Greg Abbott, in His Official Capacity as Governor of Texas v. City of El Paso

COURT OF APPEALS/
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

GREG ABBOTT, IN HIS OFFICIAL § No. 08-21-00149-CV
CAPACITY AS GOVERNOR OF THE
STATE OF TEXAS, § Appeal from the

Appellant, § County Court at Law No. 7

v. § of El Paso County, Texas

THE CITY OF EL PASO, § (TC#2021-DCV-2805)

Appellee. §

DISSENTING OPINION

It bears repeating what this case is about and what it is not about. To a great extent, it

involves the interpretation of differing statutory schemes, two focusing on protecting public health

and safety, generally, as well as within a local jurisdiction, while a third focuses more expansively,

but in shorter duration, on protecting the life and property of Texas residents during and following

a natural or man-made disaster. See generally TEX. HEALTH & SAFETY CODE ANN. §§ 81.001–

81.016 (the Communicable Disease Prevention and Control Act); id. §§ 121.001–121.103 (the

Local Public Health Reorganization Act); see also TEX. GOV’T CODE ANN. §§ 418.001–418.307

(the Texas Disaster Act of 1975).

In terms of the parties involved, on one side appears the City of El Paso, but not because it

exercised municipal authority by enacting an ordinance, or because the mayor of the city issued a
disaster proclamation or order. Rather, the City appears solely in support of an order originating

directly from the Local Health Authority of the City/County, appointed to his position under

Chapter 121 of the Texas Health & Safety Code. See TEX. HEALTH & SAFETY CODE ANN.

§ 121.021 (“A health authority is a physician appointed under this chapter to administer state and

local laws relating to public health within the appointing body’s jurisdiction.”). On the other side

of the suit, Governor Greg Abbott appears in support of one of a series of his executive orders

issued to meet “the dangers to the state and people,” as presented by the COVID-19 disaster. See

TEX. GOV’T CODE ANN. § 418.011(1) (defining the responsibilities of the Governor when a

statewide disaster is declared).

Relying on these statutory authorities, and regardless of their positions, the governmental

actors involved may only assert authority over El Paso County residents as permitted by the grant

of police power of the state as has been given by its people. See Williams v. State, 176 S.W.2d 177,

182 (Tex. Crim. App. 1943) (“It follows that legislation which is necessary or appropriate to

protect the general welfare of the people, and that is reasonable in its operation and effect, is a

valid exercise by the Legislature of its police power.”); Grothues v. City of Helotes, 928 S.W.2d

725, 731 (Tex. App.—San Antonio 1996, no writ) (“Where public interest is involved, individuals’

rights often yield to overriding public interests and are often regulated under the police power of

the state.”). Yet, because there is a jurisdictional overlap between the officials involved here, we

are asked to resolve the conflict presented by the case. Regardless of the complexity of this dispute,

it should remain clear about what the case is not about. As an intermediate appellate court, we are

not asked to decide, nor are we equipped to decide, whether either one of the health or disaster

orders at issue is superior to the other in terms of its policy judgment or effectiveness in achieving

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a desired result. At best, we are only capable of determining whether one or the other remains true

to the grant of authority expressed by the relevant statutory scheme.

What the case is about is framed by the dueling orders at issue. The narrow issue presented

is whether a local health authority may issue an order compelling indoor masking (or face

coverings) in conflict with a like, but opposite order by the Governor, which encourages but does

not compel such wearing of a face covering, and further prohibits any inconsistent local orders.

Despite the narrow framing of the contested issue, the majority opines on broader questions of the

Governor’s authority under the Texas Disaster Act as compared to similar but local powers granted

to a home-rule city. But without involvement of the mayor or the issuance of a city ordinance, I

contend the case does not involve the city’s home-rule authority. 1 Because I view the majority

decision as overly broad and relying on distinguishable authorities, I disagree with its conclusions.

Respectfully, I dissent.

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Responding to the majority’s argument on the framing of the issue, I agree the parties argue far-ranging questions
about such matters including the division of power between a city and a governor during a declared, state-wide
disaster. In briefing, they ask this Court to decide whether several powers given the Governor under the terms of the
Texas Disaster Act violate the constitutional separation of powers doctrine. Yet, as I view the case, the parties’ desire
to have this Court address such broad claims falls into conflict with our obligation to avoid constitutional issues when
possible and to decide cases on the narrowest ground possible. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003)
(courts decide constitutional questions only when the issue cannot be resolved on non-constitutional grounds); Sweatt
v. Painter, 339 U.S. 629, 631 (1950) (“We have frequently reiterated that this Court will decide constitutional
questions only when necessary to the disposition of the case at hand, and that such decisions will be drawn as narrowly
as possible.”). Courts construe statutes to avoid constitutional infirmities, if such a construction is possible. See
Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011); Brooks v. Northglen Ass’n, 141 S.W.3d 158, 169 (Tex.
2004). We would do the same even for statutory construction. In Arcadia, Ohio v. Ohio Power Co., for instance, the
Court resolved a statutory construction issue on an antecedent question that “neither the parties, the interested
agencies, nor the Court of Appeals considered[.]” Arcadia, Ohio v. Ohio Power Co., 498 U.S. 73, 86 (1990) (Stevens
J. concurring); see also Kamen v. Kemper Fin. Services, Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is
properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper construction of governing law.”). Whether by design
or inadvertence, the parties here focus on the broadest arguments possible. But I still note, in particular, the question
originally raised by the City’s petition, asks whether the Governor had the authority to override Dr. Ocarranza’s order
as a local, public health official. I simply provide the answer I would reach to the question framed by the City, doing
so by reading the text of the statutory provisions cited in their briefing, and without venturing into broader questions
that wholly appear unnecessary. See TEX. R. APP. P. 47.1. (providing that courts of appeals must hand down a written
opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the
appeal).

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 Analysis

First, in framing the dispute, the majority starts with the Texas Disaster Act but ends with

a discussion of the authority of home-rule cities to issue local health ordinances. But I view the

issue more narrowly as this case involves a health authority order by Dr. Ocaranza, not a city

ordinance or proclamation from the mayor. As provided by the plain text of the Texas Health &

Safety Code, the grant of power and authority of a local health authority when issuing a health

directive, as Dr. Ocaranza issued here, is such that the local authority acts as a state official

operating within a local jurisdiction. See TEX. HEALTH & SAFETY CODE ANN. §§ 121.024(a) (“A

health authority is a state officer when performing duties prescribed by state law.”), (b)(2) (“A

health authority shall perform each duty that is . . . prescribed by the department.”), and (c)(2)

(“The duties of a health authority include . . . aiding the department in . . . disease prevention and

suppression . . . in the health authority’s jurisdiction[.]”); see also id. § 11.001 (“‘Department’

means the Department of State Health Services.”); id. § 121.021 (providing that a health authority

is a physician appointed under the provisions of Chapter 121 of the Health & Safety Code to

administer state and local laws relating to public health within the appointing body’s jurisdiction).

As such, Dr. Ocaranza is obliged to perform his duties as “prescribed by the department,” and as

“prescribed by state law.” See id. § 121.024(a), (b)(2). Indeed, during the hearing below,

Dr. Orcaranza readily acknowledged he must follow state law in performing his public health

duties.

Whatever the ultimate reach of the Governor’s authority under the Disaster Act, the text of

the scheme places the Governor as the “commander in chief of state agencies, boards, and

commissions having emergency responsibilities.” See TEX. GOV’T CODE ANN. § 418.015(c). This

provision includes the department of state health services, a state agency having emergency

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responsibilities among its other duties. In this context, Governor Abbott acts not solely as governor

but in the legislatively assigned role of leading the State’s response to a declared, statewide

disaster. See id. While serving in this role, his authority is constrained by the terms of the Disaster

Act, which particularly includes that “[t]he legislature by law may terminate a state of disaster at

any time.” See id. § 418.014(c). As a member of the state health department, Dr. Ocaranza also

serves as a state officer involved in the state’s disaster response. See TEX. HEALTH & SAFETY CODE

ANN. § 121.024 (a), (b)(2).

As applied to this record, I would conclude the City cannot show a probable right to the

relief sought by its request for a temporary injunction. Dr. Ocaranza is duty bound to follow

directives of the health department of the state, not act independently and contrary from prescribed

responsibilities. I would secondly conclude the City cannot show the Governor acted ultra vires in

prohibiting Dr. Ocaranza from issuing an inconsistent order which compels mask coverings in

nearly all indoor settings and subjects residents to the imposition of a $500 fine for each violation.

Whether the Governor can prohibit a local governmental unit from issuing such a mask mandate

is not an issue that should be addressed here as it is not factually presented by this case.

Second, to the extent the majority relies on recent decisions of our sister courts of appeals

to reach its holding, I disagree with the majority’s characterization of these cases as being

persuasive in this context. The majority recites that our sister courts of appeals recently determined

the Governor acted outside his scope of authority when he issued GA-38, given the order

contradicted orders of various governmental units and officials. See Abbott v. City of San Antonio,

648 S.W.3d 498, 503 (Tex. App.—San Antonio 2021, pet. granted) (involving a suit by a city and

county jointly challenging GA-38’s prohibition on face covering mandates); Abbott v. Jenkins, No.

05-21-00733-CV, 2021 WL 5445813, at *3 (Tex. App.—Dallas Nov. 22, 2021, pet. granted)

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(mem. op.) (county judge disaster order); Abbott v. Harris County, 641 S.W.3d 514, 519 (Tex.

App.—Austin 2022, pet. granted) (involving a county judge order pertaining to wearing of face

coverings in county buildings and a local health authority order recommending universal masking

in schools and licensed childcare centers); Abbott v. La Joya Indep. Sch. Dist., No. 03-21-00428-

CV, 2022 WL 802751, at *1 (Tex. App.—Austin Mar. 17, 2022, pet. filed) (mem. op.) (involving

face-covering requirements adopted by a group of independent school districts and other related

parties); Abbott v. County of Fort Bend, No. 01-21-00453-CV, 2022 WL 7180371, at *1 (Tex.

App.—Houston [1st Dist.] Oct. 13, 2022, pet. filed) (mem. op.) (involving a county issued mask

mandate). But when focus is placed on the parties involved and the orders at issue, it becomes

clear the cases are factually distinguishable from the case at hand.

All cited cases involve orders issued or sought not by a local health authority alone, but

rather, by politically accountable governmental actors or units. For example, local governmental

units sought a mask order in County of Fort Bend, either a county judge or commissioner’s court,

or both, were involved in Jenkins and Harris County, both a city and county governmental unit

sought orders in City of San Antonio, and a host of school districts joined in La Joya Independent

School District. See County of Fort Bend, 2022 WL 7180371, at *2; Jenkins, 2021 WL 5445813

at *2-*3; Harris County, 641 S.W.3d at 519; City of San Antonio, 648 S.W.3d at 503; La Joya

Indep. Sch. Dist., 2022 WL 802751, at *2. The only case which arguably overlaps with the facts

of this case is Harris County, to the extent it involves an order by a local health authority. See

Harris County, 641 S.W.3d at 519. But even still, the local health authority merely required, with

certain exceptions, that schools and licensed childcare centers follow recommendations for

universal masking by the “Centers for Disease Control and Prevention (CDC),” and required

“students, staff, teachers, and visitors to wear face coverings in school buildings and on school

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buses.” Id. At minimum, the involvement of these governmental units and elected officials in the

issuing of those orders ensured public representation, input, and accountability.

Beyond factual differences, I also contend that some caution should be shown about the

precedential value of these cases to the issue framed by this case. Although some similarities exist

in that each contend with disaster orders, these cases are largely different in regard to the officials

taking contradictory actions and the nature and scope of the orders issued. Petitions for review

have been filed with the Supreme Court of Texas in all the cases cited by the majority, and to date,

petitions have been granted in at least three. On those petitions, the Supreme Court is hearing oral

argument even as we work to finalize this decision, and a decision from the Court will soon clarify

many aspects of this dispute. That decision alone will likely have controlling authority over

decisions of this Court to the extent distinctions are not plausible or arguable in good faith. Because

a decision will be rendered fairly soon, and it will operate with controlling force, I am far less

confident than the majority in ascribing such heavy weight to the decisions of our sister courts of

appeals. As much as I cannot predict what will be learned from our higher court’s decision, I prefer

we follow our prior precedent in State v. El Paso County, 618 S.W.3d 812 (Tex. App.—El Paso

2020, no pet), to the extent it provides some guidance (though not entirely) to this dispute. I would

not so easily set it aside at this juncture. Unlike the majority, I conclude our sister court cases are

distinguishable and not fully supportive of overruling this Court’s prior precedent.

Because the temporary injunction order before us is limited to invalidating a provision of

the Governor’s Executive Order only as it applies to Dr. Ocaranza’s contrary order, I would

conclude we need not express any opinion on whether the City of El Paso, as a home-rule city,

could itself issue an ordinance mandating a mask mandate. See TEX. R. APP. P. 47.1. Because

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Dr. Ocaranza is a state officer not a local elected official or entity, I would conclude the trial court

abused its discretion in issuing the temporary injunction at issue here.

GINA M. PALAFOX, Justice

February 28, 2023

Before Rodriguez, C.J., Palafox, J., and Ferguson, Judge
Ferguson, Judge (Sitting by Assignment)

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