Supreme Court of Texas
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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
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On Petition for Review from the
Court of Appeals for the Third District of Texas
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JUSTICE LEHRMANN, concurring.
As the Court explains, the question in this case comes down to
“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 reducing the spread of a contagious disease.”
Ante at 6. I agree that under the Disaster Act, the “final say” goes to the
Governor. And in light of the significant decline of COVID-19 infections
and hospitalizations, the Governor has concluded that government
mask mandates, among other restrictions, are no longer warranted. 1
Accordingly, to the extent local government officials disagree, the
Governor’s order prevails. I write separately to emphasize two points.
First, the Court’s rejection of the County’s argument that the
Disaster Act authorizes the Governor’s actions only to the extent they
alleviate the threat of the virus is grounded in the statutory text.
Unsurprisingly, one of the Act’s express purposes is to “reduce
vulnerability of people and communities of this state to damage, injury,
and loss of life and property resulting from” disasters. TEX. GOV’T CODE
§ 418.002(1). But another, which the Court recognizes can be in tension
with the first, is to “provide a setting conducive to the rapid and orderly
restoration and rehabilitation of persons and property affected by
disasters.” Id. § 418.002(3). The Act’s other express purposes similarly
reference both response to and recovery from disasters. See id.
§ 418.002(4), (5), (6), (9). Thus, the Act itself “tasks” the state and local
governments and, “ultimately,” the Governor “with striking a balance
between reduced vulnerability and rapid recovery.” Ante at 19. In other
words, the authority to balance these competing considerations in the
1 As the Court notes, the Legislature recently passed Senate Bill 29,
which will take effect September 1, 2023. Act of May 28, 2023, 88th Leg., R.S.,
ch. 336, § 1, 2023 Tex. Sess. Law Serv. ch. 336 (to be codified at TEX. HEALTH
& SAFETY CODE §§ 81B.001–.004). With certain exceptions, the bill prohibits
governmental entities from imposing a mandate requiring a person to (1) wear
a face covering to prevent the spread of COVID-19 or (2) be vaccinated against
COVID-19. It also prohibits governmental entities from mandating closure of
a school or private business to prevent the spread of COVID-19. The bill does
not address or restrict government action relating to any other disease or
disaster.
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face of a disaster is not plucked from thin air, nor does it reflect a judicial
policy preference; rather, it is mandated by the statute’s express terms.
Second, the outcome of that balance necessarily shifts depending
on the circumstances. Between March 13, 2020—the date the Governor
declared a state of disaster for all counties in Texas—and May 10, 2023,
over 92,000 Texans died as a result of COVID-19. 2 Many thousands
more were hospitalized. With the worst of COVID-19 behind us, it is
easy to forget—or worse, minimize—how perilous the unchecked spread
of the disease was. State and local government officials understandably
were striking the balance between controlling the spread and restricting
liberty much differently in 2020 and 2021 than they are now. In doing
so, they of course considered advice provided by medical professionals
and other experts. They presumably continue to do so now. The idea
that such consultation is unnecessary or purely political—no matter
which side of the scale weighs more—is counter-productive at best and
dangerous at worst.
Perhaps one day we will be faced with a pandemic involving a
virus that spreads as easily as COVID-19 but is much more deadly. In
that event, as with any disaster, our representatives must be able to
thoughtfully use all the tools at their disposal and strike an appropriate
balance based on the evidence supporting both sides of the equation.
2See Tex. Dep’t of State Health Servs., Historical Texas COVID-19
Data, available at https://www.dshs.texas.gov/covid-19-coronavirus-disease-
2019/texas-covid-19-data (last visited June 28, 2023).
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With these additional thoughts, I join the Court’s opinion and
concur in its judgment.
Debra H. Lehrmann
Justice
OPINION FILED: June 30, 2023
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