of the denial of the plea to the jurisdiction. We address
only the validity of the temporary injunction, although as a practical matter
our answer to that question may also dictate whether the plea to the
jurisdiction should have been granted.
21 Although this opinion resolves only the Harris County appeal, our
consideration of the legal questions discussed herein is informed by the
briefing submitted in all three of the related cases consolidated for argument,
as well as by amicus briefs.
11
made similar arguments as to the Attorney General, but in this Court
the State does not contest Harris County’s standing to sue the Attorney
General.
A plaintiff who lacks standing will always lack a probable right to
relief, so if standing is lacking, there can be no entitlement to a
temporary injunction. 22 If Harris County lacks standing to sue both the
Governor and the Attorney General, then the County would lack
standing to maintain this litigation altogether, and the appeal could be
disposed of on that ground alone. In such a case, we would have no need
to consider the merits of Harris County’s claims. If the Attorney General
is a proper defendant, however, then resolving the parties’ vigorous
dispute about whether the Governor is also a proper defendant would
not alleviate the need to consider the merits. We would still need to
consider the injunction’s validity as to the Attorney General, which
would require us to determine whether Harris County has a probable
right to relief on the merits.
We therefore consider first whether Harris County has standing
to sue the Attorney General. Although the State does not contest the
point, standing is a jurisdictional prerequisite that cannot be conferred
by concession. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
444–45 (Tex. 1993). Standing requires an injury-in-fact that is fairly
traceable to the defendant’s conduct and likely to be redressed by a
22 See Anti-Defamation League, 610 S.W.3d at 917 (“At this preliminary
stage, the plaintiffs must demonstrate both standing to bring their claims and
that the claims will probably succeed on the merits in order to establish a
probable right to relief. The failure of either showing means a probable right
to relief is lacking and a temporary injunction is unavailable.”).
12
decision in the plaintiff’s favor. Heckman v. Williamson County, 369
S.W.3d 137, 154–55 (Tex. 2012). A plaintiff seeking an injunction
against a defendant’s enforcement of a governmental enactment may
establish injury-in-fact by demonstrating “a credible threat of
prosecution thereunder.” In re Abbott, 601 S.W.3d at 812 (quoting
Babbitt v. Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
The State does not deny that the Attorney General’s threat of civil
actions against the plaintiffs for violating the Governor’s orders
amounts to a “credible threat” that creates the injury required for
standing. Nor does the State deny that the threat of enforcement would
be alleviated by an injunction against the Attorney General. The
information before us confirms the validity of the State’s concession.
The Attorney General sent a letter to County Judge Hidalgo and the
Harris County Commissioners Court threatening “legal action,
including any available injunctive relief, . . . penalties, sanctions—
including contempt of court—available at law” in response to their
violations of the Governor’s prohibition on mask requirements. The
Attorney General’s website confirms the initiation of at least nine such
enforcement actions against local governments. See, e.g., In re Round
Rock Indep. Sch. Dist., No. 03-21-00472-CV, 2021 WL 4350299, at *1
(Tex. App.—Austin Sept. 24, 2021, orig. proceeding). The State makes
no argument that this course of action by the Attorney General is
insufficient to confer standing on Harris County to sue the Attorney
General seeking protection from the credible threat that he will bring
enforcement actions against the County if it seeks to enforce local mask
13
requirements. 23 We conclude that Harris County has standing to pursue
its claims against the Attorney General. We therefore proceed to
consider whether Harris County has a probable right to relief on the
merits of those claims. 24
B.
The State contends that Harris County has no probable right to
relief because the Disaster Act grants the Governor broad authority to
control disaster response throughout the state. The State advances
three theories for why this is so: (1) certain local officers, including
county judges, are the Governor’s “designated agents” under the
Disaster Act and therefore subject to his control; (2) the Governor validly
suspended the statutes on which the local officials rely for their
23 The Governor allowed GA-38 to expire in June 2023 in anticipation
of Senate Bill 29’s effectiveness. The expiration of GA-38 does not render this
appeal moot, however. The challenged temporary injunction reaches beyond
GA-38 by purporting to restrict the authority of the Governor and the Attorney
General with regard to “any subsequent executive order.” The County’s live
petition likewise seeks relief as to future executive orders beyond GA-38. The
parties’ dispute about the temporary injunction’s validity therefore remains
live despite the expiration of GA-38, which means the parties’ ongoing dispute
about the authority of the Governor and Attorney General to block local mask
mandates under current law remains a justiciable controversy, at least until
the effective date of Senate Bill 29.
24 Resolving the additional, hotly contested question of whether the
Governor is a proper defendant would bring us no closer to determining the
temporary injunction’s validity. Harris County’s standing to sue the Attorney
General means that we must assess whether the County has a probable right
to relief on the merits, and our negative answer to that question means the
injunction cannot stand as to any defendant. In this circumstance, further
consideration of the County’s standing to sue the Governor would be
superfluous.
14
authority; and (3) an executive order prohibiting mask mandates
preempts contrary local orders. We consider these theories in turn. 25
We begin with the relationship between the Governor and the
Harris County Judge, both of whom derive their claimed authority from
the Disaster Act. Doing so resolves the parties’ dispute as to Judge
Hidalgo’s August 17, 2021 order and as to any other local action that
relies on Judge Hidalgo’s authority. 26 Under the Disaster Act, “[t]he
25 As two alternative theories of the Governor’s Disaster Act authority,
the State relies on the Governor’s authority to suspend statutes and on the
preemptive effect of his executive orders. The briefing tends to conflate the
two concepts, to varying degrees. For instance, the local governments suggest
that if an executive order prevails over local orders to the contrary, then the
statutes authorizing the local orders have been “suspended,” which can only be
valid if the law and the Constitution authorize such a “suspension of statutes.”
As we see it, the better approach is to address preemption and suspension as
distinct bases for the Governor’s authority. The preemption analysis involves
determining, as between conflicting state and local orders, which one prevails.
Absent the conflict, both might be enforceable, but because of the conflict, only
one can prevail. Courts often resolve similar conflicts between competing legal
rules. When one rule prevails and one does not, we do not say that the statute
authorizing the losing rule has been “suspended.” On the other hand, the
Governor’s suspension of a statute—as the State theorizes it and as we
understand it for purposes of this opinion—involves temporarily eliminating
the statutory authority on which the local orders were premised. If statutes
have been suspended in this sense, as the State contends they have, then a
preemptive gubernatorial order imposing a contrary rule would be
unnecessary because there would be no statutory basis for the local
governments’ actions.
26 Harris County asserts that the County Judge’s orders are not at issue
in this appeal, and it seeks to focus our attention solely on the orders issued by
the Harris County Commissioners Court and the Harris County Health
Authority. On numerous occasions, however, including when it filed its
original petition, Harris County attached orders issued by Judge Hidalgo—not
just the Commissioners Court or the Health Authority—in support of its
applications for temporary relief. The district court’s temporary injunction
prohibited the defendants from suspending the provisions of the Disaster Act
15
presiding officer of the governing body” of a local government “is
designated as the emergency management director” for that local
government. TEX. GOV’T CODE § 418.1015(a). Thus, for a county, the
county judge is the emergency management director under the Disaster
Act. For a city, the mayor has that role.
The key to understanding the relationship between the Governor
and these local officials under the Disaster Act is section 418.1015(b),
which reads:
An emergency management director serves as the
governor’s designated agent in the administration and
supervision of duties under this chapter. An emergency
management director may exercise the powers granted to
the governor under this chapter on an appropriate local
scale.
As might be predicted, the State emphasizes the first sentence, while
the County emphasizes the second. The first sentence indicates that
local officials are subservient to the Governor as his “designated agents”
with respect to “duties under this chapter.” The second sentence,
however, vests those very same local officials with a great deal of
authority. “[T]he powers granted to the governor under this chapter”
are substantial, even when exercised only “on an appropriate local
scale.”
Because these two key sentences appear together in a single
subsection of the Disaster Act, we should interpret them to operate in
on which Judge Hidalgo’s orders rely. The court of appeals likewise considered
the validity of Judge Hidalgo’s orders to be at issue. 641 S.W.3d at 526–28.
We agree. We consider the separate orders of the Commissioners Court and
the Health Authority below.
16
tandem rather than as separate, stand-alone rules. Subsection (b)
begins by establishing the relationship between the Governor and his
“designated agents.” It then authorizes the officials it has just made
agents of the Governor to exercise power equivalent to the Governor’s
on a local level. In light of the first sentence, these officials exercise the
apparently broad local power authorized by the second sentence not
independently of the Governor but as his “designated agents.” The two
sentences thus work together to broadly empower local officials on a
local scale, but only within their role as the Governor’s “designated
agents.”
The ineluctable consequence of their “designated agent” status is
that county judges and mayors—despite their considerable Disaster Act
authority at the local level—are subject to the Governor’s oversight and
control with respect to their “duties under this chapter,” which includes
the exercise of their local Disaster Act authority. When local officials
and the Governor attempt to impose different rules using their Disaster
Act powers, one or the other must prevail. Both cannot coexist. The
Disaster Act’s express relegation of county judges to the status of the
Governor’s “designated agents” makes it clear which of conflicting
orders must prevail under this statutory scheme.
Harris County contends that the Governor’s control over his
designated agents does not extend so far as to authorize him to eliminate
disaster-response measures imposed at the local level. In the County’s
view, “[t]he chief purpose of the Disaster Act is clear: giving
governmental entities and officials the tools they need to protect people
17
and save lives during a disaster.” 27 It follows, the County contends, that
gubernatorial actions eliminating local disease control measures are
invalid because they do not aim to reduce the effects of the disease. This
line of argument—that the Governor can only use the Disaster Act to
alleviate the threat of the virus and therefore cannot use the Act to
alleviate the burden of a local government’s virus-related restrictions—
undergirds much of the County’s briefing as well as that of the other
local governments and their supporting amici.
We have rejected this constrained view of the Disaster Act before,
and we do so again today. In Abbott v. Anti-Defamation League, we
rejected the argument that “each order issued by the Governor during a
disaster must be motivated by a desire to alleviate the threat of the
pandemic.” 610 S.W.3d at 918. We held that “[n]othing in the Disaster
Act supports this view of the Governor’s authority.” Id. To the contrary,
“the Governor must necessarily balance a variety of competing
considerations” when exercising the authority the Act grants him,
including “encouraging economic recovery” and “preserving
constitutional rights.” Id.
We reiterate this holding today. The government’s response to a
contagious disease affecting the entire state must balance a variety of
considerations, just one of which is the desire to reduce the virus’s
spread. The Disaster Act’s textually stated purposes include both
“reduc[ing] vulnerability of people” to a disaster and providing for “rapid
27Resp. Br. on the Merits, at 16; see also id. at 24 n.5 (“[T]he Governor
would be unable to invoke that limited agency relationship when he seeks to
act contrary to his statutory duties and prohibit a County Judge or Mayor from
meeting the dangers to the state and people presented by disasters.”).
18
and orderly restoration and rehabilitation of persons and property
affected” by a disaster. TEX. GOV’T CODE § 418.002(1), (3). The potential
for tension between these two responsibilities is obvious. The Act tasks
the Governor, ultimately, with striking a balance between reduced
vulnerability and rapid recovery.
Restrictions on daily life designed to combat a contagious disease
come with corresponding costs to the liberty and dignity of free citizens.
Some of these costs can be measured in economic terms, but there are
other costs that may not be readily quantifiable—such as interference
with children’s education and development, the psychological toll of
isolation, and disintegration of the social connections that bind
communities together. There is also an inherent cost when imposing
restrictions on the daily lives of a free people who are long accustomed
to liberty under a government obligated not to abridge “the right of the
people peaceably to assemble.” U.S. CONST. amend. I. 28 Nothing in the
Disaster Act prohibits an official tasked with balancing the costs and
benefits of proposed government responses to a pandemic from taking
into account all the potential costs—in addition to the potential
benefits—when deciding whether and for how long to impose the kind of
extraordinary measures we saw in recent years.
It is not the judiciary’s job to weigh the costs and benefits
ourselves. When responding to disasters, “[a] balance must be struck,”
and the question for the courts is “which branch of Texas government
gets to strike” it, so long as the law and the Constitution are followed.
28See also TEX. CONST. art. I, § 27 (“The citizens shall have the right,
in a peaceable manner, to assemble together for their common good . . . .”).
19
Anti-Defamation League, 610 S.W.3d at 926 (Blacklock, J.,
concurring). 29 Deciding how best to balance the costs and benefits of any
particular government response to a pandemic is a difficult, policy-laden
decision for which the Governor, not the courts or local officials, has
ultimate responsibility under the Disaster Act. This does not mean that
the Governor’s authority under the Disaster Act is without limits. But
in the limited context of competing Disaster Act orders issued by the
Governor and by local officials, the Disaster Act grants ultimate
authority to the Governor, who may countermand the orders of his
“designated agents” when they conflict with his preferred methods of
responding to the disaster.
We conclude that the Disaster Act empowers the Governor to
override the decisions of the county judges and other local officials who
serve as his “designated agents” as described by section 418.1015(b). As
a result, gubernatorial executive orders lawfully supersede contrary
orders issued by Harris County Judge Hidalgo or premised on her
authority. To the extent the temporary injunction would empower the
Governor’s designated agent, Judge Hidalgo, to act contrary to the
Governor’s orders with respect to mask requirements, it was improper.
C.
The orders of the Harris County Commissioners Court and
Health Authority, who are not the Governor’s “designated agents” under
the Disaster Act, remain to be addressed. We therefore consider the
29 See also Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational
Safety & Health Admin., 142 S. Ct. 661, 670 (2022) (Gorsuch, J., concurring)
(“The question before us is not how to respond to the pandemic, but who holds
the power to do so.”).
20
State’s argument that section 418.016(a) of the Disaster Act empowers
the Governor to suspend any statutes on which Harris County might
rely to impose mask requirements. If that is correct, then the case could
easily be resolved on that basis alone.
The Disaster Act provides: “The Governor may suspend the
provisions of any regulatory statute prescribing the procedures for
conduct of state business or the orders or rules of a state agency if strict
compliance with the provisions, orders, or rules would in any way
prevent, hinder, or delay necessary action in coping with a disaster.”
TEX. GOV’T CODE § 418.016(a). This language places textual limitations
on the power it grants to suspend statutes. For instance, the statutes
suspended must be “regulatory.” They must also “prescrib[e] the
procedures for conduct of state business.” The parties disagree about
the contours of these requirements.
As an initial matter, the County argues that the Disaster Act does
not empower the Governor to suspend statutes that authorize local
officials to respond to disasters. In the County’s view, because section
418.016 only allows suspension of a statute when “strict compliance”
with the statute “would in any way prevent, hinder, or delay necessary
action in coping with a disaster,” the Governor only has authority to
suspend statutes that are hindering virus-containment measures and
cannot suspend statutes that are imposing virus-containment
measures. 30
30 The court of appeals in one of the other pending cases relied on similar
reasoning. Abbott v. Jenkins, 665 S.W.3d 675, 692 (Tex. App.—Dallas 2021)
(“If we assume for purposes of this argument that GA-38 balances the variety
21
We again reject any such argument. See supra at 17–20. If, in
the Governor’s judgment, “necessary action in coping with a disaster”
includes alleviating disaster-related restrictions on liberty imposed by
local governments in order to facilitate recovery from the disaster and
restoration of normal life, nothing in the Disaster Act prohibits him from
acting on that judgment. Anti-Defamation League, 610 S.W.3d at 918.
The courts should have no role to play in deciding what is or is not
“necessary action in coping with a disaster.” 31 Our job is to determine
whether the Governor acts pursuant to his statutory authority when he
suspends the statutes on which the local governments rely. Here, the
answer to that question depends on whether the suspended statutes
were “regulatory statute[s] prescribing the procedures for conduct of
state business.” TEX. GOV’T CODE § 418.016(a).
The State offers a broad interpretation of this power. In its view,
the term “regulatory statute” describes any statutes that “control or
direct according to rule.” Because the suspended statutes either direct
the state’s disaster response according to rule or provide local
government officials with the power to “control or supervise by means of
rules,” the suspended provisions are “regulatory statutes” within the
meaning of the Act, as the State sees it. The State adopts a similarly
of considerations that appellants outline, we still must consider whether a
county judge’s face-covering mandate prevents, hinders, or delays necessary
action in coping with a disaster.”) (cleaned up).
31If it were alleged that the action taken was not genuinely related to
the disaster but instead relied on the disaster as a pretense to accomplish
unrelated ends, it is conceivable that the courts could play a role in resolving
such a dispute. That is not the allegation here.
22
broad view of the phrase “procedures for conduct of state business.”
Because coordinating disaster response is the “conduct of state
business,” any statute that interferes with the Governor’s coordination
of disaster response is a statute “prescribing the procedures for conduct
of state business”—and therefore subject to suspension by the
Governor—in the State’s view.
Harris County offers a competing interpretation of section
418.016(a), under which the only statutes eligible for suspension are
those that prescribe the methods (the “procedures”) by which the
business of state government—as opposed to local government—must be
conducted. Under this view, the Governor could use section 418.016(a)
to “cut red tape,” streamlining the regulations and procedures by which
the state government operates when the normal procedures are too
cumbersome in a time-sensitive disaster. He could not simply suspend
any statute that interferes with his preferred response to the disaster,
including statutes about local government authority.
Rather than proceeding directly into this statutory interpretation
dispute, we first note that even if we were to adopt the State’s broad
construction of section 418.016(a), we would still have to contend with
the County’s argument that the State’s broad view of the Governor’s
suspension power runs afoul of the Suspension Clause of the Texas
Constitution. TEX. CONST. art. I, § 28. This argument raises a serious
question of constitutional law, which we should not resolve unless
required to do so. In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (“[W]e
only decide constitutional questions when we cannot resolve issues on
nonconstitutional grounds.”).
23
Demonstrating the gravity of the constitutional question raised
by the County—and the concomitant need to avoid deciding it if
possible—requires only a brief explanation. The Suspension Clause’s
predecessor, adopted in 1845, provided: “No power of suspending laws
in this State shall be exercised, except by the legislature or its
authority.” 32 At the Convention of 1876, the Clause was changed to omit
the words “or its authority.” 33 The result is the provision that exists
today: “No power of suspending laws in this State shall be exercised
except by the Legislature.” TEX. CONST. art. I, § 28.
In 1898, the Court of Criminal Appeals held that when the words
“or its authority” were removed, “the authority of the legislature to
delegate its power to suspend laws was repealed, and that body was
inhibited from delegating authority to suspend laws in whole or in part.”
Coombs v. State, 44 S.W. 854, 860 (Tex. Crim. App. 1898). Not long after,
this Court observed:
This section restricts the power to suspend laws to the
Legislature, and expressly prohibits the exercise of such
power by any other body. In view of this provision of the
Constitution, it must be held (whatever may have been the
power of the Legislature under former Constitutions) that
that body cannot now delegate to a municipal corporation
or to any one else authority to suspend a statute law of the
state.
32 TEX. CONST. of 1845, art. 1, § 20; see also WILLIAM F. WEEKS,
DEBATES OF THE TEXAS CONVENTION 20, 22 (1846),
https://tarlton.law.utexas.edu/c.php?g=787754&p=5640115 (detailing the
history of the Suspension Clause at the Constitutional Convention of 1845).
33JOURNAL OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF
TEXAS 274 (1875), https://tarlton.law.utexas.edu/c.php?g=813324&p=5803246.
24
Brown Cracker & Candy Co. v. City of Dallas, 137 S.W. 342, 343 (Tex.
1911) (internal quotations omitted). 34
The State argues that more recent decisions—such as Sproles v.
Binford, 52 F.2d 730, 737 (S.D. Tex. 1931), aff’d, 286 U.S. 374, 397
(1932), and Williams v. State, 176 S.W.2d 177, 183 (Tex. Crim. App.
1943)—counsel in favor of the Legislature’s authority to empower
executive officials to suspend statutes. The County disagrees, and we
do not resolve the dispute. 35 We merely observe that it is not possible to
34 Similar judicial statements abound in the decades following the 1876
Convention. See, e.g., Ex parte Muncy, 163 S.W. 29, 49 (Tex. Crim. App. 1914)
(Davidson, J., dissenting) (“This former addendum ‘or its authority’ was cut out
of the Constitution by amendment of 1874, thereby excluding the idea that the
Legislature could delegate this authority either to the courts or any other
officer or tribunal. Not only does it exclude such idea, but it is a positive
inhibition. The very object and intent of that amendment was to prevent a
delegation of the power, which delegation had worked woeful results, especially
in the ‘reconstruction’ days.”) (emphasis omitted); Ex parte Farnsworth, 135
S.W. 535, 537 (Tex. Crim. App. 1911) (“The Legislature only may suspend laws
by virtue of article 1, § 28, of the Constitution, but it cannot suspend the
Constitution, nor can it authorize any other department of the government—
municipal or state—to suspend any law.”); Mo., K. & T. Ry. Co. of Tex. v.
Shannon, 100 S.W. 138, 146 (Tex. 1907) (“The purpose of section 28, art. 1, of
our state Constitution . . . was to prohibit the Legislature from delegating to
its officers the power of suspending the laws . . . .”).
35 It is also possible that, because of Suspension Clause concerns,
section 418.016(a) might be interpreted not as granting the power to suspend
statutes altogether but instead as an indication that the Governor’s authorized
executive orders—which the Disaster Act says have “the force and effect of
law”—should prevail over contrary applications of a “regulatory statute
prescribing the procedures for conduct of state business.” Whether such a
limiting construction of section 418.016(a) is supportable—and whether it
would satisfy the Suspension Clause—we need not decide today. See Trs. of
Indep. Sch. Dist. of Cleburne v. Johnson Cnty. Democratic Exec. Comm., 52
S.W.2d 71, 72 (Tex. 1932) (quoting United States ex rel. Att’y Gen. v. Del. &
Hudson Co., 213 U.S. 366, 408 (1909)) (“[W]here a statute is susceptible of two
25
rest our decision on the State’s invocation of section 418.016(a)’s
suspension-of-statutes authority without wading into deep
constitutional waters. Because we can avoid reaching these questions
by declining to resolve the parties’ disputes about the meaning and
constitutionality of section 418.016(a) and instead resting our decision
on other grounds, we must do so. In re B.L.D., 113 S.W.3d at 349. We
leave to another day a definitive construction of the Suspension Clause.
D.
Turning next to the State’s preemption theory, the State asserts
that the Governor’s executive orders issued under the Disaster Act
preempt any local action to the contrary. We agree that if a
gubernatorial executive order is a valid use of the Disaster Act that truly
carries “the force and effect of law,” TEX. GOV’T CODE § 418.012, then it
preempts contrary actions by local governments because state law
generally prevails over local enactments. 36 The question, therefore, is
whether GA-38 is a valid exercise of the Governor’s authority under the
Disaster Act to issue executive orders that carry “the force and effect of
law.”
constructions, by one of which grave and doubtful constitutional questions
arise, and by the other of which such questions are avoided, our duty is to adopt
the latter.”).
36See City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252,
263 (Tex. 2018) (holding that state executive-branch orders carrying the “force
and effect of law” control over local enactments to the contrary); see also City
of Laredo v. Laredo Merchants Ass’n, 550 S.W.3d 586, 588 (Tex. 2018) (citing
TEX. CONST. art. XI, § 5(a)) (“[C]ity ordinances cannot conflict with state law.”);
see also Childress County v. State, 92 S.W.2d 1011, 1015 (Tex. 1936) (“The
county is merely an arm of the state. It is a political subdivision thereof.”).
26
1.
The Disaster Act provides: “Under this chapter, the governor may
issue executive orders, proclamations, and regulations and amend or
rescind them. Executive orders, proclamations, and regulations have
the force and effect of law.” TEX. GOV’T CODE § 418.012. We understand
the State to argue that this provision gives the Governor broad authority
to issue executive orders having the force and effect of law on any topic
germane to a declared disaster, so long as the Governor’s action is
consonant with the rest of the Disaster Act. As additional support for
this view, the State points to section 418.011, which charges the
Governor with “meeting . . . the dangers to the state and people
presented by disasters.” Id. § 418.011(1). The State essentially
contends that these Disaster Act provisions authorize any executive
order thought by the Governor to be advisable in response to a disaster.
A more limited view of the Governor’s authority would be that his
Disaster Act orders only have “the force and effect of law” if they are
grounded in a specific grant of authority that exists apart from his
general power to issue executive orders. The State advances a theory of
the Governor’s authority under this more limited view of his
executive-order power, as well. It invokes the Governor’s power to
“control ingress and egress to and from a disaster area and the
movement of persons and the occupancy of premises in the area” as
specific authority for executive orders prohibiting local mask mandates.
Id. § 418.018(c).
As we interpret the Disaster Act, we are mindful of the
constitutional concerns raised by Harris County and the other parties in
27
the pending cases. If we were to adopt a broad reading of the Governor’s
executive-order authority, we would have to answer whether that
reading can be squared with the separation of powers required by the
Constitution. This is yet another serious question of constitutional law,
which we should not resolve unless required to do so. In re B.L.D., 113
S.W.3d at 349.
According to the Constitution:
The powers of the Government of the State of Texas shall
be divided into three distinct departments, each of which
shall be confided to a separate body of magistracy, to wit:
those which are Legislative to one, those which are
Executive to another, and those which are Judicial to
another; and no person, or collection of persons, being of
one of these departments, shall exercise any power
properly attached to either of the others, except in the
instances herein expressly permitted.
TEX. CONST. art. II, § 1. It is a “settled maxim of constitutional law”
“that the power conferred upon the legislature to make the laws cannot
be delegated by that department to any other body or authority.” Proctor
v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998). Successful delegation
challenges are few and far between, however. See Tex. Boll Weevil
Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 467–68 (Tex.
1997) (collecting cases). The non-delegation doctrine has come to be
understood not as a categorical prohibition on the Legislature granting
authority to other branches of the government, but as a requirement
that, in order to do so, the Legislature must provide standards that are
“reasonably clear and hence acceptable as a standard of measurement.”
Id. at 467 (quoting Jordan v. State Bd. of Ins., 334 S.W.2d 278, 280 (Tex.
1960)).
28
Even acknowledging the humility with which courts should
approach the Constitution’s prohibition on delegating legislative
authority, we cannot lightly set aside the County’s non-delegation
arguments. The Disaster Act contains one set of rules that can be
applied to a wide variety of divergent circumstances. The viability of
constitutional concerns about the Act’s apparently broad grants of
authority may depend on the circumstances in which the authority is
asserted. For instance, in the context of the discrete, regional, and
transient threat posed by a natural disaster, there may be little question
that the Disaster Act validly delegates broad emergency-response
authority to the Governor. But in the context of the coronavirus
pandemic, a broad reading of the Disaster Act gives rise to extensive
gubernatorial law-making authority over nearly every aspect of
economic and social life throughout the State—because nearly every
aspect of daily life was thought to be germane to the disaster. 37 Under
the Disaster Act’s terms, this broad authority commences when the
Governor decides it should and lasts until he decides it should end (or
until the Legislature, which is usually not in session, says otherwise).
TEX. GOV’T CODE § 418.014(c). Whether the Disaster Act’s standards
guiding the Governor’s exercise of such vast discretion are “reasonably
clear and hence acceptable as a standard of measurement,” Boll Weevil,
952 S.W.2d at 467, is a serious question of constitutional law, which we
37See Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct.
2485, 2489 (2021) (disagreeing with public-health agency’s assertion of
authority during the pandemic because “[i]t is hard to see what measures [the
government’s] interpretation would place outside the CDC’s reach”).
29
should not resolve unless required to do so, In re B.L.D., 113 S.W.3d at
349.
We can avoid this constitutional question by employing, for
purposes of deciding this case, a more limited view of the Governor’s
Disaster Act authority. Under that view, the Governor’s authority to
issue executive orders “[u]nder this chapter” is not an open-ended font
of law-making authority but instead is a means of exercising the specific
powers granted by the Disaster Act. One of those specific powers is the
Governor’s authority to “control ingress and egress to and from a
disaster area and the movement of persons and the occupancy of
premises in the area.” TEX. GOV’T CODE § 418.018(c). We turn now to
that provision.
2.
Relying on the Governor’s authority to control “the movement of
persons” and “the occupancy of premises” within a disaster area, the
State argues that the Governor may determine whether mask-wearing
will be a condition of movement or occupancy throughout the disaster
area, which includes the entire state. The County responds that the
Disaster Act says nothing about conditions on the movement of persons
or the occupancy of premises. While section 418.018(c) may empower
the Governor to direct evacuation routes or to declare certain affected
areas off-limits, the County argues that it does not empower him to
override conditions imposed by local officials on the movement of
persons or the occupancy of premises—conditions such as mask
requirements.
30
It may very well be, as a matter of statutory interpretation, that
section 418.018(c) should not be read to give the Governor unfettered
authority to impose conditions on the movement of persons or the
occupancy of premises on a statewide scale for an open-ended duration.
We need not decide that question. The question presented is not
whether the Governor may impose conditions or restrictions of his
choosing on people’s movement or on their occupancy of premises.
Instead, the question is whether the Governor may override the
conditions or restrictions imposed by local officials. These are two
discrete questions, and they are questions of much different magnitude.
First, consider the power to “control” the movement of persons
and the occupancy of premises by restricting or conditioning movement
or occupancy. Nearly all human activity involves “the movement of
persons” or “the occupancy of premises.” The power to “control” these
things is potentially an enormously invasive power over the daily life of
every Texan. 38
38 The enormity of the power at stake may have implications for how we
would interpret the statute. “Extraordinary grants of regulatory authority are
rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle
device[s].’” West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587, 2609 (2022)
(quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)); see also
Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 665 (quoting Ala. Ass’n of Realtors, 141
S. Ct. at 2489) (“We expect Congress to speak clearly when authorizing an
agency to exercise powers of vast economic and political significance.”). Apart
from statutory interpretation, other legal principles safeguarding the liberty
of the People may impose constraints on the authority to restrict or condition
movement and occupancy. We are not asked to decide, for instance, how the
statutory authority to control the movement of persons and the occupancy of
premises interacts with the constitutional right of citizens to “assemble
together for their common good.” TEX. CONST. art. I, § 27.
31
Next, consider the power to “control” movement and occupancy in
another sense. Consider the power not to restrict people’s movement
and their occupancy of premises, but the power to control attempts by
subordinate levels of government to restrict movement and occupancy
in ways that conflict with a statewide approach to confronting a
statewide disaster. This is the power to control the government, not the
power to control the People. Only this power is at issue here. The
question before us concerns the arrangement of the government’s
internal command structure during a disaster—not the scope of its
external power over citizens.
The strong default rule with respect to people’s decisions about
what to wear on their faces is, of course, individual liberty. Restrictions
on this liberty are rare and remarkable exceptions in our state’s—or any
state’s—history. On the other hand, restrictions on the government’s
ability to interfere with individual liberty are common and
unremarkable aspects of a legal order founded upon the “great and
essential principles of liberty and free government.” TEX. CONST. art. I.
Giving a government official the power to restrain other government
officials is far more commonplace and far less remarkable than giving a
government official the power to restrain people’s freedom to move about
as they please and to wear what they like. This case involves the former
power, not the latter.
We therefore need not determine the outer bounds of the
Governor’s authority to restrict liberty by imposing conditions on the
movement of persons or the occupancy of premises. We need only
observe that there is no sense in which he “controls” movement and
32
occupancy if local officials may impose movement and occupancy
restrictions against his orders. Whatever external limitations may exist
on the Governor’s (or anyone’s) authority to restrict movement and
occupancy, the Governor has authority under section 418.018(c)
sufficient to override local orders that purport to “control” these things
in a way that conflicts with his assessment of the appropriate statewide
disaster response.
Unlike the genuinely extraordinary power to control the daily
activities of citizens, the power to control the decisions of subordinate
levels of government is not extraordinary at all. The Governor is “the
Chief Executive Officer of the State.” TEX. CONST. art. IV, § 1. The
Constitution obligates him to “cause the laws to be faithfully executed.”
Id. § 10. It should come as little surprise that the Legislature
empowered the Governor to control the response of the executive branch
of government—at all levels, state and local—to a pandemic that knows
no local jurisdictional lines. The Disaster Act envisions a coherent
statewide or regional governmental response to a disaster, which cannot
be accomplished without clear lines of authority coordinating Texas’s
patchwork of overlapping local jurisdictions. We see nothing
extraordinary—and certainly nothing constitutionally problematic—
about the Legislature authorizing the Governor to control the executive
branch of government. Section 418.018(c) authorizes him to do so with
respect to “the movement of persons and the occupancy of premises”
during a declared disaster. Issuing an executive order prohibiting local
mask requirements is a valid exercise of that authority. Such an order
33
therefore has the “force and effect of law” sufficient to preempt contrary
local orders. TEX. GOV’T CODE § 418.012.
3.
The County nevertheless suggests that we should doubt the
Governor’s assertion of authority to control the pandemic response of
local governments because, in the County’s view, the Governor is
claiming sweeping power over local matters that Texas law normally
commits to local control. The reality, however, is that local control is not
the default rule in this area. Quite apart from the Disaster Act, local
governments have little or no autonomy under Texas law to impose
disease control measures without oversight and control by the state
government.
Chapter 81 of the Health and Safety Code specifically governs the
use by local governments of “communicable disease control measures.”
See generally TEX. HEALTH & SAFETY CODE §§ 81.081, et seq. Harris
County relies extensively on the authority granted by Chapters 81 and
121 of the Health and Safety Code to its local health authority to impose
such measures. The local health authority, however, is already subject
to the state government’s preemptive control, whether or not the
Disaster Act is invoked. Id. §§ 81.081, .082(a), .082(b). 39
39 At oral argument, we asked the parties to provide supplemental
briefing regarding Chapter 81’s grant to state officials of preemptive authority
over the use by local governments of “communicable disease control measures.”
TEX. HEALTH & SAFETY CODE § 81.082(b). The parties did so. Some of the
post-submission briefing objected to the Court’s consideration of Chapter 81,
on which the State did not rely in its initial briefing. The local governments,
however, have relied extensively on Chapters 81 and 121 as support for their
local orders, which placed at issue the Health and Safety Code’s allocation of
authority between state and local government.
34
A county’s local health authority is a physician appointed by the
commissioners court “to administer state and local laws relating to
public health within the appointing body’s jurisdiction.” Id. § 121.021.
The Legislature has given local health authorities “supervisory
authority and control over the administration of communicable disease
control measures in the health authority’s jurisdiction.” Id. § 81.082(a).
The health authority’s local control over “communicable disease control
measures” is sharply limited, however, by the preemptive power of state
officials. The Department of State Health Services “is the preemptive
authority for purposes of” Chapter 81. Id. § 81.081. Disease control
measures implemented by local health authorities can be “specifically
preempted” by the Department. Id. § 81.082(a). The Department’s
broad preemptive power over local health authorities includes the
explicit power to “amend[], revise[], or revoke[]” any communicable
disease control measures imposed by the local health authority. Id.
§ 81.082(b).
The Health and Safety Code thus establishes a clear hierarchy
when it comes to communicable disease control measures. Any use of
control measures by local officials is subject to the “supervisory
authority and control” of the local health authority. Id. § 81.082(a). The
local health authority, in turn, is a “state officer,” id. § 121.024(a), whose
powers are entirely subject to the control of the Department of State
Health Services, id. § 81.081, which may “amend[], revise[], or revoke[]”
any communicable disease control measure imposed by the health
authority, id. § 81.082(b). In this way, the state government already has
ultimate control—apart from the Disaster Act—over any use of
35
communicable disease control measures by local governments, including
mask requirements. 40
Under normal circumstances, the Department of State Health
Services is not the Governor, nor is its statutory authority his statutory
authority. The Disaster Act, however, empowers the Governor to act,
during a declared disaster, as “the commander in chief of state agencies,
boards, and commissions having emergency responsibilities.” TEX.
GOV’T CODE § 418.015(c). Among the state agencies wielding significant
emergency responsibilities during a pandemic is the Department of
State Health Services. The Governor is therefore the “commander in
chief” of the Department with respect to its emergency responsibilities
during a declared disaster. 41
40 Neither party argues that mask requirements are not “communicable
disease control measures” subject to the strictures of Chapter 81. We assume
they are.
41 The County disputes the extent to which the Governor may truly
“command” the Department of State Health Services—including the
Department’s preemptive power over local disease control measures—during a
declared disaster. The phrase “commander in chief,” however, has a
well-known legal provenance, most notably in the United States Constitution,
which uses it to describe the President’s authority over the armed forces. U.S.
CONST. art. II, § 2; see also TEX. CONST. art IV, § 7 (“[The Governor] shall be
Commander-in-Chief of the military forces of the State . . . .”). Armed forces
are well known for rigid, hierarchical command structures and clear lines of
authority. We are hard pressed to imagine terminology that would more
clearly convey the Legislature’s desire to put the Governor in full command of
state agencies having emergency responsibilities during a declared disaster.
Nevertheless, we need not resolve all disagreement about the scope of the
Disaster Act’s commander-in-chief power in order to conclude that the
Governor’s assertion of statewide control over the use by local governments of
communicable disease control measures does not divest local governments of
any autonomy otherwise afforded them by Texas law.
36
As Chapter 81’s regime governing communicable disease control
measures demonstrates, local governments in Texas already lacked the
unilateral authority to impose such measures before the Governor
issued GA-38. 42 In the end, the only question is whether the Disaster
Act empowers the Governor—who the Act makes the “commander in
chief” of the Department of State Health Services—to do something that
state law already empowered his appointees at the Department to do.
As explained in part III.D.2, supra, we conclude that section 418.018(c)
of the Disaster Act provides this discrete measure of authority. An
executive order prohibiting local mask requirements is therefore a valid
exercise of the Governor’s authority under the Disaster Act. 43
42 The County asserts that its commissioners court can wield
autonomous public-health power outside Chapter 81’s requirements. It points
to section 121.003(a) of the Health and Safety Code, which provides that “the
governing body of a municipality or the commissioners court of a county may
enforce any law that is reasonably necessary to protect the public health.”
Reliance on such general public-health statutes ignores the Health and Safety
Code’s clear allocation of power to the local health authority to exercise
“supervisory authority and control over the administration of communicable
disease control measures in the health authority’s jurisdiction unless
specifically preempted by the department.” Id. § 81.082(a). This plainly stated
authority is specifically tailored to “communicable disease control measures,”
which the County agrees includes mask mandates. The specific statutory
scheme governing communicable disease control measures prevails over the
County’s general public-health powers. If it did not, then Chapter 81’s grant
of “supervisory authority and control” to local health authorities—and its
concomitant grant of preemptive power to state officials—would be illusory
because neither could truly control the (potentially conflicting) use by various
local officials of communicable disease control measures.
43 The State does not contend that the temporary injunction should be
dissolved on the basis that the local officials altogether lack authority to
mandate mask-wearing for either statutory or constitutional reasons. Of
course, if local officials lack the authority that Harris County’s suit seeks to
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IV.
For the foregoing reasons, Harris County lacks a probable right
to relief on the merits of its claims. The temporary injunction was
therefore improper. The judgment of the court of appeals is reversed,
the temporary injunction is dissolved, and the case is remanded to the
district court for further proceedings consistent with this opinion.
James D. Blacklock
Justice
OPINION DELIVERED: June 30, 2023
vindicate, the County would not be entitled to a temporary injunction because
its local orders would be unenforceable for reasons apart from the Governor’s
contrary orders. We make no comment on the extent to which local
governments have authority to require masks in the absence of a gubernatorial
order to the contrary. Nor do we comment on the Governor’s authority to
require them.
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