in Re: Greg Abbott, in His Official Capacity as Governor of the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§

§
IN RE: No. 08-21-00140-CV
§
GREG ABBOTT, in his Official Capacity AN ORIGINAL PROCEEDING
as Governor of the State of Texas, §
IN MANDAMUS
RELATOR. §

§

PER CURIAM ORDER

Relator, the Honorable Greg Abbott, in his official capacity as Governor of the State of

Texas, has filed an emergency motion for temporary relief seeking a stay of the temporary

restraining order (TRO) granted 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. The trial court’s TRO enjoins the

Governor from enforcing, in its entirety, Executive Order GA-38, issued on July 29, 2021, against

any local governmental entity, or employee or official of a local governmental entity in the City

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and County of El Paso.1 The TRO operates within the confines of El Paso County pending a

temporary injunction hearing set for August 31, 2021, in the trial court.

The three justices convened en banc and took a vote on the motion. CHIEF JUSTICE

RODRIGUEZ voted to deny the motion in toto and leave the TRO against the Governor fully intact

pending resolution of this mandamus action on the merits. JUSTICE PALAFOX voted to grant the

motion in part and deny the motion in part, leaving the TRO effective against GA-38 only as to

mask requirements imposed by local school districts, or imposed by the city on employees while

performing their duties and responsibilities, or imposed on visitors of city owned or managed

properties to include public transportation, pending resolution of this mandamus action on the

merits. JUSTICE ALLEY voted to grant the motion in toto and stay the TRO against the Governor in

its entirety pending resolution of this mandamus action on the merits. No single position garnered

an en banc majority as to all issues.

When a vote results in a plurality decision with no single rationale commanding a majority

vote, the holding of the Court may be viewed as that position taken by those members who

concurred in the result on the narrowest grounds. See In re C.J.C., 603 S.W.3d 804, 814 n.49 (Tex.

1 The temporary restraining order at issue here states that Governor Abbott in his official capacity, as well as his
employees, agents, and representatives are:
• Restrained from enforcing GA-38 against any local governmental entity, or employee or official of a local
governmental entity in the City and County of El Paso;
• Restrained from seeking to fine any local governmental entity, or employee or official of a local
governmental entity in the City and County of El Paso, for alleged violations of GA-38; and
• Restrained from suspending Texas Government Code §§ 418.105(b) and 418.108; Chapter 81, Subchapter
E of the Texas Health and Safety Code; Chapters 121, 122, and 341 of the Texas Health and Safety Code;
Chapter 54 of the Texas Local Government Code; and any other statute that is not a regulatory statute and/or
that is not on the suspension list required by Texas Government Code § 418.015.

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2020); Semperit Technische Produkte Gesellschaft M.B.H. v. Hennessy, 508 S.W.3d 569, 578 n.6

(Tex.App.—El Paso 2016, no pet.). Here, because CHIEF JUSTICE RODRIGUEZ and JUSTICE ALLEY

each joined with separate parts of JUSTICE PALAFOX’s decision, JUSTICE PALAFOX’s plurality

rationale represents the narrowest ground and thus the Court’s holding on this matter.

Therefore, with plurality and concurring/dissenting statements appended to this order

explaining each justice’s rationale, see Brackeen v. Haaland, 994 F.3d 249, 267 (5th Cir.

2021)(adopting similar practice of issuing a per curiam summary decision followed by a plurality

opinion and concurrences and dissents), the Court issues the following per curiam order:

The Governor’s emergency motion for temporary relief is GRANTED IN PART and

DENIED IN PART. Enforcement of Section 3(b), 3(g), (4), and 5(a) of Executive Order GA-

38 is restrained by the TRO of this case to the extent it applies:

1. Against any school district within El Paso County;

2. Against the City of El Paso to the extent the City requires all employees to wear a
mask or face covering;

3. Against the City of El Paso to the extent the City requires all visitors to the City-
owned or managed facilities to wear a mask or face covering. Such City-owned or
managed facilities include senior citizen centers, recreational facilities, and City-
operated public transportation.

Enforcement of GA-38 is not restrained by the TRO of this case as to all its remaining

sections.

IT IS SO ORDERED THIS 27TH DAY OF AUGUST, 2021.

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 PER CURIAM

Before Rodriguez, C.J., Palafox, J., and Alley, J.
Rodriguez, C.J., concurring in part and dissenting in part
Alley, J., concurring in part and dissenting in part

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 PLURALITY STATEMENT BY PALAFOX, J.

In responding to Governor Abbott’s request for emergency relief, I draw guidance from

recent orders of the Texas Supreme Court—which involve temporary restraining orders and

temporary injunctions arising from other counties—and from our own precedent in State v. El

Paso County, 618 S.W.3d 812 (Tex. App.—El Paso 2020, no pet.) (orig. proceeding). By my

count, the Texas Supreme Court has issued four orders to date responding to requests for

emergency relief by Governor Abbott where temporary injunctive relief has been granted against

enforcement of GA-38. See In re Greg Abbott, In His Official Capacity as Governor of The State

of Texas, No. 21-0720 (Fourth Court of Appeals, San Antonio); In re Greg Abbott, In His Official

Capacity as Governor of The State of Texas, No. 21-0686 (Dallas County); In re Greg Abbott, In

His Official Capacity as Governor of The State of Texas, No. 21-0687 (Bexar County); In re Greg

Abbott, In His Official Capacity as Governor of The State of Texas, No. 21-0701 (Travis County).

In those cases, the temporary injunctive relief and restraining orders primarily prohibited the

enforcement of GA-38 to the extent it prohibits local officials from issuing local orders that

mandate face coverings due to increased dangers posed by the effects of the novel coronavirus

(COVID-19). As to the Governor’s requests for emergency relief from the Supreme Court, three

requests were granted and one was denied.

On August 15, 2021, the Texas Supreme Court granted Governor Abbott’s requests for

emergency stays pending the Court’s determination of petitions for writ of mandamus filed with

the Court challenging temporary restraining orders issued in Dallas and Bexar Counties. See In re

Greg Abbott, In His Official Capacity as Governor of The State of Texas, No. 21-0686 (Dallas

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County); In re Greg Abbott, In His Official Capacity as Governor of The State of Texas, No. 21-

0687 (Bexar County). The Texas Supreme Court granted emergency stays in both cases based on

its determination that the trial court’s temporary restraining order at issue had altered the status

quo preceding the controversies, and their effects were therefore stayed pending the trial court’s

hearing and decision on plaintiffs’ request for a temporary injunction. See id. No. 21-0686 (Order

dated 8/15/2021, Dallas County) and No. 21-0687 (Order dated 8/15/2021, Bexar County) (both

orders citing In re Newton, 146 S.W.3d 648, 651 (Tex. 2004)).

As for the third order, however, the Texas Supreme Court denied Governor Abbott’s

emergency motion for temporary relief, on August 19, 2021, on the basis of TEX. R. APP. P. 52.3(e).

See In re Greg Abbott, In His Official Capacity as Governor of The State of Texas, No. 21-0701

(Travis County). The Supreme Court’s ruling required the Travis County case to first be heard by

the Third Court of Appeals pursuant to its concurrent jurisdiction. Id. Of particular note, the

Supreme Court’s order in No. 21-0701 permitted three temporary restraining orders to remain in

effect which enjoined the Governor from enforcing GA-38 to the extent that it prohibited Harris

County officials, certain named school districts, or any school district in Texas from requiring face

masks or coverings.

Yesterday, however, in a fourth order, the Texas Supreme Court again granted emergency

relief to the Governor with regard to prohibitions against the enforcement of certain provisions of

GA-38. See In re Greg Abbott, In His Official Capacity as Governor of The State of Texas, No.

21-0720 (from Bexar County; Fourth Court of Appeals). In No. 21-0720, the Governor sought

emergency relief from the Supreme Court after the Fourth Court of Appeals issued an order

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pursuant to TEX. R. APP. P. 29.3, which reinstated a temporary injunction issued against GA-38 by

the trial court after an evidentiary hearing. Id. After the Governor filed an interlocutory appeal of

the trial court’s temporary injunction and implied denial of a plea to the jurisdiction, the local

authorities requested emergency relief from the Fourth Court of Appeals on the basis that the trial

court’s temporary injunction had been superseded by the filing of the Governor’s notice of appeal

due to the combined effect of Rule 29.1(b) and TEX. CIV. PRAC. & REM. CODE ANN. § 6.001.2 Id.

In staying the order of our sister court of appeals, the Supreme Court ruled in favor of the

enforceability of GA-38, while the case remained pending interlocutory appeal, because the court

of appeals’ order altered the status quo preceding the controversy. I note here, however, that the

procedural posture of the case before us, which involves mandamus relief sought against a TRO,

differs procedurally from the interlocutory appeal filed in the Bexar County case.

Because of the recent orders by the Texas Supreme Court—which both grant and deny

emergency relief in both similar and procedurally distinguishable disputes over GA-38’s

prohibition of mask mandates—I would grant in part and deny in part Governor Abbott’s request

for an emergency stay in this case. I conclude the City of El Paso has shown a probable right to

relief on its claim against sections 3(b), 3(g), 4, and 5(a) of GA-38, to the extent those provisions

2 Rule 29.1(b) states: “Perfecting an appeal from an order granting interlocutory relief does not suspend the order
appealed from unless . . . the appellant is entitled to supersede the order without security by filing a notice of appeal.”
TEX. R. APP. P. 29.1(b); see also TEX. CIV. PRAC. & REM. CODE ANN. § 6.001 (providing State agencies are exempt
from bond for court costs or appeal).

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pertain solely to city employees, city facilities, and school districts3 located within the jurisdiction

of El Paso County. To the extent the trial court’s TRO restrains enforcement of GA-38 against the

City of El Paso for mandating the wearing of a face covering by all City employees while

performing their duties, or mandates the wearing of a face covering by any visitors inside all City

owned or managed facilities such as senior centers or recreational facilities, or on City operated

public transportation, I would deny emergency relief; also, to the extent the trial court’s TRO

restrains enforcement of GA-38 against any school district which mandates the wearing of a face

covering located within the jurisdiction of El Paso County, I would deny emergency relief; but, in

all other respects, to the extent the TRO restrains the enforcement of GA-38 as to all other

provisions in all other circumstances, I would grant emergency relief to the Governor.

3 I particularly note that paragraph 3(e) of GA-38 permits “[p]ublic schools” to operate as provided by, and under the
minimum standard health protocols found in guidance issued by the Texas Education Agency. See GA-38 3(e). I take
judicial notice of the TEA’s Public Health Guidance, issued on August 19, 2021, providing that mask provisions of
GA-38 are not being enforced as the result of ongoing litigation. See Public Health Guidance, TEXAS EDUCATION
AGENCY (2021), https://tea.texas.gov/sites/default/files/covid/SY-20-21-Public-Health-Guidance.pdf (last visited
Aug. 26, 2021).

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 CONCURRING/DISSENTING STATEMENT BY RODRIGUEZ, C.J.

I would deny the Governor’s request for a stay of the temporary restraining order in toto. I

respectfully, dissent from Justice Alley and Justice Palafox in their grant of any relief. I concur

with Justice Palafox to the extent she denies relief as outlined in the Court’s plurality order.

A court of appeals may review a TRO through the extraordinary writ of mandamus because

it expires after fourteen days and there is no adequate remedy by appeal. See In re Office of

Attorney General, 257 S.W.3d 695, 698 (Tex. 2008). That said, mandamus is a discretionary writ,

the availability of which depends in part on our equitable judgment as to whether mandamus relief

is an “‘efficient manner of resolving the dispute.’” In re Facebook, Inc., 625 S.W.3d 80, 86 n.2

(Tex. 2021)(citing In re Blevins, 480 S.W.3d 542, 544 (Tex. 2013)). A court of appeals may deny

a writ of mandamus if it finds that mandamus review is not an efficient way of resolving the dispute

between the parties. Id.

As a practical matter, because a TRO expires so quickly after issuance, a mandamus action

challenging a TRO on abuse of discretion grounds often becomes moot while the appellate court

processes the mandamus petition, even when enforcement of the TRO is stayed pending resolution

of the mandamus action on the merits. See In re Sierra Club, 420 S.W.3d 153, 156-57 (Tex.App.—

El Paso 2012, orig. proceeding)(mandamus action was moot because TRO expired during stay

period); see also In re de Kallop, No. 14-20-00168-CV, 2020 WL 1808911, at *1 (Tex.App.—

Houston [14th Dist.] Apr. 9, 2020, orig. proceeding)(mem. op.)(mandamus action was moot

because TRO expired and temporary injunction was entered). This mootness risk is doubly true

when a court of appeals wishes to grant a writ of mandamus overturning a TRO, since Rule 52.8(d)

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requires us to write a full opinion justifying ourselves and explaining why we believed the trial

court abused its discretion when we grant mandamus relief. TEX.R.APP.P. 52.8(d)

Because the opinion-writing process takes time, TROs often expire or are superseded by

indefinite (and appealable) temporary injunctions before mandamus challenges can be decided on

the merits, making mandamus review an inefficient manner of resolving the merits of a TRO

dispute, particularly when the merits of the dispute involve laws that have never been fully

interpreted. See In re Newton, 146 S.W.3d 648, 651 (Tex. 2004)(discouraging adjudication of

illegality of conduct “based merely on pleadings and a brief, non-evidentiary TRO hearing when

substantial rights are involved and the issues are far from clear”). For this reason, a court of appeals

has the discretion to summarily deny a mandamus petition that presents a question of first

impression when the law underlying a dispute has not been “clearly established.” See In re State,

No. 08-19-00151-CR, -- S.W.3d --, 2020 WL 5105215, at *3 (Tex.App.—El Paso Aug. 31, 2020,

orig. proceeding)(citing In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App.

2013)(orig. proceeding)).

While we must write a full opinion if we wish to issue a writ of mandamus overturning a

TRO on the merits, the Texas Rules of Appellate Procedure do not require us to articulate our

reasoning for interim orders we issue under TEX.R.APP.P. 52.10 while sorting out the mandamus’

merits. This power to issue interim orders while proceedings play out in the court of appeals

provides the appellate courts with the ability to essentially flip a trial court’s injunctive relief orders

off or on before we have the full opportunity to determine whether the trial court’s original decision

was correct or needs to be overturned. Combine this power to flip trial court orders on and off with

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a pressure-cooker litigation environment where the order under review expires in four days, and

there can be situations where a trial court enters an injunction, the court of appeals pauses the trial

court’s order, and then the order under review expires so that a litigant obtains relief from the trial

court’s order without ever having to prove the trial court’s order was in error.

However, to say the law in this arena is deeply unsettled, is an understatement. A previous

decision on which the Governor relies, State v. El Paso County, was an unappealed 2-1 decision

in which I dissented. State v. El Paso County, 618 S.W.3d 812 (Tex.App.—El Paso 2020, no

pet.)(Rodriguez, J. dissenting). The two courts of appeals presented with other similar TRO

mandamuses have declined to adopt El Paso County as authority, with one court explicitly

adopting the rationale of the El Paso County dissent as that district’s precedent and thereby

creating a circuit split. See In re Greg Abbott (Bexar County), No. 04-21-00336-CV, 2021 WL

3578306, at *1 (Tex.App.—San Antonio Aug. 13, 2021, orig. proceeding)(mem. op.); In re Greg

Abbott (Dallas County), No. 05-21-00687-CV, 2021 WL 3610314, at *1 (Tex.App.—Dallas Aug.

13, 2021, orig. proceeding)(mem. op.)(adopting El Paso County dissent rationale).

Furthermore, as the City points out, El Paso County may not squarely apply here because

the authorities the City relied on in issuing the masking order—specifically, certain public

health/infection control provisions of the Texas Health and Safety Code and the City’s own

inherent self-governing authority as a home-rule municipality—are different than the ingress-

egress authority under the Texas Disaster Act the County relied on to issue a shutdown order. And

the City has also raised the specter that even if the majority interpretation of the statute in El Paso

County was correct, that statute as interpreted may be unconstitutional.

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 Because of this, I think the proper course of action would be to deny both the request for

an interim order and the mandamus petition on its merits and leave the TRO in place pending the

full temporary injunction hearing, where the parties can continue to hash out what these

uninterpreted statutory provisions mean, develop an actual factual record we can use in measuring

the trial court’s exercise of equitable discretion, and then file an accelerated interlocutory appeal

if necessary. A summary mandamus denial made under these circumstances is not an adjudication

of or comment upon the merits of the case “in any respect.” Chambers v. O’Quinn, 242 S.W.3d

30, 32 (Tex. 2007).

Finally, I firmly believe we still possess the inherent authority to deny interim orders

regardless of the existence of the Texas Supreme Court’s stay orders. Those two orders are very

narrow and limited in scope. There has been much speculation among members of the bar and in

the media as to whether the interim orders issued by the Texas Supreme Court bind parties other

than the litigants in those specific cases. I do not believe they do. Because, the Texas Supreme

Court denied the Governor’s specific request to make the high court’s interim order in the

Governor’s mandamus action against Dallas County operative statewide, which means the order

operates only as to Dallas County specifically. See In re Greg Abbott (Dallas County), No. 21-

0686 (Tex. Aug. 16, 2021)(order denying request to amend mandamus and stay litigation

statewide).4 As such, we and our sister courts retain the discretion to decide whether we wish to

4
The Texas Supreme Court also blocked the Governor’s attempt to bypass the Third Court of Appeals in Austin
and obtain mandamus relief directly from the Texas Supreme Court under TEX.R.APP.P. 52.10’s emergency
provision. See In re Greg Abbott (Valley School Districts/Harris County Litigation), No. 21-0701 (Tex. Aug. 19,
2021)(misc. order denying mandamus).

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allow the trial court TROs to stand pending mandamus review.

By voting to “pause” the TRO, absent the exception of the school districts and city facilities

and employees, pending resolution of a mandamus action that will be mooted by a temporary

injunction hearing in four days, the Court has made it highly likely the Governor will obtain the

relief he seeks without ever having to prove the merits of his case, at least this round. The

Governor’s aggressive litigation strategy aimed at obtaining global interim relief through summary

rulings while deftly avoiding final merit rulings is antithetical to notions of justice and fair play.

El Paso deserves better than the four-day confusion and whiplash the grant of the TRO will have

wrought on our community. For these reasons, I would deny Relator’s request for emergency

relief.

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 CONCURRING/DISSENTING STATEMENT BY ALLEY, J.

I would grant the Relator’s request for emergency relief in toto. The temporary restraining

order at issue here states that Governor Abbott in his official capacity, as well as his employees,

agents, and representatives are:

• Restrained from enforcing GA-38 against any local governmental entity, or
employee or official of a local governmental entity in the City and County of El
Paso;

• Restrained from seeking to fine any local governmental entity, or employee or
official of a local governmental entity in the City and County of El Paso, for alleged
violations of GA-38; and

• Restrained from suspending Texas Government Code §§ 418.105(b) and 418.108;
Chapter 81 , Subchapter E of the Texas Health and Safety Code; Chapters 121, 122,
and 341 of the Texas Health and Safety Code; Chapter 54 of the Texas Local
Government Code; and any other statute that is not a regulatory statute and/or that
is not on the suspension list required by Texas Government Code § 418.015.

Trial Court Order of August 17, 2021.

GA-38 contains a number of provisions dealing with such varied topics as collecting data

from medical facilities, prohibiting vaccine passports, setting standards in institutional settings

such as jails and nursing homes, and preventing restrictions on occupancy. Executive Order GA-

38 ¶1, 2(a), 3(a), (d), (e). Despite the City’s moving papers which focus on mask mandates, the

trial court wholesale precluded enforcement of all of GA-38’s provisions. This Court’s plurality

order tidies up the trial court’s order to salvage some portions of it (and as such controls the

disposition of the motion for emergency relief). I would, however, simply grant the Governor’s

emergency relief in toto and stay the entire order based on the Texas Supreme Court’s orders in In

re Greg Abbott, In His Official Capacity as Governor of The State of Texas, No. 21-0720 (August

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26, 2021) (Bexar County); In re Greg Abbott, In His Official Capacity as Governor of The State

of Texas, No. 21-0686 (August 15, 2021) (Dallas County); In re Greg Abbott, In His Official

Capacity as Governor of The State of Texas, No. 21-0687 (August 15, 2021) (Bexar County); and

our own decision in State v. El Paso County, 618 S.W.3d 812 (Tex.App.--El Paso 2020) (orig.

proceeding).

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