SoT Original Petition

3/11/2021 12:09 PM
Velva L. Price
District Clerk
Travis County
D-1-GN-21-001046
CAUSE NO. _____________ D-1-GN-21-001046
Victoria Benavides
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STATE OF TEXAS, § IN THE DISTRICT COURT
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Plaintiff, §
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§
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v. TRAVIS COUNTY, TEXAS
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§
CITY OF AUSTIN, TEXAS, §
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98th
COUNTY OF TRAVIS, TEXAS, _____ JUDICIAL DISTRICT
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§
STEVE ADLER, in his official §
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capacity as Mayor, City of Austin, §
Texas, ANDY BROWN, in his §
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§
official capacity as County Judge,
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§
COUNTY OF TRAVIS, TEXAS, §
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and MARK E. ESCOTT, in his §
official capacity as Interim §
Medical Director and Health § ct
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Authority for the City of Austin §
and County of Travis, §
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§
Defendants.
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§
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STATE OF TEXAS’S VERIFIED ORIGINAL PETITION AND APPLICATIONS FOR

TEMPORARY AND PERMANENT INJUNCTIVE RELIEF
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______________________________________________________________________________
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INTRODUCTION
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Just as a servant cannot have two masters, the public cannot have two
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sets of rules to live by, particularly in a pandemic and when those rules
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carry criminal penalties substantially impacting peoples’ lives and

livelihood. 1
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1. This case raises a pressing question: who is ultimately responsible for

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responding to the COVID-19 pandemic and other emergencies? The Texas Disaster
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Act (“TDA”) charges the Governor—not an assortment of thousands of county judges,

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1State v. El Paso County, 08-20-00226-CV, 2020 WL 6737510, at *11 (Tex. App.—El Paso Nov. 13,
2020, no pet. h.), mandamus dismissed (Nov. 20, 2020).
city mayors, and local health officials—with leading the State’s response to a
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statewide emergency. Traditional preemption principles and the TDA’s plain
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language dictate that the Governor’s emergency orders control over conflicting local
orders.
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2. Over the last few months, Defendants issued four COVID-19-related
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emergency orders that impose facemask requirements on residents and place
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significant limits on businesses and their operations. These facemask and business
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restrictions were recently superseded and preempted by GA-34, which frees Texas
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businesses and residents of such burdens.
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Defendants insist that they will continue enforcing their business and
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facemask requirements despite the fact that GA-34 nullified these provisions.
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Defendants know this is wrong. The Supreme Court of Texas recently overturned
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Defendants’ last attempt to undermine Governor Abbott’s emergency orders in such
a manner. The same result is warranted here. This Court should immediately enjoin
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Defendants’ unlawful and invalid business and facemask restrictions.

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REQUEST FOR AN EXPEDITED HEARING ON THE STATE’S APPLICATIONS FOR A

TEMPORARY RESTRAINING ORDER AND A TEMPORARY INJUNCTION
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4. Given the important and urgent issues raised in this action, the State
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requests an expedited setting on its applications for a temporary restraining order

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and a temporary injunction. The State contacted Defendants and discussed the relief
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requested herein prior to making this filing, but the parties were unable to resolve
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their differences or secure an agreed setting.

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PARTIES
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5. Plaintiff is the State of Texas.
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6. Defendants are: (1) the City of Austin, Texas; (2) the County of Travis,
Texas; (3) Steve Adler, in his official capacity as Mayor, City of Austin, Texas; (4)
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Andy Brown, in his official capacity as County Judge, County of Travis, Texas; and
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(5) Mark E. Escott, in his official capacity as Interim Medical Director and Health
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Authority for the City of Austin and County of Travis.
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7. The City of Austin may be served with process through its Mayor, Steve
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Adler, or its City Clerk, Jannette Goodall, at 301 W. 2d Street, Austin, Travis County,
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8. Mayor Adler may be served with process at 301 W. 2nd Street, Austin,
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Travis County, Texas.

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9. Travis County may be served with process through Judge Brown at 700
Lavaca, Ste. 2.300, Austin, Travis County, Texas.

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10. Judge Brown may be served with process at 700 Lavaca, Ste. 2.300,
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Austin, Travis County, Texas.

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11. Mark E. Escott may be served with process at 517 S. Pleasant Valley
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Road, Austin, Travis County, Texas.

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EXPEDITED ACTION
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12. The State is seeking non-monetary relief. Discovery is intended to be

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conducted under Level 1.

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JURISDICTION AND VENUE
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13. The subject matter in controversy is within the jurisdictional limits of
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this Court, and the Court has jurisdiction over the action under Article V, Section 8
of the Texas Constitution and section 24.007 of the Texas Government Code, as well
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as under sections 37.001 and 37.003 of the Texas Uniform Declaratory Judgments
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Act and section 65.021 of the Texas Civil Practice and Remedies Code.
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14. Venue is proper in Travis County under section 15.002(a)(1), (a)(2), and
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(a)(3) of the Texas Civil Practices and Remedies Code.
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BACKGROUND
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The TDA Makes the Governor the Leader of the State’s Emergency
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Response.
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15. The TDA is designed to mitigate the “damage, injury, and loss of life and
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property” resulting from a disaster and to “provide a setting conducive to the rapid
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and orderly restoration and rehabilitation of persons and property affected by

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disasters.” 2
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16. The TDA makes the sitting Texas Governor the leader and focal point of
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the State’s emergency response. 3

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17. Under the TDA, the Governor is “responsible for meeting . . . the dangers
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to the state and people presented by disasters” 4 and is the “commander in chief” of
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the State’s response to a disaster. 5

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2 TEX. GOV’T CODE § 418.002(1), (3).

3 See id. at §§ 418.011–.026.
4 Id. at § 418.011.
5 Id. at § 418.015(c).
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18. The TDA gives the Governor the broad powers necessary to accomplish
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this weighty task. 6 For example, the Governor is given the powers to:
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A. control the movement of persons and occupancy of premises in a
disaster area; 7
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B. issue executive orders that “have the force and effect of law”; 8
C. suspend statutes, orders, or rules that “would in any way prevent,
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hinder, or delay necessary action in coping with a disaster”; 9
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D. apply for a loan on behalf of a local government if the governor
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deems it necessary; 10 and
E. “use all available resources . . . of political subdivisions that are
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reasonably necessary to cope with a disaster.” 11
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II. Local Officials have Far More Limited Emergency Powers Under the
TDA.
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The TDA gives local officials far more limited emergency powers than
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those afforded to the Governor. Local officials derive their emergency power from two
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main sections.
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20. Section 418.1015(b) provides: “An emergency management director may
exercise the powers granted to the governor under this chapter on an appropriate
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local scale.” Under this section, an emergency management director “serves as the
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governor’s designated agent” and thus is subject to the Governor’s control. 12

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6 See id. at §§ 418.011–.026.

7 Id. at § 418.018(c).
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8 Id. at 418.012.
9 Id. at § 418.016(a).
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10 Id. at § 418.021(a).
11 Id. at § 418.017(a).
12 Id. at § 418.1015(b); see also id. at § 418.015(c) (“[T]he governor is the commander in chief of state
agencies, boards, and commissions having emergency responsibilities.”).
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21. Section 418.108 authorizes “the presiding officer of the governing body
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of a political subdivision [to] declare a local state of disaster.” 13 This section continues:
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“The county judge or the mayor of a municipality may control ingress to and egress
from a disaster area under the jurisdiction and authority of the county judge or mayor
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and control the movement of persons and the occupancy of premises in that area.” 14
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22. County judges and mayors do not have independent authority to issue
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emergency orders carrying the force and effect of law as this is not one of the powers
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granted under section 418.108.
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23. Rather, a local official’s power to issue emergency orders is derivative
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and subservient to the Governor’s power. The TDA grants local officials derivative
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use of a Governor’s powers only when they are acting in their capacities as local
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“emergency management director[s].” 15 When acting in this capacity, the local official
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is a “designated agent” of the Governor and thus is subject to the Governor’s control. 16
III. An Overview of Governor Abbott’s Executive Order GA-34.

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24. On March 2, 2021, Governor Abbott issued Executive Order GA-34 to

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respond to the COVID-19 pandemic. 17 This order took effect at 12:01 a.m. on March
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10, 2021. 18 GA-34 has “the force and effect of law,” just like any other state law. 19
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25. There are three GA-34 provisions relevant here.

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13 Id. at § 418.108(g).
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14 Id.
15 Id. at § 418.1015(b).
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16 Id.
17 Ex. A.
18 Id. at 2.
19 TEX. GOV’T CODE § 418.012.
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26. First, the order states that “in all counties not in an area with high
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hospitalizations,” (1) “[t]here are no COVID-19-related operating limits for any
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business or other establishment,” and (2) “no person may be required by any
jurisdiction to wear or to mandate the wearing of a face covering.” 20 An “[a]rea with
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high hospitalizations” is defined as a “Trauma Service Area that has had seven
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consecutive days in which the number of COVID-19 hospitalized patients as a
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percentage of total hospital capacity exceeds 15 percent . . . .” 21 Currently, there are
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no “high hospitalization areas” in Texas. 22
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27. Second, GA-34 allows county judges (not city mayors) in high
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hospitalization areas to employ “COVID-19-related mitigation strategies” within
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certain circumscribed limits. 23 This provision is irrelevant to this Petition as there
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are no high hospitalizations areas in Texas at the moment.

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28. Finally, GA-34 expressly preempts and supersedes “any conflicting
order issued by local officials in response to the COVID-19 disaster” whenever that
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local order “restricts services allowed by this executive order.” 24 GA-34 further
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suspends “any other relevant statutes, to the extent necessary to ensure that local
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officials do not impose restrictions in response to this COVID-19 disaster that are
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inconsistent with this executive order.” 25

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20 Ex. A at 2.
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21 Id.
22 Executive Orders GA-32 and GA-4, TEX. DSHS, https://www.dshs.texas.gov/ga3031/ (last visited
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March 9, 2021).
23 Ex. A at 2.
24 Id. at 3.
25 Id.
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29. GA-34 is a crucial part of the State’s continuing efforts to reopen
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safely. 26 This order takes aim at one of the TDA’s core purposes: “[T]he rapid and
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orderly restoration and rehabilitation of persons and property affected by
disasters.” 27 Defendants’ emergency orders impermissibly and unconstitutionally
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undercut these reopening efforts.
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IV. Defendants’ Emergency Orders Unlawfully Undermine GA-34.
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30. Recently, Defendants publicly announced their intent to enforce their
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local emergency orders in a manner that would unlawfully undermine GA-34. 28 Prior
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to filing, attorneys from the Office of the Attorney General of Texas asked Defendants
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to rescind their public statements on this issue and to come into full compliance with
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GA-34. Defendants refused to do so.
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31. At least four of Defendants’ emergency orders are at issue here

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(collectively, “Defendants’ Emergency Orders”).
A. City of Austin Order No. 20210216-026 (“Order 26”).

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32. The City of Austin issued Order 26 on February 16, 2021. 29 Order 26
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remains effective through April 21, 2021. 30 A person who violates Order 26 can be
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charged with a criminal misdemeanor punishable by a fine up to $1,000. 31

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26 See id. at 2.
TEX. GOV’T CODE § 418.002(3).
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28 See, e.g., Austin to Keep Mask Mandate, but has Little in the Means of Enforcement, KXAN (Mar. 9,
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2021, 11:25 AM), https://www.kxan.com/news/local/austin/masks-still-required-austin-will-keep-

rules-despite-texas-mandate-lift/; Austin Mayor Steve Adler on Mask Mandate Being Lifted, City’s
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Decision to Continue to Require Masks, KVUE (Mar. 10, 2021, 6:56 AM),
https://www.kvue.com/video/news/health/coronavirus/austin-mayor-steve-adler-on-mask-mandate-
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being-lifted-citys-decision-to-continue-to-require-masks/269-cd7e0962-728e-442c-9d51-5c489363f59b.
29 Ex. B at 9.
30 Id. at 2.
31 Id. at 8.
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33. Order 26 requires individuals and businesses to practice “social
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distancing, hygiene, and face covering behaviors” unless excepted by the order “or
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otherwise provided by the Governor’s Executive Orders GA-29, GA-31, GA-32 and
any other executive order in effect . . . .” 32 Thus, Order 26 explicitly defers to Governor
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Abbott’s emergency orders, including GA-34, on facemask issues. As such, Order 26
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should not be held to impose a facemask requirement on residents or businesses in
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the City of Austin.
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34. Order 26 also places certain operating limits on businesses—such as
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occupancy limits at outdoor establishments, construction-related restrictions, and
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other hygiene-related requirements. 33 These restrictions are barred by GA-34’s
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explicit statements that (1) “there are no COVID-19-related operating limits for any
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business or other establishment,” and (2) any local orders more restrictive than GA-
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34 are superseded. 34
B. City of Austin’s December 15, 2020 Health Authority Rules (the

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“Austin Health Rules”).

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35. On December 15, 2020, the City of Austin Interim Medical Director and
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Health Authority, Dr. Mark Escott, issued a set of COVID-19-related health rules.35
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The Austin Health Rules are effective until April 15, 2021. 36 The Austin Health Rules
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are seemingly punishable by a fine up to $2,000. 37

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32 Id. at 2 (emphasis added).

33 See id. at 3; id. at Ex. A, 6–7; id. at Ex. D, 1–3.
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34 See Ex. A at 2–3.

35 Ex. C.
36 Id. at Cover Page.
37 See Ex. D.
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36. The Austin Health Rules generally require individuals to wear
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facemasks. 38 These rules also prohibit social gatherings of ten people or more, require
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social distancing, and place certain limits on construction sites. 39 The Austin Health
Rules’ facemask and business-related restrictions don’t survive GA-34.
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C. Travis County’s Order 2021-02.
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37. On February 16, 2021, Travis County issued Order 2021-02. 40 This order
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remains effective until April 21, 2021. 41 A person who violates Order 2021-02 may be
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punished by a fine up to $1,000—although violations of the order’s facemask
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requirements are capped at $250 (for individuals, not businesses). 42
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Order 2021-02 states that it “incorporate[s] and adopt[s] the most recent
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orders issued by Governor Greg Abbott, including GA-32 . . . and any subsequent
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orders or proclamations by the Governor relating to the COVID-19 disaster.” 43 Thus,

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by its own terms, Order 2021-02 defers to GA-34.
39. Order 2021-02 imposes facemask requirements and other business-

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related restrictions. 44 To the extent Travis County tries to claim these are standalone
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provisions, they are incompatible with, and thus barred by, GA-34.
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38 Ex. C at 2–3.
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39 Id. at 3–6.
40 Ex. E at 7.
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41 Id. at 2.
42 Id. at 6.
43 Id. at 2 (emphasis added).
44 See id. at 3–5; id. at Ex. A, 5–7; id. at Ex. C.
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D. Travis County’s March 9, 2021 Public Nuisance Order.
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40. On March 9, 2021, the Travis County Commissioner’s Court issued a
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Public Nuisance Order, which remains effective until April 15, 2021. 45 A violation of
this order is punishable by a fine up to $500. 46
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41. Travis County’s Public Nuisance Order contains two main provisions.
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First, it sets “minimum standards” for businesses and other establishments. 47 The
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term “minimum standards” refers to facemask requirements and other hygiene-
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related rules. 48 Second, it states that any business or establishment “that does not
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comply with Minimum Health Standards described in this Order” will be deemed a
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public health nuisance. 49 In doing so, Travis County’s Public Nuisance Order imposes
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operating limits and facemask requirements that have been preempted by GA-34.
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CLAIMS FOR RELIEF

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42. Pursuant to Texas’s Declaratory Judgment Act and ultra vires and
preemption principles, the State alleges as follows.

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43. The enforcement of Defendants’ Emergency Orders constitutes an ultra

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vires act because Governor Abbott suspended the statutes that would have allowed
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Defendants to issue these emergency orders.

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44. The enforcement of Defendants’ Emergency Orders is invalid, unlawful,

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and constitutes an ultra vires act because Defendants’ Emergency Orders were
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45 Ex. F at 6.
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46 Id. at 6.
47 Id. at 4–5.
48 Id.
49 Id. at 5.
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preempted by GA-34, and the State requests a declaration to that effect from this
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Court.
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APPLICATIONS FOR A TEMPORARY RESTRAINING ORDER
AND A TEMPORARY INJUNCTION
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45. A temporary restraining order serves to provide emergency relief and to
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preserve the status quo until a hearing may be held on a temporary injunction. 50 “A
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temporary injunction’s purpose is to preserve the status quo of the litigation’s subject
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matter pending a trial on the merits.” 51 The applicant must prove three elements to
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obtain a temporary injunction: (1) a cause of action against the adverse party; (2) a
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probable right to the relief sought; and (3) a probable, imminent, and irreparable
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injury in the interim. 52 These requirements are readily met here.
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I. The State will Likely Succeed on the Merits.

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46. We will first discuss the two main reasons the State will likely succeed
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on the merits, which are (1) GA-34 expressly preempts Defendants’ Emergency
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Orders, and (2) Governor Abbott lawfully suspended Defendants’ statutory authority
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to issue the local emergency orders in question. We will then discuss the El Paso
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Court of Appeals’ recent decision in State v. El Paso County and the Supreme Court
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of Texas’s recent order in State v. City of Austin, which both enjoined more restrictive
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local emergency orders in circumstances virtually identical to this case.

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50 Texas Aeronautics Commission v. Betts, 469 S.W.2d 394, 398 (Tex. 1971).
51 Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
52 Id.
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A. GA-34 Expressly Preempts Defendants’ Emergency Orders.
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47. A local “ordinance which conflicts or is inconsistent with state legislation
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is impermissible.” 53 GA-34 expressly preempts more restrictive local emergency
orders. This is evidenced by GA-34, Section 1, which states “there are no COVID-19-
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related operating limits for any business or other establishment” and that “no person
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may be required by any jurisdiction to wear or to mandate the wearing of a face
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covering.” 54 It is also evidenced by GA-34, Section 9, which states that GA-34
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supersedes any conflicting local emergency orders and which suspends any statutes
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that would allow local officials to issue emergency orders more restrictive than GA-
34. 55 ct
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48. Defendants’ Emergency Orders conflict with GA-34—they impose
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facemask requirements and business restrictions in a manner at odds with, and

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expressly prohibited by, GA-34. Thus, the only open issue is whether GA-34 is a “state
law.” The only logical conclusion is that it is.

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49. The TDA makes the Governor “responsible for meeting . . . the dangers
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to the state” presented by disasters. 56

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53 BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 18–19 (Tex. 2016) (quotation marks
omitted); see also City of Laredo v. Laredo Merchants Ass’n, 550 S.W.3d 586, 593 (Tex. 2018); S.
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Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).
54 Ex. A at 2.
55 Id. at 3.
56 TEX. GOV’T CODE § 418.011(1) (emphasis added).
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50. The TDA authorizes the Governor to declare a “state of disaster” for the
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entire State. 57 Governor Abbott did just that when he declared that COVID-19 “poses
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an imminent threat of disaster for all counties in the State of Texas.” 58
51. The TDA gives Governors the power to issue emergency orders that have
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“the force and effect of law.” 59 Governor Abbott used this power to issue GA-34, which
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was effective “on a statewide basis.” 60
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52. A statewide order, issued using statewide power, having a statewide
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effect, is a “state law.”
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53. GA-34 expressly preempts the inconsistent and conflicting provisions of
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Defendants’ Emergency Orders. Thus, Defendants’ Emergency Orders are invalid
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and should be enjoined.
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B. Governor Abbott Suspended Defendants’ Statutory Authority to

Issue Emergency Orders Under the Circumstances.
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54. Governor Abbott, using his TDA-granted power, 61 suspended “any . . .

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relevant statutes, to the extent necessary to ensure that local officials do not impose
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restrictions in response to this COVID-19 disaster that are inconsistent with this
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executive order . . . .” 62 Under the circumstances, Defendants had no authority to

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issue and enforce local emergency orders more restrictive than, and inconsistent with,
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57 Compare id. at § 418.014, with id. at § 418.018 (stating that local official can only declare “a local
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state of disaster”) (emphasis added).

58 Ex. A at 1 (emphasis added).
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59 TEX. GOV’T CODE § 418.012.

60 Ex. A at 2.
61 TEX. GOV’T CODE § 418.016(a).
62 Ex. A at 3.
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GA-34. This makes Defendants’ Emergency Orders invalid and their conduct ultra
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C. The El Paso Court of Appeals Adopted the State’s Arguments
and Enjoined a Local Emergency Order Under Circumstances
Virtually Identical to this Case.
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55. State v. El Paso County 63 is instructive as it analyzed the same issues
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presented here under virtually identical circumstances. El Paso County adopted the
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State’s arguments and enjoined El Paso’s conflicting local emergency order. This
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Court should do the same here.
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56. In El Paso County, El Paso County Judge Ricardo A. Samaniego issued
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a local emergency order (“EO-13”) in response to the COVID-19 pandemic that
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conflicted with GA-32. 64
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57. The State intervened in a state court action challenging EO-13 and
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moved to enjoin this order based on the same arguments made here. 65 The district
court denied the State’s motion without explanation. 66 The El Paso Court of Appeals
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reversed and adopted the State’s arguments. 67 Below are four notable points from the
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Court of Appeals’ decision.

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58. First, the court summarized the issue before it as “whether, under the
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Disaster Act, the Legislature delegated to the governor or a county judge the final
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63 08-20-00226-CV, 2020 WL 6737510 (Tex. App.—El Paso Nov. 13, 2020, no pet. h.), mandamus
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dismissed (Nov. 20, 2020). Copies of the decision are also attached as Exs. G–H.
64 See generally Ex. G.
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65 See generally Ex. H.

66 Ex. I.
67 See generally El Paso County, 2020 WL 6737510. For the Court’s convenience, copies of the majority
opinion and dissent from this case are attached as Exs. J-K.
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say for matters covered by the conflicting provisions of GA-32 and [EO-13].” 68 The
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court explained that the “answer to our question lies in the text of the Disaster Act”
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and not in some court’s views on the “wisdom or efficacy” of the conflicting orders. 69
59. Second, the court found that GA-32 was a state law, which “eclipse[s]
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inconsistent local law[s]” like EO-13. 70 The court pondered: What would happen if,
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during a hurricane, the governor ordered an evacuation in one direction and the
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county judge sent people in the exact opposite direction? 71 The court explained that
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one of these orders must control. 72 The court reasoned that the Legislature intended
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for section 418.012—which gives the Governor’s emergency orders the force and effect
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of law—to act as a sort of “tie-breaker.” 73 The court explained that local officials “can
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point to no similar power” afforded to them under the TDA. 74 Nor was there any
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indication in the TDA’s text suggesting that a local official’s “authority over ingress,
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egress, or occupancy in a local disaster overrides the governor’s identical authority
for a statewide declared disaster.” 75 The court commented that any alternative
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holding could lead to a “chao[tic]” mess of 254 separate county-level responses to a

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statewide disaster. 76
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60. Third, the court found that EO-13 conflicted with GA-32 on numerous
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grounds. For instance, the court noted that EO-13 “imposes a stay at home curfew
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68 Id. at *4.
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69 Id
70 See id. at *6–7 (citing various cases).
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71 Id. at *7.
72 Id.
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73 Id. at *7.
74 Id.
75 Id.
76 Id.
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from 10:00 p.m. to 5:00 a.m., except for essential travel, essential business,
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government service, or critical infrastructure.” 77 The court found that “[t]o the extent
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[EO-13’s] curfew restricts travel or participation that GA-32 allows, it also conflicts
with GA-32.” 78
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61. Finally, the court rejected El Paso’s challenge to Governor Abbott’s
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suspension power, which is codified in section 418.016. 79 El Paso argued that EO-13
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was not a “regulatory statute” and did not address “state business,” and thus it fell
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beyond section 418.016’s reach. 80 The court explained that EO-13 fit within the
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“classic definition of regulation,” which is “to control or supervise by means of rules
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and regulations.” 81 The court found that the Legislature’s reference to “state
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business”—as opposed to “official state business,” which is used in many other
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statutes—signals the Legislature’s intent to give the term a broader meaning. 82 The
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court found that EO-13, which closed-down bars, restaurants, and other businesses
closely regulated by the State, affected the conduct of “state business” and thus could
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be lawfully suspended by Governor Abbott. 83

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62. El Paso County involved issues effectively identical to the ones

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presented here. The El Paso Court of Appeals rightly adopted the State’s arguments
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and enjoined El Paso’s conflicting local emergency order. The same result is
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warranted here.
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77 Id. at *10.
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78 Id.
79 Id. at *8–9.
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80 Id. at *8.
81 Id. (quotations omitted).
82 Id.
83 Id. at *9.
17
D. The Supreme Court of Texas Effectively Adopted the State’s
Arguments and Enjoined One of Defendants’ Emergency Orders
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Under Circumstances Virtually Identical to this Case.
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63. In State v. City of Austin, the Supreme Court of Texas recently enjoined
one of Defendants’ more restrictive local emergency orders (“Order 24”) based on the
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same arguments made here.
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64. On December 29, 2020, the City of Austin and Travis County issued
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“Order 24,” which restricted dine-in food and beverage service during the period 10:30
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p.m. through 6:00 a.m. 84 These were businesses that would remain open under
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Governor Abbott’s emergency orders. The State sued the following day, raising many
of the same arguments made here. 85 ct

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65. On December 31, 2020, the district court held oral arguments on the
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State’s application for emergency injunctive relief. The court denied the State’s
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request later that night without any meaningful explanation. 86
66. The State then appealed to the Third Court of Appeals and, a few hours
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later, the Third Court also denied the State’s request without any meaningful
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explanation.
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67. The following morning, the State sought mandamus relief before the
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Supreme Court of Texas. Later that evening, the Supreme Court of Texas granted
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the State’s request and directed the Third Court to enjoin the City of Austin’s and
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Travis County’s Order 24. 87

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84 Ex. L at ¶¶ 29–33.
85 See generally Ex. L.
86 See Ex. M.
87 See Ex. N.
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68. In sum, The State is likely to succeed on the merits here because: (1) the
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TDA’s language is in the State’s favor; (2) traditional legal preemption principles are
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in the State’s favor; and (3) the only courts to consider the issues raised here, which
includes the Supreme Court of Texas, have effectively adopted the State’s arguments
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and enjoined the more restrictive local emergency orders.
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II. The State will be Irreparably Injured Absent an Injunction.
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69. The State’s injuries are irreparable. The Supreme Court of Texas
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recently held as much in State v. Hollins. 88
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70. There, the Court explained that a century’s worth of precedent
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establishes “the State’s ‘justiciable interest in its sovereign capacity in the
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maintenance and operation of its municipal corporation in accordance with law.’” 89
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The Court noted that an ultra vires suit is a necessary tool to reassert the State’s
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control over local officials who are misapplying or defying State laws. 90 The Court
reasoned: “[This] tool would be useless . . . if the State were required to demonstrate
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additional, particularized harm arising from a local official’s specific unauthorized

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actions.” 91
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71. The Court continued that “[t]he [State] would be impotent to enforce its
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own laws if it could not temporarily enjoin those breaking them pending trial.” 92 The
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Court found that, “[w]hen the State files suit to enjoin ultra vires action by a local
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88 No. 20-0729, 2020 WL 5919729, at *7 (Tex. Oct. 7, 2020).

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89 Id. at *6 (quoting Yett v. Cook, 281 S.W. 837, 842 (Tex. 1926)).
90 Id.
91 Id.
92 Id. at *7.
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official, a showing of likely success on the merits is sufficient to satisfy the
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irreparable-injury requirement for a temporary injunction.” 93
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72. Per Hollins, the irreparable injury requirement favors the State.
73. The El Paso Court of Appeals rightly viewed Hollins “as controlling” on
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the irreparable injury issue. 94
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III. Emergency Injunctive Relief is Necessary to Preserve the Status Quo.
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74. “The status quo is the last actual, peaceable, noncontested status which
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preceded the pending controversy.” 95 Since early January 2021, Defendants have
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recognized that Governor Abbott’s emergency orders controls. This is reflected in the
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City of Austin’s Order 26 and Travis County’s Order 2021-02, which were issued in
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mid-February 2021 and which incorporated Governor Abbott’s then-existing and
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future emergency orders. Yet Defendants inexplicably reversed course a few days ago
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and declared their intent to renew their already-defeated efforts to undermine
Governor Abbott’s COVID-19 response. The State is merely asking this Court to bring
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Defendants back to their mid-February 2021 position, when they rightfully

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acknowledged the supremacy of Governor Abbott’s emergency orders. The status quo
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factor favors the State.

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93 Id.
94 El Paso County, 2020 WL 6737510, at *10.
95 Sharma v. Vinmar Intern., Ltd., 231 S.W.3d 405, 419 (Tex. App.—Houston [14th Dist.] 2007, no
pet.).
20
APPLICATION FOR A PERMANENT INJUNCTION
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75. The State also asks the Court to set its request for a permanent
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injunction for a trial on the merits, and after the trial, issue a permanent injunction
as set forth above.
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PRAYER
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76. For the reasons discussed above, the State respectfully prays that this
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Court:
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A. Through counsel below, enter an appearance for the State in this
cause;
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B. Issue a temporary restraining order, which will remain in force
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until a hearing is held, restraining Defendants and any of their
officers, agents, servants, employees, attorneys, representatives,
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or any other persons in active concert or participation with them
who receive actual notice of the Order from enforcing Defendants’
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Emergency Orders’ facemask requirements, business limits, and

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any other provisions found to be more restrictive than GA-34;

C. Set a date and time for a hearing on the State’s application for a
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temporary injunction;
D. Declare Defendants’ Emergency Orders to be invalid and
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unconstitutional;
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E. Issue preliminary and permanent injunctions that order

Defendants to: (1) stop, or order stopped, all enforcement efforts
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of Defendants’ Emergency Orders; (2) rescind Defendants’

Emergency Orders; and (3) refrain from issuing any new
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emergency orders more restrictive than, or conflicting with, GA-

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34; and
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F. Award any further relief that the Court deems just and proper.
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Respectfully submitted,
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KEN PAXTON
of
Attorney General of Texas

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BRENT WEBSTER
First Assistant Attorney General
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GRANT DORFMAN
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Deputy First Assistant Attorney General
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SHAWN COWLES
Deputy Attorney General for Civil Litigation
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THOMAS A. ALBRIGHT
Chief – General Litigation Division
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/s/ Todd Dickerson
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TODD DICKERSON
Texas Bar No. 24118368
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CHRISTOPHER HILTON
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Assistant Attorney General
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Office of the Attorney General
General Litigation Division
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P.O. Box 12548, Capitol Station
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Austin, TX 78711-2548
(512) 475-4072 PHONE
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(512) 320-0667 FAX

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Todd.dickerson@oag.texas.gov
Christopher.Hilton@oag.texas.gov
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ATTORNEYS FOR THE STATE OF TEXAS

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CAUSE NO. _____________
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Plaintiff, §
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Defendants.
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§
______________________________________________________________________________
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DECLARATION OF TODD DICKERSON IN SUPPORT OF THE STATE OF TEXAS’S

VERIFIED ORIGINAL PETITION AND APPLICATIONS FOR TEMPORARY
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AND PERMANENT INJUNCTIVE RELIEF

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______________________________________________________________________________
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State of Texas
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County of Hays
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My name is Todd Dickerson, my date of birth is August 13, 1985, and my address
is P.O. Box 12548, Capital Station Austin, Texas 78711, USA. I declare under penalty
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of perjury that the facts contained in the State of Texas’s Verified Original Petition
and Applications for Temporary and Permanent Injunctive Relief are true and
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correct.
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Executed in Hays County, State of Texas, on the 11th day of March 2021.
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Un
of Declarant
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/s/ Todd Dickerson
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24
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Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
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certificates of service have not changed. Filers must still provide a
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certificate of service that complies with all applicable rules.
Pr
Thomas Ray on behalf of Todd Dickerson
Bar No. 24118368
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thomas.ray@oag.texas.gov
Envelope ID: 51382241
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Status as of 3/11/2021 1:19 PM CST
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Case Contacts
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Name BarNumber Email TimestampSubmitted Status
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Emily Ardolino emily.ardolino@oag.texas.gov 3/11/2021 12:09:14 PM SENT
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Todd Dickerson todd.dickerson@oag.texas.gov 3/11/2021 12:09:14 PM SENT
Christopher Hilton christopher.hilton@oag.texas.gov 3/11/2021 12:09:14 PM SENT
Francesca Di Troia ct
francesca.ditroia@oag.texas.gov 3/11/2021 12:09:14 PM SENT
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CAUSE NO. _____________
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Plaintiff, §
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Defendants.
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ORDER ON STATE OF TEXAS’S APPLICATION FOR

TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION
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______________________________________________________________________________
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Before the Court is the State of Texas’s Application for Temporary Restraining
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Order and Temporary Injunction. After due consideration of the motion, briefing, the
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evidence, and the law, the Court finds that this application should be granted.
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The Court finds that Defendants do not have authority to issue emergency
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orders more restrictive than Governor Abbott’s emergency order GA-34. The Court
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finds that Defendants’ following emergency orders are more restrictive than Governor
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Abbott’s GA-34 and thus were invalid, unlawful, and an ultra vires act: (1) City of
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Austin Order No. 20210216-026; (2) the City of Austin’s December 15, 2020 Health
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Authority Rules; (3) Travis County’s Order 2021-02; and (4) Travis County’s March
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9, 2021 Public Nuisance Order (collectively, “Defendants’ Emergency Orders”). The
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Court finds that the State of Texas is thus likely to prevail on the merits and that a
temporary restraining order and a temporary injunction are required to preserve the
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status quo and to prevent the irreparable harm of the continued violation of state law
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absent an injunction.
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It is ORDERED that the State of Texas’s Application for Temporary
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Restraining Order and Temporary Injunction is GRANTED.
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It is FURTHER ORDERED that Defendants’ Emergency Orders are declared
invalid and unconstitutional. ct

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It is FURTHER ORDERED that Defendants’ Emergency Orders constitute an
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ultra vires act.

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It is FURTHER ORDERED that Defendants must stop, or order stopped, all
enforcement efforts of Defendants’ Emergency Orders.

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It is FURTHER ORDERED that Defendants are ordered to rescind

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Defendants’ Emergency Orders and to refrain from issuing any new emergency orders
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more restrictive than, or conflicting with, GA-34.

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It is FURTHER ORDERED that the State of Texas is exempt from the

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requirement to post bond.

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It is FURTHER ORDERED that a bench trial on the merits with respect to the
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State of Texas’ application for a permanent injunction is set for the __________ day of
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March at ____________.
Signed this _________ day of March, 2021 at _________.
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___________________________________
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JUDGE PRESIDING
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3
El Paso County - 34th District Court Filed 11/6/2020 2:28 PM
Norma Favela Barceleau
District Clerk
El Paso County
2020DCV3515
IN THE DISTRICT COURT OF EL PASO COUNTY, TEXAS
34TH JUDICIAL DISTRICT
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PIZZA PROPERTIES, INC., M&S
GROUP, INC., d/b/a WING DADDY'S,
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RUN BULL RUN, LLC d/b/a TORO
BURGER BAR, CHARCOALER, LLC,
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TRIPLE A RESTAURANTS, INC., CC
RESTAURANT LP, FD MONTANA LLC,
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WT CHOPHOUSE, LLC, VERLANDER
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ENTERPRISES, LLC, and BAKERY
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VENTURES I, LTD.,
Plaintiffs, Cause No. 2020DCV3515
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STATE OF TEXAS
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Intervenor-Plaintiff’s,
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EL PASO COUNTY, TEXAS, AND
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RICARDO SAMANIEGO, IN HIS

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OFFICIAL CAPACITY AS COUNTY

JUDGE, EL PASO COUNTY.TEXAS
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DEFENDANTS,
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ORDER
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THE PLAINTIFFS’ AND INTERVENOR-PLAINTIFF’S REQUEST FOR A

TEMPORARY INJUNCTION IS DENIED.
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SIGNED AND ENTERED THIS 6TH DAY OF NOVEMBER, 2020.

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_____________________________
JUDGE WILLIAM E. MOODY
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COURT OF APPEALS
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EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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STATE OF TEXAS, PIZZA §
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PROPERTIES, INC., M&S GROUP,
INC., d/b/a WING DADDY'S, RUN § No. 08-20-00226-CV
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BULL RUN, LLC d/b/a TORO BURGER
BAR, CHARCOALER, LLC, TRIPLE A § On Appeal from the
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RESTAURANTS, INC., CC
RESTAURANT LP, FD MONTANA § 34th District Court
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LLC, WT CHOPHOUSE, LLC,
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VERLANDER ENTERPRISES, LLC, and § El Paso County, Texas
BAKERY VENTURES I, LTD.,
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§ Cause No. 2020DCV3515

Appellants,
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V. §
EL PASO COUNTY, TEXAS and
RICARDO A. SAMANIEGO, IN HIS §
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JUDGE, EL PASO COUNTY, TEXAS, §

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Appellants. §
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CORRECTED DISSENT
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The Attorney General and a group of local restaurants contend that during a disaster, if a
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local order from a county judge and an executive order from the Governor conflict, the Governor’s
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order must control as a matter of natural order and common sense. But these are uncommon times,
of
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Texas is an uncommon state, and here in Texas, we are ruled by law.
The Governor does not rule Texas outright; he serves at the pleasure of the people, who
hold the true power in a democracy, and he exercises only those authorities granted to him by laws
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passed by the people through a democratic process. The limit of the Governor’s power is not set
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by whether the Governor thinks it’s common sense that he himself should exercise a power, nor is
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it set by the fact that the Restaurants in this lawsuit agree with him and echo his sentiments. The
limit of the Governor’s power is set by what the law in fact proscribes in the words of our
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constitution and the text of the Texas Disaster Act. As courts who must referee disputes about
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where the limits of lawful authority lie, we must be wary of creating authority that does not exist,
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particularly when a person asserts the power to unilaterally declare an emergency and then unwind
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democratically-enacted laws and countermand democratically-elected local officials in the name
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of crisis management. tri
In a flurry of fast-moving filings that have leapfrogged between the trial court, this Court,
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and the Texas Supreme Court, Appellants have urged us to endorse this sweeping idea of absolute
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gubernatorial control over all levers of government during the COVID-19 pandemic, and to do so
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quickly, since the dignity of the State has been offended, businesses are losing money, and El Paso
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County’s intransigence in issuing an order that shuts the County down when the Governor has
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declared Texas is open undermines state supremacy and the Governor’s uniform coronavirus
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economic recovery plan. To do anything other than immediately stop the County and bring them
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back in line with the Governor’s will, Appellants contend, would, in their view, fly in the face of
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common sense.1
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The Attorney General wanted us to act so quickly, in fact, that after we agreed to his extraordinary request for an
expedited appeal and promised him a decision resolving the central question regarding by Friday, he tried on Tuesday
night to mandamus us into immediately granting him the relief that the trial court denied him, contending this Court
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acted unlawfully by giving the Governor only part of what he wanted, and not exactly what he wanted exactly when
he wanted it. The Texas Supreme Court correctly recognized this Court, as part of a separate branch of government
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charged with judicial review and checking executive actions if needed, does not answer to the Attorney General when
it comes to managing our own docket or exercising our discretionary emergency injunction powers, and the high court
denied the Attorney General’s request, finding our unprecedently fast scheduling arrangement to be reasonable under
the circumstances. See In re State, No. 20-0903 (Tex. Nov. 11, 2020)(order denying emergency relief).
2
The County has resisted the Governor’s order at every turn and questioned his authority to
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dictate county-level decision-making, arguing the Texas Disaster Act gives various officials at
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various levels of government their respective spheres of influence, and that by using an emergency
power to suspend laws, he has consolidated power over Texas’ 254 counties and more than 12,000
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cities. The Governor insists on imposing a one-size-fits-all coronavirus recovery plan across the
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State over the objections of local leaders, but he has crossed a legal line. The Governor is claiming
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authority that is not his, and used a power the Legislature gave him in an unlawful way that was
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never authorized or even contemplated.
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We chose to defer a ruling on the Attorney General’s initial request for emergency relief
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and instead issue an expedited decision on the merits not just to resolve everything in tandem, but
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to give the Court a chance to absorb the issues and take a closer look at the law. And the longer I
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contemplate the law, the more it becomes apparent the County’s legal position is not nearly as
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audacious or outlandish as the Attorney General would have us believe. In each filing, the Attorney
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General supports his position by citing fragments from the Texas Disaster Act without context and
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directing the Court’s attention to broad generalized provisions that do not directly or wholly
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answer the question before us.

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In putting those fragments together, reading them in context, and taking the time to study
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how those fragments fit in with the detailed, lengthy, comprehensive continuity-of-government
plan laid out in the Texas Disaster Act, what becomes clear is the Governor’s authority over El
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Paso County is not clear at all. On the contrary, the Texas Disaster Act instructs the Governor to
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By doing so, the high court gave us the breathing room necessary to do our important work of serving as first-line
reviewers of trial court decisions, which, in turn, helps the justices of the Texas Supreme Court by giving them a fully-
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developed record and an initial read on the situation, whether they agree with our ultimate outcome or not. Cf. In re
Salon a La Mode, No. 20-0340, 2020 WL 2125844, at *2 (Tex. May 5, 2020)(applicants seeking relief from local
emergency orders could not proceed immediately to the Texas Supreme Court; orderly process required them to first
present an application to a district court and proceed to the Texas Supreme Court only as a court of last resort).
3
meet disasters and to make executive orders that have “the force and effect of law.” [Emphasis
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added]. TEX.GOV’T CODE ANN. § 418.012. But the Legislature never gave the Governor the
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authority, in making executive orders, to directly override local elected officials during a disaster
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and veto their decisions, much less suspend their power.
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The provision of the Texas Disaster Act the Governor relies on to suspend law during a
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declared disaster applies only when suspending a law is necessary to clear state-level regulatory
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hurdles for disaster recovery at state-level agencies, boards, or commissions. Even so, the
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Governor may only invoke that limited power if strict compliance with a procedural law setting
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the ordinary course of state business would impede the disaster response effort.
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In my view, the Governor has taken a law that was meant to help him assist local authorities
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by sweeping away bureaucratic obstacles in Austin, and used it in reverse to treat local authorities
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as a bureaucratic obstacle to the coronavirus response plan he has chosen from Austin. This is truly
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extraordinary and completely flips the structure of the Texas Disaster Act on its head. The way the
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Attorney General interprets the law is not the way the law is written.
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The major assumption underpinning the Appellants’ case—namely, the Governor’s order
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automatically trumps a local order because that is the natural order of things—makes common
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sense only if we ignore Texas’ constitutional history and the plain text and structure of the Texas
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Disaster Act. We must not make decisions based on what we believe the law ought to be, but on
what the text of the law in fact says. Because I strongly disagree with the Attorney General’s read
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of the powers given to the Governor under the Texas Disaster Act, I must dissent.
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DISCUSSION
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To prevail on appeal and have this Court overturn the trial court’s decision to deny a
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4
temporary injunction and impose a temporary injunction on appeal,2 the Attorney General and the
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Restaurants must show (1) that they have a probable right to relief on the merits at trial and (2)
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that they would suffer irreparable harm if the County’s order were allowed to stand. I do not believe
that we have the authority to overrule the trial court’s injunction decision in this appeal because
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the Attorney General’s application for an injunction did not satisfy the first step of the temporary
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injunction test and show that the State would probably prevail at trial. In the alternative, I would
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find that the trial court’s decision implicitly finding the equities weighed in favor of the County at
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the time of the injunction decision and fell within the zone of reasonable disagreement.
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HISTORICAL AND CONSTITUTIONAL BACKGROUND
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This is not the first time the issue of whether the Governor can countermand decisions
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made by local authorities has arisen in Texas history. On the contrary, concerns about the
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2
This appeal concerns the trial court’s decision not to enjoin El Paso County Emergency Order No. 13, which by its
own terms expired this past Wednesday at midnight. On November 12, 2020 at 12:00 a.m. MDT, a new order, El
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Paso County Emergency Order No. 14, took effect and was set to expire on Tuesday, December 1, 2020, at 12:00
a.m. MDT.
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As I stated in my dissent to yesterday’s order granting temporary relief, which I repeat again here, I believe we still
have jurisdiction over the question of whether Emergency Order No. 13 violated Executive Order GA-32 because
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the declaratory judgment trial is still pending in the 34th District Court, and while the Emergency Order No. 13 has
now expired, the controversy over the larger question of whether the Executive Order supersedes local orders is a
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controversy that was capable of repetition, yet evading review.
However, I do not believe we have jurisdiction to enjoin Emergency Order No. 14 at this time. Each trial court decision
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granting or denying a temporary injunction is a separately appealable event. See TEX.CIV.PRAC. & REM.CODE ANN.
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§ 51.014(a)(4). When a temporary injunction order is appealed, the courts of appeals are limited to addressing the
narrow question of whether the specific order that was appealed was valid at that moment in the litigation when it was
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rendered, and on interlocutory review, we must consider only the specific record relating to the specific order that is
being appealed in making that determination. Murphy v. McDaniel, 20 S.W.3d 873, 877 (Tex.App.—Dallas 2000, no
pet.); see also Fuentes v. Union de Pasteurizadores de Juarez, S.A. de C.V., 527 S.W.3d 492, 502 (Tex.App.—El Paso
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2017, no pet.)(refusing to consider brief attachments that detailed post-appeal trial court proceedings).
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El Paso County Emergency Order No. 14 is a completely new order issued under vastly different circumstances than
those Judge Moody considered at the hearing on November 4, 2020 that served as the basis of his injunction
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decision on November 6, 2020, regarding Emergency Order No. 13. Further, requests for temporary injunctions are
usually presented to the trial court first, especially since the trial the State and the Restaurants are demanding is still
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pending. In re Salon a La Mode, No. 20-0340, 2020 WL 2125844, at *2 (Tex. May 5, 2020)(orderly process
requires a litigant to first present an application for injunctive relief to a district court before proceeding to the
appellate courts). The substantial differences in time, circumstances and the provisions of Emergency Order No. 14
from Emergency Order No. 13 mandate the Attorney General begin anew in the trial court.
5
Governor’s power over local officials were a pivotal reason why the 1876 Texas Constitution
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structured state executive power in a way that deviates substantially from the way executive power
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is structured in the federal constitution.
History teaches us that the libertarian-minded farmers and Grangers who framed Texas’
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current constitution did not believe in a unitary executive-type ideology that elevated the Governor
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above all others. Far from it. Unlike the federal constitution, which vests the executive power in
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the Presidency and makes the President the ultimate official responsible for overseeing a
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hierarchical federal administrative bureaucracy under a unitary executive theory, 3 Texas is the
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classic example of a plural executive setup, where executive power is not vested in a single person
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but is divided among six separately elected officials: the Governor, the Lieutenant Governor, the
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Secretary of State, the Comptroller of Public Accounts, the Commissioner of the General Land
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Office, and the Attorney General. See TEX.CONST. Art. IV, §§ 1 & 2.
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This structural arrangement was not an accident, but rather a deliberate attempt to
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decentralize government power in response to the well-known gubernatorial abuses and scandals
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of the day. During the Reconstruction era in Texas, “the military removed the moderate Republican
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governor from office and handed the state government over to carpetbaggers and scalawags.” See
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A. J. Thomas, Jr. & Ann Van Wynen Thomas, The Texas Constitution of 1876, 35 TEX.L.REV.
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907, 912 (1957). “This government immediately swept out of office all local and state officials
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who were not of the radical wing of the Republican Party” and adopted a state constitution in 1869
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that conformed with the political goals of the Radical Republicans. Id. Historians have described
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the Reconstruction regime in Texas as being “one of oppression, corruption, graft and blackmail”
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3
See Steven G. Calabresi and Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary,
105 HARV.L.REV. 1153, 1165 (1992)(describing the strong unitary executive constitutional theory that the Vesting
Clause of Article II of the United States Constitution creates “a hierarchical, unified executive department under the
direct control of the President”).
6
in which the Governor, by declaring martial law under sweeping powers granted to him by the
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Legislature, used police and militia forces “so often to enforce the arbitrary will of the governor
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that” the police force and the militia “became an emblem of despotic authority.” Id. The
Reconstruction Legislature “vested extraordinary powers in the governor[,]” including the
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“extension of the executive’s appointing power to the governing bodies of the towns and cities,”
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which was perceived as a “flagrant violation of the principle of local self-government[.]” Id. at
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913.
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Against this historical backdrop, conventioneers to the 1876 Constitutional Convention
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sought to limit the Governor’s power as much as possible:
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The convention was determined to cut down on the governor’s power to prevent a
future renewal of executive despotic control over state or local administrations. It
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decentralized the executive authority by vesting power in other executive officers,
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most of whom were to be elected. It reduced the term of the governor from four
years to two years; debarred the governor from holding any other office or
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commission, civil, military or corporate, while in office; and prohibited him from
practicing any profession for profit while in office. It also reduced the salary of the
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governor and limited his powers by setting forth his duties in great detail.
35 TEX.L.REV. at 914.
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We should bear these historical and constitutional considerations in mind as we interpret a

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comprehensive statutory scheme that sets out the powers and responsibilities wielded by various
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actors at various levels of state government in times of crisis while the machinery of civil
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government still remains functional.4

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4
The top-down, hierarchical, direct command authority the Attorney General asserts the Governor has appears to be
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closer to the authority the Governor would possibly exert as a military commander under a state of martial law. But
the Governor’s powers as exercised under the Act are different from those he may exercise inherently as the military
commander-in-chief of Texas under martial law. The latter question has never been litigated.
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“Marshal law [sic] can only exist and military power can only be exercised . . . when the civil arm of the government
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becomes powerless because of invasion, insurrection, or anarchy. Marshal law and military power over the citizen and
his property are based upon and limited by necessity. Whenever this necessity ceases, such military power must end.”
Rose Mfg. Co. v. W. Union Tel. Co., 251 S.W. 337, 339 (Tex.Civ.App.—Dallas 1923, writ ref’d).
7
TEX. CONST. Art. I, § 28 checks the ability of the Governor to suspend laws, stating: “No
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power of suspending laws in this State shall be exercised except by the Legislature.” As such, the
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Governor does not have the power to suspend laws under the Texas Constitution; that power was
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explicitly taken away from the Office of the Governor in 1876. Because the Governor does not
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possess the inherent constitutional authority to suspend laws, his power to suspend laws by decree
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can only exist as a matter of legislative grace under the terms and conditions set by the Texas
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Disaster Act. The statutory text of the Act as written sets the parameters of the Governor’s power
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here, and the Governor’s actions must comport with the conditions set on him by the Legislature.
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If they do not, he acts without any authority and his actions are ultra vires and without legal effect.
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Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952)(Jackson, J.,
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concurring)(when the President of the United States “takes measures incompatible with the
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expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only
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upon his own constitutional powers minus any constitutional powers of Congress over the
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matter”).
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OVERVIEW OF THE TEXAS DISASTER ACT AND PRINCIPLES OF STATUTORY

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CONSTRUCTION
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The Texas Disaster Act of 1975 appears as Chapter 418 in the Texas Government Code.
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The Texas Disaster Act does not limit the Governor’s ability to declare martial law or rely on any inherent
constitutional authority he may have. See TEX.GOV’T CODE ANN. § 418.003(6). However, because the civil arm of
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state government remains intact and operational currently, the Governor’s authority remains limited by the Texas
Disaster Act. As I explain below, the Act, by its text, does not create the military-style command hierarchy the
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Attorney General envisions.

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I note that even in a hypothetical universe where the COVID-19 pandemic reaches a point where the civil arms of the
government were to fail due to the death or illness of all civil authorities in an area, even then under martial law, the
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Governor’s authority is not limitless. His actions must comply with the law, and his actions would still be subject to
judicial review. See Constantin v. Smith, 57 F.2d 227, 239 (E.D. Tex. 1932)(holding under the Texas Constitution that
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even in emergencies, “courts may not be closed, or their processes interfered with by military orders” nor can they
“be ousted by the agencies detailed to aid them” or “their functions be transferred to tribunals unknown to the
Constitution”).
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The Act is a comprehensive, detailed continuity-of-government framework that carefully allocates
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powers, duties, and responsibilities across various levels of state government and multiple
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agencies. One of the stated purposes of the Act includes “clarify[ing] and stengthen[ing] the roles
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of the governor, state agencies, the judicial branch of state government, and local government in
prevention of, preparation for, response to, and recovery from disasters.” TEX.GOV’T CODE ANN.
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§ 418.002(4). As such, fidelity to the text is paramount.
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Since the provisions of the Texas Disaster Act at issue in this appeal have never been
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interpreted—indeed, there has never been a need to interpret them because the Governor has never
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before tried to restrict the power of local leaders during a disaster in this way5—we must resort to
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the usual standards of statutory construction. We must not add words to the statute that are not
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there, and we must not ignore the words the Legislature has chosen, either, particularly in situations
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where we are being urged to read grants of authority from statutory silence. See Newman v.
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Obersteller, 960 S.W.2d 621 (Tex. 1997)(Abbott, J., dissenting)(the Legislature’s omission of
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words from a statute is significant and “[i]t is not the province of this Court to expand” a limited
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statutory provision by making inferences of authority from silence, “no matter the policy rationale
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behind such an expansion”).

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PROBABLE RIGHT TO RELIEF

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The Attorney General and the Restaurants contend they will probably succeed on the merits
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at trial because the Governor validly asserted control over local governments in three ways: (1) by
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issuing orders that directly control the acts of county judges and city mayors, who are the
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of
5
Both the State and the County submitted supplemental briefing to the trial court indicating that during the 1918
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Spanish flu pandemic, the Governor of Texas did not issue a single executive order. The County also submitted a
historical article showing various Texas cities handled the pandemic at the local level using many of the same
techniques infectious disease specialists are encouraging us to use today until a COVID-19 vaccine or treatment can
be found.
9
Governor’s “designated agents” during an emergency response under Section 418.1015(b); (2) by
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issuing statewide executive orders that preempt conflicting local emergency orders; and (3) by
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suspending statutes that would allow local officials the authority to issue local emergency orders.
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However, none of these three scenarios provide the Governor with the authority to suspend
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certain fundamental disaster management powers granted to cities and counties.
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The Power to Make Executive Orders with the Force of Law
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Turning to the State’s second point first, the Governor does, indeed, have the power to
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issue executive orders that have “the force and effect of law” during a declared disaster. See TEX.
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GOV’T CODE ANN. § 418.012. The Attorney General’s argument inherently assumes this grant of
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power imbues the Governor’s executive orders, which are not laws but executive decrees that have
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the force of law, with a higher footing than legislative acts undertaken by counties and cities, which
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also have the force of law, simply by virtue of the fact that the Governor is the Governor. I
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vehemently disagree.
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There are three problems with this assumption from a textualist perspective.
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First, although the Legislature provided the Governor with the ability to issue executive
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orders given the force and effect of law, it did not explicitly state in this provision that executive
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orders issued by the Governor preempt contrary laws issued by local entities. This is extremely
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significant. Laws conflict with one another frequently, but there is no legal principle that
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automatically elevates certain laws above others as a matter of course. Certain laws preempt other
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laws not because there is an inherent hierarchy in government that says a law passed by a higher
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part of government necessarily preempts a law passed by a lower part of government. Laws
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preempt other laws because constitutions and other foundational texts create conflict-of-law
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schemes that establish priority ranks among different types of valid laws.
10
For example, federal laws preempt conflicting state laws not because we have a notion that
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the federal government automatically trumps state government as a matter of mere hierarchy (after
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all they are two sovereigns alike in dignity), but because the text of the Supremacy Clause in
Article VI of the United States Constitution explicitly makes federal law “the supreme law of the
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land.” U.S. CONST. Art. VI. Likewise, laws passed by the Texas Legislature preempt ordinances
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passed by Texas home-rule municipalities, which have inherent authority to self-govern, not
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because the State trumps cities as a matter of inherent hierarchy, but because the Texas
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Constitution prohibits cities from using their inherent authority to pass ordinances that are
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inconsistent with the general laws enacted by the Texas Legislature. See TEX.CONST. Art. XI, § 5;
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S. Crushed Concrete, L.L.C. v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).
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By contrast, here, there is nothing in the Texas Constitution giving executive orders the
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ability to preempt laws passed by counties and cities,6 and there is nothing in Section 418.012 that
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provides for that, either. The grant of power in Section 418.012 is simply that—a grant of power.
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It does not make an executive order superior to a local order, nor does it make an executive inferior
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to a local order. The Executive Order by its terms purports to preempt local laws, but Section
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418.012 is silent on the issue of whether the Executive Order can in fact preempt those laws.
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Second, the Attorney General’s argument that the grant of authority per se implies the
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Governor may countermand a law passed by local governments, even though the statute does not
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explicitly grant the Governor that authority. This argument of implied authority is belied by the
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fact that other provisions of the Texas Disaster Act clearly show the Legislature knows how to
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write priority-of-law provisions and make local actions subject to gubernatorial approval when it
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chooses to.
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6
On the contrary, the Texas Constitution explicitly states the Governor cannot suspend laws of his own accord.
TEX.CONST. Art. 1, § 28.
11
For example, Section 418.108(h)(2) of the Texas Disaster Act states that when a city mayor
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and a county judge both use their inherent statutory authority to manage certain disaster relief
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activity in their jurisdictions, and orders issued by a mayor are in conflict with orders issued by a
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county judge, the orders of the county judge control over those of the mayor, even inside the
boundaries of incorporated territory. See TEX.GOV’T CODE ANN. § 418.108(h)(1)-(2). That section
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clearly resolves contemplated conflicts among two actors with concurrent jurisdiction and sets up
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an explicit chain of command. Likewise, Section 418.108(i), which addresses a local government’s
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ability to ban fireworks, allows local governments to institute bans for up to 60 hours, but if those
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governments enact bans beyond 60 hours, the Governor must approve. TEX.GOV’T CODE ANN.
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§ 418.108(i)(1)-(2). This section explicitly creates a gubernatorial veto over local disaster
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management authority after a certain point in time. Other provisions in the Texas Disaster Act
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show the Legislature contemplated there may be situations in which the Governor may have
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indirect or proxy control of the emergency management process, see, e.g., TEX.GOV’T CODE ANN.
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§ 418.041(b)(giving the governor the ability to appoint the chief of the Texas Division of
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Emergency Management), and situations in which he serves in only an advisory role to local
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governments. See, e.g., TEX.GOV’T CODE ANN. § 418.103 (the Governor shall recommend that
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municipal corporations establish and maintain emergency management programs of their own);
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id. at § 418.104 (the Governor may recommend that political subdivisions establish an
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interjurisdictional agency with other political subdivisions); id. at § 418.121(c)(the Governor shall
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from time to time make recommendations to local governments as may facilitate measures to
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mitigate the harmful consequences of disasters).

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Under the in pari materia rule, the surest way to interpret a statute contained within a
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comprehensive act is to interpret that statute in context of the act’s other provisions, since all
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related statutory provisions are not separate text fragments existing in isolation but “are to be taken
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together, as if they were one law.” Worsdale v. City of Killeen, 578 S.W.3d 57, 69 & n.81 (Tex.
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2019). Given that other provisions of the Act contain specific prioritization schemes, veto powers,
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chains of command, and assignments of duties that are explicit in the text, we should be extremely
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hesitant to infer power from silence in one isolated statutory provision. The text is the text, and
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“policy arguments cannot prevail over the words of the statute.” In re Allen, 366 S.W.3d 696, 708
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(Tex. 2012)(orig. proceeding). “Although legal texts are sometimes incomplete because they fail
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to address matters that ought to have been addressed,” courts may not “remedy the incompleteness
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with rules of their own creation.” See Antonin Scalia & Bryan A. Garner, READING LAW: THE
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INTERPRETATION OF LEGAL TEXTS 98 (2012). tri
Third, and most importantly, the Legislature did give the Governor the explicit ability to
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preempt laws by executive order—the Legislature merely placed extensive conditions on when the
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Governor may do so. See TEX.GOV’T CODE ANN. § 418.016 (allowing the Governor to suspend
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laws and regulations under certain circumstances that will be more fully discussed below).
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Although the Legislature referred to Section 418.016 as granting “suspension” power, that section
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and its multiple subsections, along with other separate sections of the Act, give the Governor the
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explicit ability to effectively preempt laws and regulations by executive action, but they also limit
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his power. Those sections create the roadmap we must use in determining the preemption issue.
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Although the specific subsection of Section 418.016 at issue in this appeal—Subsection
(a)—allows the Governor to suspend “regulatory statutes” under certain circumstances, that is not
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the only suspension/preemption power the Legislature gave the Governor in the Act. Subsection
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(e) allows the Governor to waive or suspend a deadline imposed on a political subdivision by a
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statute or the orders or rules of a state agency at the political subdivision’s request if the waiver or
13
suspension is reasonably necessary to cope with a disaster. See TEX.GOV’T CODE ANN.
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§ 418.016(e). Subsection (f) even allows the governor to suspend certain transportation regulations
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when there is not a disaster going on in Texas, but a disaster taking place in a neighboring
jurisdiction and Texas must come to that jurisdiction’s assistance. See TEX.GOV’T CODE ANN.
L.
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§ 418.016(f). Elsewhere in the Act, the Governor may suspend or limit the sale, dispensing, or
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transportation of alcoholic beverages, firearms, explosives, and combustibles. See TEX.GOV’T
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CODE ANN. § 418.019. He may also temporarily suspend or modify laws and regulations if the
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suspension or modification is essential to provide temporary housing or emergency shelter for
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disaster. TEX.GOV’T CODE ANN. § 418.020(c).
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By my count, the Legislature has given the Governor the ability to preempt laws in at least
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six different parts of the Texas Disaster Act, though each preemption provision has specific limits
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and conditions triggering use. The fact the Legislature has set out broad but reasonable conditions
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on the Governor’s ability to preempt laws in multiple portions of the Texas Disaster Act makes it
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even more difficult to conclude the silence in the Legislature’s grant of general authority to make
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executive orders bears the weight the Attorney General asserts it does. A silence can be pregnant—
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but not that pregnant.

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It would be anomalous under the rules of statutory construction to say the Governor’s
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authority to suspend any laws contrary to his disaster relief goals is recognized by six specific on-
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point statutes that contain restrictions on use, only to say that a more general statute undoes all six
of those restrictions simply because it gives the Governor’s executive orders “the force and effect
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of law.” [Emphasis added]. Reading Section 418.012 as granting the Governor plenary power to
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nullify contradictory laws by edict would render at least six provisions of the Texas Disaster Act
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redundant at best or nugatory at worst. It ignores overall statutory context and reads a broad
14
priority-of-laws provisions into textual silence while jettisoning six specific priority-of-laws
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provisions from the Act entirely.
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The more natural reading of Section 418.012 which preserves and harmonizes all sections
is the specific preemption provisions qualify and limits the Governor’s general ability to issue
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a
executive orders that have the force of law. See In re ReadyOne Industries, Inc., 394 S.W.3d 697,
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701 (Tex.App.—El Paso 2012, orig. proceeding)(when general and specific words are grouped
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together in a statute, the meaning of the general words is limited by conditions imposed by specific
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words).
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In short, I am not at all persuaded Section 418.012 alone gives the Governor the unfettered,
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boundless ability to preempt any other law. Here, the specific limits of Section 418.016(a), which
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the Governor relied on as authority in issuing his executive order countermanding local officials,
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set the scope of our review in this appeal.

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Direct Control Through Agency?

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The Attorney General also contends the Governor has direct supervisory authority over
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County Judge Samaniego because County Judge Samaniego, as the emergency district manager
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for El Paso, has the ability to exercise emergency powers provided to the Governor under the Act
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at the county level because he is the Governor’s agent. Further, as the Governor’s agent, County
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Judge Samaniego owes the Governor fiduciary duty to act in accordance with the wishes and in
the best interest of the Governor. See TEX.GOV’T CODE ANN. § 418.1015(a)-(b).
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The issue of whether County Judge Samaniego is the Governor’s agent when acting in his
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capacity as an emergency management director is a red herring. The Attorney General insists,
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under Section 418.1015(b), the Governor can withdraw County Judge Samaniego’s authority to
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act as his agent for the purposes of exercising powers reserved to the Governor at the county level.
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Even so, County Judge Samaniego still has some inherent authority that does not hinge on the
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Governor’s approval, and County Judge Samaniego can reasonably rely on another standalone
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grant of inherent authority in Section 418.108 to issue his order.
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Section 418.108, which deals with the specific ability of mayors and county judges to
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declare and manage disaster areas at the local level, contains a subsection specifically permitting
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County Judge Samaniego to “control ingress to and egress from a disaster area under the
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jurisdiction and authority of the county judge . . . and control the movement of persons and the
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occupancy of premises in that area.” TEX.GOV’T CODE ANN. § 418.108(g).7 Unlike Section
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418.1015(b), which directly ties the exercise of a county judge’s power to gubernatorial authority,
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none of the subsections contained in Section 418.108 frame a county judge’s authority in relation
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to the Governor; they describe the powers of local authorities to act on their own. Curiously, the
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Governor is not mentioned in Section 418.108 at all. That omission is significant and clearly
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indicates the Legislature did not intend to tether this power of local officials to the Governor.
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Section 418.108 solely addresses the inherent authority county judges and mayors possess
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to manage disaster areas under their jurisdiction and to declare disasters and act autonomously
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under certain enumerated circumstances without the need to seek preapproval from the Governor.
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Reading Subsection (g) in the context of Section 418.108, as a whole, and comparing Section
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The majority correctly notes that TEX.GOV’T CODE ANN. § 418.012 gives the Governor this same power, and raises
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the question of what happens when both the Governor and a local official try to exercise this power at the same time
in different ways. There is no explicit answer to that.
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However, since I find the numerous preemption provisions in the Act set the conditions by which the Governor’s
administrative acts may preempt laws generally, my answer is this: the Governor’s executive order would prevail
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whenever a preemption provisions allows him to prevail. Otherwise, as amicus curiae Travis County points out, the
Code Construction Act requires that if a general provision conflicts with a local provision, the provisions shall be
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construed, if possible, so that effect is given to both. TEX.GOV’T CODE ANN. § 311.026(a). If the conflict between the
general provision and the special or local provision is irreconcilable, the special or local provision prevails as an
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exception to the general provision, unless the general provision is the later enactment and the manifest intent is that
the general provision prevail. Id. at § 311.026(b). Alternatively, because the provision giving local authorities the
same power as the Governor came later in time, the local provision would control under the last-in-time rule. Id. at
§ 311.025.
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418.108 to Section 418.1015, it appears the County is correct. County Judge Samaniego issued his
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order under his own freestanding, autonomous inherent statutory authority granted by Section
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418.108(g), unfettered by any concerns he was acting as the Governor’s agent.
The County’s order is prima facie valid.
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The Governor’s Power to Suspend Law During a Disaster
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In light of the County order’s prima facie validity, all threads of argument here collapse
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down into a single question: in order to preemptively countermand the County’s order, could the
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Governor by executive order invoke Section 418.016(a) to lawfully suspend the statute granting
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county judges and mayors the inherent authority to autonomously manage certain disasters within
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their own jurisdictions? tri
The answer is no.
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Per the terms of the Act, the Governor may “suspend the provisions of any regulatory
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statute prescribing the procedure for conduct of state business or the orders or rules of a state
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agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder,
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or delay necessary action in coping with a disaster.” TEX.GOV’T CODE ANN. § 418.016(a). There
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are two discrete questions that must be answered before the Governor’s order can be held to be
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preemptive and controlling over the County’s order: (1) whether Section 418.108 granting cities
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and counties the ability to manage emergencies at the local level is a “regulatory statute” that
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prescribes “the procedure for conduct of state business” falling within the ambit of the
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Governor’s suspension power, and, if so, (2) whether the Governor’s determination that suspension
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of that statute was “in any way” necessary to “prevent, hinder, or delay necessary action in
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coping with a disaster” was valid. [Emphasis added]. We need not answer the second question,
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because the Attorney General fails to show how the Governor can satisfy the requirements of the
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first question.
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The State must show that in addition to being regulatory, the statute is procedural and deals
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with state business. Section 418.108, standing alone, is not a statutory provision that establishes a
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procedural rule. It is a statutory grant of power to local authorities. The Attorney General argues
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Section 418.108 is procedural and regulatory in the sense that it appears in the context of an act
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that sets out emergency procedures statewide. The Attorney General asserts as to what constitutes
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“state business,” that in the context of a statewide disaster like COVID-19, the Governor may
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suspend any statute dealing with local authority anywhere in Texas because during a disaster, all
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business, even actions taken by local governments, is in essence state business. The Attorney
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General punctuates his argument by stating the Act makes the Governor the “commander in chief”
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of statewide disaster management. See TEX.GOV’T CODE ANN. § 418.015(c).
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The Attorney General’s interpretation of the suspension statute, while rhetorically

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appealing, falters under close textual scrutiny and a complete contextual reading of how the
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suspension provision interacts with other provisions in the Act. In interpreting what words and
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phrases like regulatory, procedural, and state business mean, we of course can reference
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dictionaries and common meanings of those words. But “[g]iven the enormous power of context
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to transform the meaning of language, courts should resist rulings anchored in hyper-technical
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readings of isolated words or phrases.” In re Office of the Attorney Gen., 456 S.W.3d 153, 155–56
(Tex. 2015). “The import of language, plain or not, must be drawn from the surrounding context,
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particularly when construing everyday words and phrases that are inordinately context-sensitive.”
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Id. at 155-56. Here, the surest way of ascertaining how the Legislature meant to use those words
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in the Act is to look at all provisions of the Act as a whole and see where this specific suspension
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statute fits in.
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First, we look at the Governor’s ability to suspend regulatory statutes with the provision of
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the Act setting out his duties and powers as commander-in-chief. TEX.GOV’T CODE ANN.
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§ 418.015(c). On this point, the Attorney General’s characterization of the Governor as
“commander in chief” during a declared disaster is incomplete. The Texas Disaster Act states that
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during a declared disaster, the Governor is “commander in chief” not of emergency management
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broadly and at every level, but “of state agencies, boards, and commissions having emergency
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responsibilities[.]” [Emphasis added]. Id. That is a significant difference in scope. Most notably,
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the statute does not say the Governor is commander-in-chief of state agencies, boards,
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commissions having emergency responsibilities, and political subdivisions, which are defined in
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the definitional portions of the Act as being cities and counties that are conceptually separate from
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state agencies, boards, and commissions. See TEX.GOV’T CODE ANN. § 418.004(6).
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The reference to state agencies, boards, and commissions in the grant of commander-in-
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chief power, in turn, provides context clues as to the meaning of the Governor’s ability to suspend
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“the provisions of any regulatory statute prescribing the procedures for conduct of state business
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or the orders or rules of a state agency” in Section 418.016(a). [Emphasis added]. Likewise, so
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does Section 418.0155, which requires the Governor to compile a master list of “regulatory statutes
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and rules that may require suspension during a disaster.” TEX.GOV’T CODE ANN. § 418.0155(a).
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Subsection (b) of this provision states “[o]n request by the governor’s office, a state agency that
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lc
would be impacted by the suspension of a statute or rule on the list . . . shall review the list for
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accuracy and shall advise the governor’s office regarding any statutes or rules that should be added
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to the list.” TEX.GOV’T CODE ANN. § 418.0155(b).

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If everything during an emergency is a matter of state business such that the Governor has
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the power to suspend the enabling statutes of local governments, then why is it that another statute
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requiring him to keep a master list of suspendable “regulatory statutes” allows him to request input
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about the master list from “a state agency that would be impacted by the suspension of a statute?”
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[Emphasis added]. Why not state the Governor can seek advice from any entity (such as a political
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subdivision) that may be affected by his suspension of a statute?
The answer is simple: the Legislature never envisioned the Governor’s suspension powers
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would impact anything other than a state agency that manages the procedural aspects of state-level
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business because the Legislature did not intend for the Governor to be able to act unilaterally as
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he has done here. When the preemption provision at issue here is read in context, the context
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suggests that rather than placing the Governor at the apex of state emergency management with
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local authorities under his direct control for all purposes, the Act makes the Governor the direct
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commander of the state-level administrative bureaucracy (the “regulatory” realm of “state
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agencies, boards, and commissions”) during an emergency. Further, it gives him the ability to
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suspend statutes like agency enabling statutes (statutes that proscribe the conduct of state business)
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or those agencies’ normal procedures if strict compliance with the provisions, orders, or rules (i.e.
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following the ordinary bureaucratic processes and timelines of “state business”) would “in any
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way prevent, hinder, or delay necessary action in coping with a disaster.” TEX.GOV’T CODE ANN.
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§ 418.016. In other words, the suspension statute gives the Governor the ability to clear state-level
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bureaucratic logjams, expedite administrative action at state-level agencies, and depart from the
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regular order of state-level business if doing so would help facilitate a disaster response.
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This reading is not only more natural, complete, and grounded in the text, it is consistent
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with other provisions of the Act indicating the Governor’s job during a disaster is not necessarily
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to tie the hands of local officials he potentially disagrees with and usurp their authority. But rather
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to serve as a conduit for aid to local officials,8 a connection point between different jurisdictions,9
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a facilitator who leverages state resources to mitigate and recover from disasters,10 and someone
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who makes suggestions on how to improve local emergency response processes.11
The Attorney General’s broad reading of “state business” creates yet another statutory
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interpretation problem. If the Governor can suspend the grant of autonomous disaster-management
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power to cities and counties because the Texas Disaster Act as a whole is “regulatory,” all
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emergency-management activities are “state business,” and the grant of authority to counties and
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cities appears in the Texas Disaster Act, then what are we to make of the fact that the Texas
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Disaster Act grants the Governor other specific preemption powers in at least five others places in
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the Act? Are those other grants of preemption power superfluous? Could the Governor use this
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suspension power to suspend the “regulatory” Texas Disaster Act in its entirety save for the
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provision allowing him to pass executive orders with “the force and effect of law,” and then write
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a new set of rules for emergency management?

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Of course not. Just because a textual reading comports with dictionary definitions of words
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read in isolation does not mean the grant of preemption powers at issue in this case is without
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limitation. A reading as broad as the Attorney General advocates renders at least five other
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preemptive provisions redundant. It also begins to skirt some serious nondelegation issues. If there
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is no effective limitation on the Governor’s discretion to suspend laws during a disaster he himself
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8
See TEX.GOV’T CODE ANN. § 418.021 (giving the governor that authority to apply for federal aid on behalf of a local
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government).
9
See TEX.GOV’T CODE ANN. § 418.041(b) (giving the Governor the power to appoint a chief of the Texas Division of
Emergency Management).
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10
See TEX.GOV’T CODE ANN. § 418.017 (allowing the Governor, inter alia, to use all available resources of state
government, reassign executive department personnel, and commandeer or use private property).
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11
See TEX.GOV’T CODE ANN. § 418.121(a), (c) (giving the Governor the responsibility to “consider steps that could
be taken to mitigate the harmful consequences of disasters” and to “from time to time make recommendations to the
legislature, local governments, and other appropriate public and private entities as may facilitate measures to mitigate
the harmful consequences of disasters”)[Emphasis added].
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declares, that raises the serious question of whether the Legislature has unconstitutionally
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abdicated legislative power to the Governor in contravention of the Texas Constitution. Cf. In re
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Hotze, No. 20-0430, 2020 WL 4046034, at *2 (Tex. July 17, 2020)(Devine, J., concurring)(voicing
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nondelegation concerns about portions of the Texas Disaster Act giving Governor quasi-legislative
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authority). By reading the conditions in the suspension clause at issue to be more restrictive in lieu
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of endorsing a broad, nearly limitless reading that begins to look more and more like a wholesale
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delegation of legislative power, we preserve authority rather than extinguishing it, and avoid a
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potential constitutional crisis and a nondelegation problem in a very necessary, useful disaster
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statute. See Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen, 952 S.W.2d 454, 466
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(Tex. 1997)(narrowing quasi-legislative statutes so that an executive official does not exercise
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“unguided discretion” helps avoid making a law constitutional under the nondelegation doctrine).
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The implausibility of the Attorney General’s reading of this preemption power only
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bolsters my conclusion the suspension provision in Section 418.016 is meant to be used to reduce
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bureaucratic delays at the state agencies, boards, and commissions over which the Governor asserts
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direct control. The suspension power does not extend to Section 418.108, the provision which
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gives county judges and mayors the ability to perform some disaster management activities with
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autonomy at the local level.

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The State cannot establish a probable right to relief because the Governor’s attempted
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suspension of the inherent authority of 254 county judges and more than 12,000 Texas’ mayors is
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an ultra vires act. Section 418.108 is not a regulatory statute addressing state-level bureaucratic
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businesses or agency rulemaking, nor is it a procedural statute—it is a grant-of-authority statute

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giving local authorities the leeway to act in their best independent judgment within the confines of
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their own jurisdictions. As such, the Governor’s attempted suspension of Section 418.108 to the
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extent necessary to countermand mayors and county judges who issued orders that did not adhere
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to his disaster recovery goals exceeded the scope of statutory authority grant to him by the
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Legislature. And since the Governor possesses no inherent authority to suspend statutes under the
Texas Constitution, the Governor’s actions were done without proper authority and were void.12
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The County’s order controls.
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IRREPARABLE HARM
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We must not lose sight of the fact that while we are opining on a matter that has statewide
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implication, we are also considering an interlocutory appeal that turns on the facts presented to the
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trial court at a given point in time from which the trial judge made his decision, as viewed through
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the prism of the abuse of discretion standard. tri
There are two steps to the temporary injunction analysis, and the State and the Restaurants
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must satisfy both before being able to prove to us the trial court abused its discretion by not
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granting their injunction application. Even if a temporary injunction applicant can establish a
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probable right to relief, the temporary injunction applicant must also show that it would suffer
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irreparable harm if an injunction were not granted pending trial.

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Dignitary Harm to the State

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Although the State did not object to the trial court taking judicial notice of on-the-ground
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conditions in El Paso as a result of the COVID-19 crisis, the Attorney General argues the trial
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court could not consider undisputed local conditions or balance equities in deciding whether to
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grant an injunction here, since the State as sovereign had an automatic right to relief and is excused
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of
12
Even if Section 418.108 fell within the ambit of the Governor’s suspension power, the Governor cannot suspend
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laws for any reason. Under the statute, the Governor’s suspension of local authority must have been done for a proper
purpose to be valid. It is unclear whether this could possibly be tried as a question of fact in the declaratory judgment
action or how much deference the Governor receives in making his assessments of appropriateness, other than the
placement of statutory restrictions intentionally indicate the Governor may not suspend a law simply by ipse dixit.
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from the general requirement of showing the County's conduct would cause the State irreparable
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harm. In support of their argument that dignitary harm to the State alone entitles the State to an
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injunction here, the Attorney General cites a recent per curiam case in which the Texas Supreme
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Court overturned an injunction denial and issued an injunction prohibiting a county clerk from
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sending mail-in ballot applications to county citizens who did not fall within the categories of
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persons who were, in fact, authorized to vote by mail-in ballot. See State v. Hollins, No. 20-0729,
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2020 WL 5919729, at *4-*6 (Tex. Oct. 7, 2020). That case is readily distinguishable from this one.
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In Hollins, the Texas Supreme Court concluded the Election Code did not explicitly
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authorize a county clerk to send out mail-in ballot applications to persons who did not fall within
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the five categories of voters eligible to vote by mail, meaning the county clerk had no inherent
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authority to engage in that conduct. Id., at *2. The Election Code also made the county clerk clearly
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subordinate to the Secretary of State, who was explicitly identified in the Code as the top official
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ultimately responsible for statewide election regulation and who, by statute, had a mandatory duty
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under statute to ensure uniformity of the election process across Texas. See id. (noting that
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TEX.ELEC.CODE ANN. § 31.003 explicitly requires the Secretary to “obtain and maintain
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uniformity in the application, operation, and interpretation” of the Election Code and requiring
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him to “prepare detailed and comprehensive written directives and instructions” to local officials).
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Because the county clerk had no inherent authority to act, because the Secretary was the ultimate
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authority overseeing elections who had a statutory duty to maintain uniformity, and because the
county clerk’s actions were clearly ultra vires and in derogation of the statutory uniformity
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requirement, injunctive relief should have been granted because there was only reasonable
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outcome. Thus, the trial court’s duty to grant the temporary injunction pending trial was essentially
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ministerial because the county clerk’s duty was essentially ministerial.
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Hollins is distinguishable from the case at hand. First, the structure of the Texas Disaster
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Act is not as hierarchical as the Election Code. Unlike the Election Code, which explicitly vests
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ultimate regulatory authority over local officials in one executive, the Texas Disaster Act does not
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make the Governor the sole official responsible for addressing a disaster. Second, unlike the
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Election Code which requires uniformity of action across the entire State, the Texas Disaster Act
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does not require any specific response during a disaster, but instead creates a flexible framework
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for cooperation among various officials at the state and local levels. The Secretary’s actions in
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Hollins were necessitated by a mandatory duty to maintain uniformity statewide, which, in turn,
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made resolution of the injunction appeal ministerial because there was only one possible outcome.
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Here, the Act does not create mandatory statutory duties that require any specific response as a
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preordained outcome. To put it another way, the Act does not create clear, measurable ministerial
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duties in this situation.

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Finally, unlike Hollins, which involved a county official exercising authority that had not
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been conferred by statute, Section 418.108, as we have stated before, explicitly confers emergency
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authority onto the County Judge without reference to any preclearance requirements from the
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Governor. The County Judge clearly had the authority to issue his order.
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The State is correct that it can file an injunction to restrain violations of the law when the
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status quo involves ongoing violations of the law. But Texas Supreme Court case law also
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establishes that generally, when the determination of whether the status quo is a violation of the
law “is the central question of the suit,” that question should be determined with a full trial on the
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merits. See Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 555-56 (Tex. 2016). Against that
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longstanding backdrop, we read Hollins as standing for the proposition the State’s request for
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injunctive relief based on general law enforcement grounds must be granted when statutes clearly
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dictate only one possible legal outcome, making the trial court’s decision on injunctive relief
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ministerial rather than discretionary. Otherwise, the issue should be resolved at trial on the merits,
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with temporary injunctive relief pending trial available—as in other situations—as a matter of a
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trial judge’s discretion.
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Here, even if my reading of the law is incorrect and a conflict-of-laws scheme is implied
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onto textual silence under a theory the Legislature simply forgot to include a conflicts provision
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and we can correct the Legislature’s mistake by copy-editing the statute, the various portions of
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the Texas Disaster Act do not create clear ministerial duties. It is clear to me that the law here does
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not require any specific outcome as it did in Hollins. As such, the State has failed to show the
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existence of a ministerial duty and that it was violated. My view is the trial court did not err, to the
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extent, it concluded, it retained discretion to decide the issue of irreparable harm.
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The trial court was free to weigh seven days’ worth of dignitary harm to the State prior to
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the expiration of the County’s order against other then-existing equities at the snapshot in time it
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made its decision. Since this harm is abstract and not tangible, the trial court had leeway to decide
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how likely it was any dignitary harm caused to the State over seven days would be in-fact
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irreparable.
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Economic Harm to the Restaurants

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The case presented by the Restaurants with respect to harm is far more compelling than the
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State. Unlike the dignitary abstract harm allegedly suffered by the State, the economic harm to the
Restaurants as the result of the County Judge’s order is tangible, quantifiable, and undeniable.
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Under the County’s order, the Restaurants are designated as one of twenty types of essential
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businesses exempt from the shut-down order, and they may continue to sell food through delivery
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and carry-out, but not through dine-in service. If the injunction were granted and the County’s
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order suspended, then the Restaurants would have been able to offer dine-in service up to 50%
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capacity under the Governor’s Executive Order. Thus, the precise question before us in this appeal
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as to these litigants is whether at the time the trial court rendered its decision, the Restaurants
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established the harm they would suffer from their inability to offer dine-in services up to 50%
capacity for seven days before the County’s order expired would be irreparable for them.
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That is a discretionary question that lies with the trial court in my view; we can only
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overturn the trial court’s decision only if it falls outside the zone of reasonable disagreement. Here,
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we do not have an evidentiary record showing what kind of losses the Restaurants would be
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projected to suffer over the course of five days if their dine-in capacity was reduced from 50% to
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0%. The Restaurants base their argument almost entirely around the proposition the Governor’s
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order legally countermanded the County’s order. Although the Restaurants failed to put on any
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evidence showing the projected amount of harm to their businesses as a specific dollar amount, it
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can be reasonably presumed the amount of revenue represented by a shift of dine-in business from
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0% dine-in to 50% is substantial. The underlying assumption, of course, is the Restaurants were
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operating at full 50% dine-in capacity during operating hours. Still, because there is no evidentiary
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record here, it is difficult, if not impossible, to conclude the Restaurants established the harm they
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would suffer if the last seven days of the County’s order were not enjoined was irreparable as a
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matter of law. The trial court would still have to balance the equities.
The County’s Equitable Interests

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We weigh the seven days’ worth of intangible harm to the State’s general dignity and the
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seven days’ worth of lost 0%-50% capacity dine-in profit from the Restaurants as a result of
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allowing the County’s order to stand until it expired against the harm the County would suffer if
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the order was enjoined before it expired. If the trial judge’s weighing of those equities fell outside
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the zone of reasonable disagreement, we must reverse his decision and impose an injunction
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pending trial on the merits.
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Here, clearly the trial court’s weighing of the equities fell within the zone of reasonable
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disagreement. The statistics, which are undisputed, paint a grim picture. In the lead-up to the trial
court’s injunction decision, El Paso County was on the brink of a cascading hospital failure that
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affected the care that both COVID and non-COVID patients received.
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Considering the undisputed facts in the record, in my view, the trial court did not abuse its
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discretion by refusing to enjoin the County’s order before it expired on its own terms.
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CONCLUSION
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The late textualist Justice Antonin Scalia and his writing partner Bryan A. Garner have
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stated that it is a “false notion that the quest in statutory interpretation is to do justice,” since when
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a judge deviates from the text in a desire to see that justice is done in the specific dispute before
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them, “the law becomes subject to personal preferences and hence shrouded in doubt.” READING
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LAW at 347-48. Though the Legislature has told courts that they may consider multiple things in
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constructing its acts, including the effects a particular statutory interpretation would have, Texas
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courts have nevertheless adopted a strict textualist approach to statutory construction under the
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theory that while we may have legal permission from the Legislature and by tradition to consider
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many factors in our decisions, “not all that is lawful is beneficial.” See Tex. Health Presbyterian
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Hosp. of Denton v. D.A., 569 S.W.3d 126, 136 (Tex. 2018).

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For this reason, it is critical we read the Texas Disaster Act as carefully as we can, and to
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apply textualist principles with as much fidelity as possible. I staunchly believe, setting aside any
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questions of political rightness or justness of outcome, that under the principles of textualism, the
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grant of authority allowing the Governor to issue executive orders with “the force and effect of
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law” during a disaster does not inherently, silently, unilaterally give the Governor authority to
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overrule laws by executive order simply by stating “all local laws are preempted.” There are clear
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methods by which the Governor may issue executive order preempting laws in the Texas Disaster
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Act. Because his executive order attempting to preempt local laws did not comport with the plain
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text of the limited preemption powers granted to him by the Legislature, his attempt to suspend
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the authority of local officials was void.
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That, I think, should satisfy our inquiry.
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But there are additional factors that are relevant to my analysis: the unintended
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consequences of the reading the Attorney General advances. Justice Scalia and Bryan Garner have
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said that under textualism, it is a “half-truth that consequences of a decision provide the key to
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sound interpretation.” READING LAW at 352. While they generally disavow considering the
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consequences of a particular statutory construction, to the extent I as a judge still have discretion
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to weigh those consequences other than those deemed relevant by textualism at this historical
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moment, and to the extent my position as the dissenting justice frees me from any strict formal
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requirements in writing my decision, I will simply say this.

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Amid a cascading hospital crisis as a virus without a clear cure spreads exponentially
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through the community, El Paso’s local government has balkanized. The City Mayor and the
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County Judge haven taken diametrically opposed approaches to law enforcement. The city police
department initially refused to enforce the County’s order on the advice of the Attorney General,
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who (incorrectly in my view) contended the Governor’s order preempted the County’s order.
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Meanwhile, the county sheriff’s department enforced the County’s order based on the County’s
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determination that it still retained emergency authority. Law enforcement personnel in El Paso
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County are in disarray, and the organs of local government have turned against each other.
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Although I disagree with the interpretive approach taken by the majority, I do agree in one
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respect: we need to know who oversees what in this time of crisis, and soon. The real problem here
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is not that the Texas Disaster Act fails to give us guidance of who trumps whom in the event of a
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stalemate. The real problem is that there is a stalemate in the first place.
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The nightly news incessantly reminds us the stakes of this litigation could not be higher
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and the effect of our judgment more consequential. This is not a bar exam question, an academic
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discussion, or an intellectual exercise in a law school classroom. This case, and the others that will
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undoubtedly ensue as more counties reassert their inherent statutory authority to deal with local
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conditions, are literally matters of life and death. More than one hundred years ago, a pandemic
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like this one tore across Texas. Each community in Texas decided for themselves how to best
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manage their affairs until the viral inferno was snuffed out. That history echoes in the background
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of our decision today. How will this crisis echo one hundred years from now?
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Every hospital in El Paso County is at capacity, and it is not an exaggeration to say every
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other patient in our hospitals right now is a COVID patient, and the County’s morgue has been at
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capacity for days because the County has been unable to process bodies quickly enough, creating
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a problem of where to store the deceased, whose bodies, in a grim turn of bureaucratic phrase, are
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backlogged at the Medical Examiner’s Office. In the seven days this expedited appeal was pending,
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the County has gone from having one refrigerated mobile morgue for the overflow of bodies to six
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refrigerated mobile morgues. Rumor has it the number of refrigerated mobile morgues may
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possibly go up to ten in the coming days. How many more mobile morgues will come to El Paso
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before the Texas Supreme Court is able to render a final answer to the deadly riddle of which
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leader must yield? Will the Governor and the County Judge come to a workable solution first?
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Only time will tell.
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Perhaps others will see what I see in this statute. Perhaps leaders will live up to the spirit
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of the Texas Disaster Act and find solutions rather than resorting to a race to the courthouse to
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have judges break ties over who has more authority while Rome burns around us. Perhaps the
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Legislature will insert the words into the statute this coming summer which provide more guidance
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as to what happens when people turn against each other in a crisis. Perhaps not. Until there is a
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vaccine or a cure for COVID-19, the turmoil facing our community today will be the turmoil
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another Texas community faces tomorrow.
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There is little question the Governor is one of many people who has a part to play in
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coordinating our response to this unprecedented pandemic, but is he the sole arbiter? No reasonable
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Texan would disagree the goal of promoting and reopening the economy is, without any doubt,
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legitimate and necessary disaster relief. But my job, as a justice of a court of appeals, is to read
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and apply the law, to call balls and strikes. The Governor’s goal may be legitimate, but the manner
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in which he has pursued it, is not. The Attorney General maintains, in times of emergency, the
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Governor is the ultimate decision-maker, that he is a unitary executive with power over all levels
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of government, that he alone may decide the fates of people in 254 counties and 12,000 cities, that
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local elected leaders may act only because he gives them the authority, and he can take away that
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authority if he believes their approach as to how they address disaster relief is, in his view, wrong.
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The only way any of that can be true is if courts ignore critical Texas constitutional history,
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disregard the structure and purpose of the Texas Disaster Act, read words into a statute that are
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simply not there, and discard important restrictions and qualifications on the Governor’s power in
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the name of expediency and a belief that his noble ends justify its unlawful means.
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Because the Governor’s attempt to suspend the inherent disaster-management authority of

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county and city leaders violates the small government ethos the Framers wove into the Texas
31
Constitution, the cooperative spirit of the Texas Disaster Act, and, most importantly of all, the
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plain text of the Texas Disaster Act, I respectfully dissent.
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YVONNE T. RODRIGUEZ, Justice
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November 13, 2020
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Before Alley, C.J., Rodriguez, and Palafox, JJ.
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32
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COURT OF APPEALS
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EL PASO, TEXAS
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Appellants,
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Appellants. §
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CORRECTED OPINION
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On March 13, 2020, Texas Governor Greg Abbott issued a proclamation under the Texas
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Disaster Act of 1975 (the Disaster Act)1 certifying that “COVID-19 poses an imminent threat of
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1
See generally TEX.GOV’T CODE ANN. ch. 418.
1
disaster” in all 254 Texas counties; he has renewed that declaration each month since.2 Likely no
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citizen of this state has escaped the impact of the virus, either from its health effects, economic
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impact, or the disruption of society. And since March, the Governor has issued twenty-five
emergency orders that pertain to the novel coronavirus COVID-19 pandemic.3 Those orders cover
L.
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a broad range of issues, including data collection and reporting, hospital capacity, mitigation
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efforts, air transportation, jails, face coverings, and more recently, the safe re-opening for segments
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of Texas society.4 Some of the orders have set uniform state mandates, and some have allowed
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for local flexibility to suit local conditions.5
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The impact of the virus has been particularly acute in El Paso County, a major
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transportation hub, sharing an international border with Mexico. In October 2020, El Paso County
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experienced a dramatic upswing in the COVID-19 pandemic. The capacity of El Paso County
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hospitals reached their limits, with some 51% of the census being classified as COVID-19 cases.
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Area Intensive Care Units exceeded capacity, and hospitals are now forced to establish temporary
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alternate care sites and airlift patients to other cities. Despite efforts to encourage voluntary
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compliance, warnings, and enforcement, El Paso County continues to experience a surge of new
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cases. As of the time of this opinion, El Paso County has routinely experienced a thousand or
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more new cases per day. And many families have sadly lost loved ones.
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2
The Governor of the State of Tex., Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2095 (2020).
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3
EXECUTIVE ORDERS BY GOVERNOR GREG ABBOTT,
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https://lrl.texas.gov/legeLeaders/governors/displayDocs.cfm?govdoctypeID=5&governorID=45 (last visited Nov.

11, 2020) (linking to GA orders GA-01 to GA-32, with GA-18 to GA-32 addressing COVID-19 disaster).
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4
Id.
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5
For instance, GA-29 contains a mandate for face coverings, but allows for counties to be exempted if they have met
certain criteria and the local county judge has affirmatively opted out of the requirement. EXECUTIVE ORDER GA-29,
found at https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/GA-29.pdf.
2
In the face of this upswing in cases, the strain on the medical system, and the rising
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mortality numbers, local leaders responded. On October 7, 2020, El Paso County Judge Ricardo
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Samaniego requested that Governor Abbott exempt El Paso County from an anticipated further
opening of businesses and bars. Governor Abbott’s order, GA-32, also dated October 7, 2020,
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allowed bars to open with occupancy limits, but did so only if the local county judge filed a
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requisite form with the Texas Alcohol and Beverage Commission. On October 22, 2020, County
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Judge Samaniego notified Governor Abbott of the surge of COVID-19 cases and the strain on
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hospital resources. Our record shows that the State of Texas has surged emergency relief,
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including personnel, testing, and equipment to the area.
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The dispute here arises from County Judge Samaniego enacting County Emergency Order
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No. 13 (CE-13 or the Order). The Order, effective as of Thursday, October 29, 2020, at 11:59
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p.m., was set to expire on Wednesday, November 11, 2020 at 11:59 p.m. See ORDER NO. 13,
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https://www.epcounty.com/documents/Order-No-13.pdf (last visited Nov. 12, 2020). We take

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judicial notice that County Judge Samaniego extended the Order to December 1, 2020.6 CE-13
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applies to all incorporated and unincorporated areas of El Paso County.

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6
See ORDER NO. 14, http:/epcounty.com/documents/Order-No-14.pdf (last visited Nov. 12, 2020). The extension is
titled as Order No.14. Both orders contain a findings section that explains the judge’s rationale, followed by sections
one through six that contain the core prohibitions that give rise to this dispute (a stay at home order, a cease operation
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for “non-essential businesses,” a prohibited activities section, and a travel restriction). The balance of the orders
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contains definitional sections and provisions related to posting, enforcement, and application. County Emergency
Order 14 contains updated data and additional recitations in its findings section. The core prohibitions in County
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Emergency Order 13 and 14 are identical with one exception. The newest order contains a stair-step formula wherein
affected businesses might resume limited operation based on defined hospital data. Because this new provision still
materially differs from provisions of the Governor’s Order, the change would not affect the core dispute raised in this
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appeal. We view it as immaterial to our resolution of the case, and we treat County Emergency Order 13 and 14 as
the functional equivalent of each other for the purposes of this order. We agree with the parties’ assessment that
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because the controversy is capable of repetition but evading review during the ongoing pandemic, the justiciable
controversy remains and was not mooted by the expiration of Order 13 and later issuance of Order 14. See Matthews
of
ex rel. M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016) (explaining that cessation of challenged
conduct does not deprive a court of the power to hear or determine claims for prospective relief; otherwise, this would
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defeat the public interest in having the legality of the challenged conduct settled). We stayed enforcement of the
substantive provisions of CE-13 and CE-14 by granting Appellants’ Emergency Motion for Relief under
TEX.R.APP.P. 29.3 on November 12, 2020.
3
CE-13 includes several provisions relevant here. Section 1 requires all individuals living
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within El Paso County to temporarily stay at home or at their place of residence. Section 3 of the
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Order includes a curfew on all persons from 10 p.m. to 5 a.m. Section 5 prohibits “[a]ll public or
L.
private gatherings of any number of people occurring outside a single household or living unit.”
a
(emphasis original). Section 5 also requires nursing homes, retirement, and long-term care
lv
facilities to prohibit non-essential visitors from visiting their facilities unless to provide critical
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assistance.
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Specific sections exempt from these restrictions, however, persons performing “Essential
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Activities” or who work in an “Essential Business,” “Essential Governmental Function,” or
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“Critical Infrastructure,” all as defined in the Order. Dovetailing with these exemptions, Section 4
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of CE-13 requires all businesses that are not defined as essential businesses to cease activities at
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any facility located in the County, save and except those to preserve the business premises or
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inventory, or facilitate work-from-home arrangements. Essential businesses include healthcare

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operations, food service providers (including grocery stores, warehouse stores, “big box” stores,
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and liquor stores), laundromats, automobile dealerships, hardware stores, and transportation
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services. But others, such as barber shops, nail salons, gyms, and massage therapists are not
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deemed essential under the Order.7 When patronizing an essential business, only one person per
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family unit may do so, unless an additional person is needed as a caretaker.

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7
Apart from these food service and transportation categories, other categories of essential businesses exempted from
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the stay-at-home orders include: Providers of Basic Necessities to Economically Disadvantaged Populations, Essential
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Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses, Professional
Services (such as legal or accounting services when necessary to assist in compliance with legally mandated activities,
or businesses that supply other essential businesses with support or supplies needed to operate), Petroleum Refineries,
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Media, Financial Institutions, Mail and Delivery Services, Educational Institutions, Suppliers for Essential
Businesses/Critical Infrastructure/Essential Government Functions, Food Delivery Services, Home-Based Care and
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Services, Residential Facilities and Shelters, Information Technology Services, Childcare Facilities, Animal Shelters
and Other Businesses that Maintain Live Animals, Vector and Pest Control, and Funeral and Post-Mortem Services.
The Order also exempted voting for the recent November 3rd election.
4
Restaurants are also defined as an essential business, but the Order limits them to providing
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delivery or curbside take-out-service. In-premises dining is banned.
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Violation of the Order is considered a Class C Misdemeanor punishable by a fine not to
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exceed $500.
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Several of the provisions of the Order, however, directly conflict with an executive order
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issued by the Governor of the State of Texas. Governor Abbott’s Executive Order GA-32, issued
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on October 7, 2020, allows businesses to operate at either 75% or 50% of indoor occupancy,
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depending on local hospitalization rates.8 Several specific businesses that are restricted under CE-
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13 are expressly allowed to operate under GA-32 when they utilize six foot spacing between work
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stations (e.g., cosmetology salons, hair salons, barber shops, nail salons, massage establishments
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where licensed massage therapists practice, tanning salons, tattoo studios, piercing studios, and
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hair loss treatment and growth services). Under GA-32, restaurants can offer dine-in services,
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subject to occupancy limits. Under GA-32, people may visit nursing homes and like facilities,
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subject to Texas Health and Human Services Guidance. People may also gather without
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occupancy limits in a variety of places or activities, such as recreational sports programs. Outside
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of those specified gathering places or activities, persons are not to gather in “groups of larger than
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10 and shall maintain six feet of social distancing from those not in their group.” None of these
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activities would be allowed under CE-13.
The Governor’s order contains a preemption clause countermanding any conflicting local
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government actions:
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This executive order shall supersede any conflicting order issued by local officials
in response to the COVID-19 disaster, but only to the extent that such a local order
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restricts services allowed by this executive order, allows gatherings prohibited by

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this executive order, or expands the list or scope of services as set forth in this
8
EXECUTIVE ORDER GA 32, https://gov.texas.gov/uploads/files/press/EO-GA-32_continued_response_to_COVID-
19_IMAGE_10-07-2020.pdf (last visited Nov. 12, 2020).
5
executive order. . . . I hereby suspend [any relevant statute] to the extent necessary
to ensure that local officials do not impose restrictions in response to the COVID-
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19 disaster that are inconsistent with this executive order . . . .
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The El Paso County Order, however, contains its own directive on how conflicts in the orders
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should be resolved. Under Section 16 of CE-13, “To the extent that there is a conflict between
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this Order and any executive order of the Governor, the strictest order shall prevail.” Both GA-32
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and CE-13 were issued pursuant to the Texas Disaster Act of 1975. TEX.GOV’T CODE ANN. ch.
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418.
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Appellants here are entities that operate area restaurants. They filed suit to enjoin
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enforcement of CE-13 on the basis that the County Judge acted ultra vires and without legal
authority. The restaurants agree to fully abide by the Governor’s occupancy directives in GA-32.
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Their sole dispute is whether they must comply with CE-13 or GA-32. The State of Texas
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intervened in the suit seeking to invalidate CE-13 in its entirety because it conflicts with GA-32.
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A trial court heard and denied the temporary injunction request. The restaurants and the State
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brought an immediate appeal. See TEX.CIV.PRAC.& REM.CODE ANN. § 51.014(a)(4) (allowing

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appeal from interlocutory order denying temporary injunction).

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INJUNCTION STANDARD OF REVIEW

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The movants for a temporary injunction “must plead and prove three specific elements: (1)
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a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable
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imminent, and irreparable injury in the interim.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
lc
(Tex. 2002). We review a trial court’s order denying a temporary injunction for an abuse of
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discretion. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). But the court has no “discretion” to
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incorrectly analyze or apply the law. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)
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(“[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse
of discretion . . . .”).
6
DISCUSSION
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The United States Supreme Court wrote more than a century ago that the authority to
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respond to public health crises must be “lodged somewhere.” Jacobson v. Massachusetts, 197
U.S. 11, 27 (1905). The protection of the “health, safety, and comfort of citizens” rests with the
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legislature whose core police powers allow it “to regulate the use of property and the carrying on
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of business.” Houston & T.C. Ry. Co. v. City of Dallas, 84 S.W. 648, 653 (Tex. 1905). The
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Disaster Act is one embodiment of that power. But through that Act, the Legislature empowered
k
other state actors to meet disaster dangers, because “[t]here is little room for argument that the
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public interest requires that someone in government needs the authority to act in case of an
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imminent threat which may affect the safety of the lives and property of the populace.” Salmon v.
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Lamb, 616 S.W.2d 296, 298 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ) (stating also that
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power is lodged with the Governor under the Disaster Act).

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The single issue in this case is whether, under the Disaster Act, the Legislature delegated
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to the governor or a county judge the final say for matters covered by the conflicting provisions of
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GA-32 and CE-13. The disaster at issue is the COVID-19 pandemic. And to make this point
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clear--the issue before this Court is not the wisdom or efficacy of the actions taken by either the
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Governor or the County Judge. A court is ill-equipped, nor empowered to make such difficult
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policy decisions. Rather, the only question that we are capable of answering is, under the text of
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the statute, who is the proverbial captain of the ship to make the difficult decisions embodied in
these competing orders. Or as Justice Guzman recently wrote respecting the Disaster Act’s
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application to an election question in the era of COVID-19:

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[T]he Texas Constitution commits the balancing of competing interests and policy
objectives to the executive and legislative branches of government. The judiciary’s
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function is only to say what the law is, not what it should be. In our constitutional
role, judges are not empowered to substitute our policy choices, preferences, or
7
rules for those of the coordinate branches. So long as the law as written complies
with the federal and state constitutions, our duty is to enforce it.
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Abbott v. The Anti-Defamation League Austin, No. 20-846, 2020 WL 6295076, at *8 (Tex. Oct. 27,
Pr
2020) (per curiam) (Guzman, J. concurring) (footnotes omitted).
L.
The answer to our question lies in the text of the Disaster Act. Statutory construction is a
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legal question that we review de novo. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437
lv
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(Tex. 2009). Our primary focus in statutory interpretation is to give effect to legislative intent,
considering the language of the statute, as well as its legislative history, the objective sought, and
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the consequences that would flow from alternate constructions. Crown Life Ins. Co. v. Casteel, 22
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S.W.3d 378, 383 (Tex. 2000). We seek that intent “first and foremost” in the statutory text.
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Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006); see also Bosque Disposal Sys.,
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LLC v. Parker County Appraisal Dist., 555 S.W.3d 92, 94 (Tex. 2018) (“[T]he Legislature
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expresses its intent by the words it enacts and declares to be the law.”); BankDirect Capital Fin.,
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LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 (Tex. 2017) (“The text is the alpha and the omega
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of the interpretive process.”). We consider the words in context, and not in isolation. In re Office
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of the Atty. Gen. of Texas, 456 S.W.3d 153, 155 (Tex. 2015) (per curiam) (“Given the enormous
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power of context to transform the meaning of language, courts should resist rulings anchored in
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hyper-technical readings of isolated words or phrases.”). We must presume that every word in a
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statute has been used for a purpose and that every word excluded was excluded for a purpose.
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Emeritus Corp. v. Blanco, 355 S.W.3d 270, 276 (Tex.App.--El Paso 2011, pet. denied).
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A. Structure of the Disaster Act

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The Disaster Act is divided into several subchapters, the first consisting of sixteen sections
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that define the powers and duties of the governor. “The governor is responsible for meeting . . .
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the dangers to the state and people presented by disasters . . . .” TEX.GOV’T CODE ANN. § 418.011.
8
To do so, “the governor may issue executive orders, proclamations, and regulations and amend or
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rescind them. Executive orders, proclamations, and regulations have the force and effect of law.”
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Id. at § 418.012. The governor may declare a state of disaster within a defined geographic area,
L.
but the governor must renew the declaration after thirty days. Id. at § 418.014 (a)(d)(2). The
legislature retains the right to terminate that declaration at any time. Id. at § 418.014 (c). “During
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a state of disaster and the following recovery period, the governor is the commander in chief of
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state agencies, boards, and commissions having emergency responsibilities.” Id. at § 418.015(c).
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Additionally, the governor “may use all available resources of state government and of
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political subdivisions that are reasonably necessary to cope with a disaster.” Id. at § 418.017. The
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governor is tasked with seeking federal aid for individuals, the state, and on behalf of local
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governmental units. Id. at §§ 418.021, 418.022. And central to our discussion here, the governor
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is explicitly given the power to “control ingress and egress to and from a disaster area and the
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movement of persons and the occupancy of premises in the area.” Id. at § 418.018(c).
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Far less defined in the Disaster Act is the role of county judges. Compare TEX.GOV’T
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CODE ANN. §§ 418.011-.026 (detailing the governor’s powers and responsibilities under the Act),
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with id. §§ 418.1015, 418.108 (detailing local officials’ powers under the Act). Two provisions
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allocate authority to county judges. In one of those provisions, county judges are deemed to be
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the “emergency management director” for their county. As the emergency management director,
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the county judge can exercise the powers granted to the governor, but at the county level:
(b) An emergency management director serves as the governor’s designated agent

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in the administration and supervision of duties under this chapter. An emergency

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management director may exercise the powers granted to the governor under this
chapter on an appropriate local scale.
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Id. at § 418.1015.
9
Second, the Disaster Act also contemplates that a county judge or mayor may have to issue
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a local disaster declaration. After doing so, a county judge or mayor has the express power to
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manage ingress, egress, and occupancy, mirroring the similar grant to the governor:
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The county judge or the mayor of a municipality may control ingress to and egress
from a disaster area under the jurisdiction and authority of the county judge or
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mayor and control the movement of persons and the occupancy of premises in that
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area.
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Id. at § 418.108(g).
B. Reconciling the Governor’s and County Judge’s Powers
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The State offers three reasons why under the text of the Disaster Act we must find that GA-
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32 prevails over CE-13. First, it argues the county judge is expressly referred to as the “agent” of
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the governor, and agents do not control principals. Instead, agency law dictates just the opposite.
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Second, it argues the Legislature delegated to the governor the authority to issue orders and decrees
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that have the “force of law.” The county judge is not accorded similar authority, and consequently
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GA-13 has become state law, necessarily ousting any conflicting portions of CE-13. Finally, it
argues the Disaster Act specifically gives the governor the authority to suspend regulatory statutes
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for the conduct of state business, and the governor’s suspension of the statute that authorized the
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conflicting county edicts is an exercise of that right. We mostly agree with the State.
Section 418.1015(b) makes County Judge Samaniego the “emergency management

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director” for El Paso County. The statute allows County Judge Samaniego, as the emergency
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management director, to exercise the powers granted to the governor at the county level. But when
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the county judge does so, it is “as the governor’s designated agent in the administration and
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supervision of duties under this chapter.” Id. at § 418.1015 (emphasis added). And black letter
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law teaches that an agent is subject to the control of the principal, and not vice versa. Exxon Mobil
Corp. v. Rincones, 520 S.W.3d 572, 590 (Tex. 2017), quoting RESTATEMENT (THIRD) OF AGENCY
10
§ 1.01 cmt. f (2006) (“Further, a ‘principal’s right of control presupposes that the principal retains
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the capacity throughout the relationship to assess the agent’s performance, provide instructions to
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the agent, and terminate the agency relationship by revoking the agent’s authority.’”);
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Hollingsworth v. Perry, 570 U.S. 693, 713 (2013), citing 1 RESTATEMENT (THIRD) OF AGENCY
§ 1.01, cmt. f (2006) (“An essential element of agency is the principal’s right to control the agent’s
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actions.”); RESTATEMENT (THIRD) OF AGENCY § 1.01 (2006) (“Agency is the fiduciary relationship
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that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the
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agent shall act on the principal's behalf and subject to the principal's control, and the agent
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manifests assent or otherwise consents so to act.”). We presume the Legislature “chooses a
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statute’s language with care, including each word chosen for a purpose, while purposefully
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omitting words not chosen.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.
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2011). Given the commonly understood meaning of “agent”, the County cannot rely on Section
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418.1015(b) as the source of authority for CE-13.

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But the County contends it is not drawing its authority from Section 418.1015(b) or as
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County Judge Samaniego’s role as the emergency management director for El Paso County.
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Instead, it hinges its claim on a claimed stand-alone authority given to county judges under Section
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418.108. Under that section, the County argues a county judge is given the authority to declare a
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local disaster, and after doing so, the county judge “may control ingress to and egress from a
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disaster area under the jurisdiction and authority of the county judge or mayor and control the
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movement of persons and the occupancy of premises in that area.” Id. at § 418.108(g). Whether
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the grant of authority under Section 418.108 is truly stand alone is debatable. Section 418.1015
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describes the county judge as the governor’s agent “in the administration and supervision of duties
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under this chapter” and “this chapter” would include Section 418.108.
11
But even if Section 418.108 is stand alone, the argument does not help the County, because
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the governor is also accorded the exact same express power to control ingress, egress, and
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occupancy. Id. at § 418.018 (the governor is explicitly given the power to “control ingress and
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egress to and from a disaster area and the movement of persons and the occupancy of premises in
the area.”). And the disaster at issue is not just a local disaster, but a state-wide disaster (albeit
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with disparate impacts in different parts of the state). The question in that context is who between
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the governor and a county judge, both of whom are delegated and here exercised the same express
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powers over ingress, egress, and occupancy, have the ultimate say. The answer to that question
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lies in Section 418.012 and Section 418.016 of the Act.
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Section 418.012 is a delegation of power from the Legislature to the governor:
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Under this chapter, the governor may issue executive orders, proclamations, and
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regulations and amend or rescind them. Executive orders, proclamations, and
regulations have the force and effect of law.
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Id. at § 418.012. 9 GA-32 invokes this provision. In doing so, it makes various declarations
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regarding occupancy, the size of group meetings, activities that person may engage in, and the
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conduct of business. And as such, those declarations become state law. Moreover, state law will
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eclipse inconsistent local law. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex.
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2003) (“Though they are creatures of the Texas Constitution, counties and commissioners courts
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are subject to the Legislature's regulation.”); Childress County v. State, 92 S.W.2d 1011, 1015
op
(Tex. 1936) (“The county is merely an arm of the state. It is a political subdivision thereof. In
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9
On appeal, the County does not challenge the ability of the legislature to delegate power to the governor under
Section 418.012. “The Texas Legislature may delegate its powers to agencies established to carry out legislative
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purposes, as long as it establishes reasonable standards to guide the entity to which the powers are delegated. Requiring
the legislature to include every detail and anticipate unforeseen circumstances would . . . defeat the purpose of
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delegating legislative authority.” Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995) (internal
quotations and citations omitted); see also Williams v. State, 176 S.W.2d 177, 183 (Tex.Crim.App. 1943) (discussing
and collecting authority on the proper delegation of legislative powers).
12
view of the relationship of a county to the state, the state may use, and frequently does use, a
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county as its agent in the discharge of the State's functions and duties.”); El Paso County v. El
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Paso County Emergency Serv. Dist. No. 1, 08-19-00105-CV, 2020 WL 91208, at *4 (Tex.App.--
El Paso Jan. 8, 2020, no pet.) (“Although created by the Texas Constitution, [county
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commissioner’s courts] are subject to directives enumerated by the legislature and may undertake
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only that authority explicitly granted by either the Texas constitution or the legislature.”); Orndorff
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v. State ex rel. McGill, 108 S.W.2d 206, 210 (Tex.Civ.App.--El Paso 1937, writ ref’d) (“Counties
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and their commissioners’ courts are, therefore, not only the creatures of the State Constitution, but
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they are under the continuous control and domination, within constitutional bounds, of the State
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Legislature.”). tri
And how could it be otherwise? If the disaster de jure was a hurricane on the gulf coast,
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there would have to be a tie-breaker if the governor intended for people to evacuate in one direction
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but a local county judge thought it better to send people in the exact opposite direction. Pick
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whatever type of disaster you might--from toxic chemical releases, earthquakes, oil pipelines leaks,
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to pandemics--and there could be good faith differences of opinion on the proper response.
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Because there must be a final decision-maker, the Legislature inserted a tie breaker and gave it to
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the governor in that his or her declarations under Section 418.012 have the force of law. El Paso
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County can point to no similar power accorded to county judges. And while it is not for us to
judge the wisdom of the Legislature’s choice, the idea of one captain of the ship has intuitive
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appeal. Did the Legislature really intend for the chaos of a system that allows for 254 different
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county responses to a statewide disaster? It certainly allowed county judges to lead local disasters,
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but that is not what Texas is facing.

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Nor does anything in the text of the Disaster Act suggest that a county judge’s grant of
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authority over ingress, egress, or occupancy in a local disaster overrides the governor’s identical
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authority for a statewide declared disaster. The County and amicus’s responses to the contrary are
L.
unavailing. The County focuses on Section 418.108(g), which authorizes either the county judge
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or the mayor of a city to declare a local emergency, and to the extent there is a conflict in their
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decisions, the county judge prevails. TEX.GOV’T CODE ANN. § 418.108(g), (h). The County argues
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the absence of a similar provision expressly referencing the governor and county judge implies
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there is no hierarchy between the two. But we could just as easily assume that because Section
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418.108(h) gives a county judge conflict power over a mayor, but not the governor, the Legislature
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never intended a county judge to supersede gubernatorial decrees. And Texas is faced with a
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statewide disaster, not simply a local one. Amici Travis and Fort Bend County suggest that
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because the county judge’s grant of power over ingress, egress, and occupancy is more recent, and
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more specific, we should use canons of statutory construction favoring those type of provisions
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over the original, broader provisions. But we resort to those kinds of canons of construction only
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where the text of a statute is unclear. Greater Houston P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex.
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2015). And the express statement that the declarations of the governor have the force of law is
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clear and unambiguous.10

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So not only are the various detailed provisions of GA-32 effectively provisions of state
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law, but so too is its mandate that it prevails over conflicting local declarations to the contrary.
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The County suggests that GA-32 and CE-13 do not conflict because a court could simply enforce
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of
10
That clarity in Section 418.012 also answers the County’s reliance on language deleted from the draft bill as the
Disaster Act wound its ways through the legislative approval process. “[R]ejection of language [from draft bills] is
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not a statement about legislative purpose or the meaning of the statute.” Robinson v. Budget Rent-A-Car Sys., Inc.,
51 S.W.3d 425, 429 (Tex. App.--Houston [1st Dist.] 2001, pet. denied) (explaining multiple reasons why language
might be deleted from a draft bill).
14
the more stringent guideline. But to do so would ignore that portion of Governor Abbott’s order
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that states, “This executive order shall supersede any conflicting order issued by local officials in
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response to the COVID-19 disaster[.]” The County Judge apparently understood that when he
L.
made a request for the Governor to modify GA-32. Moreover, there are provisions in the orders
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that so directly conflict that to enforce one, negates the other. For instance, GA-32 allows visitors
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to nursing homes and long-care facilities (subject to guidelines) while CE-13 disallows all but
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visitors who provide critical assistance. GA-32 states that restaurants “may offer dine-in services”
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(subject to variable occupancy limits) while CE-13 says they cannot. GA-32 allows gatherings of
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no more than ten persons while CE-13 allows no gatherings. We conclude the nature of the
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Governor’s executive order as having the force of law means its provisions control.
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C. The Governor’s Authority to Suspend Provisions
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Under the Disaster Act, a governor is also given the explicit power to “suspend the
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provisions of any regulatory statute prescribing the procedures for conduct of state business or the
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orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in
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any way prevent, hinder, or delay necessary action in coping with a disaster.” TEX.GOV’T CODE
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ANN. § 418.016(a). The Governor invoked that power to invalidate Section 418.108 to the extent
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any local leader relies on that statute to enact conflicting rules. The County responds that Section
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418.108 is not a “regulatory statute” and CE-13 does not address “state business.” We find neither
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contention persuasive.
The Disaster Act does not define the terms “regulatory statute” or “state business.”
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Generally, when a statute uses an undefined word, a court should apply the word’s common,
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ordinary meaning. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014). To
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determine its common, ordinary meaning, courts may look to a wide variety of sources, including
15
dictionary definitions, treatises and commentaries, prior constructions of the word in other
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contexts, and the use and definitions of the word in other statutes and ordinances. Id.
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Common dictionary meanings for the term “regulate” include “to control or supervise by
means of rules and regulations.” See Regulate, OXFORD DICTIONARIES (online ed.),
L.
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http://www.oxforddictionaries. com/us/definition/american_english/regulate?q=regulate; see also
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Regulate, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1913 (2002) (defining “regulate”
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as “to govern or direct according to rule”); Regulate, BLACK’S LAW DICTIONARY, (10th ed.) (“To
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control (an activity or process) esp. through the implantation of rules.”). Section 418.108 does
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that by authorizing the county judge to order evacuations and “control the movement of persons
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and the occupancy of premises.” Certainly CE-13, promulgated pursuant to 418.108, fits the
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classic definition of regulation. It tells restaurants how they may conduct their business, tells
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persons how they may congregate, and tells some businesses that they cannot engage in commerce
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at all.
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The County also narrowly cabins the meaning of the phrase “state business” by effectively
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defining the term to mean only the activities of state agencies and actors. But had the Legislature
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meant to so limit the term, it would have said “official state business,” as it has done in many other
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statutes. Cf. e.g. TEX.GOV'T CODE ANN. § 660.009 (use of term “official state business” for
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authorized travel reimbursement); TEX.GOV’T CODE ANN. § 660.043 (use of phrased “official state
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business” to determine when vehicle mileage can be reimbursed); see also TEX.GOV’T CODE ANN.
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§ 1232.003 (tying phrase “state agency” to “state business” to define when buildings and
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equipment are subject to public financing). In Section 418.016, the Legislature chose not to limit
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the term “state business” to only official state business, and we thus give it a broader meaning.
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See id. § 418.016.
16
And to be sure, many of the businesses that CE-13 prohibits are industries closely
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regulated by the State of Texas, both as to their licensure and method of operation. See, e.g.
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TEX.OCC. CODE ANN. § 1601.251 (state license required for barbers); TEX.OCC. CODE ANN. §
L.
1601.301 (permit required for operating barbershop); TEX.OCC. CODE ANN. § 1601.552 (reference
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to state commission’s sanitation rules); TEX.OCC.CODE ANN. § 1602.251 (license required to
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practice cosmetology); TEX.OCC. CODE ANN. § 1602.301 (license required to operated beauty shop
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and obligation to follow commission rules); TEX.OCC. CODE ANN. § 455.151 (license required to
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practice massage therapy); TEX.OCC. CODE ANN. § 455.054 (state standards for sanitary and
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hygienic conditions for massage therapy). Restaurants are also subject to state regulation,
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particularly if they sell alcoholic beverages. See, e.g. TEX.ALCO.BEV.CODE ANN. § 61.01
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(obligation to obtain licenses and permits under the Alcoholic beverages code); TEX.HEALTH &
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SAFETY CODE ANN. § 437.003 (counties may require permits for food services to “enforce state
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law and rules adopted under state law”).

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Eschewing a hyper-technical definition of the term “state business,” we conclude it would

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encompass the activities inherent in many of the industries and professions directly affected by the
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CE-13. The County dis-employs several state licensed professions and effectively deems that the
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regulations the state has in place for these professions are inadequate to guard against the spread
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of COVID-19. That intrusion into the state’s sphere of influence makes CE-13 a regulation of
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state business. As such, the Legislature gave the governor the express authority to suspend Section
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418.108, at least as it has been invoked here by the County.

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Section 418.016(a) also requires that before the governor can suspend a regulatory statute,
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it must in some way “prevent, hinder, or delay necessary action in coping with a disaster.”
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TEX.GOV’T CODE ANN. §418.016(a). GA-32 explicitly references “reopening Texas” as a part of
17
the Governor’s planned response to this disaster. It necessarily recognizes that Texas must address
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the health of its citizens, and the health of its economy. As the Texas Supreme Court recently
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noted, the Governor under the Disaster Act “must necessarily balance a variety of competing
considerations,” which might include encouraging economic recovery and preserving
L.
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constitutional rights. Anti-Defamation League Austin, 2020 WL 6295076, at *4. GA-32 is one
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means of achieving that balance. But CE-13 tips the balance differently by restricting economic
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activity (for some businesses) and by restricting associational opportunities of Texans. It also
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injects uncertainty into how people and businesses conduct their affairs, being subject to
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conflicting orders. The Governor was accordingly within his right to suspend Section 418.108
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pursuant to Section 418.016. tri
D. Application
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Returning to the injunction standard, the State and private litigants here need to show a
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probable right to the relief sought, and a probable imminent, irreparable injury. Butnaru, 84
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S.W.3d at 204. A probable right of relief is established here if the County issued an order that
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conflicts with the Governor’s order, given that we conclude the Governor’s order would prevail.
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And it is clear that CE-13 order conflicts in several respects.

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Section 1 of CE-13 imposes a stay at home order for all residents except for what the
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County has deemed essential business, essential travel, essential governmental functions, or
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critical infrastructure. But under GA-32, persons could additionally leave their residence to
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participate in several specified activities spelled out in Section 1(a)-(i) and outdoor activities in
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paragraph 3(a)-(e). GA-32 would also necessarily permit travel to patronize the businesses that
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CE-13 closes down. GA-32 says restaurants whose gross receipts are fifty percent or less from
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alcohol sales “may offer dine-in services” while CE-13 flatly disallows in-restaurant dining.
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Section 3 of CE-13 imposes a stay at home curfew from 10:00 p.m. to 5:00 a.m., except for
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essential travel, essential business, government service, or critical infrastructure. To the extent the
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curfew restricts travel to, or participation in activities or business that GA-32 allows, it conflicts
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with GA-32. While GA-32 does not specifically prevent curfews, as drafted, the curfew is
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overbroad. Section 4 of CE-13 prohibits businesses from operating if they are deemed by the
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County to be non-essential; many of those prohibited businesses are expressly allowed to operate
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under GA-32. Section 5 of CE-13 prohibits public or private gatherings of any number of persons.
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But GA-32 allows gatherings for designated activities, as with sporting events, and up to ten
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persons for other reasons. Section 6 of CE-13 restricts all travel except for essential travel,
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essential business, government service, or critical infrastructure. To the extent the curfew restricts
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travel or participation that GA-32 allows, it also conflicts with GA-32. The State has shown a
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probable right to relief.

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The State and the restaurants must also show irreparable injury. The State relies on the
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Texas Supreme Court’s recent decision in State v. Hollins, No. 20-0729, 2020 WL 5919729 (Tex.
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Oct. 7, 2020) (per curiam). There, the Texas Supreme Court held that a Harris County election
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official who exceeded his authority in soliciting mail-at-home ballots acted ultra vires, and
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importantly here, the State had an intrinsic right to enforce state law. Id. at *6. The court
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concluded:
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As a result of sovereign immunity, the only remedies available in an ultra vires

action are injunctive and declaratory relief. The sovereign would be impotent to
“enforce its own laws” if it could not temporarily enjoin those breaking them
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pending trial. When the State files suit to enjoin ultra vires action by a local official,
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a showing of likely success on the merits is sufficient to satisfy the irreparable-

injury requirement for a temporary injunction.
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Id. at *6. The Hollins court expressly disagreed with the lower court’s view that the State had not
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established irreparable injury. Despite the dissenting opinion’s effort to distinguish Hollins, we
19
view the case as controlling, and not limited only to election contests. Everything said by the court
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in Hollins about irreparable injury would equally apply here, and perhaps more so. The State is
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not only safeguarding its theoretical interests in the hierarchy of a governmental structure, but it
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also vindicates the interests of the innumerable small business owners and their employees (the
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barbers, hair stylists, cosmetologists, licensed massage therapists, booksellers, and other small
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shop owners) who have been put out of work by the County’s order. True, restaurants can at least
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try and keep their business afloat with take-out and curbside delivery. But lost in this debate are
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the several professions completely barred from earning any living at all. The County’s order works
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an irreparable injury.
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Lest we be mis-read, our analysis does not mean every order of a county judge respecting
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the pandemic must be stricken, or even that a county is ousted from assisting in responding to the
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disaster. To state the obvious, the County plays a central role in enforcing the Governor’s
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executive orders that already restricts group gatherings, restricts business activities, and imposes
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health and safety guidelines on those businesses that are allowed to operate. The Governor’s order
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only pre-empts conflicting local orders. GA-32 supersedes any conflicting order by a local official
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“to the extent that such a local order restricts services allowed by this executive order[.]” And it
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suspends Section 418.108 “to the extent necessary to ensure local officials do not impose
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restrictions in response to the COVID-19 disaster that are inconsistent with [GA-32].” And here,
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there are inconsistent and conflicting provisions. Nonetheless, our decision here would not bar the
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County taking actions that are not in conflict with GA-32.

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We therefore sustain the State’s issue on appeal and hold that the trial court erred in not
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issuing a temporary injunction that would enjoin enforcement of CE-13. On remand, we instruct
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the trial court to enter a temporary injunction barring enforcement of CE-13 (and its counterpart
20
provisions in CE-14), but allow for the possibilities that parties might identify some stand-alone
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restrictions in CE-13 that would not be inconsistent with GA-32. None of the briefing before us
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has attempted to tease out any discrete restriction which might compliment or otherwise not
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conflict with GA-32, and it would be inappropriate for us to attempt to do so here. We make clear,
however, that we reject the County’s paradigm that the Governor’s order can set a ceiling for
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occupancy and the County can then set a floor, with the public required to abide by the more
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restrictive provision. If conduct is allowed under the Governor’s order, that County cannot
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prohibit it. If activities are prohibited by the Governor’s order, the County cannot allow them.
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CONCLUSION
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Just as a servant cannot have two masters, the public cannot have two sets of rules to live
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by, particularly in a pandemic and when those rules carry criminal penalties substantially
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impacting peoples’ lives and livelihood. Much of the Disaster Act is premised on promoting
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cooperation between levels of government for the benefit of Texas citizens. The lack of a clear
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organizational chart with a defined leader and chain of command is antithetical to promoting
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cooperation. Now that this Court has done its job to define that organizational chart, we leave it
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to the political leaders of the State and this region, whose motives are all beyond reproach, to
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cooperatively lead us through this unparalleled disaster.

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JEFF ALLEY, Chief Justice

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November 13, 2020

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Rodriguez, J., dissenting

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21
CAUSE NO. _____________
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Plaintiff, §
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§
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§
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§
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Texas, and ANDY BROWN, in his §
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County of Travis, Texas, §
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Defendants. §
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STATE OF TEXAS’S VERIFIED ORIGINAL PETITION AND APPLICATIONS FOR
TEMPORARY AND PERMANENT INJUNCTIVE RELIEF
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______________________________________________________________________________
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INTRODUCTION
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Just as a servant cannot have two masters, the public cannot have two
sets of rules to live by, particularly in a pandemic and when those rules
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carry criminal penalties substantially impacting peoples’ lives and

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livelihood. 1
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1. This case raises a pressing question: who is ultimately responsible for

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responding to the COVID-19 pandemic and other emergencies? The Texas Disaster
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Act (“TDA”) charges the Governor—not an assortment of hundreds of county judges

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and city mayors—with leading the State’s response to a statewide emergency.

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1State v. El Paso County, 08-20-00226-CV, 2020 WL 6737510, at *11 (Tex. App.—El Paso Nov. 13,
2020, no pet. h.), mandamus dismissed (Nov. 20, 2020).
Traditional preemption principles and the TDA’s plain language dictate that the
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Governor’s emergency orders control over conflicting local orders.
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2. Defendants’ December 29, 2020 emergency orders shut down indoor and
outdoor dine-in food and beverage service during the period 10:30 p.m. through 6:00
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a.m. for the City of Austin and Travis County. These are businesses that would
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remain open under Governor Abbott’s emergency orders. Defendants’ local orders
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thus conflict with Governor Abbott’s orders. One must prevail, and the only logical
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and legal option is the Governor’s.
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3. Defendants will likely counter that they are simply trying to protect
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their residents during a deadly pandemic. But that is exactly what Governor Abbott
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is trying to do as well. Disasters like COVID-19 raise difficult questions about how to
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balance individual health and economic vitality, which can be equally dangerous if
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ignored. These once-in-a-century pandemics are complicated enough that there can
be more than one reasonable approach on how best to respond. But what cannot be
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meaningfully disputed is that the Texas Legislature intended that the Governor
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would ultimately decide such issues. The State asks this Court to respect the
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Legislature’s intent, apply the plain rule of law, and enjoin Defendants’ preempted
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emergency orders.
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REQUEST FOR AN EXPEDITED HEARING ON THE STATE’S APPLICATIONS FOR A

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TEMPORARY RESTRAINING ORDER AND A TEMPORARY INJUNCTION

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4. Given the important and urgent issues raised in this action, the State
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requests an expedited setting on its applications for a temporary restraining order

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and a temporary injunction. The preempted portions of Defendants’ emergency
2
orders, by their terms, will go into effect at 10:30 p.m. on Thursday, December 31,
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2020—approximately thirty (30) hours from now at the time of this filing—if not first
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enjoined. The State contacted Defendants and discussed the relief requested herein
prior to making this filing, but were unable to resolve the differences or secure an
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agreed setting.
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PARTIES
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5. Plaintiff is the State of Texas.
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6. Defendants are: (1) the City of Austin, Texas; (2) the County of Travis,
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Texas; (3) Steve Adler, in his official capacity as Mayor, City of Austin, Texas; and (4)
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Andy Brown, in his official capacity as County Judge, County of Travis, Texas.
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7. The City of Austin may be served with process through its Mayor, Steve
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Adler, or its City Clerk, Jannette Goodall, at 301 W. 2nd Street, Austin, Travis
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County, Texas.
8. Mayor Adler may be served with process at 301 W. 2nd Street, Austin,
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9. Travis County may be served with process through Judge Brown at 700
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Lavaca, Ste. 2.300, Austin, Travis County, Texas.

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10. Judge Brown may be served with process at 700 Lavaca, Ste. 2.300,
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Austin, Travis County, Texas.

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EXPEDITED ACTION
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11. The State is seeking non-monetary relief. Discovery is intended to be

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conducted under Level 1.
3
JURISDICTION AND VENUE
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12. The subject matter in controversy is within the jurisdictional limits of
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this Court, and the Court has jurisdiction over the action under Article V, Section 8
of the Texas Constitution and section 24.007 of the Texas Government Code, as well
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as under sections 37.001 and 37.003 of the Texas Uniform Declaratory Judgments
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and section 65.021 of the Texas Civil Practice and Remedies Code.
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13. Venue is proper in Travis County under section 15.002(a)(1), (a)(2), and
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(a)(3) of the Texas Civil Practices and Remedies Code.
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BACKGROUND
I. ct
The TDA Makes the Governor the Leader of the State’s Emergency
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Response.
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disasters.” 2
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15. The TDA makes the sitting Texas Governor the leader and focal point of
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the State’s emergency response. 3

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2 TEX. GOV’T CODE § 418.002(1), (3).

3 See id. at §§ 418.011–.026.
4 Id. at § 418.011.
5 Id. at § 418.015(c).
4
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this weighty task. 6 For example, the Governor is given the powers to:
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A. control the movement of persons and occupancy of premises in a
disaster area; 7
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B. issue executive orders that “have the force and effect of law”; 8
C. suspend statutes, orders, or rules that “would in any way prevent,
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hinder, or delay necessary action in coping with a disaster”; 9
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D. apply for a loan on behalf of a local government if the governor
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deems it necessary; 10 and
E. “use all available resources . . . of political subdivisions that are
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reasonably necessary to cope with a disaster.” 11
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II. Local Officials have Far More Limited Emergency Powers Under the
TDA.
18. ct
The TDA gives local officials far more limited emergency powers than
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those afforded to the Governor. Local officials derive their emergency power from two
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main sections.
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19. Section 418.1015(b) provides: “An emergency management director may
exercise the powers granted to the governor under this chapter on an appropriate
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local scale.” Under this section, an emergency management director “serves as the
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governor’s designated agent” and thus is subject to the Governor’s control. 12

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6 See id. at §§ 418.011–.026.

7 Id. at § 418.018(c).
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8 Id. at 418.012.
9 Id. at § 418.016(a).
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10 Id. at § 418.021(a).
11 Id. at § 418.017(a).
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20. Section 418.108 authorizes “the presiding officer of the governing body
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of a political subdivision [to] declare a local state of disaster.” 13 This section continues:
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“The county judge or the mayor of a municipality may control ingress to and egress
from a disaster area under the jurisdiction and authority of the county judge or mayor
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and control the movement of persons and the occupancy of premises in that area.” 14
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emergency orders carrying the force and effect of law as this is not one of the powers
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granted under section 418.108.
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“emergency management director[s.]” 15 When acting in this capacity, the local official
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III. An Overview of Governor Abbott’s Executive Order GA-32.

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23. On October 7, 2020, Governor Abbott issued Executive Order GA-32 to

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respond to the COVID-19 pandemic. 17 This order has “the force and effect of law,”
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just like any other state law. 18

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13 Id. at § 418.108(g).
14 Id.
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15 Id. at § 418.1015(b).
16 Id.
17 Ex. A.
18 TEX. GOV’T CODE § 418.012.
6
24. GA-32 states that “[e]very business establishment in Texas shall
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operate at no more than 75 percent of the total listed occupancy of the
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establishment.” 19
25. Per GA-32: “Restaurants that have less than 51 percent of their gross
L.
receipts from the sale of alcoholic beverages, and whose customers eat or drink only
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while seated, may offer dine-in services.” 20 Bars and similar establishments may also
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“offer on-premises services” under certain listed circumstances. 21
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26. GA-32 expressly preempts and supersedes “any conflicting order issued
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by local officials in response to the COVID-19 disaster” whenever that local order
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“restricts services allowed by this executive order, allows gatherings prohibited by
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executive order.” 22
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27. GA-32 further “suspends Sections 418.1015(b) and 418.108 of the Texas
Government Code . . . and any other relevant statutes[] to the extent necessary to
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ensure that local officials do not impose restrictions in response to the COVID-19
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disaster that are inconsistent with this executive order.” 23

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19 Ex. A at 2.
20 Id. at 4.
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21 Id.
22 Id. at 5.
23 Id. at 5.
24 See id. at 2.
7
disasters.” 25 Mayor Adler’s and Judge Brown’s recent emergency orders
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impermissibly and unconstitutionally undercut these reopening efforts.
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IV. Mayor Adler’s and Judge Brown’s Orders Unlawfully Undermine GA-
32.
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29. Late last night, Mayor Adler and Judge Brown issued mirroring
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emergency orders (collectively, “Order 24”) that conflicted with GA-32 and
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undermined the State’s reopening efforts.
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30. Order 24 prohibited “indoor and outdoor dine-in food and beverage
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service” during the period 10:30 p.m. thru 6:00 a.m. for the City of Austin and Travis
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County. 26
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31. Order 24 stated that it would take effect starting at 10:30 p.m. on
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December 31, 2020 and continue through 6:00 a.m. on January 3, 2021. 27
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32. Order 24 made violations of its rules a criminal offense punishable by a

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fine up to $1,000. 28
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33. In short, Order 24 conflicts with GA-32 as it forces restaurants and

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business to close when they would otherwise be allowed to operate under GA-32.
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CLAIMS FOR RELIEF

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34. Pursuant to Texas’s Declaratory Judgment Act and ultra vires and
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preemption principles, the State alleges as follows.

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25 TEX. GOV’T CODE § 418.002(3).

26 Ex. B at 3; Ex. C at 3.
27 Ex. B at 2; Ex. C at 3.
28 Ex. B at 3; Ex. C at 3–4.
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35. The issuance and enforcement of Order 24 is invalid, unlawful, and
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constitutes an ultra vires act because Governor Abbott suspended the only statutes
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that would have allowed Defendants to issue this emergency order.
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constitutes an ultra vires act because Defendants were acting as Governor Abbott’s
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designated agents when they issued the order and, as agents, they could not ignore
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the will of their principal.
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constitutes an ultra vires act because Order 24 was preempted by GA-32, and the
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State requests a declaration to that effect from this Court.
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APPLICATIONS FOR A TEMPORARY RESTRAINING ORDER
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AND A TEMPORARY INJUNCTION

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38. A temporary restraining order serves to provide emergency relief and to

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preserve the status quo until a hearing may be held on a temporary injunction. 29 “A
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temporary injunction’s purpose is to preserve the status quo of the litigation’s subject
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matter pending a trial on the merits.” 30 The applicant must prove three elements to
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obtain a temporary injunction: (1) a cause of action against the adverse party; (2) a
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probable right to the relief sought; and (3) a probable, imminent, and irreparable
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injury in the interim. 31 These requirements are readily met here.

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29 Texas Aeronautics Commission v. Betts, 469 S.W.2d 394, 398 (Tex. 1971).
31 Id.
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I. The State will Likely Succeed on the Merits.
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39. We will first discuss the three main reasons the State will likely succeed
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on the merits, which are: (1) GA-32 expressly preempts Order 24; (2) Governor Abbott
lawfully suspended Mayor Adler’s and Judge Brown’s sole statutory authority to
L.
issue Order 24; and (3) Mayor Adler and Judge Brown were acting as Governor
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Abbott’s “designated agents” when they issued Order 24 and, as agents, they could
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not ignore the will of their principal. We will then discuss the El Paso Court of
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Appeals’ recent decision in State v. El Paso County, which is the only case directly on
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point and which enjoined a local emergency order in circumstances virtually identical
to this case. ct
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A. GA-32 Expressly Preempts Order 24.
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is impermissible.” 32 As shown above, GA-32 expressly preempts more restrictive local
emergency orders. 33 Order 24 is more restrictive than GA-32 as it closes businesses

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that would otherwise be allowed to remain open under GA-32. Thus, the only open
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issue is whether GA-32 is a “state law.” The only logical conclusion is that it is.
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41. The TDA makes the Governor “responsible for meeting . . . the dangers
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to the state” presented by disasters. 34

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33 Supra at pgs. 4–6.
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42. The TDA authorizes the Governor to declare a “state of disaster” for the
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entire State. 35 Governor Abbott did just that when he declared that COVID-19 “poses
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an imminent threat of disaster for all counties in the State of Texas.” 36
43. The TDA gives Governors the power to issue emergency orders that have
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45. GA-32 expressly preempts the inconsistent and conflicting provisions of
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Order 24, rendering them invalid from the outset. Thus, Order 24 should be enjoined.
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B. Governor Abbott Suspended Mayor Adler’s and Judge Brown’s
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Sole Statutory Authority to Issue Binding Emergency Orders.

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46. Sections 418.1015(b) and 418.018 were the sole statutory bases for
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Mayor Adler’s and Judge Brown’s authority to issue local emergency orders. Governor
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Abbott, using his TDA-granted power, 39 suspended these two statutes to the extent
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necessary to ensure that local officials “do not impose restrictions in response to the
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COVID-19 disaster that are inconsistent with [GA-32].” 40 Under the circumstances,
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Mayor Adler and Judge Brown had no authority to issue the more restrictive Order
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24. This makes Order 24 invalid and their conduct ultra vires.
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36 Ex. A at 1 (emphasis added).
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37 TEX. GOV’T CODE § 418.012.

38 Ex. A at 2.
39 TEX. GOV’T CODE § 418.016(a).
40 Ex. A at 5.
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C. Mayor Adler and Judge Brown Exceeded Their Authority as
Governor Abbott’s “Designated Agents” when They Issued
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Emergency Orders Expressly Conflicting with GA-32.
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47. As discussed above, Mayor Adler and Judge Brown were using derived
gubernatorial powers and acting as Governor Abbott’s agents when they issued Order
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24. As Governor Abbott’s agents, Mayor Adler and Judge Brown could not lawfully
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issue an order that expressly conflicted with GA-32. 41 Thus, Mayor Adler and Judge
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Brown exceeded the scope of their authority, making Order 24 an ultra vires act.
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D. The El Paso Court of Appeals Adopted the State’s Arguments
and Enjoined a Local Emergency Order Under Circumstances
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Virtually Identical to this Case.
48. ct
State v. El Paso County 42 is instructive as it analyzed the same issues
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presented here under virtually identical circumstances. El Paso County is the only
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case to address the novel questions raised by conflicting state and local emergency
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orders. El Paso County adopted the State’s arguments and enjoined El Paso’s
conflicting local emergency order. This Court should do the same here.
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49. In El Paso County, El Paso County Judge Ricardo A. Samaniego issued

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a local emergency order (“EO-13”) in response to the COVID-19 pandemic that

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conflicted with GA-32—just like Defendants did here. 43

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50. The State intervened in a state court action challenging EO-13 and
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moved to enjoin this order based on the same arguments made here. 44 The district
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41 See, e.g., Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 590 (Tex. 2017); RESTATEMENT (THIRD) OF
AGENCY § 101 (2006).
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42 08-20-00226-CV, 2020 WL 6737510 (Tex. App.—El Paso Nov. 13, 2020, no pet. h.), mandamus
dismissed (Nov. 20, 2020). Copies of the decision are also attached as Exs. G–H.
43 See generally Ex. D.
44 See generally Ex. E.
12
court denied the State’s motion without explanation. 45 The El Paso Court of Appeals
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reversed, effectively adopting the State’s arguments. 46 Below are four notable points
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from the Court of Appeals’ decision.
51. First, the court summarized the issue before it as “whether, under the
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Disaster Act, the Legislature delegated to the governor or a county judge the final
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say for matters covered by the conflicting provisions of GA-32 and [EO-13].” 47 The
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court explained that the “answer to our question lies in the text of the Disaster Act”
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and not in some court’s views on the “wisdom or efficacy” of the conflicting orders. 48
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52. Second, the court analyzed the interplay between TDA sections
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418.1015 and 418.108—the two main sources of local official emergency power. 49 The
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issue is that section 418.1015(b) makes local officials “the governor’s designated
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agent[s] in the administration and supervision of duties under this chapter,” which
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would mean they are subject to the governor’s control. 50 To avoid this provision, El
Paso argued that section 418.108 contains stand-alone local emergency power
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separate from 418.1015. 51 The court questioned El Paso’s logic, explaining that
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section 418.1015(b) made local officials state agents when they administered and
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supervised duties “under this chapter” (meaning Chapter 418 of the Texas
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45 Ex. F.
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46 See generally El Paso County, 2020 WL 6737510.

47 Id. at *4.
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48 Id at *4.
49 Id. at *5–6.
50 Id. at *5; TEX. GOV’T CODE § 418.1015(b).
51 See El Paso County, 2020 WL 6737510, at *5–6.
13
Government Code) and section 418.108 fell under Chapter 418. 52 The court did not
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resolve this issue; it explained it did not have to due to the following point. 53
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53. Third, the court found that GA-32 was a state law, which “eclipse[s]
inconsistent local law[s]” like EO-13. 54 The court pondered: What would happen if,
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during a hurricane, the governor ordered an evacuation in one direction and the
a
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county judge sent people in the exact opposite direction? 55 The court explained that
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one of these orders must control. 56 The court reasoned that the Legislature intended
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for section 418.012—which gives the governor’s emergency orders the force and effect
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of law—to act as a sort of “tie-breaker.” 57 The court explained that local officials “can
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point to no similar power” afforded to them under the TDA. 58 Nor was there any
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indication in the TDA’s text suggesting that a local official’s “authority over ingress,
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egress, or occupancy in a local disaster overrides the governor’s identical authority

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for a statewide declared disaster.” 59 The court commented that any alternative
holding could lead to a “chao[tic]” mess of 254 separate county-level responses to a

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statewide disaster. 60
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54. Finally, the court rejected El Paso’s challenge to Governor Abbott’s

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suspension power, which is codified in section 418.016. 61 El Paso argued that EO-13
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Id. at *6.
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52
53 Id. at *6.
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54 See id. at *6–7 (citing various cases).

55 Id. at *7.
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56 Id.
57 Id. at *7.
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58 Id. at *7.
59 Id. at *7.
60 Id. at *7.
61 Id. at *8–9.
14
was not a “regulatory statute” and did not address “state business,” and thus it fell
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beyond section 418.016’s reach. 62 The court explained that EO-13 fit within the
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“classic definition of regulation,” which is “to control or supervise by means of rules
and regulations.” 63 The court found that the Legislature’s reference to “state
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business”—as opposed to “official state business,” which is used in many other
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statutes—signals the Legislature’s intent to give the term a broader meaning. 64 The
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court found that EO-13, which closed-down bars, restaurants, and other businesses
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closely regulated by the State, affected the conduct of “state business” and thus could
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be lawfully suspended by Governor Abbott. 65
55. ct
El Paso County involved issues effectively identical to the ones
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presented here. The El Paso Court of Appeals rightly adopted the State’s arguments
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and enjoined El Paso’s conflicting local emergency order. The same result is
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warranted here.

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56. The State’s injuries are irreparable. The Texas Supreme Court recently
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held as much in State v. Hollins. 66

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57. There, the Court explained that a century’s worth of precedent

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62 Id. at *8.
63 Id. at *8 (quotations omitted).
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64 Id. at *8.
65 Id. at *9.
66 No. 20-0729, 2020 WL 5919729, at *7 (Tex. Oct. 7, 2020).
15
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actions.” 69
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59. Per Hollins, the irreparable injury requirement favors the State.
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60. The El Paso Court of Appeals rightly viewed Hollins “as controlling” on
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the irreparable injury issue. 72
III. Emergency Injunctive Relief is Necessary to Preserve the Status Quo.

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61. “The status quo is the last actual, peaceable, noncontested status which
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preceded the pending controversy.” 73 Here, that would be the parties’ status before
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Order 24. Thus, all three temporary injunction and temporary restraining order
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factors favor the State.

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68 Id.
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69 Id.
70 Id. at *7.
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71 Id.
72 El Paso County, 2020 WL 6737510, at *10.
pet.).
16
APPLICATION FOR A PERMANENT INJUNCTION
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62. The State also asks the Court to set its request for a permanent
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injunction for a trial on the merits, and after the trial, issue a permanent injunction
as set forth above.
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PRAYER
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63. For the reasons discussed above, the State respectfully prays that this
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Court:
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A. Through counsel below, enter an appearance for the State in this
cause;
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B. Issue a temporary restraining order, which will remain in force
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until a hearing is held, restraining Defendants and any of their
officers, agents, servants, employees, attorneys, representatives,
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or any other persons in active concert or participation with them
who receive actual notice of the Order from enforcing Order 24;
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C. Declare Order 24 to be invalid and unconstitutional;

D. Set a date and time for a hearing on the State’s application for a
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temporary injunction;
E. Issue preliminary and permanent injunctions that order
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Defendants to: (1) stop, or order stopped, all enforcement efforts

of Order 24; (2) rescind Order 24; and (3) refrain from issuing any
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new emergency orders more restrictive than, or conflicting with,

GA-32; and
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F. Award any further relief that the Court deems just and proper.
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KEN PAXTON
ia

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BRENT WEBSTER
of
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GRANT DORFMAN
17
SHAWN COWLES
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THOMAS A. ALBRIGHT
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/s/ Todd Dickerson
L.
TODD DICKERSON
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CHRISTOPHER HILTON
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Austin, TX 78711-2548
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(512) 475-4072 PHONE
(512) 320-0667 FAX
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Christopher.Hilton@oag.texas.gov
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ATTORNEYS FOR THE STATE OF TEXAS

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18
CAUSE NO. _____________
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Plaintiff, §
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Defendants. §
______________________________________________________________________________
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DECLARATION OF TODD DICKERSON IN SUPPORT OF THE STATE OF TEXAS’S
VERIFIED ORIGINAL PETITION AND APPLICATIONS FOR TEMPORARY
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AND PERMANENT INJUNCTIVE RELIEF

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______________________________________________________________________________
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State of Texas
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County of Travis
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My name is Todd Dickerson, my date of birth is August 13, 1985 and my address
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is P.O. Box 12548, Capital Station Austin, Texas 78711, USA. I declare under penalty
of perjury that the facts contained in the State of Texas’s Original Petition and
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Application for Temporary and Permanent Injunctive Relief are true and correct.
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Executed in Travis County, State of Texas, on the 30th day of December 2020
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/s/ Todd Dickerson

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Declarant
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19
CAUSE NO. _____________
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Plaintiff, §
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Defendants. §
______________________________________________________________________________
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CERTIFICATION PURSUANT TO LOCAL RULE 7.3
______________________________________________________________________________
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The undersigned certifies that:

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Counsel presenting the application has diligently attempted to notify

Defendants’ counsel by sending a letter on December 30, 2020 informing them of the
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State’s intention to pursue legal action unless the order at issue are rescinded or
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modified to comply with Governor Abbott’s Executive Order GA-32.

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Due to the time constraints, the State has been unable to secure an agreed
upon setting for a hearing on its application for a temporary restraining order.
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SIGNED on December 30, 2020.

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/s/ Todd Dickerson

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Attorney for the State of Texas

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20
GOVERNOR GREG ABBOTT
FILED IN THE OFFICE OF

THE
SECRETARY OF STATE
e
October 7, 2020
O’CLOCK
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The Honorable Ruth R. Hughs
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Secretary of State
State Capitol Room 1E.8
Austin, Texas 78701
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Dear Secretary Hughs
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Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:
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Executive Order No. GA-32 relating to the continued response to the COVID-1 9
disaster as Texas reopens.
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The original executive order is attached to this letter of transmittal.

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Clerk to the Governor

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Attachment
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POST OFFICE Box 12428 AUSTIN, TExAs 78711 512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES
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EXHIBIT A
xrcufhir rbrr
BY THE
GOVERNOR OF THE STATE OF TEXAS
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Executive Department
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Austin, Texas
October 7, 2020
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EXECUTIVE ORDER
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GA32
Relating to the continued response to the COVID-19 disaster as Texas reopens.
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WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March
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13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel
coronavirus (COVID- 19) poses an imminent threat of disaster for all counties in the
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State of Texas; and
WHEREAS, in each subsequent month effective through today, I have renewed the
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disaster declaration for all Texas counties; and

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WHEREAS, I have issued executive orders and suspensions of Texas laws in response to
COVTD-l 9, aimed at protecting the health and safety of Texans and ensuring an
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effective response to this disaster; and

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WHEREAS, I issued Executive Order GA-Os on March 19, 2020, mandating certain
social-distancing restrictions for Texans in accordance with guidelines promulgated by
President Donald I. Trump and the Centers for Disease Control and Prevention (CDC);
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and
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WHEREAS, I issued Executive Order GA-14 on March 31, 2020, expanding the social-
distancing restrictions for Texans based on guidance from health experts and the
President; and
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WHEREAS, I subsequently issued Executive Orders GA-16, GA-iS, GA-21, GA-23, and
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GA-26 from April through early June 2020, aiming to achieve the least restrictive means
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of combatting the threat to public health by continuing certain social-distancing

restrictions, while implementing a safe, strategic plan to reopen Texas; and
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WHEREAS, as Texas reopens in the midst of COVID-19, increased spread is to be

expected, and the key to controlling the spread and keeping Texas residents safe is for all
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Texans to consistently follow good hygiene and social-distancing practices, especially

those set forth in the minimum standard health protocols from the Texas Department of
State Health Services (DSHS); and
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WHEREAS, in June 2020, Texas experienced substantial increases in COVID-19 cases

and hospitalizations, necessitating targeted and temporary adjustments to the reopening
plan to achieve the least restrictive means for reducing the growing spread of COVLD-19
and the resulting imminent threat to public health, and to avoid a need for more extreme
measures; and
WHEREAS, I therefore issued Executive Orders GA-28 and GA-29 in late June and early
FILED IN THE OFFICE OF THE

SECRETARY OF STATE
Vl— O’CLOCK
EXHIBIT A OCT 072020
Governor Greg Abbott Executive Order GA-32
October 7, 2020 Page 2
July 2020, respectively, and amended Executive Order GA-28 by proclamation on July
2, 2020; and
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WHEREAS, due to improved medical treatments for COVID-19 patients, substantial
increases in testing, abundant supplies of personal protective equipment, and Texans’
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adherence to safe practices like social distancing, hand sanitizing, and use of face
coverings, the spread of COVID- 19 and the number of new COVID- 19 cases and
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hospitalizations have steadily and significantly declined since late July; and
WHEREAS, 1 therefore issued Executive Orders GA-3D and GA-3 1 on September 17,
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2020, allowing additional reopening and non-essential medical surgeries and procedures
in Texas, except in some areas with high hospitalizations as defined in those orders; and
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WHEREAS, as Texas continues to reopen, everyone must act safely, and to that end, this
executive order and prior executive orders provide that all persons should follow the
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health protocols from DSHS, which whenever achieved will mean compliance with the
minimum standards for safely reopening, but which should not be used to fault those
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who act in good faith but can only substantially comply with the standards in light of
scarce resources and other extenuating COVD-19 circumstances; and
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WHEREAS, in the Texas Disaster Act of 1975, the legislature charged the governor with
the responsibility “for meeting the dangers to the state and people presented by
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...
disasters” under Section 418.011 of the Texas Government Code, and expressly granted
the governor broad authority to fulfill that responsibility; and
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WHEREAS, under Section 4 18.012, the “governor may issue executive orders
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hav[ing] the force and effect of law;” and
WHEREAS, failure to comply with any executive order issued during the COVID-19
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disaster is an offense punishable under Section 418.173 by a fine not to exceed $1,000,
and may be subject to regulatory enforcement;
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NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and
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authority vested in me by the Constitution and laws of the State of Texas, and in
accordance with guidance from the Commissioner of the Texas Department of State
Health Services, Dr. John Hellerstedt, other medical advisors, the White House, and the
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CDC, do hereby order the following on a statewide basis effective at 12:01 a.m. on
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October 14, 2020:

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Every business establishment in Texas shall operate at no more than 75 percent of the
total listed occupancy of the establishment; provided, however, that:
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1. There is no occupancy limit for the following:

a. any services listed by the U.S. Department of Homeland Security’s
Cybersecurity and Infrastructure Security Agency (CISA) in its Guidance on
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the Essential Critical Infrastructure Workforce, Version 4.0 or any subsequent

Un
version;
b. religious services, including those conducted in churches, congregations, and
houses of worship;
c. local government operations, including county and municipal governmental
operations relating to licensing (including marriage licenses), permitting,
recordation, and document-filing services, as determined by the local
government;
FILED IN THE OFFiCE OF THE
SECRETARY OF STATE
- 3 er- _O’CLOCK
OCT 072020
EXHIBIT A
d. child-care services;
e. youth camps, including but not limited to those defined as such under Chapter
e
14 of the Texas Health and Safety Code, and including all summer camps
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and other daytime and overnight camps for youths;
f. recreational sports programs for youths and adults;
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g. any public or private schools, and any public or private institutions of higher
education, not already covered above;
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h. drive-in concerts, movies, or similar events, under guidelines that facilitate
appropriate social distancing, that generally require spectators to remain in
their vehicles, and that minimize in-person contact between people who are
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not in the same household or vehicle; and
i. the following establishments that operate with at least six feet of social
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distancing between work stations: cosmetology salons, hair salons, barber
shops, nail salons/shops, and other establishments where licensed
cosmetologists or barbers practice their trade; massage establishments and
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other facilities where licensed massage therapists or other persons licensed or
otherwise authorized to practice under Chapter 455 of the Texas Occupations
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Code practice their trade; and other personal-care and beauty services such as
tanning salons, tattoo studios, piercing studios, hair removal services, and hair
loss treatment and growth services.
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2. In areas with high hospitalizations as defined below, any business establishment that
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otherwise would have a 75 percent occupancy or operating limit may operate at up

to only 50 percent. This paragraph does not apply, however, to business
establishments located in a county that has filed with DSHS, and is in compliance
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with, the requisite attestation form promulgated by DSHS regarding minimal cases
of COVTD-19.
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“Areas with high hospitalizations” means any Trauma Service Area that has had
seven consecutive days in which the number of COVID- 19 hospitalized patients
is
as a percentage of total hospital capacity exceeds 15 percent, until such time as

the Trauma Service Area has seven consecutive days in which the number of
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COVID- 19 hospitalized patients as a percentage of total hospital capacity is 15

percent or less. A current list of areas with high hospitalizations will be
maintained at www.dshs.texas.gov/ga303 1.
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3. Except as provided below by paragraph No. 5, there is no occupancy limit for

outdoor areas, events, and establishments, with the exception of the following
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outdoor areas, events, or establishments that may operate at no more than 75 or 50

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percent, as applicable, of the normal operating limits as determined by the owner:

a. amusement parks;
b. water parks;
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c. swimming pools;
d. museums and libraries; and
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e. zoos, aquariums, natural caverns, and similar facilities.

4. All indoor and outdoor professional, collegiate, and similar sporting events,
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including rodeos and equestrian events, shall remain limited to 50 percent of the
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normal operating limits as determined by the owner.

5. For any outdoor gathering in excess of 10 people, including rafting, tubing, and
related services, other than those set forth above in paragraph Nos. 1, 3, or 4, the
gathering is prohibited unless the mayor of the city in which the gathering is held, or
the county judge in the case of a gathering in an unincorporated area, approves of
the gathering, and such approval can be made subject to certain conditions or
restrictions not inconsistent with this executive order.
FILED IN THE OFCE C

SECRETARY OF STAlE
-
rr’- O’CLOCK
EXHIBIT A OCT 0? 2020
6. Restaurants that have less than 5 1 percent of their gross receipts from the sale of
alcoholic beverages, and whose customers eat or drink only while seated, may offer
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dine-in services.
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7. Bars or similar establishments that hold a permit from the Texas Alcoholic
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Beverage Commission (TABC), and are not restaurants as defined above in
paragraph No. 6, may offer on-premises services only as described by this
paragraph. A bar or similar establishment may offer on-premises services at up to
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50 percent of the total listed occupancy of the establishment tf
a. the bar or similar establishment is not in an area with high hospitalizations as
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defined above, and the county judge of the county in which the bar or similar
establishment is located files the requisite form with TABC; or
b. the bar or similar establishment is in an area with high hospitalizations as
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defined above, but is located in a county that has filed with DSHS, and is in
compliance with, the requisite attestation form promulgated by DSHS
regarding minimal cases of COVID-19, and the county judge of the county in
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which the bar or similar establishment is located also files the requisite form
with TABC.
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Patrons at bars or similar establishments operating under this paragraph may eat or
drink only while seated, except that in an establishment that holds a permit from
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TABC as a brewer, distiller/rectifier, or winery, customers may sample beverages

while standing so long as they are in a group of six people or fewer and there is at
ist
least six feet of social distancing or engineering controls, such as partitions,

between groups.
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Where applicable, this 50 percent occupancy limit applies only indoors; the limit
does not apply to outdoor areas, events, or establishments, although social
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distancing and other protocols must be followed.

People shall not visit bars or similar establishments that are located in counties not
included in parts (a) or (b) above. A current list of all counties reopening under this
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paragraph will be maintained on TABC’s website.

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The use by bars or similar establishments of drive-thru, pickup, or delivery options

for food and drinks remains allowed to the extent authorized by TABC.
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8. For purposes of this executive order, facilities with retractable roofs are considered
indoor facilities, whether the roof is opened or closed.
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9. Staff members are not included in determining operating levels, except for
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manufacturing services and office workers.

10. Except as provided in this executive order or in the minimum standard health
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protocols recommended by DSHS, found at www.dshs.texas.gov/coronavirus,

people shall not be in groups larger than 10 and shall maintain six feet of social
ffic
distancing from those not in their group.

11. People over the age of 65 are strongly encouraged to stay at home as much as
possible; to maintain appropriate distance from any member of the household who
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has been out of the residence in the previous 14 days; and, if leaving the home, to
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implement social distancing and to practice good hygiene, environmental

cleanliness, and sanitation.
12. In providing or obtaining services, every person (including individuals, businesses,
and other legal entities) should use good-faith efforts and available resources to
follow the minimum standard health protocols recommended by DSHS.
13. Nothing in this executive order or the DSHS minimum standards precludes
requiring a customer to follow additional hygiene measures when obtaining
SECRETARY OF STATE
- 3-’k-, O’CLOCK
EXHIBIT A Ocr 0? 2020

services.
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14. People may visit nursing homes, state supported living centers, assisted living
ric
facilities, or long-term care facilities as determined through guidance from the
Texas Health and Human Services Commission (HHSC). Nursing homes, state
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supported living centers, assisted living facilities, and long-term care facilities
should follow infection control policies and practices set forth by HHSC, including
minimizing the movement of staff between facilities whenever possible.
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15. Public schools may operate as provided by, and under the minimum standard health
protocols found in, guidance issued by the Texas Education Agency (TEA). Private
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schools and institutions of higher education are encouraged to establish similar
standards.
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Notwithstanding anything herein to the contrary, the governor may by proclamation add
to the list of establishments or venues that people shall not visit.
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This executive order shall supersede any conflicting order issued by local officials in
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response to the COVID- 19 disaster, but only to the extent that such a local order restricts
services allowed by this executive order, allows gatherings prohibited by this executive
order, or expands the list or scope of services as set forth in this executive order.
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Pursuant to Section 418.016(a) of the Texas Government Code, I hereby suspend

Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81,
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Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the
extent necessary to ensure that local officials do not impose restrictions in response to the
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COVID-19 disaster that are inconsistent with this executive order, provided that local
officials may enforce this executive order as well as local restrictions that are consistent
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with this executive order.
All existing state executive orders relating to COVID-19 are amended to eliminate
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confinement in jail as an available penalty for violating the executive orders. To the
extent any order issued by local officials in response to the COVID-19 disaster would
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allow confinement in jail as an available penalty for violating a COVID-19-related order,

that order allowing confinement in jail is superseded, and I hereby suspend all relevant
laws to the extent necessary to ensure that local officials do not confine people in jail for
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violating any executive order or local order issued in response to the COVID-19 disaster.
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This executive order supersedes Executive Order GA-30, but does not supersede
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Executive Orders GA-lU, GA-13, GA-17, GA-24, GA-25, GA-29, or GA-31. This
executive order shall remain in effect and in full force unless it is modified, amended,
rescinded, or superseded by the governor. This executive order may also be amended by
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proclamation of the governor.

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Given under my hand this the 7th

day of October, 2020.
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GREG
Governor
FILED tN THE OFFICE OF THE

SECRETARY OF STATE
1’OCLOCK
ocr 0? 2020
EXHIBIT A
e
ATTEST BY:
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UTH R. HUGHS
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Secretary of State
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SECRETARY OF STATE
-v1- O’CLOCK
OCT 0? 2020
EXHIBIT A
MODIFIED OPERATIONS FOR DINE-IN SERVICES
ORDER NO. 20201229-024

OCC RECEIVED AT
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BY DEC 29'20 pw4:25
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THE MAYOR OF THE CITY OF AUSTIN
WHEREAS,
L.
on March 6, 2020, I, Mayor Steve Adler, issued a Declaration of
Local
Disaster pursuant to Texas Government Code Chapter 418, ratified
No. 20200312-074, to allow the City of Austin to take measures in by City Council Resolution
a
response to the COVID-19
pandemic and protect the health and safety ofAustin residents;
lv
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WHEREAS, on March 13,2020, Governor Greg Abbott proclaimed a state-wide state of
disaster due to the COVID-19 pandemic and has since issued numerous Executive Orders related
to the pandemic, including Executive Orders GA-29 on
k
July 2,2020. GA-31 on September 17,
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2020, and GA-32 on October 7,2020;
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WHEREAS, Governor Abbott issued Executive Order GA-32
that are not experiencing high rates ofhospitalizations to further increaseallowing
areas of the State
occupancy limits, as well
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as providing county judges with the
option of allowing bars to reopen with an understanding that
certain health protocols must continue to be enforced,
including the wearing offace coverings and
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limiting groups to no more than 10 gatherings, subject to certain exceptions;
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WHEREAS, since October, the number of new confirmed COVID-19 cases have surged
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across large portions of the State;

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WHEREAS, GA-32 prohibits any outdoor gathering in excess of 10 people, except as

specifically exempted in paragraphs 1, 3 and 4 of GA-32, or unless approved by the county judge
or mayor, subject to conditions and restrictions
not inconsistent with GA-32;
is
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WHEREAS, GA-32 further prohibits bars or similar establishments that hold a permit
from the Texas Alcoholic Beverage Commission
("TABC') from operating unless the County
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Judge opts in and allows bars and similar establishments to operate by filing the requisite form
with TABC, and the Travis County Judge has not authorized bars or similar establishments
to open
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in Travis County
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WHEREAS, as o f December 28,2020, Travis County has experienced 48,951 confirmed

of COVID-19 and 542 deaths as a result ofthe disease;
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cases
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WHEREAS, as of December 28, 2020, Williamson County has experienced 19,519

confirmed cases of COVID-19 and 198 deaths as a result ofthe disease;
fic
WHEREAS, as of December 28,2020, the average daily admissions at hospitals within

of
the Austin metropolitan statistical area (MSA), as

reported by the Austin-Travis County Public
Health Authority, has increased by 110% since December 1,2020, which is
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effect on MSA' s health system; having a detrimental
EXHIBIT B
Page 1 of 4
WHEREAS, as of December 28,2020, the number of hospitalizations in the MSA was

434 and ICU capacity in the MSA is at 69% of the estimated maximum
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19 patients; availability for COVID-
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WHEREAS, the virus that causes COVID-19 is contagious and spreads through person-
to-person contact, especially in group settings;
L.
WHEREAS, wearing a face covering continuously and spacing at least six feet apart
a
when outside of one's household is necessary to reduce the spread of COVID-19;
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WHEREAS, Governor Abbott's Executive Order GA-29, Mayor Order No. 20201215-
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021, and the Health Authority Rules allow for an exception to face covering requirement when
eating or dining in a restaurant;
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WHEREAS, because the wearing ofa face covering and physical distancing is not possible
while individuals are seated together and dining at a restaurant or similar establishment,
thereby
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increasing the risk of spreading COVID-19, the need to modify operations at businesses providing
dine-in food and beverage service during the hours of 10:30 P.M. and 6:00 A.M. during the term
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of the Order is necessary to protect the community and slow the spread of the COVID-19 virus;
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WHEREAS, the New Year's holiday presents a significant health risk due to the increased
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potential for large social gatherings at restaurants, hotels, and households;

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WHEREAS, restrictions on social gatherings during the New Year's holiday is necessary
tohelp prevent a surge in new cases and corresponding increases in hospitalizations that will
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overwhelm current hospital and ICU capacity;
WHEREAS, extraordinary be taken to try and mitigate the

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emergency measures must

effects of this public health emergency and to facilitate a response to the public health threat in
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order to protect the health and safety ofthe community;

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WHEREAS, pursuant to Government Code section 418.108(g), a mayor is authorized to

control ingress and egress from a local disaster area, and control the movement of persons and the
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occupancy of premises in that disaster area; and

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WHEREAS, an order that controls ingress and egress from a local disaster area, and
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controls the movement of persons and the occupancy of premises in that disaster area is needed to
protect the health and safety of all individuals in the City of Austin, by modifying dine-in services
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to slow the spread ofthe virus.

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NOW THEREFORE, I, MAYOR OF THE CITY OF AUSTIN, PURSUANT TO

THE AUTHORITY VESTED BY TEXAS GOVERNMENT CODE CHAPTER
418,
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HEREBY ORDER, EFFECTIVE AS OF 10:30 P.M. ON DECEMBER 31, 2020, AND

CONTINUING THROUGH 6:00 A.M. ON JANUARY 3, 2021 THAT IN THE CITY OF
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AUSTIN:
EXHIBIT B
Page 2 of 4
SECTION 1. That the findings and recitations set out in the

found to be true and correct and they are hereby preamble to this ORDER are
adopted and made a part hereof for all purposes.
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SECTION 2. Modified Operations for Dine-In Food and Beverage Services. Because
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the wearing of a face covering and physical distancing is not possible while individuals are seated
together and dining, thereby increasing the risk of spreading the COVID-19 virus, a business must
end indoor and outdoor dine-in food and
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beverage service at 10:30 P.M. but may continue to
operate after 10:30 P.M. using drive-thru, curbside pick-up, take-out, or delivery service. Dine-in
food and beverage service may resume beginning at 6:00 A.M. In this
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include religious services as defined by the Governor in GA-32. section,
a business does not
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Also, all dine-in food and
beverage service providers are strongly encouraged to offer only drive-thru, curbside pick-up,
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take-out, or delivery services between 6:00 A.M. and 10:30 P.M. as recommended in Order No.
20201223-023.
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SECTION 3. Criminal Offense. A violation of this Order is a violation of Austin
Code Section 2-6-24 and a criminal offense. A violation of this Order City
may be punishable through
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criminal enforcement, except as limited by state order. Peace officers,
City of Austin Code
Department inspectors, and the Office ofthe Austin Fire Marshal are hereby authorized to enforce
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this Order. A criminal violation ofthis Order is a misdemeanor
punishable by a fine not to exceed
$1,000, but not by confinement. A criminal violation of this Order may be enforced by the filing
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of a probable cause affidavit alleging the violation with the
appropriate court or by issuing a
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citation to the person violating that contains written notice of the time and
place the person must
appear before a magistrate ofthis state, the name and address ofthe person charged, and the offense
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charged. Enforcement of this Order is substantially reliant on self-regulation and a

commitment to public health and safety under the threat of COVID-19. Ifthere is not community
widespread
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compliance with this Order, the City will increase enforcement efforts, as allowed by law.
SECTION 4. Savings Clause. If any provision of this Order or its
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application to any
person or circumstance is held to be invalid, then the remainder of the Order,
including the
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application of such part or provision to other persons or circumstances, shall not be affected and
shall continue in full force and effect. To this end, the provisions ofthis Order are severable.
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SECTION 5. Posting. The Austin Public Health Department and the

City Clerk will post
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this Order on their websites. In addition, the owner,

manager, or operator of any facility that is
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likely to impacted by this Order is strongly encouraged to post a copy of this Order onsite and
be
to provide a copy to any member of the public asking for a copy.
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SECTION 6. This Order does not supersede Order 20201215-021. If this Order conflicts
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with Order 20201215-021, this Order shall prevail.

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[SIGNATURES ON NEXT PAGE]
EXHIBIT B
Page 3 of 4
ORDERED this theo2 ?

1
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day of December 2020, in the City of Austin, Travis County
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Texas, in witness whereof I subscribe my name and
Austin. cau?pl??e affi#1 the seal of the City of
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?fayor,?ity o#Austin
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Filed with me, the City Clerk of the City of Austin, this
Mayor
29?4lay of December 2020, by
Steve Adler, whose signature I hereby attest under my hand and the seal of the
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Austin. City of
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EXHIBIT B
Page 4 of 4
s pgs 2020254313
/1111111111111111111111111
ORDER BY THE COUNTY JUDGE OF TRAVIS COUNTY
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County Judge Order 2020-24,
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Relatmg to COVID-19 and the 1mplementation of Modified Operations
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Whereas, on March 6, 2020, a Declaration of Local Disaster was issued by the Travis
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County Judge to allow the County of Travis ("County" or "Travis County"), Texas, to take
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measures to reduce the possibility of exposure to COVID-19 and promote the health and safety
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of Travis County residents, and
Whereas, on March 13, 2020, a Declaration of State of Disaster was issued by Governor
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Greg Abbott to take additional steps to prepare for, respond to, and mitigate the spread of
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COVID-19 to protect the health and welfare of Texans, and
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Whereas, on October 7, 2020 the Governor issued Executive Order GA-32 ("GA-32"),
related to the reopemng of services and busme~s, with reduced occupancy hmits and gathenng
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restnchons for mdividuals and busmesses, as well as contmumg recommended health protocols
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and social d1stancmg measures to attempt to mitigate mcreased transfer of COVID-19 associated
with the expandmg commercial and social mteractions, and
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Whereas, GA-32 proh1b1ts any outdoor gathermg m excess of 10 people, except as

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specifically exempted m paragraphs 1, 3 and 4 of GA-32, or unless approved by the county Judge
or mayor, subject to conditions and restnct1ons not mcons1stentwith GA-32, and
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Whereas, GA-32 further prolnbits bars or similar estabhshments that hold a permit from
the Texas Alcoholic Beverage Commission ("TABC") from operatmg unless the County Judge
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opts m and allows bars and s1m1larestabhshments to opeiate by filmg the reqmsite form with
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TABC, and the Travis County Judge has not authonzed bars or s1m1larestablishments to open m
Travis County, and
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Whereas, on December 15, 2020, the County Judge issued Order 2020-21, effective
December I 6, 2020, proh1b1tmgany gathermgs m excess of IO people, requmng face covenngs,
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except as penmtted by the Governor's orders, and for busmesses that provide goods or services
directly to the pubhc to develop and implement a Health and Safety Pohcy related to preventmg
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the t1ansm1ssion of the COVID-19 virus, and

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Whereas, as of December 28, 2020, Travis County has expeuenced 48,951 confirmed
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cases of COVID-19 and 542 deaths as a result of the disease,

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Whereas, as of December 28, <2020, Williamson County has experienced 19,519

confirmed cases ofCOVID-19 and 198 deaths,
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Whereas, as of December 29, 2020, the number of hospitahzat10ns m Austm-Travis

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County was 434, and the ICU capacity m Austm/Trav1s County 1s at 69% of the estimated
EXHIBIT C
max11numava1lab1hty for COVID-19 patients, which ts havmg a detrimental effect on the area's
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health system, and
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Whereas, on December 29, 2020, the 7-day rollmg average of new hosp1tahzatlons m
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Travis County was 63, and
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Whereas, on December 23, 2020, the County entered the Stage 5 Risk Level based on
the recomrnendat1ons of the Health Authority due to the contmued increase m the 7-day roll mg
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average of new hosp1tahzat1ons and other contnbuting indicators, and
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Whereas, Dr Mark Escott, the intenm Health Authority for Austm/Trav1s County,
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contmues to encourage people to stay home except when necessary, and to wear face covenngs
to provide for the safety of the public while businesses are reopenmg and when md1v1dualsare
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outside thelf household, and
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Whereas, the virus that causes COVID-19 1s contagious and spreads through person-to
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person contact, especially m group settmgs, and
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Whereas, weanng a face covenng contmuously and spacmg at least six feet apart when
outside of one's household 1s necessary to reduce the spread of COVID-19,
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Whereas, Governor Abbott's Executive Order GA-29, County Judge Order No 2020-21,
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and the Health Authonty Rules allow for an exception to the face covermg reqmrement when a
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person 1s seated at a restaurant to eat or dnnk, and

'Whereas, because the weanng of a face covenng and physical distancmg 1s not possible
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while md1v1duals are seated together and dmmg at a restaurant or s1m1larestablishment, thereby
mcreasmg the nsk of spreadmg COVID-19, the need to modify operations at busmesses
prov1dmg dme-m food and beverage service dunng the hours of 10 30 P M and 6 00 A M for
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the term of this Order 1s necessary to protect the commumty and slow the spread of the COVID-
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19 virus, and
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Whereas, the New Year's hohday presents a s1gmficant health nsk due to the mcreased
potential for large social gathermgs at restaurants, hotels and households, and
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Whereas, restnctions on social gathenngs dunng the New Year's holiday 1s necessary to
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help prevent a surge m new cases and eorrespondmg mcreases m hosp1tahzat1ons that will
overwhelm current hospital and ICU capacity, and
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Whereas, the County Judge has determmed that extraordmary emergency measures must
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be taken to try and mitigate the effects of this pubhc health emergency and to facilitate a
response to the public health threat m order to protect the health and safety of the commumty,
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and
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Whereas, pursuant to Government Code sect10n 418 108(g), a County Judge 1s

authonzed to control mgress and egress from a local disaster area, and control the movement of
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persons and the occupancy of premises m that disaster area, and
EXHIBIT C
Whereas, an order that controls mgress and egress from a local disaster area, and
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controls the movement of persons and the occupancy of premises m that disaster area 1s needed
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for the duration of tins Order to protect the health and safety of all md1v1duals m the County of
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Travis, by modrfymg dme-m services to slow the spread of the virus, and
Whereas, thts Order shall cover all mdlVlduals cunently hvmg w1thm Travis County,
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mcludmg but not hm1ted to all of the c1t1esand mumc1paht1es w1thm the boundaries of Travis
County and specifically hsted m Exh1b1tA
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NOW THEREFORE, I, COUNTY JUDGE OF TRAVIS COUNTY, PURSUANT
TO THE AUTHORITY VESTED BY TEXAS GOVERNMENT CODE CHAPTER 418,
HEREBY FIND AND ORDER THAT
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Effective as of 10 30 P M on December 31, 2020, and contmumg through 6 00 A M on January
3, 2021 ("Effective Date"), that m the County of Travis
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SECTION 1 That the findmgs and rec1tat1onsset out m the preamble to this ORDER are
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found to be true and correct and they are hereby adopted and made a part hereof for all purposes
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SECTION 2 Modified Operations for Dme-In Food and Beverage Services
Because the wearmg of a face covenng and physical d1stancmg 1s not possible while mdtv1duals
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are seated together and dmmg, thereby mcreasmg the nsk of spreadmg the COVID-19 vrrus, a
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busmess must end mdoor and outdoor dme-m food and beverage service at 10 30 P M but may
contmue to operate after IO 30 PM usmg dnve-thru, curbside pick-up, take-out, or dehvery
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services Dme-m food and beverage service may resume beglililmg at 6 00 AM Also, all dme-m
food and beverage service providers are strongly encouraged to offer only dnve-thru, curbside
pick-up, take-out, or dehvery services between 6 00 AM and 10 30 PM as recommended m
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Order No 2020-23
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SECTION 3 The busmesses descnbed m Section 2 of this Order do not mclude

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rebg10us services as defined by the Governor m GA-32

SECTION 4 The Austm Pubhc Health Department and the Travis County Clerk will
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post this Order on theIT websites In addition, the owner, manager, or operator of any facihty that
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1s hkely to be impacted by this Order 1s strongly encouraged to post a copy of this Order ons1te
and to provide a copy to any member of the pubhc askmg for a copy
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SECTION 5 Savmgs Clause If any provision of this Order or its apphcat10n to any
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person or circumstance 1s held to be mvahd, then the remamder of the Order, mcludmg the
apphcatrnn of such part or prov1s10n to other persons or circumstances, shall not be affected and
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shall contmue m full force and effect To this end, the prov1s1ons of this Order are severable
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SECTION 6 ENFORCEMENT A v1olat10nofthts Order may be pumshable through

civil or cnmmal enforcement, except as hm1ted by state order The Travis County Shenffs
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Office, the Travis County Ftre Marshal's Office, and other peace officers are hereby authonzed
to enforce this Order and the Governor's Executive Orders A cnmmal violation of this Order 1s
EXHIBIT C
a misdemeanor puntshable by a fine not to exceed $1,000, but not by confinement Cnmmal
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violations of this Order may be enforced by the fihng of a probable cause affidavit allegmg the
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v10lat1on with the appropnate court or by u,sumg a c1tat1onto the person v1olatmg the Order,
which contains wntten notice of the name and address of the person charged, and the offense
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charged
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SECTION 7 This Order does not supersede Order 2020-21 issued on December 15,
2020 To the extent there 1s a conflict between this Order and Order 2020-21, this Order shall
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prevail
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SECTION 8 This Order mcorporates by reference the followmg
a Exh1b1tA- List of cities w1thm Travis County
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ORDERED this the _ll day ofDecem , 2020, m the County of Travis, Texas
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z_qday of December, 2020

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avis County, this

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Dana DeBeauvorr, County Clerk

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EXHIBIT C
Exh1b1tA
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Listof C1t1esand Munic1paht1esw1thm Travis County Jur1sd1ct1on
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covered by the Order
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• City of Austin
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• City of Bee Cave
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• City of Cedar Park
• City of Creedmoor
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• City of Elgin
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• City of Jonestown
• City of Lago Vista
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• City of Lakeway
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• City of Leander
• City of Manor
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• City of Mustang Ridge
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• City of Pflugerville
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• City of Rollingwood
• City of Round Rock
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• City of Sunset Valley

• City of West Lake Hills
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• Village of Bnarchff
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• Village of Point Venture

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• Village of San Leanna

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• Village of The Hills

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• Village of Volente
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• Village of Webberville
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FILED AND RECORDED

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OFFICIAL PUBLIC RECORDS
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of
Dana DeBeauvo1r, County Clerk

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Travis County, Texas
2020254313 Dec 29, 2020 06 23 PM

Fee $0 00 GUERREROR
EXHIBIT C
District Clerk
El Paso County
2020DCV3515
CAUSE NO. 2020-DCV-3515
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PIZZA PROPERTIES, INC., M&S § IN THE DISTRICT COURT OF
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GROUP, INC., d/b/a WING DADDY’S, §
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RUN BULL RUN, LLC d/b/a/ TORO §
BURGER BAR, CHARCOALER, LLC, §
TRIPLE A RESTAURANT INC., CC §
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RESTAURANT LP, FD MONTANA, §
LLC, WT CHOPHOUSE, LLC, §
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VERLANDER ENTERPRISES, LLC, and §
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BAKERY VENTURES I, LTD., §
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§
Plaintiffs, §
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STATE OF TEXAS, §
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Intervenor-Plaintiff, §
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v. §
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§
EL PASO COUNTY, TEXAS and §
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RICARDO A. SAMANIEGO, in his §

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official capacity as County Judge, El Paso §

County, Texas, §
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Defendants. § 34TH JUDICIAL DISTRICT

______________________________________________________________________________
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STATE OF TEXAS’ PLEA IN INTERVENTION

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______________________________________________________________________________
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INTRODUCTION
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1. The Attorney General of Texas, on behalf of the State, respectfully

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intervenes in this case under Texas Rule of Civil Procedure 60. The Attorney General
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intervenes to: (1) prevent Defendants from nullifying Governor Greg Abbott’s COVID-
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19-related executive order GA-32; (2) preserve the State’s need for a clear and
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consistent response to the pandemic, which is being undermined by Judge Ricardo

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Samaniego’s recent emergency order (“EO-13”); and (3) protect the residents of El
EXHIBIT D
Paso County and the Texas Disaster Act (“TDA”) at large from the unlawful and
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unconstitutional EO-13.
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BACKGROUND
I. An Overview of the Texas Disaster Act.
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disasters.” 1
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3. The TDA strengthens the role of both state and local governments in
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preparing for, responding to, and recovering from disasters. 2 But the TDA makes the
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sitting Texas Governor the leader and focal point of the State’s emergency response. 3
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this weighty task. 6 Relevant here, the Governor is given the powers to: (1) control the
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movement of persons and occupancy of premises in a disaster area; 7 (2) issue

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executive orders that “have the force and effect of law”; and (3) suspend statutes,
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1 TEX. GOV’T CODE § 418.002(1), (3).

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2 Id. at § 418.002(4).
3 See id. at §§ 418.011–.026.
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4 Id. at § 418.011.
5 Id. at § 418.015(c).
6 See id. at §§ 418.011–.026.
7 Id. at § 418.018(c).
EXHIBIT
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orders, or rules that “would in any way prevent, hinder, or delay necessary action in
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coping with a disaster.” 8
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6. The TDA gives local officials far more limited powers than those afforded
to the Governor. Local officials generally derive their power from two sources under
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the TDA.
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7. First, section 418.1015(b) provides: “An emergency management
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director may exercise the powers granted to the governor under this chapter on an
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appropriate local scale.” Under this section, an emergency management director
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“serves as the governor’s designated agent” and thus is subject to the Governor’s
control. 9 ct
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8. Second, section 418.108 authorizes “the presiding officer of the
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governing body of a political subdivision [to] declare a local state of disaster.” 10 This
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section continues: “The county judge or the mayor of a municipality may control
ingress to and egress from a disaster area under the jurisdiction and authority of the
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county judge or mayor and control the movement of persons and the occupancy of
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premises in that area.” 11

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emergency orders carrying the force and effect of law, as this is not one of the powers
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granted to such local officials under section 418.108.

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8 Id. at § 418.016(a).
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10 Id. at § 418.108(g).
11 Id.
EXHIBIT
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II. An Overview of Governor Abbott’s Executive Order GA-32.
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GA-32 states: “Every business establishment in Texas shall operate at
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no more than 75 percent of the total listed occupancy of the establishment.” 16
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13. But the order specifies that “[t]here is no occupancy limit” for certain
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services and businesses, such as: (1) religious services; (2) local government
operations; (3) child-care services; (4) youth camps; (5) recreational sports programs;
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(6) public and private schools; (7) drive-in concerts, movies, and similar events; (8)
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personal-care and beauty services, such as hair salons and barber shops; and (9)
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outdoor areas, events, and establishments (with a few enumerated exceptions). 17

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14. GA-32 provides additional rules governing what services and businesses
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can remain open.

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12 Id. at § 418.1015(b).
13 Id.
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14 Ex. A.
15 TEX. GOV’T CODE § 418.012.
16 Ex. A, 2.
17 Id. at 2–3.
EXHIBIT
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15. For instance, the order states that indoor and outdoor sporting events
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“shall remain limited to 50 percent of the normal operating limits.” 18
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17. The order states that “[p]eople may visiting nursing homes” and similar
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establishments “as determined through guidance from the Texas Health and Human
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Services Commission.” 21
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GA-32 does not require persons to “stay at home.” Quite the opposite.
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The order “strongly encourage[s]” people over 65 “to stay at home as much as
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possible,” but it leaves Texans free to make this decision for themselves. 22
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18 Id. at 3.
19 Id. at 4.
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20 Id.
21 Id. at 5.
22 Id. at 4.
23 Id. at 5.
EXHIBIT
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disasters.” 26 Judge Samaniego’s impermissibly and unconstitutionally undercuts
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these reopening efforts.
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III. Judge Samaniego’s Recent Order Unlawfully Undermines GA-32.
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22. On October 29, 2020, Judge Samaniego issued an emergency order (“EO-
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13”) that effectively nullified GA-32 and undermined the State’s reopening efforts.
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23. At the outset of the order, Judge Samaniego notes that sections
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418.1015(b) and 418.018 provide the bases for his authority to issue emergency
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orders. 27 Judge Samaniego acknowledges that, under section 418.1015, he “serv[es]
as the Governor’s designated agent.” 28 Judge Samaniego then proceeds to undercut

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Governor Abbott’s response to this pandemic in a manner conflicting with, and

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expressly prohibited by, GA-32.

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24. EO-13 purports to order El Paso County residents “to temporarily stay
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at home or at their place of residence.” 29 GA-32 expressly rejected the idea of such a
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stay at home order. 30

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24 Id. at 5.
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25 See id. at 2.
26 TEX. GOV’T CODE § 418.002(3).
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27 Ex. B, 1–2.
28 Id. at 2.
29 Id. at 5.
30 See Ex. A, 4.
EXHIBIT
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25. EO-13 imposes a curfew on El Paso County residents “from 10:00 PM to
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5:00 AM.” 31 Such a curfew is not contemplated by, and cannot be reconciled with, GA-
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32. 32
26. EO-13 provides limited exceptions for people and businesses engaged in
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“essential services” or “essential activities,” 33 and closes all other businesses and
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facilities deemed “non-essential.” 34 EO-13’s list of essential services and activities
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cannot be reconciled with the services and activities authorized under GA-32. 35
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27. Per EO-13: “All public or private gatherings of any number of people
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occurring outside a single household or living unit are prohibited, except as otherwise
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provided in this Order.” 36 This conflicts with GA-32 which, for instance, allows
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gatherings of up to 10 people. 37
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28. EO-13 generally restricts all outdoor travel, except for “essential”
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travel. 38 GA-32 contains no such restriction. 39
29. EO-13 allows individuals to engage in certain “essential retail.” 40 But

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the services deemed “essential retail” cannot be squared with the services GA-32
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Ex. B, 6.
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31
32 See Ex. A.
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33 Ex. B, 5–12.
34 Id. at 6.
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35 Compare Ex. A, 2–5, with Ex. B, 5–12.

36 Ex. B, 6 (emphasis in original).
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37 Ex. A, 4.
38 Ex. B, 6.
39 See Ex. A.
40 Ex. B, 9.
EXHIBIT
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allows. 41 And EO-13 limits “essential services” to only “one member of the
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household.” 42 GA-32 does not. 43
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30. These are just a few of the many ways EO-13 is more restrictive than,
and thus preempted by, GA-32.
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31. EO-13 further creates confusion and injures the State’s need for a clear
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and consistent response to COVID-19.
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32. For instance, GA-32 states that it supersedes more restrictive local
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emergency orders. 44 Yet EO-13 provides: “To the extent that there is a conflict
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between this Order and any executive order of the Governor, the strictest order shall
prevail.” 45 ct
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33. Judge Samaniego has no authority under the TDA to preempt or
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supersede Governor Abbott’s executive orders.

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34. It is a Class C misdemeanor, punishable by an up to $500 fine, if a
person violates EO-13’s provisions. This leaves El Paso County residents with no
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choice but to ignore GA-32 and comply with the stricter EO-13. The TDA does not
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authorize local officials to nullify a Governor’s emergency orders in such a manner.

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STANDARD FOR INTERVENTION

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35. “Any party may intervene [in a case] by filing a pleading, subject to being
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stricken out by the court for sufficient cause on the motion of any party.” 46 An
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41 See Ex. A.
42 Ex. B, 9.
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43 See Ex. A.
44 Ex. A, 5.
45 Ex. B, 16.
46 TEX. R. CIV. P. 60.
EXHIBIT
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intervenor is not required to secure a court’s permission to intervene in a cause of
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action. 47 Rather, an intervenor need only show a “justiciable interest in a pending
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suit to intervene in the suit as a matter of right.” 48 “A party has a justiciable interest
in a lawsuit, and thus a right to intervene, when his interests will be affected by the
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litigation.” 49 “The interest asserted by the intervenor may be legal or equitable.” 50
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36. With respect to the timing of an intervention, there is no pre-judgment
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deadline for intervention. 51 Texas courts recognize an “expansive” intervention
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doctrine in which a plea in intervention may be untimely only if it is “filed after
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judgment,” 52 though even post-judgment interventions are permissible under certain
circumstances. 53 ct
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37. This intervention was brought shortly after this lawsuit was filed.
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Texas’ intervention is timely.

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THE STATE’S INTERESTS
38. Texas, as a sovereign entity, “has an intrinsic right to enact, interpret,

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and enforce its own laws.” 54 This includes a right to “reassert the control of the state”
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47 Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).
48 In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008).
49 Jabri v. Alsayyed, 145 S.W.3d 660, 672 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Law
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Offices of Windle Turley v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.—Fort Worth 2003, no pet.)).
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50 Guar. Fed. Sav. Bank, 793 S.W.2d at 657 (citation omitted).

51 Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008) (citing Tex. R. Civ. P. 60; Citizens State
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Bank of Sealy v. Caney Invs., 746 S.W.2d 477, 478 (Tex. 1988)).
52 Texas v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (quoting First Alief Bank v. White, 682 S.W.2d 251,
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252 (Tex. 1984)).

53 Ledbetter, 251 S.W.3d at 36 (citing In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 725–26 (Tex.
2006)).
54 State v. Naylor, 466 S.W.3d 783, 790 (Tex. 2015).
EXHIBIT
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and “enforce existing policy” as declared by the Texas Legislature. 55 Injuries to this
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right are sufficient to both create standing to sue and show irreparable harm. 56
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39. This interest logically extends to issues concerning the applicability of
the State’s laws. The State is “the guardian and protector of all public rights” and has
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authority to sue to redress any violations of those rights. 57 The State’s interests
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extend to preventing “an abuse of power by public officers” and to issues concerning
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the “maintenance and operation of its municipal corporations in accordance with
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law.” 58
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40. The State’s interests are arguably at their apex when seeking to protect
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its citizens from “an epidemic of disease which threatens the safety of its members.” 59
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41. EO-13 implicates these, and many other, important State interests. As
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explained above, EO-13 violates GA-32, the TDA, and undermines the State’s need
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for a clear and consistent response to the COVID-19 pandemic.
42. EO-13 should be declared invalid and unconstitutional under TEX. CIV.
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PRAC. & REM. CODE § 37.006(b). EO-13 also constitutes an ultra vires act. There are
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three main reasons why.

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55 City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).

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56 See, e.g., Valentine v. Collier, 956 F.3d 797, 803 (5th Cir. 2020); Texas v. EEOC, 933 F.3d 433, 447
(5th Cir. 2019); Texas Ass'n of Bus. v. City of Austin, Texas, 565 S.W.3d 425, 441 (Tex. App.
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2018), review denied (June 5, 2020).

57 Yett v. Cook, 115 Tex. 205, 219 (1926); see also Alfred L. Snapp & Son, Inc. v. Puerto Rico ex re.
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Barez, 458 U.S. 592, 607 (1982) (“a State has a quasi-sovereign interest in the health and wellbeing—
both physical and economical—of its residents in general.”).
58 Yett, 115 Tex. at 219–20.
59 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 27–28 (1905).
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43. First, EO-13 was expressly preempted by GA-32. 60 The TDA gave Texas
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Governors the responsibility to manage a disaster on a statewide level and the power
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to issue statewide disaster orders carrying the force and effect of law. GA-32 was
effectively a state law that carries the same preclusive effect as any other state law.
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GA-13 expressly superseded more restrictive local ordinances such as EO-13. EO-13
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is preempt and invalid as a result. 61
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44. Second, Judge Samaniego did not have authority to issue emergency
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orders more restrictive than Governor Abbott’s. GA-32 suspended the sole statutory
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bases for Judge Samaniego’s emergency order (TEX. GOV’T CODE §§ 418.1015(b) and
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418.108) to the extent necessary to ensure that local officials “do not impose
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restrictions in response to the COVID-19 disaster that are inconsistent with [GA-
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32].” 62 EO-13 is an ultra vires act and an invalid ordinance because Judge Samaniego
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had no authority to issue this more restrictive order.
45. Third, EO-13’s order was unconstitutional and violates separation of

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powers principles. The Texas Constitution vests lawmaking power in the Texas
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Legislature. 63 The Legislature delegated this authority to sitting Governors during

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times of emergency. 64 Local emergency directors such as Judge Samaniego can

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exercise this gubernatorial power, but they do so only as “the governor’s designated
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60 See Ex. A, 5.
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61 See, e.g., BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 18–19 (Tex. 2016) (“[A local]
ordinance which conflicts or is inconsistent with state legislation is impermissible.”) (quotations
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omitted); see also S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).
62 Ex. A, 5.
63 See, e.g., Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
64 TEX. GOV’T CODE § 418.012.
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agent[s].” 65 Judge Samaniego was not acting as Governor Abbott’s “designated agent”
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when he issued an emergency order that expressly conflicted with GA-32. Thus, his
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order usurps both the Texas Legislature’s ability to control who exercises legislative
authority and Governor’s Abbott’s role as the designated individual responsible for
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meeting disasters on a statewide level.
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46. Judge Samaniego will point to section 418.018 as the basis for his
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lawmaking power (which, again, was suspended under the circumstances). This
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statute, while allowing county judges and mayors to control the movement of persons
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and the occupancy of premises, does not grant county judges and mayors the power
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to issue orders carrying the force and effect of law. 66 The TDA only gives local officials
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such authority when they act as local emergency management directors, meaning
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when they act as designated agents of the Governor. 67

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47. This conclusion is supported by a clear reading of the two statutes’
language. It is further justified by the fact that the TDA clearly contemplated that
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the Governor would be the leader of the State’s emergency response. 68 Any other
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conclusion would lead to the absurd result where the Governor—the individual
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mainly responsible for guiding the State through a crisis—is unable to do so because
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his or her executive orders keep getting nullified by local officials. That is precisely
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what occurred here with Judge Samaniego’s unlawful EO-13.

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65 Id. at § 418.1015(b).
66 See id. at § 418.108(g).
67 See id. at § 418.1015(b).
68 See id. at §§ 418.011–.026.
EXHIBIT
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PRAYER
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For the reasons discussed above, the State of Texas respectfully prays that this
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Court:
A. Through counsel below, enter an appearance for the State of Texas in
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this cause;
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B. Declare EO-13 to be invalid and unconstitutional;
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C. Issue preliminary and permanent injunctions against EO-13; and
D. Award any further relief that the Court deems just and proper.
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KEN PAXTON
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BRENT WEBSTER
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RYAN L. BANGERT
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DARREN L. MCCARTY
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THOMAS A. ALBRIGHT
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/s/ Todd Dickerson

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TODD DICKERSON
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Austin, TX 78711-2548
(512) 475-4072 PHONE
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(512) 320-0667 FAX

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ATTORNEYS FOR INTERVENOR STATE OF TEXAS
EXHIBIT
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CERTIFICATE OF SERVICE
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I hereby certify that on the 30th day of October, 2020 a true and correct copy
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of the foregoing document was served via E-Service by File and Serve Texas to all
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counsel of record. A true and correct copy was also sent via email to:
Joe Anne Bernal
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County Attorney for
El Paso County, Texas
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joanne.bernal@epcounty.com
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/s/ Todd Dickerson
TODD DICKERSON
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EXHIBIT
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El Paso County - 34th District Court Filed 11/2/2020 12:00 AM
District Clerk
El Paso County
2020DCV3515
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GROUP, INC., d/b/a WING §
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DADDY’S, RUN BULL RUN, LLC §
d/b/a/ TORO BURGER BAR, §
CHARCOALER, LLC, TRIPLE A §
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RESTAURANT INC., CC §
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VERLANDER ENTERPRISES, LLC, §
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and BAKERY VENTURES I, LTD., §
Plaintiffs, §
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STATE OF TEXAS, §
§
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§
v. § ct EL PASO COUNTY, TEXAS
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§
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official capacity as County Judge, El §

Paso County, Texas, §
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______________________________________________________________________________
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INTERVENOR-PLAINTIFF STATE OF TEXAS’S

MOTION FOR A TEMPORARY INJUNCTION
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______________________________________________________________________________
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INTRODUCTION
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1. Judge Ricardo Samaniego’s recent emergency order (“EO-13”): (1)

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conflicts with Governor Greg Abbott’s COVID-19-related executive order GA-32; (2)
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undermines the State’s need for a clear and consistent response to this pandemic; and
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(3) disrupts the Texas Legislature’s division of emergency powers as reflected in the
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Texas Disaster Act (“TDA”). EO-13 is patently unlawful and reflects a clear abuse of
1
EXHIBIT E
power by Judge Samaniego. El Paso authorities have begun citing businesses
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consistent with Judge Samaniego’s unlawful order. This order should be immediately
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enjoined.
FACTUAL BACKGROUND
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2. TDA is designed to mitigate the “damage, injury, and loss of life and
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disasters.” 1
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TDA strengthens the role of both state and local governments in
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preparing for, responding to, and recovering from disasters. 2
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4. TDA makes the sitting Texas Governor the leader and focal point of the
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State’s emergency response. 3
5. Under TDA, the Governor is “responsible for meeting . . . the dangers to

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the state and people presented by disasters” 4 and is the “commander in chief” of the
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State’s response to a disaster, including the State’s response to rehabilitating persons

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and reopening businesses that have suffered from a disaster. 5

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6. TDA gives the Governor broad powers necessary to accomplish this

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weighty task. 6 Relevant here, the Governor is given the powers to: (1) control the
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1 TEX. GOV’T CODE § 418.002(1), (3).

2 Id. at § 418.002(4).
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3 See id. at §§ 418.011–.026.

4 Id. at § 418.011.
5 Id. at § 418.015(c).
6 See id. at §§ 418.011–.026.
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EXHIBIT E
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executive orders that “have the force and effect of law” 8; and (3) suspend statutes,
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7. TDA gives local officials far more limited powers than those afforded to
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the Governor. Per Defendants, local officials generally derive their power from two
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sources under TDA.
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appropriate local scale.” 10 Under this section, an emergency management director
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control. 11
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7 Id. at § 418.018(c).
8 Id. at § 418.012.
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9 Id. at § 418.016(a).
10 Id. § 418.1015(b).
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12 Id. at § 418.108(g).
13 Id.
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EXHIBIT E
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11. Rather, a local official’s power to issue emergency orders is derivative of
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and subservient to the Governor’s power. TDA grants local officials derivative use of
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a Governor’s powers only when they are acting in their capacities as local “emergency
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management director[s.]” 14 When acting in this capacity, the local official is a
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“designated agent” of the Governor and thus is subject to the Governor’s control. 15
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12. ct
On October 7, 2020, Governor Abbott issued Executive Order GA-32 to
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13. GA-32 states: “Every business establishment in Texas shall operate at

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14. However, the order specifies that “[t]here is no occupancy limit” for
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certain services and businesses, such as: (1) religious services; (2) local government
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14 Id. at § 418.1015(b).
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15 Id.
16 Ex. A.
17 TEX. GOV’T CODE § 418.012.
18 Ex. A at 2.
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EXHIBIT E
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can remain open.
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18. The order states that “[p]eople may visit nursing homes” and similar
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19. GA-32 does not require persons to “stay at home.” Quite the opposite.
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19 Id. at 2–3.
20 Id. at 3.
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21 Id. at 4.
22 Id.
23 Id. at 5.
24 Id. at 4.
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EXHIBIT E
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Government Code . . . and any other relevant statutes, to the extent necessary to
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disaster that are inconsistent with this executive order . . . .” 26
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22. The Governor has therefore suspended Judge Samaniego’s powers
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under TDA.
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safely. 27 It aims to fulfill one of TDA’s core purposes: “[T]he rapid and orderly
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restoration and rehabilitation of persons and property affected by disasters.” 28
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However, EO-13 impermissibly and unconstitutionally undercuts these reopening

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efforts.
III. Judge Samaniego’s Recent Order Unlawfully Conflicts With, And Is

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Therefore Preempted By, GA-32.

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24. On October 29, 2020, Judge Samaniego issued EO-13 that purports to
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nullify GA-32 and undermine the State’s reopening efforts.

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25. At the outset of EO-13, Judge Samaniego notes that sections 418.1015(b)
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and 418.018 of the Government Code provide the bases for his authority to issue
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emergency orders. 29 Judge Samaniego acknowledges that, under section 418.1015, he

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25 Id. at 5.
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26 Id. at 5.
27 See id. at 2.
28 TEX. GOV’T CODE § 418.002(3).
29 Ex. B at 1–2.
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EXHIBIT E
“serv[es] as the Governor’s designated agent.” 30 Judge Samaniego then proceeds to
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undercut Governor Abbott’s response to this pandemic in a manner conflicting with,
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and expressly prohibited by, GA-32.
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32. 34
28. ct
EO-13 provides limited exceptions for people and businesses engaged in
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provided in this Order.” 38 This conflicts with GA-32, which, for instance, allows
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Id. at 2.
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31 Id. at 5.
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32 See Ex. A at 4.
33 Ex. B at 6.
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34 See Ex. A.
35 Ex. B at 5–12.
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36 Id. at 6.
37 Compare Ex. A at 2–5, with Ex. B at 5–12.
38 Ex. B at 6.
39 Ex. A at 4.
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EXHIBIT E
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and consistent response to COVID-19. ct

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34. For example, GA-32 states that it supersedes more restrictive local
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prevail.” 47
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35. Judge Samaniego has no authority under TDA to contradict or

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36. In any event, Governor Abbott has suspended Judge Samaniego’s

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powers under the TDA, including the power to issue orders.

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40 Ex. B at 6.
41 See Ex. A.
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42 Ex. B at 9.
43 See Ex. A.
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44 Ex. B at 9.
45 See Ex. A.
46 Ex. A at 5.
47 Ex. B at 16.
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EXHIBIT E
37. It is a Class C misdemeanor, punishable by a fine of up to $500, if a
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person violates EO-13’s provisions. This leaves El Paso County residents with little
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choice but to ignore GA-32 and comply with the stricter EO-13. TDA does not
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PROCEDURAL BACKGROUND
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38. Plaintiffs consist of 10 El Paso County-based businesses. 48 Defendants
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are El Paso County, a political subdivision of the State of Texas, and Judge
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Samaniego, the County Judge of El Paso County. 49
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39. Plaintiffs filed this action against Defendants on October 30, 2020 and
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sought to have EO-13 declared invalid and illegal as an invalid act on behalf of Judge
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Samaniego. 50
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40. The State intervened that same day and also asserted claims against
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Defendants. 51 As described in the plea, EO-13 is invalid and unconstitutional under
TEX. CIV. PRAC. & REM. CODE § 37.006(b) and constitutes an ultra vires act. This is
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because: (1) GA-32 expressly preempts EO-13; (2) Governor Abbott suspended the
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only statutes that would have allowed Judge Samaniego to issue binding emergency
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orders; and (3) Judge Samaniego exceeded the scope of his authority as Governor
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Abbott’s “designated agent” when he issued an emergency order expressly conflicting

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with GA-32. 52
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48 Plaintiffs’ Original Petition, ¶¶ 2–11.

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49 Id. at ¶¶ 12–13.
50 Id. at ¶¶ 21–23.
51 See generally State of Texas’ Plea in Intervention (“State’s Plea”).
52 See id. at ¶¶ 41–47.
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EXHIBIT E
41. The State’s ultra vires and declaratory judgment claims are not barred
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by governmental immunity. 53
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ARGUMENT
42. “A temporary injunction’s purpose is to preserve the status quo of the
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litigation’s subject matter pending a trial on the merits.” 54 The applicant must prove
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three elements to obtain a temporary injunction: (1) a cause of action against the
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adverse party; (2) a probable right to the relief sought; and (3) a probable, imminent,
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and irreparable injury in the interim. 55 These requirements are readily met here.
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I. The State is Likely to Succeed on the Merits.
A. GA-32 Expressly Preempts EO-13. ct

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emergency orders, and EO-13 is far more restrictive than GA-32. Thus, the only open
issue is whether GA-32 should be considered a “state law.”

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44. GA-32 carries the same preemptive effect as any other state law, as will
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be shown below.
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45. TDA makes the Governor “responsible for meeting . . . the dangers to the
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state” presented by disasters. 57

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53 See, e.g., Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017); City of Dallas v. Albert, 354 S.W.3d 368,
378 (Tex. 2011).
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55 Id.
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EXHIBIT E
46. TDA authorizes the Governor to declare a “state of disaster” for the
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entire State. 58 Governor Abbott did that when he declared that COVID-19 “poses an
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imminent threat of disaster for all counties in the State of Texas.” 59
47. TDA gives the Governor the power to issue emergency orders that have
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49. GA-32 expressly preempts EO-13, rendering it invalid from the outset.
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B. Governor Abbott Suspended the Only Statutes that Would have
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Allowed Judge Samaniego to Issue Binding Emergency Orders.

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50. Judge Samaniego identifies sections 418.1015(b) and 418.018 of the

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Government Code as the bases for his authority to issue local emergency orders. 62
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Governor Abbott, using his TDA-granted suspension power, 63 suspended these two
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statutes to the extent necessary to ensure that local officials “do not impose
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32].” 64 Judge Samaniego had no authority to issue the more restrictive EO-13—or
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any other order—under these circumstances.

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59 Ex. A at1 (emphasis added).

60 TEX. GOV’T CODE § 418.012.
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61 Ex. A at 2.
62 Ex. B at 1–2.
63 TEX. GOV’T CODE § 418.016(a).
64 Ex. A at 5.
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EXHIBIT E
51. Defendants argue TDA “does not give the Governor the authority to
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suspend the power of the County Judge in times of emergency.” 65 Section 418.016(a)
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of TDA authorizes Governor Abbott’s suspension power. This statute reads:
The governor may suspend the provisions of any regulatory statute
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prescribing the procedures for conduct of state business or the orders or
rules of a state agency if strict compliance with the provisions, orders,
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or rules would in any way prevent, hinder, or delay necessary action in
coping with a disaster. 66
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52. Defendants claim sections 418.1015(b) and 418.018 are not “regulatory
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statute[s] that prescribe[] the conduct of state business . . . .” 67 They do not argue the
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term “regulatory” imposes any meaningful limits here. 68 Thus, the focus is on
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whether sections 418.1015(b) and 418.018 “prescribe[] the conduct of state business
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or the orders of rules of a state agency.” 69
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53. Indeed, this analysis must focus on TDA. Texas counties, as subdivisions
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of the State, have only those powers specifically conferred on them by statute or
constitution. 70 There is no constitutional basis for any powers Defendants assert here,
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leaving them with only what was granted under the TDA.
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54. TDA makes all levels of an emergency response matters of “state

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business.” A look at how TDA distributes power to local officials, and specifically at
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Subchapter E of TDA, 71 confirms this point.

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65 Defendants’ Answer and Plea to the Jurisdiction to Plaintiffs’ Original Petition (“Defendants’ Plea”)
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at 6–7.
66 TEX. GOV’T CODE § 418.016(a).
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69 See TEX. GOV’T CODE § 418.016(a).

70 See, Tex. Const. art. IX, § 1; Guynes v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993); Avery v.
Midland County, 406 S.W.2d 422, 426 (Tex. 1966), rev'd on other grounds, 390 U.S. 474 (1968).
71 TEX. GOV’T CODE § 418.101 et seq.
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EXHIBIT E
55. Section 418.1015 is the second statute listed in Subchapter E. This
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statute governs “emergency management directors.” Per section 418.1015(a), the
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designated “emergency management directors” are: (1) the “presiding officer” of an
incorporated city; (2) the “presiding officer” of a county; and (3) the “chief
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administrative officer” (“CAO”) of a joint board.
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56. Section 418.1015(b) states that an emergency management director (1)
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“serves as the governor’s designated agent in the administration and supervision of
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duties under this chapter” and (2) “may exercise the powers granted to the governor
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under this chapter on an appropriate local scale.” 72
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A mayor is a city’s presiding officer, 73 and a county judge is a county’s
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presiding officer. 74 TDA gives mayors, county judges, and joint board CAOs derivative
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gubernatorial emergency powers. And when these local officials exercise such powers,
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they do so only as the Governor’s “designated agent.” This is the plain reading of
section 418.1015. It is also supported by TDA as a whole, which reflects the

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Legislature’s overall intent to make the Governor the leader of the State’s emergency
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response. 75
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58. Next is section 418.108 (titled “Declaration of Local Disaster”), which is

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listed near the end of Subchapter E.

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72 Id. at § 418.1015(b).
73 TEX. LOC. GOV'T CODE § 22.037.
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74 See, e.g., County judge, 36 TEX. PRAC., COUNTY AND SPECIAL DISTRICT LAW § 22.5 (2d ed.) (“The
county judge is considered by many the highest ranking county official.”); Ex. B (wherein County Judge
Samaniego effectively acknowledges he is El Paso County’s presiding officer).
75 See id. at §§ 418.011–.026.
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EXHIBIT E
59. Defendants contend that section 418.108 gives county judges and
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mayors independent emergency powers. They are mistaken.
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60. Section 418.108 distinguishes between, and resolves conflicts among,
emergency management directors. 76 Section 418.108 does not use the catchall term
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“emergency management directors,” instead referring to them by their offices:
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mayors, county judges, and CAOs. True, section 418.1015 refers to mayors and city
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judges as city and county “presiding officers.” But this term is synonymous with
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“mayor” and “county judge,” as explained above.
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61. After resolving a conflict about which emergency management director
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has exclusive authority over an airport (the joint board CAO does), 77 section
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418.108(f)–(g) then states:
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(f) The county judge or the mayor of a municipality may order the
evacuation of all or part of the population from a stricken or threatened
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area under the jurisdiction and authority of the county judge or mayor
if the county judge or mayor considers the action necessary for the
preservation of life or other disaster mitigation, response, or recovery.
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(g) The county judge or the mayor of a municipality may control ingress
to and egress from a disaster area under the jurisdiction and authority
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of the county judge or mayor and control the movement of persons and
the occupancy of premises in that area. 78
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62. Defendants read these provisions as an independent grant of local

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emergency power. But that interpretation makes these provisions superfluous.

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76 See id. at § 418.108(e)–(g).

77 See id. at § 418.108(e).
78 Id. at § 418.108(f)–(g).
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EXHIBIT E
Mayors and county judges already have these powers under section 418.1015(b). 79 It
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would be meaningless to give the same officials the same powers a second time.
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63. The only plausible reading of section 418.018(f)–(g) is that it
distinguishes which executive management directors can use the Governor’s power
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to restrict movement. Under these sections, mayors, and county judges can
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derivatively use this power. However, the CAO of a joint board, which is referenced
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in section 418.018(e) but not in section 418.018(f)–(g), cannot.
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64. The powers listed in section 418.018(f)–(g) mirror the “movement”
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emergency powers granted to the Governor. 80 That only makes sense. All local
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emergency authority is derived from the Governor’s emergency powers, as
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established in section 418.1015(b).
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65. The next subsection (section 418.018(h)) further undermines

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Defendants’ proposed interpretation. This subsection states that, when a county
judge’s and mayor’s “jurisdiction and authority” conflict, “the decision of the county
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judge prevails.” 81 This subsection does not address conflicts between a local official’s
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and a Governor’s use of emergency powers. It does not have to because section
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418.1015(b) resolves the issue by making local officials “the governor’s designated
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agent[s]” whenever they exercise their derivative emergency powers. And it is well
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settled that an agent must “act on the principal’s behalf and [is] subject to the
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principal’s control.” 82
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79 See also id. at § 418.018.

80 Compare id. at § 418.108(g)–(f), with § 418.018.
81 Id. at § 418.108(h).
82 RESTATEMENT (THIRD) OF AGENCY § 1.01 (2006).
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66. Defendants’ proposed interpretation would also lead to absurd results.
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67. Under Defendants’ proposal, mayors and county judges would have two
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“hats.” While wearing the hat of a “mayor” or “county judge” under section 418.018,
these officials would have emergency powers independent of the Governor’s powers.
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But if they changed their hat to an “emergency management director” and exercised
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the same powers, these local officials would become “the governor’s designated
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agent[s]” and thus would be subject to his or her control. 83
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68. To find for Defendants here, this Court would also need to believe that
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the Legislature intentionally made the Governor the leader of the State’s emergency
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response, 84 while simultaneously creating a loophole leaving mayors and county
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judges free to undermine the State’s emergency response at their whim.
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69. The Court would then need to ignore common sense and TDA at large
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and conclude that, somehow, laws governing the State’s response to a disaster do not
address matters of “state business.” 85

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70. Governor Abbott lawfully suspended sections 418.1015(b) and 418.018.

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Under the circumstances, Judge Samaniego had no legal authority to issue EO-13,
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which makes his order invalid, and his conduct ultra vires.
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83 TEX. GOV’T CODE § 418.1015(b).

84 See id. at §§ 418.011–.026.
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C. Judge Samaniego Exceeded the Scope of His Authority as
Governor Abbott’s “Designated Agent” when He Issued an
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Emergency Order Expressly Conflicting with GA-32.
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71. As discussed above, Judge Samaniego was using derived gubernatorial
powers and acting as Governor Abbott’s agent when he issued EO-13. Judge
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Samaniego could not lawfully issue an order expressly conflicting with GA-32. Thus,
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Judge Samaniego exceeded the scope of his authority, making EO-13 unlawful.
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73. ct
There, the Court explained that a century’s worth of precedent
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actions.” 89
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86 No. 20-0729, 2020 WL 5919729, at *7 (Tex. Oct. 7, 2020).

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89 Id.
90 Id. at *7.
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75. Per Hollins, the irreparable injury requirement favors the State. 92
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III. A Temporary Injunction is Necessary to Preserve the Status Quo.
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76. This factor also favors the State. “The status quo is the last actual,
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peaceable, noncontested status which preceded the pending controversy.” 93 Here,
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that would be the parties’ status before Judge Samaniego’s EO-13.
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CONCLUSION
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As shown above, all three temporary injunction factors are strongly in
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the State’s favor.
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78. Thus, the State asks this Court to grant this motion and order
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Defendants to, during the pendency of this suit: (1) stop, or order stopped, all
enforcement efforts of EO-13; (2) rescind EO-13; and (3) refrain from issuing any new
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emergency orders more restrictive than, or conflicting with, GA-32.

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79. The State respectfully requests that it be heard regarding this motion
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within 24 hours of its filing because of the ongoing irreparable injury and the highly
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time-sensitive circumstances.
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92 See State’s Plea at ¶¶ 38–47 (listing additional ways Defendants’ challenged conduct has irreparably
injured the State).
pet.).
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EXHIBIT E
Respectfully submitted.
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KEN PAXTON
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BRENT WEBSTER
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RYAN L. BANGERT
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DARREN L. MCCARTY
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THOMAS A. ALBRIGHT
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/s/ Todd Dickerson
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TODD DICKERSON
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Austin, TX 78711-2548
(512) 475-4072 PHONE
(512) 320-0667 FAX
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ATTORNEYS FOR INTERVENOR-PLAINTIFF STATE

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OF TEXAS
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EXHIBIT E
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I hereby certify that on the 1st day of November, 2020, a true and correct copy
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counsel of record.
/s/ Todd Dickerson
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TODD DICKERSON
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EXHIBIT E
District Clerk
El Paso County
2020DCV3515
IN THE DISTRICT COURT OF EL PASO COUNTY, TEXAS
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PIZZA PROPERTIES, INC., M&S
GROUP, INC., d/b/a WING DADDY'S,
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RUN BULL RUN, LLC d/b/a TORO
BURGER BAR, CHARCOALER, LLC,
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TRIPLE A RESTAURANTS, INC., CC
RESTAURANT LP, FD MONTANA LLC,
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WT CHOPHOUSE, LLC, VERLANDER
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ENTERPRISES, LLC, and BAKERY
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VENTURES I, LTD.,
Plaintiffs, Cause No. 2020DCV3515
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STATE OF TEXAS
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Intervenor-Plaintiff’s,
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EL PASO COUNTY, TEXAS, AND
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RICARDO SAMANIEGO, IN HIS

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JUDGE, EL PASO COUNTY.TEXAS
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DEFENDANTS,
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ORDER
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THE PLAINTIFFS’ AND INTERVENOR-PLAINTIFF’S REQUEST FOR A

TEMPORARY INJUNCTION IS DENIED.
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SIGNED AND ENTERED THIS 6TH DAY OF NOVEMBER, 2020.

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_____________________________
JUDGE WILLIAM E. MOODY
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COURT OF APPEALS
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EL PASO, TEXAS
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Appellants,
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Appellants. §
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CORRECTED OPINION
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On March 13, 2020, Texas Governor Greg Abbott issued a proclamation under the Texas
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Disaster Act of 1975 (the Disaster Act)1 certifying that “COVID-19 poses an imminent threat of
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1
See generally TEX.GOV’T CODE ANN. ch. 418.
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EXHIBIT G
disaster” in all 254 Texas counties; he has renewed that declaration each month since.2 Likely no
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citizen of this state has escaped the impact of the virus, either from its health effects, economic
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impact, or the disruption of society. And since March, the Governor has issued twenty-five
emergency orders that pertain to the novel coronavirus COVID-19 pandemic.3 Those orders cover
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a broad range of issues, including data collection and reporting, hospital capacity, mitigation
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efforts, air transportation, jails, face coverings, and more recently, the safe re-opening for segments
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of Texas society.4 Some of the orders have set uniform state mandates, and some have allowed
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for local flexibility to suit local conditions.5
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The impact of the virus has been particularly acute in El Paso County, a major
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transportation hub, sharing an international border with Mexico. In October 2020, El Paso County
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experienced a dramatic upswing in the COVID-19 pandemic. The capacity of El Paso County
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hospitals reached their limits, with some 51% of the census being classified as COVID-19 cases.
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Area Intensive Care Units exceeded capacity, and hospitals are now forced to establish temporary
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alternate care sites and airlift patients to other cities. Despite efforts to encourage voluntary
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compliance, warnings, and enforcement, El Paso County continues to experience a surge of new
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cases. As of the time of this opinion, El Paso County has routinely experienced a thousand or
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more new cases per day. And many families have sadly lost loved ones.
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2
The Governor of the State of Tex., Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2095 (2020).
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3
EXECUTIVE ORDERS BY GOVERNOR GREG ABBOTT,
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https://lrl.texas.gov/legeLeaders/governors/displayDocs.cfm?govdoctypeID=5&governorID=45 (last visited Nov.

11, 2020) (linking to GA orders GA-01 to GA-32, with GA-18 to GA-32 addressing COVID-19 disaster).
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Id.
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For instance, GA-29 contains a mandate for face coverings, but allows for counties to be exempted if they have met
certain criteria and the local county judge has affirmatively opted out of the requirement. EXECUTIVE ORDER GA-29,
found at https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/GA-29.pdf.
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In the face of this upswing in cases, the strain on the medical system, and the rising
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mortality numbers, local leaders responded. On October 7, 2020, El Paso County Judge Ricardo
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Samaniego requested that Governor Abbott exempt El Paso County from an anticipated further
opening of businesses and bars. Governor Abbott’s order, GA-32, also dated October 7, 2020,
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allowed bars to open with occupancy limits, but did so only if the local county judge filed a
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requisite form with the Texas Alcohol and Beverage Commission. On October 22, 2020, County
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Judge Samaniego notified Governor Abbott of the surge of COVID-19 cases and the strain on
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hospital resources. Our record shows that the State of Texas has surged emergency relief,
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including personnel, testing, and equipment to the area.
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The dispute here arises from County Judge Samaniego enacting County Emergency Order
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No. 13 (CE-13 or the Order). The Order, effective as of Thursday, October 29, 2020, at 11:59
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p.m., was set to expire on Wednesday, November 11, 2020 at 11:59 p.m. See ORDER NO. 13,
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https://www.epcounty.com/documents/Order-No-13.pdf (last visited Nov. 12, 2020). We take

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judicial notice that County Judge Samaniego extended the Order to December 1, 2020.6 CE-13
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applies to all incorporated and unincorporated areas of El Paso County.

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See ORDER NO. 14, http:/epcounty.com/documents/Order-No-14.pdf (last visited Nov. 12, 2020). The extension is
titled as Order No.14. Both orders contain a findings section that explains the judge’s rationale, followed by sections
one through six that contain the core prohibitions that give rise to this dispute (a stay at home order, a cease operation
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for “non-essential businesses,” a prohibited activities section, and a travel restriction). The balance of the orders
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contains definitional sections and provisions related to posting, enforcement, and application. County Emergency
Order 14 contains updated data and additional recitations in its findings section. The core prohibitions in County
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Emergency Order 13 and 14 are identical with one exception. The newest order contains a stair-step formula wherein
affected businesses might resume limited operation based on defined hospital data. Because this new provision still
materially differs from provisions of the Governor’s Order, the change would not affect the core dispute raised in this
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appeal. We view it as immaterial to our resolution of the case, and we treat County Emergency Order 13 and 14 as
the functional equivalent of each other for the purposes of this order. We agree with the parties’ assessment that
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because the controversy is capable of repetition but evading review during the ongoing pandemic, the justiciable
controversy remains and was not mooted by the expiration of Order 13 and later issuance of Order 14. See Matthews
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ex rel. M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016) (explaining that cessation of challenged
conduct does not deprive a court of the power to hear or determine claims for prospective relief; otherwise, this would
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defeat the public interest in having the legality of the challenged conduct settled). We stayed enforcement of the
substantive provisions of CE-13 and CE-14 by granting Appellants’ Emergency Motion for Relief under
TEX.R.APP.P. 29.3 on November 12, 2020.
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CE-13 includes several provisions relevant here. Section 1 requires all individuals living
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within El Paso County to temporarily stay at home or at their place of residence. Section 3 of the
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Order includes a curfew on all persons from 10 p.m. to 5 a.m. Section 5 prohibits “[a]ll public or
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private gatherings of any number of people occurring outside a single household or living unit.”
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(emphasis original). Section 5 also requires nursing homes, retirement, and long-term care
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facilities to prohibit non-essential visitors from visiting their facilities unless to provide critical
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assistance.
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Specific sections exempt from these restrictions, however, persons performing “Essential
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Activities” or who work in an “Essential Business,” “Essential Governmental Function,” or
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“Critical Infrastructure,” all as defined in the Order. Dovetailing with these exemptions, Section 4
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of CE-13 requires all businesses that are not defined as essential businesses to cease activities at
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any facility located in the County, save and except those to preserve the business premises or
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inventory, or facilitate work-from-home arrangements. Essential businesses include healthcare

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operations, food service providers (including grocery stores, warehouse stores, “big box” stores,
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and liquor stores), laundromats, automobile dealerships, hardware stores, and transportation
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services. But others, such as barber shops, nail salons, gyms, and massage therapists are not
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deemed essential under the Order.7 When patronizing an essential business, only one person per
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family unit may do so, unless an additional person is needed as a caretaker.

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Apart from these food service and transportation categories, other categories of essential businesses exempted from
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the stay-at-home orders include: Providers of Basic Necessities to Economically Disadvantaged Populations, Essential
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Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses, Professional
Services (such as legal or accounting services when necessary to assist in compliance with legally mandated activities,
or businesses that supply other essential businesses with support or supplies needed to operate), Petroleum Refineries,
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Media, Financial Institutions, Mail and Delivery Services, Educational Institutions, Suppliers for Essential
Businesses/Critical Infrastructure/Essential Government Functions, Food Delivery Services, Home-Based Care and
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Services, Residential Facilities and Shelters, Information Technology Services, Childcare Facilities, Animal Shelters
and Other Businesses that Maintain Live Animals, Vector and Pest Control, and Funeral and Post-Mortem Services.
The Order also exempted voting for the recent November 3rd election.
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Restaurants are also defined as an essential business, but the Order limits them to providing
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delivery or curbside take-out-service. In-premises dining is banned.
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Violation of the Order is considered a Class C Misdemeanor punishable by a fine not to
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exceed $500.
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Several of the provisions of the Order, however, directly conflict with an executive order
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issued by the Governor of the State of Texas. Governor Abbott’s Executive Order GA-32, issued
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on October 7, 2020, allows businesses to operate at either 75% or 50% of indoor occupancy,
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depending on local hospitalization rates.8 Several specific businesses that are restricted under CE-
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13 are expressly allowed to operate under GA-32 when they utilize six foot spacing between work
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stations (e.g., cosmetology salons, hair salons, barber shops, nail salons, massage establishments
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where licensed massage therapists practice, tanning salons, tattoo studios, piercing studios, and
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hair loss treatment and growth services). Under GA-32, restaurants can offer dine-in services,
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subject to occupancy limits. Under GA-32, people may visit nursing homes and like facilities,
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subject to Texas Health and Human Services Guidance. People may also gather without
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occupancy limits in a variety of places or activities, such as recreational sports programs. Outside
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of those specified gathering places or activities, persons are not to gather in “groups of larger than
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10 and shall maintain six feet of social distancing from those not in their group.” None of these
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activities would be allowed under CE-13.
The Governor’s order contains a preemption clause countermanding any conflicting local
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government actions:
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This executive order shall supersede any conflicting order issued by local officials
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restricts services allowed by this executive order, allows gatherings prohibited by

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8
EXECUTIVE ORDER GA 32, https://gov.texas.gov/uploads/files/press/EO-GA-32_continued_response_to_COVID-
19_IMAGE_10-07-2020.pdf (last visited Nov. 12, 2020).
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executive order. . . . I hereby suspend [any relevant statute] to the extent necessary
to ensure that local officials do not impose restrictions in response to the COVID-
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19 disaster that are inconsistent with this executive order . . . .
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The El Paso County Order, however, contains its own directive on how conflicts in the orders
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should be resolved. Under Section 16 of CE-13, “To the extent that there is a conflict between
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this Order and any executive order of the Governor, the strictest order shall prevail.” Both GA-32
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and CE-13 were issued pursuant to the Texas Disaster Act of 1975. TEX.GOV’T CODE ANN. ch.
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418.
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Appellants here are entities that operate area restaurants. They filed suit to enjoin
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enforcement of CE-13 on the basis that the County Judge acted ultra vires and without legal
authority. The restaurants agree to fully abide by the Governor’s occupancy directives in GA-32.
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Their sole dispute is whether they must comply with CE-13 or GA-32. The State of Texas
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intervened in the suit seeking to invalidate CE-13 in its entirety because it conflicts with GA-32.
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A trial court heard and denied the temporary injunction request. The restaurants and the State
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brought an immediate appeal. See TEX.CIV.PRAC.& REM.CODE ANN. § 51.014(a)(4) (allowing

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appeal from interlocutory order denying temporary injunction).

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INJUNCTION STANDARD OF REVIEW

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The movants for a temporary injunction “must plead and prove three specific elements: (1)
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a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable
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imminent, and irreparable injury in the interim.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
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(Tex. 2002). We review a trial court’s order denying a temporary injunction for an abuse of
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discretion. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). But the court has no “discretion” to
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incorrectly analyze or apply the law. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)
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(“[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse
of discretion . . . .”).
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DISCUSSION
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The United States Supreme Court wrote more than a century ago that the authority to
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respond to public health crises must be “lodged somewhere.” Jacobson v. Massachusetts, 197
U.S. 11, 27 (1905). The protection of the “health, safety, and comfort of citizens” rests with the
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legislature whose core police powers allow it “to regulate the use of property and the carrying on
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of business.” Houston & T.C. Ry. Co. v. City of Dallas, 84 S.W. 648, 653 (Tex. 1905). The
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Disaster Act is one embodiment of that power. But through that Act, the Legislature empowered
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other state actors to meet disaster dangers, because “[t]here is little room for argument that the
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public interest requires that someone in government needs the authority to act in case of an
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imminent threat which may affect the safety of the lives and property of the populace.” Salmon v.
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Lamb, 616 S.W.2d 296, 298 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ) (stating also that
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power is lodged with the Governor under the Disaster Act).

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The single issue in this case is whether, under the Disaster Act, the Legislature delegated
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to the governor or a county judge the final say for matters covered by the conflicting provisions of
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GA-32 and CE-13. The disaster at issue is the COVID-19 pandemic. And to make this point
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clear--the issue before this Court is not the wisdom or efficacy of the actions taken by either the
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Governor or the County Judge. A court is ill-equipped, nor empowered to make such difficult
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policy decisions. Rather, the only question that we are capable of answering is, under the text of
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the statute, who is the proverbial captain of the ship to make the difficult decisions embodied in
these competing orders. Or as Justice Guzman recently wrote respecting the Disaster Act’s
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application to an election question in the era of COVID-19:

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[T]he Texas Constitution commits the balancing of competing interests and policy
objectives to the executive and legislative branches of government. The judiciary’s
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function is only to say what the law is, not what it should be. In our constitutional
role, judges are not empowered to substitute our policy choices, preferences, or
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EXHIBIT G
rules for those of the coordinate branches. So long as the law as written complies
with the federal and state constitutions, our duty is to enforce it.
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Abbott v. The Anti-Defamation League Austin, No. 20-846, 2020 WL 6295076, at *8 (Tex. Oct. 27,
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2020) (per curiam) (Guzman, J. concurring) (footnotes omitted).
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The answer to our question lies in the text of the Disaster Act. Statutory construction is a
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legal question that we review de novo. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437
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(Tex. 2009). Our primary focus in statutory interpretation is to give effect to legislative intent,
considering the language of the statute, as well as its legislative history, the objective sought, and
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the consequences that would flow from alternate constructions. Crown Life Ins. Co. v. Casteel, 22
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S.W.3d 378, 383 (Tex. 2000). We seek that intent “first and foremost” in the statutory text.
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Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006); see also Bosque Disposal Sys.,
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LLC v. Parker County Appraisal Dist., 555 S.W.3d 92, 94 (Tex. 2018) (“[T]he Legislature
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expresses its intent by the words it enacts and declares to be the law.”); BankDirect Capital Fin.,
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LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 (Tex. 2017) (“The text is the alpha and the omega
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of the interpretive process.”). We consider the words in context, and not in isolation. In re Office
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of the Atty. Gen. of Texas, 456 S.W.3d 153, 155 (Tex. 2015) (per curiam) (“Given the enormous
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power of context to transform the meaning of language, courts should resist rulings anchored in
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hyper-technical readings of isolated words or phrases.”). We must presume that every word in a
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statute has been used for a purpose and that every word excluded was excluded for a purpose.
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Emeritus Corp. v. Blanco, 355 S.W.3d 270, 276 (Tex.App.--El Paso 2011, pet. denied).
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A. Structure of the Disaster Act

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The Disaster Act is divided into several subchapters, the first consisting of sixteen sections
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that define the powers and duties of the governor. “The governor is responsible for meeting . . .
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the dangers to the state and people presented by disasters . . . .” TEX.GOV’T CODE ANN. § 418.011.
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To do so, “the governor may issue executive orders, proclamations, and regulations and amend or
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rescind them. Executive orders, proclamations, and regulations have the force and effect of law.”
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Id. at § 418.012. The governor may declare a state of disaster within a defined geographic area,
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but the governor must renew the declaration after thirty days. Id. at § 418.014 (a)(d)(2). The
legislature retains the right to terminate that declaration at any time. Id. at § 418.014 (c). “During
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a state of disaster and the following recovery period, the governor is the commander in chief of
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state agencies, boards, and commissions having emergency responsibilities.” Id. at § 418.015(c).
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Additionally, the governor “may use all available resources of state government and of
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political subdivisions that are reasonably necessary to cope with a disaster.” Id. at § 418.017. The
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governor is tasked with seeking federal aid for individuals, the state, and on behalf of local
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governmental units. Id. at §§ 418.021, 418.022. And central to our discussion here, the governor
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is explicitly given the power to “control ingress and egress to and from a disaster area and the
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movement of persons and the occupancy of premises in the area.” Id. at § 418.018(c).
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Far less defined in the Disaster Act is the role of county judges. Compare TEX.GOV’T
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CODE ANN. §§ 418.011-.026 (detailing the governor’s powers and responsibilities under the Act),
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with id. §§ 418.1015, 418.108 (detailing local officials’ powers under the Act). Two provisions
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allocate authority to county judges. In one of those provisions, county judges are deemed to be
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the “emergency management director” for their county. As the emergency management director,
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lc
the county judge can exercise the powers granted to the governor, but at the county level:
(b) An emergency management director serves as the governor’s designated agent

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in the administration and supervision of duties under this chapter. An emergency

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management director may exercise the powers granted to the governor under this
chapter on an appropriate local scale.
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Id. at § 418.1015.
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Second, the Disaster Act also contemplates that a county judge or mayor may have to issue
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a local disaster declaration. After doing so, a county judge or mayor has the express power to
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manage ingress, egress, and occupancy, mirroring the similar grant to the governor:
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The county judge or the mayor of a municipality may control ingress to and egress
from a disaster area under the jurisdiction and authority of the county judge or
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mayor and control the movement of persons and the occupancy of premises in that
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area.
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Id. at § 418.108(g).
B. Reconciling the Governor’s and County Judge’s Powers
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The State offers three reasons why under the text of the Disaster Act we must find that GA-
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32 prevails over CE-13. First, it argues the county judge is expressly referred to as the “agent” of
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the governor, and agents do not control principals. Instead, agency law dictates just the opposite.
tri
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Second, it argues the Legislature delegated to the governor the authority to issue orders and decrees
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that have the “force of law.” The county judge is not accorded similar authority, and consequently
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GA-13 has become state law, necessarily ousting any conflicting portions of CE-13. Finally, it
argues the Disaster Act specifically gives the governor the authority to suspend regulatory statutes
is
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for the conduct of state business, and the governor’s suspension of the statute that authorized the
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conflicting county edicts is an exercise of that right. We mostly agree with the State.
Section 418.1015(b) makes County Judge Samaniego the “emergency management

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director” for El Paso County. The statute allows County Judge Samaniego, as the emergency
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management director, to exercise the powers granted to the governor at the county level. But when
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the county judge does so, it is “as the governor’s designated agent in the administration and
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supervision of duties under this chapter.” Id. at § 418.1015 (emphasis added). And black letter
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law teaches that an agent is subject to the control of the principal, and not vice versa. Exxon Mobil
Corp. v. Rincones, 520 S.W.3d 572, 590 (Tex. 2017), quoting RESTATEMENT (THIRD) OF AGENCY
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§ 1.01 cmt. f (2006) (“Further, a ‘principal’s right of control presupposes that the principal retains
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the capacity throughout the relationship to assess the agent’s performance, provide instructions to
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the agent, and terminate the agency relationship by revoking the agent’s authority.’”);
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Hollingsworth v. Perry, 570 U.S. 693, 713 (2013), citing 1 RESTATEMENT (THIRD) OF AGENCY
§ 1.01, cmt. f (2006) (“An essential element of agency is the principal’s right to control the agent’s
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actions.”); RESTATEMENT (THIRD) OF AGENCY § 1.01 (2006) (“Agency is the fiduciary relationship
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that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the
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agent shall act on the principal's behalf and subject to the principal's control, and the agent
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manifests assent or otherwise consents so to act.”). We presume the Legislature “chooses a
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statute’s language with care, including each word chosen for a purpose, while purposefully
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omitting words not chosen.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.
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2011). Given the commonly understood meaning of “agent”, the County cannot rely on Section
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418.1015(b) as the source of authority for CE-13.

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But the County contends it is not drawing its authority from Section 418.1015(b) or as
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County Judge Samaniego’s role as the emergency management director for El Paso County.
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Instead, it hinges its claim on a claimed stand-alone authority given to county judges under Section
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418.108. Under that section, the County argues a county judge is given the authority to declare a
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local disaster, and after doing so, the county judge “may control ingress to and egress from a
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disaster area under the jurisdiction and authority of the county judge or mayor and control the
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movement of persons and the occupancy of premises in that area.” Id. at § 418.108(g). Whether
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the grant of authority under Section 418.108 is truly stand alone is debatable. Section 418.1015
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describes the county judge as the governor’s agent “in the administration and supervision of duties
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under this chapter” and “this chapter” would include Section 418.108.
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But even if Section 418.108 is stand alone, the argument does not help the County, because
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the governor is also accorded the exact same express power to control ingress, egress, and
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occupancy. Id. at § 418.018 (the governor is explicitly given the power to “control ingress and
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egress to and from a disaster area and the movement of persons and the occupancy of premises in
the area.”). And the disaster at issue is not just a local disaster, but a state-wide disaster (albeit
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with disparate impacts in different parts of the state). The question in that context is who between
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the governor and a county judge, both of whom are delegated and here exercised the same express
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powers over ingress, egress, and occupancy, have the ultimate say. The answer to that question
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lies in Section 418.012 and Section 418.016 of the Act.
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Section 418.012 is a delegation of power from the Legislature to the governor:
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Under this chapter, the governor may issue executive orders, proclamations, and
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regulations and amend or rescind them. Executive orders, proclamations, and
regulations have the force and effect of law.
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Id. at § 418.012. 9 GA-32 invokes this provision. In doing so, it makes various declarations
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regarding occupancy, the size of group meetings, activities that person may engage in, and the
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conduct of business. And as such, those declarations become state law. Moreover, state law will
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eclipse inconsistent local law. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex.
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2003) (“Though they are creatures of the Texas Constitution, counties and commissioners courts
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are subject to the Legislature's regulation.”); Childress County v. State, 92 S.W.2d 1011, 1015
op
(Tex. 1936) (“The county is merely an arm of the state. It is a political subdivision thereof. In
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9
On appeal, the County does not challenge the ability of the legislature to delegate power to the governor under
Section 418.012. “The Texas Legislature may delegate its powers to agencies established to carry out legislative
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purposes, as long as it establishes reasonable standards to guide the entity to which the powers are delegated. Requiring
the legislature to include every detail and anticipate unforeseen circumstances would . . . defeat the purpose of
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delegating legislative authority.” Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995) (internal
quotations and citations omitted); see also Williams v. State, 176 S.W.2d 177, 183 (Tex.Crim.App. 1943) (discussing
and collecting authority on the proper delegation of legislative powers).
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view of the relationship of a county to the state, the state may use, and frequently does use, a
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county as its agent in the discharge of the State's functions and duties.”); El Paso County v. El
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Paso County Emergency Serv. Dist. No. 1, 08-19-00105-CV, 2020 WL 91208, at *4 (Tex.App.--
El Paso Jan. 8, 2020, no pet.) (“Although created by the Texas Constitution, [county
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commissioner’s courts] are subject to directives enumerated by the legislature and may undertake
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only that authority explicitly granted by either the Texas constitution or the legislature.”); Orndorff
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v. State ex rel. McGill, 108 S.W.2d 206, 210 (Tex.Civ.App.--El Paso 1937, writ ref’d) (“Counties
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and their commissioners’ courts are, therefore, not only the creatures of the State Constitution, but
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they are under the continuous control and domination, within constitutional bounds, of the State
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Legislature.”). tri
And how could it be otherwise? If the disaster de jure was a hurricane on the gulf coast,
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there would have to be a tie-breaker if the governor intended for people to evacuate in one direction
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but a local county judge thought it better to send people in the exact opposite direction. Pick
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whatever type of disaster you might--from toxic chemical releases, earthquakes, oil pipelines leaks,
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to pandemics--and there could be good faith differences of opinion on the proper response.
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Because there must be a final decision-maker, the Legislature inserted a tie breaker and gave it to
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the governor in that his or her declarations under Section 418.012 have the force of law. El Paso
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County can point to no similar power accorded to county judges. And while it is not for us to
judge the wisdom of the Legislature’s choice, the idea of one captain of the ship has intuitive
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appeal. Did the Legislature really intend for the chaos of a system that allows for 254 different
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county responses to a statewide disaster? It certainly allowed county judges to lead local disasters,
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but that is not what Texas is facing.

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Nor does anything in the text of the Disaster Act suggest that a county judge’s grant of
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authority over ingress, egress, or occupancy in a local disaster overrides the governor’s identical
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authority for a statewide declared disaster. The County and amicus’s responses to the contrary are
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unavailing. The County focuses on Section 418.108(g), which authorizes either the county judge
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or the mayor of a city to declare a local emergency, and to the extent there is a conflict in their
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decisions, the county judge prevails. TEX.GOV’T CODE ANN. § 418.108(g), (h). The County argues
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the absence of a similar provision expressly referencing the governor and county judge implies
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there is no hierarchy between the two. But we could just as easily assume that because Section
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418.108(h) gives a county judge conflict power over a mayor, but not the governor, the Legislature
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never intended a county judge to supersede gubernatorial decrees. And Texas is faced with a
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statewide disaster, not simply a local one. Amici Travis and Fort Bend County suggest that
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because the county judge’s grant of power over ingress, egress, and occupancy is more recent, and
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more specific, we should use canons of statutory construction favoring those type of provisions
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over the original, broader provisions. But we resort to those kinds of canons of construction only
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where the text of a statute is unclear. Greater Houston P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex.
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2015). And the express statement that the declarations of the governor have the force of law is
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clear and unambiguous.10

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So not only are the various detailed provisions of GA-32 effectively provisions of state
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law, but so too is its mandate that it prevails over conflicting local declarations to the contrary.
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The County suggests that GA-32 and CE-13 do not conflict because a court could simply enforce
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That clarity in Section 418.012 also answers the County’s reliance on language deleted from the draft bill as the
Disaster Act wound its ways through the legislative approval process. “[R]ejection of language [from draft bills] is
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not a statement about legislative purpose or the meaning of the statute.” Robinson v. Budget Rent-A-Car Sys., Inc.,
51 S.W.3d 425, 429 (Tex. App.--Houston [1st Dist.] 2001, pet. denied) (explaining multiple reasons why language
might be deleted from a draft bill).
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the more stringent guideline. But to do so would ignore that portion of Governor Abbott’s order
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that states, “This executive order shall supersede any conflicting order issued by local officials in
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response to the COVID-19 disaster[.]” The County Judge apparently understood that when he
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made a request for the Governor to modify GA-32. Moreover, there are provisions in the orders
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that so directly conflict that to enforce one, negates the other. For instance, GA-32 allows visitors
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to nursing homes and long-care facilities (subject to guidelines) while CE-13 disallows all but
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visitors who provide critical assistance. GA-32 states that restaurants “may offer dine-in services”
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(subject to variable occupancy limits) while CE-13 says they cannot. GA-32 allows gatherings of
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no more than ten persons while CE-13 allows no gatherings. We conclude the nature of the
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Governor’s executive order as having the force of law means its provisions control.
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C. The Governor’s Authority to Suspend Provisions
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Under the Disaster Act, a governor is also given the explicit power to “suspend the
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provisions of any regulatory statute prescribing the procedures for conduct of state business or the
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orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in
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any way prevent, hinder, or delay necessary action in coping with a disaster.” TEX.GOV’T CODE
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ANN. § 418.016(a). The Governor invoked that power to invalidate Section 418.108 to the extent
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any local leader relies on that statute to enact conflicting rules. The County responds that Section
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418.108 is not a “regulatory statute” and CE-13 does not address “state business.” We find neither
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contention persuasive.
The Disaster Act does not define the terms “regulatory statute” or “state business.”
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Generally, when a statute uses an undefined word, a court should apply the word’s common,
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ordinary meaning. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014). To
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determine its common, ordinary meaning, courts may look to a wide variety of sources, including
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dictionary definitions, treatises and commentaries, prior constructions of the word in other
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contexts, and the use and definitions of the word in other statutes and ordinances. Id.
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Common dictionary meanings for the term “regulate” include “to control or supervise by
means of rules and regulations.” See Regulate, OXFORD DICTIONARIES (online ed.),
L.
a
http://www.oxforddictionaries. com/us/definition/american_english/regulate?q=regulate; see also
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Regulate, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1913 (2002) (defining “regulate”
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as “to govern or direct according to rule”); Regulate, BLACK’S LAW DICTIONARY, (10th ed.) (“To
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control (an activity or process) esp. through the implantation of rules.”). Section 418.108 does
er
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that by authorizing the county judge to order evacuations and “control the movement of persons
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and the occupancy of premises.” Certainly CE-13, promulgated pursuant to 418.108, fits the
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classic definition of regulation. It tells restaurants how they may conduct their business, tells
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persons how they may congregate, and tells some businesses that they cannot engage in commerce
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at all.
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The County also narrowly cabins the meaning of the phrase “state business” by effectively
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defining the term to mean only the activities of state agencies and actors. But had the Legislature
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meant to so limit the term, it would have said “official state business,” as it has done in many other
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statutes. Cf. e.g. TEX.GOV'T CODE ANN. § 660.009 (use of term “official state business” for
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authorized travel reimbursement); TEX.GOV’T CODE ANN. § 660.043 (use of phrased “official state
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business” to determine when vehicle mileage can be reimbursed); see also TEX.GOV’T CODE ANN.
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§ 1232.003 (tying phrase “state agency” to “state business” to define when buildings and
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equipment are subject to public financing). In Section 418.016, the Legislature chose not to limit
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the term “state business” to only official state business, and we thus give it a broader meaning.
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See id. § 418.016.
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And to be sure, many of the businesses that CE-13 prohibits are industries closely
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regulated by the State of Texas, both as to their licensure and method of operation. See, e.g.
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TEX.OCC. CODE ANN. § 1601.251 (state license required for barbers); TEX.OCC. CODE ANN. §
L.
1601.301 (permit required for operating barbershop); TEX.OCC. CODE ANN. § 1601.552 (reference
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to state commission’s sanitation rules); TEX.OCC.CODE ANN. § 1602.251 (license required to
lv
practice cosmetology); TEX.OCC. CODE ANN. § 1602.301 (license required to operated beauty shop
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and obligation to follow commission rules); TEX.OCC. CODE ANN. § 455.151 (license required to
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practice massage therapy); TEX.OCC. CODE ANN. § 455.054 (state standards for sanitary and
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hygienic conditions for massage therapy). Restaurants are also subject to state regulation,
ct
particularly if they sell alcoholic beverages. See, e.g. TEX.ALCO.BEV.CODE ANN. § 61.01
tri
(obligation to obtain licenses and permits under the Alcoholic beverages code); TEX.HEALTH &
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SAFETY CODE ANN. § 437.003 (counties may require permits for food services to “enforce state
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law and rules adopted under state law”).

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Eschewing a hyper-technical definition of the term “state business,” we conclude it would

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encompass the activities inherent in many of the industries and professions directly affected by the
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CE-13. The County dis-employs several state licensed professions and effectively deems that the
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regulations the state has in place for these professions are inadequate to guard against the spread
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of COVID-19. That intrusion into the state’s sphere of influence makes CE-13 a regulation of
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state business. As such, the Legislature gave the governor the express authority to suspend Section
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418.108, at least as it has been invoked here by the County.

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Section 418.016(a) also requires that before the governor can suspend a regulatory statute,
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it must in some way “prevent, hinder, or delay necessary action in coping with a disaster.”
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TEX.GOV’T CODE ANN. §418.016(a). GA-32 explicitly references “reopening Texas” as a part of
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the Governor’s planned response to this disaster. It necessarily recognizes that Texas must address
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the health of its citizens, and the health of its economy. As the Texas Supreme Court recently
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noted, the Governor under the Disaster Act “must necessarily balance a variety of competing
considerations,” which might include encouraging economic recovery and preserving
L.
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constitutional rights. Anti-Defamation League Austin, 2020 WL 6295076, at *4. GA-32 is one
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means of achieving that balance. But CE-13 tips the balance differently by restricting economic
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activity (for some businesses) and by restricting associational opportunities of Texans. It also
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injects uncertainty into how people and businesses conduct their affairs, being subject to
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conflicting orders. The Governor was accordingly within his right to suspend Section 418.108
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pursuant to Section 418.016. tri
D. Application
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Returning to the injunction standard, the State and private litigants here need to show a
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probable right to the relief sought, and a probable imminent, irreparable injury. Butnaru, 84
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S.W.3d at 204. A probable right of relief is established here if the County issued an order that
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conflicts with the Governor’s order, given that we conclude the Governor’s order would prevail.
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And it is clear that CE-13 order conflicts in several respects.

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Section 1 of CE-13 imposes a stay at home order for all residents except for what the
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County has deemed essential business, essential travel, essential governmental functions, or
lc
critical infrastructure. But under GA-32, persons could additionally leave their residence to
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participate in several specified activities spelled out in Section 1(a)-(i) and outdoor activities in
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paragraph 3(a)-(e). GA-32 would also necessarily permit travel to patronize the businesses that
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CE-13 closes down. GA-32 says restaurants whose gross receipts are fifty percent or less from
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alcohol sales “may offer dine-in services” while CE-13 flatly disallows in-restaurant dining.
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Section 3 of CE-13 imposes a stay at home curfew from 10:00 p.m. to 5:00 a.m., except for
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essential travel, essential business, government service, or critical infrastructure. To the extent the
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curfew restricts travel to, or participation in activities or business that GA-32 allows, it conflicts
L.
with GA-32. While GA-32 does not specifically prevent curfews, as drafted, the curfew is
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overbroad. Section 4 of CE-13 prohibits businesses from operating if they are deemed by the
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County to be non-essential; many of those prohibited businesses are expressly allowed to operate
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under GA-32. Section 5 of CE-13 prohibits public or private gatherings of any number of persons.
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But GA-32 allows gatherings for designated activities, as with sporting events, and up to ten
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persons for other reasons. Section 6 of CE-13 restricts all travel except for essential travel,
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essential business, government service, or critical infrastructure. To the extent the curfew restricts
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travel or participation that GA-32 allows, it also conflicts with GA-32. The State has shown a
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probable right to relief.

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The State and the restaurants must also show irreparable injury. The State relies on the
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Texas Supreme Court’s recent decision in State v. Hollins, No. 20-0729, 2020 WL 5919729 (Tex.
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Oct. 7, 2020) (per curiam). There, the Texas Supreme Court held that a Harris County election
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official who exceeded his authority in soliciting mail-at-home ballots acted ultra vires, and
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importantly here, the State had an intrinsic right to enforce state law. Id. at *6. The court
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concluded:
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As a result of sovereign immunity, the only remedies available in an ultra vires

action are injunctive and declaratory relief. The sovereign would be impotent to
“enforce its own laws” if it could not temporarily enjoin those breaking them
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pending trial. When the State files suit to enjoin ultra vires action by a local official,
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a showing of likely success on the merits is sufficient to satisfy the irreparable-

injury requirement for a temporary injunction.
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Id. at *6. The Hollins court expressly disagreed with the lower court’s view that the State had not
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established irreparable injury. Despite the dissenting opinion’s effort to distinguish Hollins, we
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view the case as controlling, and not limited only to election contests. Everything said by the court
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in Hollins about irreparable injury would equally apply here, and perhaps more so. The State is
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not only safeguarding its theoretical interests in the hierarchy of a governmental structure, but it
L.
also vindicates the interests of the innumerable small business owners and their employees (the
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barbers, hair stylists, cosmetologists, licensed massage therapists, booksellers, and other small
lv
shop owners) who have been put out of work by the County’s order. True, restaurants can at least
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try and keep their business afloat with take-out and curbside delivery. But lost in this debate are
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the several professions completely barred from earning any living at all. The County’s order works
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an irreparable injury.
ct
Lest we be mis-read, our analysis does not mean every order of a county judge respecting
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the pandemic must be stricken, or even that a county is ousted from assisting in responding to the
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disaster. To state the obvious, the County plays a central role in enforcing the Governor’s
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executive orders that already restricts group gatherings, restricts business activities, and imposes
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health and safety guidelines on those businesses that are allowed to operate. The Governor’s order
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only pre-empts conflicting local orders. GA-32 supersedes any conflicting order by a local official
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“to the extent that such a local order restricts services allowed by this executive order[.]” And it
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suspends Section 418.108 “to the extent necessary to ensure local officials do not impose
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restrictions in response to the COVID-19 disaster that are inconsistent with [GA-32].” And here,
lc
there are inconsistent and conflicting provisions. Nonetheless, our decision here would not bar the
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County taking actions that are not in conflict with GA-32.

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We therefore sustain the State’s issue on appeal and hold that the trial court erred in not
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issuing a temporary injunction that would enjoin enforcement of CE-13. On remand, we instruct
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the trial court to enter a temporary injunction barring enforcement of CE-13 (and its counterpart
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provisions in CE-14), but allow for the possibilities that parties might identify some stand-alone
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restrictions in CE-13 that would not be inconsistent with GA-32. None of the briefing before us
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has attempted to tease out any discrete restriction which might compliment or otherwise not
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conflict with GA-32, and it would be inappropriate for us to attempt to do so here. We make clear,
however, that we reject the County’s paradigm that the Governor’s order can set a ceiling for
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occupancy and the County can then set a floor, with the public required to abide by the more
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restrictive provision. If conduct is allowed under the Governor’s order, that County cannot
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prohibit it. If activities are prohibited by the Governor’s order, the County cannot allow them.
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CONCLUSION
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Just as a servant cannot have two masters, the public cannot have two sets of rules to live
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by, particularly in a pandemic and when those rules carry criminal penalties substantially
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impacting peoples’ lives and livelihood. Much of the Disaster Act is premised on promoting
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cooperation between levels of government for the benefit of Texas citizens. The lack of a clear
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organizational chart with a defined leader and chain of command is antithetical to promoting
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cooperation. Now that this Court has done its job to define that organizational chart, we leave it
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to the political leaders of the State and this region, whose motives are all beyond reproach, to
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cooperatively lead us through this unparalleled disaster.

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JEFF ALLEY, Chief Justice

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November 13, 2020

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Rodriguez, J., dissenting

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L.
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COURT OF APPEALS
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EL PASO, TEXAS
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Appellants,
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V. §
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Appellants. §
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CORRECTED DISSENT
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The Attorney General and a group of local restaurants contend that during a disaster, if a
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local order from a county judge and an executive order from the Governor conflict, the Governor’s
fic
order must control as a matter of natural order and common sense. But these are uncommon times,
of
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Texas is an uncommon state, and here in Texas, we are ruled by law.
The Governor does not rule Texas outright; he serves at the pleasure of the people, who
EXHIBIT H
hold the true power in a democracy, and he exercises only those authorities granted to him by laws
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passed by the people through a democratic process. The limit of the Governor’s power is not set
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by whether the Governor thinks it’s common sense that he himself should exercise a power, nor is
L.
it set by the fact that the Restaurants in this lawsuit agree with him and echo his sentiments. The
limit of the Governor’s power is set by what the law in fact proscribes in the words of our
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constitution and the text of the Texas Disaster Act. As courts who must referee disputes about
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where the limits of lawful authority lie, we must be wary of creating authority that does not exist,
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particularly when a person asserts the power to unilaterally declare an emergency and then unwind
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democratically-enacted laws and countermand democratically-elected local officials in the name
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of crisis management. tri
In a flurry of fast-moving filings that have leapfrogged between the trial court, this Court,
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and the Texas Supreme Court, Appellants have urged us to endorse this sweeping idea of absolute
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gubernatorial control over all levers of government during the COVID-19 pandemic, and to do so
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quickly, since the dignity of the State has been offended, businesses are losing money, and El Paso
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County’s intransigence in issuing an order that shuts the County down when the Governor has
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declared Texas is open undermines state supremacy and the Governor’s uniform coronavirus
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economic recovery plan. To do anything other than immediately stop the County and bring them
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back in line with the Governor’s will, Appellants contend, would, in their view, fly in the face of
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common sense.1
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1
The Attorney General wanted us to act so quickly, in fact, that after we agreed to his extraordinary request for an
expedited appeal and promised him a decision resolving the central question regarding by Friday, he tried on Tuesday
night to mandamus us into immediately granting him the relief that the trial court denied him, contending this Court
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acted unlawfully by giving the Governor only part of what he wanted, and not exactly what he wanted exactly when
he wanted it. The Texas Supreme Court correctly recognized this Court, as part of a separate branch of government
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charged with judicial review and checking executive actions if needed, does not answer to the Attorney General when
it comes to managing our own docket or exercising our discretionary emergency injunction powers, and the high court
denied the Attorney General’s request, finding our unprecedently fast scheduling arrangement to be reasonable under
the circumstances. See In re State, No. 20-0903 (Tex. Nov. 11, 2020)(order denying emergency relief).
2
EXHIBIT H
The County has resisted the Governor’s order at every turn and questioned his authority to
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dictate county-level decision-making, arguing the Texas Disaster Act gives various officials at
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various levels of government their respective spheres of influence, and that by using an emergency
power to suspend laws, he has consolidated power over Texas’ 254 counties and more than 12,000
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cities. The Governor insists on imposing a one-size-fits-all coronavirus recovery plan across the
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State over the objections of local leaders, but he has crossed a legal line. The Governor is claiming
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authority that is not his, and used a power the Legislature gave him in an unlawful way that was
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never authorized or even contemplated.
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We chose to defer a ruling on the Attorney General’s initial request for emergency relief
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and instead issue an expedited decision on the merits not just to resolve everything in tandem, but
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to give the Court a chance to absorb the issues and take a closer look at the law. And the longer I
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contemplate the law, the more it becomes apparent the County’s legal position is not nearly as
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audacious or outlandish as the Attorney General would have us believe. In each filing, the Attorney
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General supports his position by citing fragments from the Texas Disaster Act without context and
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directing the Court’s attention to broad generalized provisions that do not directly or wholly
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answer the question before us.

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In putting those fragments together, reading them in context, and taking the time to study
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how those fragments fit in with the detailed, lengthy, comprehensive continuity-of-government
plan laid out in the Texas Disaster Act, what becomes clear is the Governor’s authority over El
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Paso County is not clear at all. On the contrary, the Texas Disaster Act instructs the Governor to
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By doing so, the high court gave us the breathing room necessary to do our important work of serving as first-line
reviewers of trial court decisions, which, in turn, helps the justices of the Texas Supreme Court by giving them a fully-
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developed record and an initial read on the situation, whether they agree with our ultimate outcome or not. Cf. In re
Salon a La Mode, No. 20-0340, 2020 WL 2125844, at *2 (Tex. May 5, 2020)(applicants seeking relief from local
emergency orders could not proceed immediately to the Texas Supreme Court; orderly process required them to first
present an application to a district court and proceed to the Texas Supreme Court only as a court of last resort).
3
EXHIBIT H
meet disasters and to make executive orders that have “the force and effect of law.” [Emphasis
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added]. TEX.GOV’T CODE ANN. § 418.012. But the Legislature never gave the Governor the
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authority, in making executive orders, to directly override local elected officials during a disaster
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and veto their decisions, much less suspend their power.
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The provision of the Texas Disaster Act the Governor relies on to suspend law during a
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declared disaster applies only when suspending a law is necessary to clear state-level regulatory
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hurdles for disaster recovery at state-level agencies, boards, or commissions. Even so, the
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Governor may only invoke that limited power if strict compliance with a procedural law setting
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the ordinary course of state business would impede the disaster response effort.
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In my view, the Governor has taken a law that was meant to help him assist local authorities
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by sweeping away bureaucratic obstacles in Austin, and used it in reverse to treat local authorities
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as a bureaucratic obstacle to the coronavirus response plan he has chosen from Austin. This is truly
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extraordinary and completely flips the structure of the Texas Disaster Act on its head. The way the
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Attorney General interprets the law is not the way the law is written.
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The major assumption underpinning the Appellants’ case—namely, the Governor’s order
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automatically trumps a local order because that is the natural order of things—makes common
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sense only if we ignore Texas’ constitutional history and the plain text and structure of the Texas
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Disaster Act. We must not make decisions based on what we believe the law ought to be, but on
what the text of the law in fact says. Because I strongly disagree with the Attorney General’s read
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of the powers given to the Governor under the Texas Disaster Act, I must dissent.
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DISCUSSION
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To prevail on appeal and have this Court overturn the trial court’s decision to deny a
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4
EXHIBIT H
temporary injunction and impose a temporary injunction on appeal,2 the Attorney General and the
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Restaurants must show (1) that they have a probable right to relief on the merits at trial and (2)
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that they would suffer irreparable harm if the County’s order were allowed to stand. I do not believe
that we have the authority to overrule the trial court’s injunction decision in this appeal because
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the Attorney General’s application for an injunction did not satisfy the first step of the temporary
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injunction test and show that the State would probably prevail at trial. In the alternative, I would
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find that the trial court’s decision implicitly finding the equities weighed in favor of the County at
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the time of the injunction decision and fell within the zone of reasonable disagreement.
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HISTORICAL AND CONSTITUTIONAL BACKGROUND
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This is not the first time the issue of whether the Governor can countermand decisions
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made by local authorities has arisen in Texas history. On the contrary, concerns about the
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2
This appeal concerns the trial court’s decision not to enjoin El Paso County Emergency Order No. 13, which by its
own terms expired this past Wednesday at midnight. On November 12, 2020 at 12:00 a.m. MDT, a new order, El
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Paso County Emergency Order No. 14, took effect and was set to expire on Tuesday, December 1, 2020, at 12:00
a.m. MDT.
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As I stated in my dissent to yesterday’s order granting temporary relief, which I repeat again here, I believe we still
have jurisdiction over the question of whether Emergency Order No. 13 violated Executive Order GA-32 because
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the declaratory judgment trial is still pending in the 34th District Court, and while the Emergency Order No. 13 has
now expired, the controversy over the larger question of whether the Executive Order supersedes local orders is a
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controversy that was capable of repetition, yet evading review.
However, I do not believe we have jurisdiction to enjoin Emergency Order No. 14 at this time. Each trial court decision
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granting or denying a temporary injunction is a separately appealable event. See TEX.CIV.PRAC. & REM.CODE ANN.
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§ 51.014(a)(4). When a temporary injunction order is appealed, the courts of appeals are limited to addressing the
narrow question of whether the specific order that was appealed was valid at that moment in the litigation when it was
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rendered, and on interlocutory review, we must consider only the specific record relating to the specific order that is
being appealed in making that determination. Murphy v. McDaniel, 20 S.W.3d 873, 877 (Tex.App.—Dallas 2000, no
pet.); see also Fuentes v. Union de Pasteurizadores de Juarez, S.A. de C.V., 527 S.W.3d 492, 502 (Tex.App.—El Paso
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2017, no pet.)(refusing to consider brief attachments that detailed post-appeal trial court proceedings).
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El Paso County Emergency Order No. 14 is a completely new order issued under vastly different circumstances than
those Judge Moody considered at the hearing on November 4, 2020 that served as the basis of his injunction
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decision on November 6, 2020, regarding Emergency Order No. 13. Further, requests for temporary injunctions are
usually presented to the trial court first, especially since the trial the State and the Restaurants are demanding is still
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pending. In re Salon a La Mode, No. 20-0340, 2020 WL 2125844, at *2 (Tex. May 5, 2020)(orderly process
requires a litigant to first present an application for injunctive relief to a district court before proceeding to the
appellate courts). The substantial differences in time, circumstances and the provisions of Emergency Order No. 14
from Emergency Order No. 13 mandate the Attorney General begin anew in the trial court.
5
EXHIBIT H
Governor’s power over local officials were a pivotal reason why the 1876 Texas Constitution
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structured state executive power in a way that deviates substantially from the way executive power
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is structured in the federal constitution.
History teaches us that the libertarian-minded farmers and Grangers who framed Texas’
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current constitution did not believe in a unitary executive-type ideology that elevated the Governor
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above all others. Far from it. Unlike the federal constitution, which vests the executive power in
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the Presidency and makes the President the ultimate official responsible for overseeing a
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hierarchical federal administrative bureaucracy under a unitary executive theory, 3 Texas is the
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classic example of a plural executive setup, where executive power is not vested in a single person
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but is divided among six separately elected officials: the Governor, the Lieutenant Governor, the
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Secretary of State, the Comptroller of Public Accounts, the Commissioner of the General Land
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Office, and the Attorney General. See TEX.CONST. Art. IV, §§ 1 & 2.
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This structural arrangement was not an accident, but rather a deliberate attempt to
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decentralize government power in response to the well-known gubernatorial abuses and scandals
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of the day. During the Reconstruction era in Texas, “the military removed the moderate Republican
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governor from office and handed the state government over to carpetbaggers and scalawags.” See
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A. J. Thomas, Jr. & Ann Van Wynen Thomas, The Texas Constitution of 1876, 35 TEX.L.REV.
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907, 912 (1957). “This government immediately swept out of office all local and state officials
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who were not of the radical wing of the Republican Party” and adopted a state constitution in 1869
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that conformed with the political goals of the Radical Republicans. Id. Historians have described
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the Reconstruction regime in Texas as being “one of oppression, corruption, graft and blackmail”
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3
See Steven G. Calabresi and Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary,
105 HARV.L.REV. 1153, 1165 (1992)(describing the strong unitary executive constitutional theory that the Vesting
Clause of Article II of the United States Constitution creates “a hierarchical, unified executive department under the
direct control of the President”).
6
EXHIBIT H
in which the Governor, by declaring martial law under sweeping powers granted to him by the
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Legislature, used police and militia forces “so often to enforce the arbitrary will of the governor
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that” the police force and the militia “became an emblem of despotic authority.” Id. The
Reconstruction Legislature “vested extraordinary powers in the governor[,]” including the
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“extension of the executive’s appointing power to the governing bodies of the towns and cities,”
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which was perceived as a “flagrant violation of the principle of local self-government[.]” Id. at
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913.
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Against this historical backdrop, conventioneers to the 1876 Constitutional Convention
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sought to limit the Governor’s power as much as possible:
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The convention was determined to cut down on the governor’s power to prevent a
future renewal of executive despotic control over state or local administrations. It
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decentralized the executive authority by vesting power in other executive officers,
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most of whom were to be elected. It reduced the term of the governor from four
years to two years; debarred the governor from holding any other office or
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commission, civil, military or corporate, while in office; and prohibited him from
practicing any profession for profit while in office. It also reduced the salary of the
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governor and limited his powers by setting forth his duties in great detail.
35 TEX.L.REV. at 914.
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We should bear these historical and constitutional considerations in mind as we interpret a

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comprehensive statutory scheme that sets out the powers and responsibilities wielded by various
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actors at various levels of state government in times of crisis while the machinery of civil
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government still remains functional.4

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4
The top-down, hierarchical, direct command authority the Attorney General asserts the Governor has appears to be
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closer to the authority the Governor would possibly exert as a military commander under a state of martial law. But
the Governor’s powers as exercised under the Act are different from those he may exercise inherently as the military
commander-in-chief of Texas under martial law. The latter question has never been litigated.
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“Marshal law [sic] can only exist and military power can only be exercised . . . when the civil arm of the government
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becomes powerless because of invasion, insurrection, or anarchy. Marshal law and military power over the citizen and
his property are based upon and limited by necessity. Whenever this necessity ceases, such military power must end.”
Rose Mfg. Co. v. W. Union Tel. Co., 251 S.W. 337, 339 (Tex.Civ.App.—Dallas 1923, writ ref’d).
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EXHIBIT H
TEX. CONST. Art. I, § 28 checks the ability of the Governor to suspend laws, stating: “No
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power of suspending laws in this State shall be exercised except by the Legislature.” As such, the
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Governor does not have the power to suspend laws under the Texas Constitution; that power was
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explicitly taken away from the Office of the Governor in 1876. Because the Governor does not
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possess the inherent constitutional authority to suspend laws, his power to suspend laws by decree
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can only exist as a matter of legislative grace under the terms and conditions set by the Texas
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Disaster Act. The statutory text of the Act as written sets the parameters of the Governor’s power
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here, and the Governor’s actions must comport with the conditions set on him by the Legislature.
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If they do not, he acts without any authority and his actions are ultra vires and without legal effect.
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Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952)(Jackson, J.,
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concurring)(when the President of the United States “takes measures incompatible with the
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expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only
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upon his own constitutional powers minus any constitutional powers of Congress over the
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matter”).
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OVERVIEW OF THE TEXAS DISASTER ACT AND PRINCIPLES OF STATUTORY

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CONSTRUCTION
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The Texas Disaster Act of 1975 appears as Chapter 418 in the Texas Government Code.
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The Texas Disaster Act does not limit the Governor’s ability to declare martial law or rely on any inherent
constitutional authority he may have. See TEX.GOV’T CODE ANN. § 418.003(6). However, because the civil arm of
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state government remains intact and operational currently, the Governor’s authority remains limited by the Texas
Disaster Act. As I explain below, the Act, by its text, does not create the military-style command hierarchy the
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Attorney General envisions.

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I note that even in a hypothetical universe where the COVID-19 pandemic reaches a point where the civil arms of the
government were to fail due to the death or illness of all civil authorities in an area, even then under martial law, the
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Governor’s authority is not limitless. His actions must comply with the law, and his actions would still be subject to
judicial review. See Constantin v. Smith, 57 F.2d 227, 239 (E.D. Tex. 1932)(holding under the Texas Constitution that
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even in emergencies, “courts may not be closed, or their processes interfered with by military orders” nor can they
“be ousted by the agencies detailed to aid them” or “their functions be transferred to tribunals unknown to the
Constitution”).
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EXHIBIT H
The Act is a comprehensive, detailed continuity-of-government framework that carefully allocates
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powers, duties, and responsibilities across various levels of state government and multiple
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agencies. One of the stated purposes of the Act includes “clarify[ing] and stengthen[ing] the roles
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of the governor, state agencies, the judicial branch of state government, and local government in
prevention of, preparation for, response to, and recovery from disasters.” TEX.GOV’T CODE ANN.
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§ 418.002(4). As such, fidelity to the text is paramount.
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Since the provisions of the Texas Disaster Act at issue in this appeal have never been
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interpreted—indeed, there has never been a need to interpret them because the Governor has never
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before tried to restrict the power of local leaders during a disaster in this way5—we must resort to
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the usual standards of statutory construction. We must not add words to the statute that are not
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there, and we must not ignore the words the Legislature has chosen, either, particularly in situations
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where we are being urged to read grants of authority from statutory silence. See Newman v.
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Obersteller, 960 S.W.2d 621 (Tex. 1997)(Abbott, J., dissenting)(the Legislature’s omission of
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words from a statute is significant and “[i]t is not the province of this Court to expand” a limited
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statutory provision by making inferences of authority from silence, “no matter the policy rationale
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behind such an expansion”).

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PROBABLE RIGHT TO RELIEF

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The Attorney General and the Restaurants contend they will probably succeed on the merits
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at trial because the Governor validly asserted control over local governments in three ways: (1) by
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issuing orders that directly control the acts of county judges and city mayors, who are the
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of
5
Both the State and the County submitted supplemental briefing to the trial court indicating that during the 1918
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Spanish flu pandemic, the Governor of Texas did not issue a single executive order. The County also submitted a
historical article showing various Texas cities handled the pandemic at the local level using many of the same
techniques infectious disease specialists are encouraging us to use today until a COVID-19 vaccine or treatment can
be found.
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EXHIBIT H
Governor’s “designated agents” during an emergency response under Section 418.1015(b); (2) by
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issuing statewide executive orders that preempt conflicting local emergency orders; and (3) by
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suspending statutes that would allow local officials the authority to issue local emergency orders.
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However, none of these three scenarios provide the Governor with the authority to suspend
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certain fundamental disaster management powers granted to cities and counties.
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The Power to Make Executive Orders with the Force of Law
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Turning to the State’s second point first, the Governor does, indeed, have the power to
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issue executive orders that have “the force and effect of law” during a declared disaster. See TEX.
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GOV’T CODE ANN. § 418.012. The Attorney General’s argument inherently assumes this grant of
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power imbues the Governor’s executive orders, which are not laws but executive decrees that have
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the force of law, with a higher footing than legislative acts undertaken by counties and cities, which
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also have the force of law, simply by virtue of the fact that the Governor is the Governor. I
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vehemently disagree.
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There are three problems with this assumption from a textualist perspective.
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First, although the Legislature provided the Governor with the ability to issue executive
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orders given the force and effect of law, it did not explicitly state in this provision that executive
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orders issued by the Governor preempt contrary laws issued by local entities. This is extremely
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significant. Laws conflict with one another frequently, but there is no legal principle that
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automatically elevates certain laws above others as a matter of course. Certain laws preempt other
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laws not because there is an inherent hierarchy in government that says a law passed by a higher
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part of government necessarily preempts a law passed by a lower part of government. Laws
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preempt other laws because constitutions and other foundational texts create conflict-of-law
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schemes that establish priority ranks among different types of valid laws.
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EXHIBIT H
For example, federal laws preempt conflicting state laws not because we have a notion that
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the federal government automatically trumps state government as a matter of mere hierarchy (after
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all they are two sovereigns alike in dignity), but because the text of the Supremacy Clause in
Article VI of the United States Constitution explicitly makes federal law “the supreme law of the
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land.” U.S. CONST. Art. VI. Likewise, laws passed by the Texas Legislature preempt ordinances
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passed by Texas home-rule municipalities, which have inherent authority to self-govern, not
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because the State trumps cities as a matter of inherent hierarchy, but because the Texas
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Constitution prohibits cities from using their inherent authority to pass ordinances that are
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inconsistent with the general laws enacted by the Texas Legislature. See TEX.CONST. Art. XI, § 5;
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S. Crushed Concrete, L.L.C. v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).
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By contrast, here, there is nothing in the Texas Constitution giving executive orders the
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ability to preempt laws passed by counties and cities,6 and there is nothing in Section 418.012 that
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provides for that, either. The grant of power in Section 418.012 is simply that—a grant of power.
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It does not make an executive order superior to a local order, nor does it make an executive inferior
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to a local order. The Executive Order by its terms purports to preempt local laws, but Section
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418.012 is silent on the issue of whether the Executive Order can in fact preempt those laws.
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Second, the Attorney General’s argument that the grant of authority per se implies the
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Governor may countermand a law passed by local governments, even though the statute does not
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explicitly grant the Governor that authority. This argument of implied authority is belied by the
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fact that other provisions of the Texas Disaster Act clearly show the Legislature knows how to
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write priority-of-law provisions and make local actions subject to gubernatorial approval when it
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chooses to.
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6
On the contrary, the Texas Constitution explicitly states the Governor cannot suspend laws of his own accord.
TEX.CONST. Art. 1, § 28.
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EXHIBIT H
For example, Section 418.108(h)(2) of the Texas Disaster Act states that when a city mayor
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and a county judge both use their inherent statutory authority to manage certain disaster relief
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activity in their jurisdictions, and orders issued by a mayor are in conflict with orders issued by a
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county judge, the orders of the county judge control over those of the mayor, even inside the
boundaries of incorporated territory. See TEX.GOV’T CODE ANN. § 418.108(h)(1)-(2). That section
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clearly resolves contemplated conflicts among two actors with concurrent jurisdiction and sets up
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an explicit chain of command. Likewise, Section 418.108(i), which addresses a local government’s
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ability to ban fireworks, allows local governments to institute bans for up to 60 hours, but if those
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governments enact bans beyond 60 hours, the Governor must approve. TEX.GOV’T CODE ANN.
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§ 418.108(i)(1)-(2). This section explicitly creates a gubernatorial veto over local disaster
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management authority after a certain point in time. Other provisions in the Texas Disaster Act
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show the Legislature contemplated there may be situations in which the Governor may have
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indirect or proxy control of the emergency management process, see, e.g., TEX.GOV’T CODE ANN.
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§ 418.041(b)(giving the governor the ability to appoint the chief of the Texas Division of
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Emergency Management), and situations in which he serves in only an advisory role to local
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governments. See, e.g., TEX.GOV’T CODE ANN. § 418.103 (the Governor shall recommend that
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municipal corporations establish and maintain emergency management programs of their own);
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id. at § 418.104 (the Governor may recommend that political subdivisions establish an
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interjurisdictional agency with other political subdivisions); id. at § 418.121(c)(the Governor shall
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from time to time make recommendations to local governments as may facilitate measures to
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mitigate the harmful consequences of disasters).

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Under the in pari materia rule, the surest way to interpret a statute contained within a
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comprehensive act is to interpret that statute in context of the act’s other provisions, since all
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EXHIBIT H
related statutory provisions are not separate text fragments existing in isolation but “are to be taken
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together, as if they were one law.” Worsdale v. City of Killeen, 578 S.W.3d 57, 69 & n.81 (Tex.
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2019). Given that other provisions of the Act contain specific prioritization schemes, veto powers,
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chains of command, and assignments of duties that are explicit in the text, we should be extremely
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hesitant to infer power from silence in one isolated statutory provision. The text is the text, and
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“policy arguments cannot prevail over the words of the statute.” In re Allen, 366 S.W.3d 696, 708
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(Tex. 2012)(orig. proceeding). “Although legal texts are sometimes incomplete because they fail
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to address matters that ought to have been addressed,” courts may not “remedy the incompleteness
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with rules of their own creation.” See Antonin Scalia & Bryan A. Garner, READING LAW: THE
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INTERPRETATION OF LEGAL TEXTS 98 (2012). tri
Third, and most importantly, the Legislature did give the Governor the explicit ability to
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preempt laws by executive order—the Legislature merely placed extensive conditions on when the
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Governor may do so. See TEX.GOV’T CODE ANN. § 418.016 (allowing the Governor to suspend
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laws and regulations under certain circumstances that will be more fully discussed below).
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Although the Legislature referred to Section 418.016 as granting “suspension” power, that section
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and its multiple subsections, along with other separate sections of the Act, give the Governor the
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explicit ability to effectively preempt laws and regulations by executive action, but they also limit
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his power. Those sections create the roadmap we must use in determining the preemption issue.
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Although the specific subsection of Section 418.016 at issue in this appeal—Subsection
(a)—allows the Governor to suspend “regulatory statutes” under certain circumstances, that is not
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the only suspension/preemption power the Legislature gave the Governor in the Act. Subsection
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(e) allows the Governor to waive or suspend a deadline imposed on a political subdivision by a
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statute or the orders or rules of a state agency at the political subdivision’s request if the waiver or
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EXHIBIT H
suspension is reasonably necessary to cope with a disaster. See TEX.GOV’T CODE ANN.
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§ 418.016(e). Subsection (f) even allows the governor to suspend certain transportation regulations
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when there is not a disaster going on in Texas, but a disaster taking place in a neighboring
jurisdiction and Texas must come to that jurisdiction’s assistance. See TEX.GOV’T CODE ANN.
L.
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§ 418.016(f). Elsewhere in the Act, the Governor may suspend or limit the sale, dispensing, or
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transportation of alcoholic beverages, firearms, explosives, and combustibles. See TEX.GOV’T
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CODE ANN. § 418.019. He may also temporarily suspend or modify laws and regulations if the
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suspension or modification is essential to provide temporary housing or emergency shelter for
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disaster. TEX.GOV’T CODE ANN. § 418.020(c).
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By my count, the Legislature has given the Governor the ability to preempt laws in at least
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six different parts of the Texas Disaster Act, though each preemption provision has specific limits
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and conditions triggering use. The fact the Legislature has set out broad but reasonable conditions
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on the Governor’s ability to preempt laws in multiple portions of the Texas Disaster Act makes it
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even more difficult to conclude the silence in the Legislature’s grant of general authority to make
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executive orders bears the weight the Attorney General asserts it does. A silence can be pregnant—
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but not that pregnant.

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It would be anomalous under the rules of statutory construction to say the Governor’s
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authority to suspend any laws contrary to his disaster relief goals is recognized by six specific on-
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point statutes that contain restrictions on use, only to say that a more general statute undoes all six
of those restrictions simply because it gives the Governor’s executive orders “the force and effect
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of law.” [Emphasis added]. Reading Section 418.012 as granting the Governor plenary power to
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nullify contradictory laws by edict would render at least six provisions of the Texas Disaster Act
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redundant at best or nugatory at worst. It ignores overall statutory context and reads a broad
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EXHIBIT H
priority-of-laws provisions into textual silence while jettisoning six specific priority-of-laws
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provisions from the Act entirely.
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The more natural reading of Section 418.012 which preserves and harmonizes all sections
is the specific preemption provisions qualify and limits the Governor’s general ability to issue
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a
executive orders that have the force of law. See In re ReadyOne Industries, Inc., 394 S.W.3d 697,
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701 (Tex.App.—El Paso 2012, orig. proceeding)(when general and specific words are grouped
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together in a statute, the meaning of the general words is limited by conditions imposed by specific
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words).
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In short, I am not at all persuaded Section 418.012 alone gives the Governor the unfettered,
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boundless ability to preempt any other law. Here, the specific limits of Section 418.016(a), which
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the Governor relied on as authority in issuing his executive order countermanding local officials,
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set the scope of our review in this appeal.

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Direct Control Through Agency?

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The Attorney General also contends the Governor has direct supervisory authority over
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County Judge Samaniego because County Judge Samaniego, as the emergency district manager
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for El Paso, has the ability to exercise emergency powers provided to the Governor under the Act
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at the county level because he is the Governor’s agent. Further, as the Governor’s agent, County
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Judge Samaniego owes the Governor fiduciary duty to act in accordance with the wishes and in
the best interest of the Governor. See TEX.GOV’T CODE ANN. § 418.1015(a)-(b).
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The issue of whether County Judge Samaniego is the Governor’s agent when acting in his
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capacity as an emergency management director is a red herring. The Attorney General insists,
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under Section 418.1015(b), the Governor can withdraw County Judge Samaniego’s authority to
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act as his agent for the purposes of exercising powers reserved to the Governor at the county level.
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EXHIBIT H
Even so, County Judge Samaniego still has some inherent authority that does not hinge on the
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Governor’s approval, and County Judge Samaniego can reasonably rely on another standalone
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grant of inherent authority in Section 418.108 to issue his order.
L.
Section 418.108, which deals with the specific ability of mayors and county judges to
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declare and manage disaster areas at the local level, contains a subsection specifically permitting
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County Judge Samaniego to “control ingress to and egress from a disaster area under the
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jurisdiction and authority of the county judge . . . and control the movement of persons and the
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occupancy of premises in that area.” TEX.GOV’T CODE ANN. § 418.108(g).7 Unlike Section
er
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418.1015(b), which directly ties the exercise of a county judge’s power to gubernatorial authority,
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none of the subsections contained in Section 418.108 frame a county judge’s authority in relation
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to the Governor; they describe the powers of local authorities to act on their own. Curiously, the
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Governor is not mentioned in Section 418.108 at all. That omission is significant and clearly
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indicates the Legislature did not intend to tether this power of local officials to the Governor.
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Section 418.108 solely addresses the inherent authority county judges and mayors possess
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to manage disaster areas under their jurisdiction and to declare disasters and act autonomously
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under certain enumerated circumstances without the need to seek preapproval from the Governor.
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Reading Subsection (g) in the context of Section 418.108, as a whole, and comparing Section
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7
The majority correctly notes that TEX.GOV’T CODE ANN. § 418.012 gives the Governor this same power, and raises
lc
the question of what happens when both the Governor and a local official try to exercise this power at the same time
in different ways. There is no explicit answer to that.
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However, since I find the numerous preemption provisions in the Act set the conditions by which the Governor’s
administrative acts may preempt laws generally, my answer is this: the Governor’s executive order would prevail
fic
whenever a preemption provisions allows him to prevail. Otherwise, as amicus curiae Travis County points out, the
Code Construction Act requires that if a general provision conflicts with a local provision, the provisions shall be
of
construed, if possible, so that effect is given to both. TEX.GOV’T CODE ANN. § 311.026(a). If the conflict between the
general provision and the special or local provision is irreconcilable, the special or local provision prevails as an
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exception to the general provision, unless the general provision is the later enactment and the manifest intent is that
the general provision prevail. Id. at § 311.026(b). Alternatively, because the provision giving local authorities the
same power as the Governor came later in time, the local provision would control under the last-in-time rule. Id. at
§ 311.025.
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EXHIBIT H
418.108 to Section 418.1015, it appears the County is correct. County Judge Samaniego issued his
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order under his own freestanding, autonomous inherent statutory authority granted by Section
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418.108(g), unfettered by any concerns he was acting as the Governor’s agent.
The County’s order is prima facie valid.
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The Governor’s Power to Suspend Law During a Disaster
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In light of the County order’s prima facie validity, all threads of argument here collapse
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down into a single question: in order to preemptively countermand the County’s order, could the
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Governor by executive order invoke Section 418.016(a) to lawfully suspend the statute granting
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county judges and mayors the inherent authority to autonomously manage certain disasters within
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their own jurisdictions? tri
The answer is no.
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Per the terms of the Act, the Governor may “suspend the provisions of any regulatory
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statute prescribing the procedure for conduct of state business or the orders or rules of a state
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agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder,
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or delay necessary action in coping with a disaster.” TEX.GOV’T CODE ANN. § 418.016(a). There
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are two discrete questions that must be answered before the Governor’s order can be held to be
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preemptive and controlling over the County’s order: (1) whether Section 418.108 granting cities
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and counties the ability to manage emergencies at the local level is a “regulatory statute” that
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prescribes “the procedure for conduct of state business” falling within the ambit of the
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Governor’s suspension power, and, if so, (2) whether the Governor’s determination that suspension
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of that statute was “in any way” necessary to “prevent, hinder, or delay necessary action in
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coping with a disaster” was valid. [Emphasis added]. We need not answer the second question,
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because the Attorney General fails to show how the Governor can satisfy the requirements of the
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EXHIBIT H
first question.
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The State must show that in addition to being regulatory, the statute is procedural and deals
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with state business. Section 418.108, standing alone, is not a statutory provision that establishes a
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procedural rule. It is a statutory grant of power to local authorities. The Attorney General argues
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Section 418.108 is procedural and regulatory in the sense that it appears in the context of an act
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that sets out emergency procedures statewide. The Attorney General asserts as to what constitutes
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“state business,” that in the context of a statewide disaster like COVID-19, the Governor may
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suspend any statute dealing with local authority anywhere in Texas because during a disaster, all
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business, even actions taken by local governments, is in essence state business. The Attorney
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General punctuates his argument by stating the Act makes the Governor the “commander in chief”
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of statewide disaster management. See TEX.GOV’T CODE ANN. § 418.015(c).
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The Attorney General’s interpretation of the suspension statute, while rhetorically

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appealing, falters under close textual scrutiny and a complete contextual reading of how the
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suspension provision interacts with other provisions in the Act. In interpreting what words and
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phrases like regulatory, procedural, and state business mean, we of course can reference
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dictionaries and common meanings of those words. But “[g]iven the enormous power of context
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to transform the meaning of language, courts should resist rulings anchored in hyper-technical
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readings of isolated words or phrases.” In re Office of the Attorney Gen., 456 S.W.3d 153, 155–56
(Tex. 2015). “The import of language, plain or not, must be drawn from the surrounding context,
lc
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particularly when construing everyday words and phrases that are inordinately context-sensitive.”
fic
Id. at 155-56. Here, the surest way of ascertaining how the Legislature meant to use those words
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in the Act is to look at all provisions of the Act as a whole and see where this specific suspension
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statute fits in.
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EXHIBIT H
First, we look at the Governor’s ability to suspend regulatory statutes with the provision of
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the Act setting out his duties and powers as commander-in-chief. TEX.GOV’T CODE ANN.
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§ 418.015(c). On this point, the Attorney General’s characterization of the Governor as
“commander in chief” during a declared disaster is incomplete. The Texas Disaster Act states that
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during a declared disaster, the Governor is “commander in chief” not of emergency management
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broadly and at every level, but “of state agencies, boards, and commissions having emergency
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responsibilities[.]” [Emphasis added]. Id. That is a significant difference in scope. Most notably,
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the statute does not say the Governor is commander-in-chief of state agencies, boards,
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commissions having emergency responsibilities, and political subdivisions, which are defined in
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the definitional portions of the Act as being cities and counties that are conceptually separate from
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state agencies, boards, and commissions. See TEX.GOV’T CODE ANN. § 418.004(6).
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The reference to state agencies, boards, and commissions in the grant of commander-in-
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chief power, in turn, provides context clues as to the meaning of the Governor’s ability to suspend
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“the provisions of any regulatory statute prescribing the procedures for conduct of state business
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or the orders or rules of a state agency” in Section 418.016(a). [Emphasis added]. Likewise, so
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does Section 418.0155, which requires the Governor to compile a master list of “regulatory statutes
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and rules that may require suspension during a disaster.” TEX.GOV’T CODE ANN. § 418.0155(a).
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Subsection (b) of this provision states “[o]n request by the governor’s office, a state agency that
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would be impacted by the suspension of a statute or rule on the list . . . shall review the list for
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accuracy and shall advise the governor’s office regarding any statutes or rules that should be added
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to the list.” TEX.GOV’T CODE ANN. § 418.0155(b).

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If everything during an emergency is a matter of state business such that the Governor has
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the power to suspend the enabling statutes of local governments, then why is it that another statute
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EXHIBIT H
requiring him to keep a master list of suspendable “regulatory statutes” allows him to request input
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about the master list from “a state agency that would be impacted by the suspension of a statute?”
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[Emphasis added]. Why not state the Governor can seek advice from any entity (such as a political
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subdivision) that may be affected by his suspension of a statute?
The answer is simple: the Legislature never envisioned the Governor’s suspension powers
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would impact anything other than a state agency that manages the procedural aspects of state-level
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business because the Legislature did not intend for the Governor to be able to act unilaterally as
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he has done here. When the preemption provision at issue here is read in context, the context
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suggests that rather than placing the Governor at the apex of state emergency management with
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local authorities under his direct control for all purposes, the Act makes the Governor the direct
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commander of the state-level administrative bureaucracy (the “regulatory” realm of “state
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agencies, boards, and commissions”) during an emergency. Further, it gives him the ability to
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suspend statutes like agency enabling statutes (statutes that proscribe the conduct of state business)
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or those agencies’ normal procedures if strict compliance with the provisions, orders, or rules (i.e.
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following the ordinary bureaucratic processes and timelines of “state business”) would “in any
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way prevent, hinder, or delay necessary action in coping with a disaster.” TEX.GOV’T CODE ANN.
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§ 418.016. In other words, the suspension statute gives the Governor the ability to clear state-level
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bureaucratic logjams, expedite administrative action at state-level agencies, and depart from the
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regular order of state-level business if doing so would help facilitate a disaster response.
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This reading is not only more natural, complete, and grounded in the text, it is consistent
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with other provisions of the Act indicating the Governor’s job during a disaster is not necessarily
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to tie the hands of local officials he potentially disagrees with and usurp their authority. But rather
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EXHIBIT H
to serve as a conduit for aid to local officials,8 a connection point between different jurisdictions,9
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a facilitator who leverages state resources to mitigate and recover from disasters,10 and someone
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who makes suggestions on how to improve local emergency response processes.11
The Attorney General’s broad reading of “state business” creates yet another statutory
L.
a
interpretation problem. If the Governor can suspend the grant of autonomous disaster-management
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power to cities and counties because the Texas Disaster Act as a whole is “regulatory,” all
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emergency-management activities are “state business,” and the grant of authority to counties and
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cities appears in the Texas Disaster Act, then what are we to make of the fact that the Texas
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Disaster Act grants the Governor other specific preemption powers in at least five others places in
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the Act? Are those other grants of preemption power superfluous? Could the Governor use this
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suspension power to suspend the “regulatory” Texas Disaster Act in its entirety save for the
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provision allowing him to pass executive orders with “the force and effect of law,” and then write
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a new set of rules for emergency management?

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Of course not. Just because a textual reading comports with dictionary definitions of words
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read in isolation does not mean the grant of preemption powers at issue in this case is without
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limitation. A reading as broad as the Attorney General advocates renders at least five other
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preemptive provisions redundant. It also begins to skirt some serious nondelegation issues. If there
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is no effective limitation on the Governor’s discretion to suspend laws during a disaster he himself
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8
See TEX.GOV’T CODE ANN. § 418.021 (giving the governor that authority to apply for federal aid on behalf of a local
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government).
9
See TEX.GOV’T CODE ANN. § 418.041(b) (giving the Governor the power to appoint a chief of the Texas Division of
Emergency Management).
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10
See TEX.GOV’T CODE ANN. § 418.017 (allowing the Governor, inter alia, to use all available resources of state
government, reassign executive department personnel, and commandeer or use private property).
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11
See TEX.GOV’T CODE ANN. § 418.121(a), (c) (giving the Governor the responsibility to “consider steps that could
be taken to mitigate the harmful consequences of disasters” and to “from time to time make recommendations to the
legislature, local governments, and other appropriate public and private entities as may facilitate measures to mitigate
the harmful consequences of disasters”)[Emphasis added].
21
EXHIBIT H
declares, that raises the serious question of whether the Legislature has unconstitutionally
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abdicated legislative power to the Governor in contravention of the Texas Constitution. Cf. In re
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Hotze, No. 20-0430, 2020 WL 4046034, at *2 (Tex. July 17, 2020)(Devine, J., concurring)(voicing
L.
nondelegation concerns about portions of the Texas Disaster Act giving Governor quasi-legislative
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authority). By reading the conditions in the suspension clause at issue to be more restrictive in lieu
lv
of endorsing a broad, nearly limitless reading that begins to look more and more like a wholesale
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delegation of legislative power, we preserve authority rather than extinguishing it, and avoid a
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potential constitutional crisis and a nondelegation problem in a very necessary, useful disaster
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statute. See Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen, 952 S.W.2d 454, 466
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(Tex. 1997)(narrowing quasi-legislative statutes so that an executive official does not exercise
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“unguided discretion” helps avoid making a law constitutional under the nondelegation doctrine).
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The implausibility of the Attorney General’s reading of this preemption power only
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bolsters my conclusion the suspension provision in Section 418.016 is meant to be used to reduce
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bureaucratic delays at the state agencies, boards, and commissions over which the Governor asserts
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direct control. The suspension power does not extend to Section 418.108, the provision which
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gives county judges and mayors the ability to perform some disaster management activities with
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autonomy at the local level.

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The State cannot establish a probable right to relief because the Governor’s attempted
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suspension of the inherent authority of 254 county judges and more than 12,000 Texas’ mayors is
lc
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an ultra vires act. Section 418.108 is not a regulatory statute addressing state-level bureaucratic
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businesses or agency rulemaking, nor is it a procedural statute—it is a grant-of-authority statute

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giving local authorities the leeway to act in their best independent judgment within the confines of
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their own jurisdictions. As such, the Governor’s attempted suspension of Section 418.108 to the
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EXHIBIT H
extent necessary to countermand mayors and county judges who issued orders that did not adhere
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to his disaster recovery goals exceeded the scope of statutory authority grant to him by the
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Legislature. And since the Governor possesses no inherent authority to suspend statutes under the
Texas Constitution, the Governor’s actions were done without proper authority and were void.12
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The County’s order controls.
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IRREPARABLE HARM
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We must not lose sight of the fact that while we are opining on a matter that has statewide
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implication, we are also considering an interlocutory appeal that turns on the facts presented to the
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trial court at a given point in time from which the trial judge made his decision, as viewed through
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the prism of the abuse of discretion standard. tri
There are two steps to the temporary injunction analysis, and the State and the Restaurants
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must satisfy both before being able to prove to us the trial court abused its discretion by not
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granting their injunction application. Even if a temporary injunction applicant can establish a
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probable right to relief, the temporary injunction applicant must also show that it would suffer
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irreparable harm if an injunction were not granted pending trial.

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Dignitary Harm to the State

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Although the State did not object to the trial court taking judicial notice of on-the-ground
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conditions in El Paso as a result of the COVID-19 crisis, the Attorney General argues the trial
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court could not consider undisputed local conditions or balance equities in deciding whether to
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grant an injunction here, since the State as sovereign had an automatic right to relief and is excused
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of
12
Even if Section 418.108 fell within the ambit of the Governor’s suspension power, the Governor cannot suspend
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laws for any reason. Under the statute, the Governor’s suspension of local authority must have been done for a proper
purpose to be valid. It is unclear whether this could possibly be tried as a question of fact in the declaratory judgment
action or how much deference the Governor receives in making his assessments of appropriateness, other than the
placement of statutory restrictions intentionally indicate the Governor may not suspend a law simply by ipse dixit.
23
EXHIBIT H
from the general requirement of showing the County's conduct would cause the State irreparable
e
harm. In support of their argument that dignitary harm to the State alone entitles the State to an
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injunction here, the Attorney General cites a recent per curiam case in which the Texas Supreme
L.
Court overturned an injunction denial and issued an injunction prohibiting a county clerk from
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sending mail-in ballot applications to county citizens who did not fall within the categories of
lv
persons who were, in fact, authorized to vote by mail-in ballot. See State v. Hollins, No. 20-0729,
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2020 WL 5919729, at *4-*6 (Tex. Oct. 7, 2020). That case is readily distinguishable from this one.
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In Hollins, the Texas Supreme Court concluded the Election Code did not explicitly
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authorize a county clerk to send out mail-in ballot applications to persons who did not fall within
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the five categories of voters eligible to vote by mail, meaning the county clerk had no inherent
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authority to engage in that conduct. Id., at *2. The Election Code also made the county clerk clearly
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subordinate to the Secretary of State, who was explicitly identified in the Code as the top official
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ultimately responsible for statewide election regulation and who, by statute, had a mandatory duty
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under statute to ensure uniformity of the election process across Texas. See id. (noting that
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TEX.ELEC.CODE ANN. § 31.003 explicitly requires the Secretary to “obtain and maintain
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uniformity in the application, operation, and interpretation” of the Election Code and requiring
Tr
him to “prepare detailed and comprehensive written directives and instructions” to local officials).
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Because the county clerk had no inherent authority to act, because the Secretary was the ultimate
lc
authority overseeing elections who had a statutory duty to maintain uniformity, and because the
county clerk’s actions were clearly ultra vires and in derogation of the statutory uniformity
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requirement, injunctive relief should have been granted because there was only reasonable
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outcome. Thus, the trial court’s duty to grant the temporary injunction pending trial was essentially
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ministerial because the county clerk’s duty was essentially ministerial.
24
EXHIBIT H
Hollins is distinguishable from the case at hand. First, the structure of the Texas Disaster
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Act is not as hierarchical as the Election Code. Unlike the Election Code, which explicitly vests
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ultimate regulatory authority over local officials in one executive, the Texas Disaster Act does not
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make the Governor the sole official responsible for addressing a disaster. Second, unlike the
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Election Code which requires uniformity of action across the entire State, the Texas Disaster Act
lv
does not require any specific response during a disaster, but instead creates a flexible framework
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for cooperation among various officials at the state and local levels. The Secretary’s actions in
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Hollins were necessitated by a mandatory duty to maintain uniformity statewide, which, in turn,
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made resolution of the injunction appeal ministerial because there was only one possible outcome.
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Here, the Act does not create mandatory statutory duties that require any specific response as a
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preordained outcome. To put it another way, the Act does not create clear, measurable ministerial
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duties in this situation.

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Finally, unlike Hollins, which involved a county official exercising authority that had not
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been conferred by statute, Section 418.108, as we have stated before, explicitly confers emergency
is
authority onto the County Judge without reference to any preclearance requirements from the
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Governor. The County Judge clearly had the authority to issue his order.
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The State is correct that it can file an injunction to restrain violations of the law when the
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status quo involves ongoing violations of the law. But Texas Supreme Court case law also
lc
establishes that generally, when the determination of whether the status quo is a violation of the
law “is the central question of the suit,” that question should be determined with a full trial on the
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merits. See Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 555-56 (Tex. 2016). Against that
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longstanding backdrop, we read Hollins as standing for the proposition the State’s request for
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injunctive relief based on general law enforcement grounds must be granted when statutes clearly
25
EXHIBIT H
dictate only one possible legal outcome, making the trial court’s decision on injunctive relief
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ministerial rather than discretionary. Otherwise, the issue should be resolved at trial on the merits,
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with temporary injunctive relief pending trial available—as in other situations—as a matter of a
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trial judge’s discretion.
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Here, even if my reading of the law is incorrect and a conflict-of-laws scheme is implied
lv
onto textual silence under a theory the Legislature simply forgot to include a conflicts provision
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and we can correct the Legislature’s mistake by copy-editing the statute, the various portions of
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the Texas Disaster Act do not create clear ministerial duties. It is clear to me that the law here does
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not require any specific outcome as it did in Hollins. As such, the State has failed to show the
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existence of a ministerial duty and that it was violated. My view is the trial court did not err, to the
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extent, it concluded, it retained discretion to decide the issue of irreparable harm.
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The trial court was free to weigh seven days’ worth of dignitary harm to the State prior to
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the expiration of the County’s order against other then-existing equities at the snapshot in time it
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made its decision. Since this harm is abstract and not tangible, the trial court had leeway to decide
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how likely it was any dignitary harm caused to the State over seven days would be in-fact
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irreparable.
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Economic Harm to the Restaurants

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The case presented by the Restaurants with respect to harm is far more compelling than the
lc
State. Unlike the dignitary abstract harm allegedly suffered by the State, the economic harm to the
Restaurants as the result of the County Judge’s order is tangible, quantifiable, and undeniable.
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Under the County’s order, the Restaurants are designated as one of twenty types of essential
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businesses exempt from the shut-down order, and they may continue to sell food through delivery
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and carry-out, but not through dine-in service. If the injunction were granted and the County’s
26
EXHIBIT H
order suspended, then the Restaurants would have been able to offer dine-in service up to 50%
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capacity under the Governor’s Executive Order. Thus, the precise question before us in this appeal
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as to these litigants is whether at the time the trial court rendered its decision, the Restaurants
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established the harm they would suffer from their inability to offer dine-in services up to 50%
capacity for seven days before the County’s order expired would be irreparable for them.
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lv
That is a discretionary question that lies with the trial court in my view; we can only
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overturn the trial court’s decision only if it falls outside the zone of reasonable disagreement. Here,
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we do not have an evidentiary record showing what kind of losses the Restaurants would be
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projected to suffer over the course of five days if their dine-in capacity was reduced from 50% to
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0%. The Restaurants base their argument almost entirely around the proposition the Governor’s
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order legally countermanded the County’s order. Although the Restaurants failed to put on any
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evidence showing the projected amount of harm to their businesses as a specific dollar amount, it
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can be reasonably presumed the amount of revenue represented by a shift of dine-in business from
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0% dine-in to 50% is substantial. The underlying assumption, of course, is the Restaurants were
is
operating at full 50% dine-in capacity during operating hours. Still, because there is no evidentiary
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record here, it is difficult, if not impossible, to conclude the Restaurants established the harm they
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would suffer if the last seven days of the County’s order were not enjoined was irreparable as a
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matter of law. The trial court would still have to balance the equities.
The County’s Equitable Interests

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We weigh the seven days’ worth of intangible harm to the State’s general dignity and the
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seven days’ worth of lost 0%-50% capacity dine-in profit from the Restaurants as a result of
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allowing the County’s order to stand until it expired against the harm the County would suffer if
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the order was enjoined before it expired. If the trial judge’s weighing of those equities fell outside
27
EXHIBIT H
the zone of reasonable disagreement, we must reverse his decision and impose an injunction
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pending trial on the merits.
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Here, clearly the trial court’s weighing of the equities fell within the zone of reasonable
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disagreement. The statistics, which are undisputed, paint a grim picture. In the lead-up to the trial
court’s injunction decision, El Paso County was on the brink of a cascading hospital failure that
a
lv
affected the care that both COVID and non-COVID patients received.
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Considering the undisputed facts in the record, in my view, the trial court did not abuse its
k
discretion by refusing to enjoin the County’s order before it expired on its own terms.
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CONCLUSION
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The late textualist Justice Antonin Scalia and his writing partner Bryan A. Garner have
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stated that it is a “false notion that the quest in statutory interpretation is to do justice,” since when
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a judge deviates from the text in a desire to see that justice is done in the specific dispute before
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them, “the law becomes subject to personal preferences and hence shrouded in doubt.” READING
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LAW at 347-48. Though the Legislature has told courts that they may consider multiple things in
is
constructing its acts, including the effects a particular statutory interpretation would have, Texas
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courts have nevertheless adopted a strict textualist approach to statutory construction under the
Tr
theory that while we may have legal permission from the Legislature and by tradition to consider
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many factors in our decisions, “not all that is lawful is beneficial.” See Tex. Health Presbyterian
op
lc
Hosp. of Denton v. D.A., 569 S.W.3d 126, 136 (Tex. 2018).

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For this reason, it is critical we read the Texas Disaster Act as carefully as we can, and to
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apply textualist principles with as much fidelity as possible. I staunchly believe, setting aside any
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questions of political rightness or justness of outcome, that under the principles of textualism, the
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grant of authority allowing the Governor to issue executive orders with “the force and effect of
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EXHIBIT H
law” during a disaster does not inherently, silently, unilaterally give the Governor authority to
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overrule laws by executive order simply by stating “all local laws are preempted.” There are clear
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methods by which the Governor may issue executive order preempting laws in the Texas Disaster
L.
Act. Because his executive order attempting to preempt local laws did not comport with the plain
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text of the limited preemption powers granted to him by the Legislature, his attempt to suspend
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the authority of local officials was void.
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That, I think, should satisfy our inquiry.
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But there are additional factors that are relevant to my analysis: the unintended
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consequences of the reading the Attorney General advances. Justice Scalia and Bryan Garner have
ct
said that under textualism, it is a “half-truth that consequences of a decision provide the key to
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sound interpretation.” READING LAW at 352. While they generally disavow considering the
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consequences of a particular statutory construction, to the extent I as a judge still have discretion
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to weigh those consequences other than those deemed relevant by textualism at this historical
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moment, and to the extent my position as the dissenting justice frees me from any strict formal
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requirements in writing my decision, I will simply say this.

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Amid a cascading hospital crisis as a virus without a clear cure spreads exponentially
Tr
through the community, El Paso’s local government has balkanized. The City Mayor and the
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County Judge haven taken diametrically opposed approaches to law enforcement. The city police
department initially refused to enforce the County’s order on the advice of the Attorney General,
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who (incorrectly in my view) contended the Governor’s order preempted the County’s order.
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Meanwhile, the county sheriff’s department enforced the County’s order based on the County’s
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determination that it still retained emergency authority. Law enforcement personnel in El Paso
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County are in disarray, and the organs of local government have turned against each other.
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EXHIBIT H
Although I disagree with the interpretive approach taken by the majority, I do agree in one
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respect: we need to know who oversees what in this time of crisis, and soon. The real problem here
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is not that the Texas Disaster Act fails to give us guidance of who trumps whom in the event of a
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stalemate. The real problem is that there is a stalemate in the first place.
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The nightly news incessantly reminds us the stakes of this litigation could not be higher
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and the effect of our judgment more consequential. This is not a bar exam question, an academic
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discussion, or an intellectual exercise in a law school classroom. This case, and the others that will
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undoubtedly ensue as more counties reassert their inherent statutory authority to deal with local
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conditions, are literally matters of life and death. More than one hundred years ago, a pandemic
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like this one tore across Texas. Each community in Texas decided for themselves how to best
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manage their affairs until the viral inferno was snuffed out. That history echoes in the background
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of our decision today. How will this crisis echo one hundred years from now?
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Every hospital in El Paso County is at capacity, and it is not an exaggeration to say every
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other patient in our hospitals right now is a COVID patient, and the County’s morgue has been at
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capacity for days because the County has been unable to process bodies quickly enough, creating
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a problem of where to store the deceased, whose bodies, in a grim turn of bureaucratic phrase, are
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backlogged at the Medical Examiner’s Office. In the seven days this expedited appeal was pending,
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the County has gone from having one refrigerated mobile morgue for the overflow of bodies to six
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refrigerated mobile morgues. Rumor has it the number of refrigerated mobile morgues may
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possibly go up to ten in the coming days. How many more mobile morgues will come to El Paso
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before the Texas Supreme Court is able to render a final answer to the deadly riddle of which
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leader must yield? Will the Governor and the County Judge come to a workable solution first?
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Only time will tell.
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EXHIBIT H
Perhaps others will see what I see in this statute. Perhaps leaders will live up to the spirit
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of the Texas Disaster Act and find solutions rather than resorting to a race to the courthouse to
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have judges break ties over who has more authority while Rome burns around us. Perhaps the
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Legislature will insert the words into the statute this coming summer which provide more guidance
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as to what happens when people turn against each other in a crisis. Perhaps not. Until there is a
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vaccine or a cure for COVID-19, the turmoil facing our community today will be the turmoil
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another Texas community faces tomorrow.
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There is little question the Governor is one of many people who has a part to play in
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coordinating our response to this unprecedented pandemic, but is he the sole arbiter? No reasonable
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Texan would disagree the goal of promoting and reopening the economy is, without any doubt,
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legitimate and necessary disaster relief. But my job, as a justice of a court of appeals, is to read
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and apply the law, to call balls and strikes. The Governor’s goal may be legitimate, but the manner
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in which he has pursued it, is not. The Attorney General maintains, in times of emergency, the
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Governor is the ultimate decision-maker, that he is a unitary executive with power over all levels
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of government, that he alone may decide the fates of people in 254 counties and 12,000 cities, that
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local elected leaders may act only because he gives them the authority, and he can take away that
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authority if he believes their approach as to how they address disaster relief is, in his view, wrong.
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The only way any of that can be true is if courts ignore critical Texas constitutional history,
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disregard the structure and purpose of the Texas Disaster Act, read words into a statute that are
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simply not there, and discard important restrictions and qualifications on the Governor’s power in
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the name of expediency and a belief that his noble ends justify its unlawful means.
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Because the Governor’s attempt to suspend the inherent disaster-management authority of

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county and city leaders violates the small government ethos the Framers wove into the Texas
31
EXHIBIT H
Constitution, the cooperative spirit of the Texas Disaster Act, and, most importantly of all, the
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plain text of the Texas Disaster Act, I respectfully dissent.
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YVONNE T. RODRIGUEZ, Justice
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November 13, 2020
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32
EXHIBIT H
CAUSE NO. D-1-GN-20-007712
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Plaintiff, §
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§
v. § TRAVIS COUNTY, TEXAS
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§
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official capacity as County Judge, §
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Defendants. §
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ORDER DENYING PLAINTIFF’S APPLICATION FOR TEMPORARY INJUNCTIVE
RELIEF
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The Court conducted a hearing on Plaintiff’s Application for Temporary Injunctive Relief
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on December 31, 2020, and after considering the pleadings on file, the evidence presented at the
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hearing, and the arguments of the parties’ counsel, the Court finds that the State of Texas’
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application for temporary restraining order and/or temporary injunctive relief set forth in its
Verified Original Petition and Applications for Temporary and Permanent Injunctive Relief should
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be and hereby is DENIED.
Dec. 10:00 p.m.

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31stday of ________,
SIGNED this ___ 0 at ___________________
202_, o’clock in Austin,
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__________________________________
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JUDGE PRESIDING
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ENTRY REQUESTED BY:
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DAVID A. ESCAMILLA
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County Attorney, Travis County
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P. O. Box 1748
Austin, Texas 78767
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Telephone: (512) 854-9513
Facsimile: (512) 854-9316
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By: /s/ Sherine E. Thomas
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SHERINE E. THOMAS
State Bar No. 00794734
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sherine.thomas@traviscountytx.gov
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LESLIE W. DIPPEL
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leslie.dippel@traviscountytx.gov
CYNTHIA W. VEIDT
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cynthia.veidt@traviscountytx.gov
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ATTORNEYS FOR DEFENDANTS
TRAVIS COUNTY and TRAVIS
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COUNTY JUDGE ANDY BROWN

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ANNE L. MORGAN, CITY ATTORNEY
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MEGHAN L. RILEY, Chief of Litigation
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City of Austin Law Department
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P.O. Box 1546
Austin, Texas 78767-1546
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Telephone: (512) 974-2268
Facsimile: (512) 974-1311
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By: /s/Sameer S. Birring
SAMEER S. BIRRING
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Assistant City Attorney
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sameer.birring@austintexas.gov
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SARA SCHAEFER
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Sara.schaefer@austintexas.gov
MEGHAN L. RILEY
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Meghan.riley@austintexas.gov
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ATTORNEY FOR DEFENDANTS CITY
OF AUSTIN AND MAYOR STEVE
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ADLER
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THE SUPREME COURT OF TEXAS
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Orders Pronounced January 1, 2021
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ORDERS ON CAUSES
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THE FOLLOWING PETITION FOR WRIT OF MANDAMUS IS CONDITIONALLY GRANTED:
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21-0001 IN RE STATE OF TEXAS; 3rd Court of Appeals District (03-20-00619-CV)
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Without hearing oral argument, and having considered “Defendants Travis County and City of
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Austin’s Joint Response in Opposition to Plaintiff’s Application for Temporary Injunction,” we
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conditionally grant the petition for writ of mandamus and direct the court of appeals to issue
relief under Texas Rule of Appellate Procedure 29.3, instanter, enjoining enforcement of Travis
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County’s County Judge Order 2020-24 and the Mayor of the City of Austin’s Order No.
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20201229-24 pending final resolution of the appeal. Our writ will issue only if the court of
appeals does not comply.
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GOVERNOR GREG ABBOTT

March 2, 2021 SECRETARY OF STATE
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The Honorable Ruth R. Hughs
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Secretary of State
State Capitol Room 1E.8
Austin, Texas 78701
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Dear Secretary Hughs:
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Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:
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Executive Order No. GA-34 relating to the opening of Texas in response to the
COVID-19 disaster.
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The original executive order is attached to this letter of transmittal.

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erk to the Governor
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Attachment
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POST OFFICE Box 12428 AUSTIN, TEXAS 78711512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES
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BY THE
GOVERNOR OF THE STATE OF TEXAS
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Executive Department
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Austin, Texas
March 2, 2021
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EXECUTIVE ORDER
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GA34
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Relating to the opening of Texas in response to the COVJD-19 disaster.
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WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March
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13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel
coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the
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State of Texas; and
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WHEREAS, in each subsequent month effective through today, I have renewed the
disaster declaration for all Texas counties; and
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WHEREAS, I have issued executive orders and suspensions of Texas laws in response to
COVID-19, aimed at protecting the health and safety of Texans and ensuring an
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effective response to this disaster; and

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WHEREAS, I issued Executive Order GA-08 on March 19, 2020, mandating social-
distancing restrictions in accordance with guidelines promulgated by President Donald J.
Trump and the Centers for Disease Control and Prevention (CDC); and
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WHEREAS, I subsequently issued a series of superseding executive orders aiming to

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achieve the least restrictive means of combatting the evolving threat to public health by
adjusting social-distancing restrictions while implementing a safe, strategic plan to
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reopen Texas; and
WHEREAS, under Executive Order GA-32, in effect since October 14, 2020, most
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establishments have been able to operate up to at least 75 percent of total occupancy,

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except in some areas with high hospitalizations as defined in that order, where most
establishments have been able to operate up to at least 50 percent of total occupancy; and
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WHEREAS, I also issued Executive Order GA-29, regarding the use of face coverings to
control the spread of COVID-19, and a series of executive orders, most recently GA-31,
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limiting certain medical surgeries and procedures; and

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WHEREAS, COVID-19 hospitalizations and the rate of new COVID-19 cases have
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steadily declined due to the millions of Texans who have voluntarily been vaccinated,
many more who are otherwise immune, improved medical treatments for COVID-19
patients, abundant supplies of testing and personal protective equipment, and Texans '
adherence to safe practices like social distancing, hand sanitizing, and use of face
coverings; and
WHEREAS, in the Texas Disaster Act of 1975, the legislature charged the governor with
the responsibility "for meeting ... the dangers to the state and people presented by
FILED IN THE OFF!CE OF THE

SECRETARY OF STATE
\ ! \5(vl-- O'CLOCK
MAR O2 2021
March 2, 202 l Page 2
disasters" under Section 418.0 l l of the Texas Government Code, and expressly granted
the governor broad authority to fulfill that responsibility; and
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WHEREAS, under Section 418.012, the "governor may issue executive orders ...
hav[ing] the force and effect of law;"
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NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and
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authority vested in me by the Constitution and laws of the State of Texas, and in
accordance with guidance from medical advisors, do hereby order the following on a
statewide basis effective at 12:0 l a.m. on March 10, 2021:
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l. In all counties not in an area with high hospitalizations as defined below:
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a. there are no COVID-19-related operating limits for any business or other
establishment; and
b. individuals are strongly encouraged to wear face coverings over the nose and
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mouth wherever it is not feasible to maintain six feet of social distancing from
another person not in the same household, but no person may be required by
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any jurisdiction to wear or to mandate the wearing of a face covering.
"Area with high hospitalizations" means any Trauma Service Area that has had
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seven consecutive days in which the number of COVID-19 hospitalized patients

as a percentage of total hospital capacity exceeds 15 percent, until such time as
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the Trauma Service Area has seven consecutive days in which the number of
COVID-19 hospitalized patients as a percentage of total hospital capacity is 15
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percent or less. A current list of areas with high hospitalizations will be

maintained at www .dshs.texas.gov/ga3031.
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2. In any county located in an area with high hospitalizations as defined above:

a. there are no state-imposed COVID-19-related operating limits for any
business or other establishment;
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b. there is no state-imposed requirement to wear a face covering; and

c. the county judge may use COVID-19-related mitigation strategies; provided,
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however. that:
i. business and other establishments may not be required to operate at less
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than 50 percent of total occupancy, with no operating limits allowed to be

imposed for religious services (including those conducted in churches,
congregations, and houses of worship), public and private schools and
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institutions of higher education, and child-care services;

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11. no jurisdiction may impose confinement in jail as a penalty for violating

any order issued in response to COVID-19; and
iii. no jurisdiction may impose a penalty of any kind for failure to wear a face
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covering or failure to mandate that customers or employees wear face

coverings, except that a legally authorized official may act to enforce
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trespassing laws and remove violators at the request of a business

establishment or other property owner.
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3. In providing or obtaining services, every person (including individuals, businesses,

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and other legal entities) is strongly encouraged to use good-faith efforts and
available resources to follow the Texas Department of State Health Services
(DSHS) health recommendations, found at www.dshs.texas.gov/coronavirus.
4. Nothing in this executive order precludes businesses or other establishments from
requiring employees or customers to follow additional hygiene measures, including
the wearing of a face covering.
5. Nursing homes, state supported living centers, assisted living facilities, and long-

SEC~I\.RY OF STATE
\! \Sf'IV\ O'CLOCK
MARO 2 2021
March 2, 2021 Page 3
term care facilities should follow guidance from the Texas Health and Human
Services Commission (HHSC) regarding visitations, and should follow infection
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control policies and practices set forth by HHSC, including minimizing the
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movement of staff between facilities whenever possible.
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6. Public schools may operate as provided by, and under the minimum standard health
protocols found in, guidance issued by the Texas Education Agency. Private
schools and institutions of higher education are encouraged to establish similar
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standards.
7. County and municipal jails should follow guidance from the Texas Commission on
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Jail Standards regarding visitations.
8. Executive Orders GA-17, GA-25, GA-29, and GA-31 are rescinded in their entirety.
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9. This executive order shall supersede any conflicting order issued by local officials
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restricts services allowed by this executive order or allows gatherings restricted by
this executive order. Pursuant to Section 418.016(a) of the Texas Government
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Code, I hereby suspend Sections 418. l Ol 5(b) and 418.108 of the Texas Government
Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other
relevant statutes, to the extent necessary to ensure that local officials do not impose
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restrictions in response to the COVID-19 disaster that are inconsistent with this
executive order, provided that local officials may enforce this executive order as
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well as local restrictions that are consistent with this executive order.
IO. All existing state executive orders relating to COVID-19 are amended to eliminate
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confinement in jail as an available penalty for violating the executive orders. To the
extent any order issued by local officials in response to the COVID-19 disaster
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would allow confinement in jail as an available penalty for violating a COVID-19-

related order, that order allowing confinement in jail is superseded, and I hereby
suspend all relevant laws to the extent necessary to ensure that local officials do not
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confine people in jail for violating any executive order or local order issued in
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response to the COVID- 19 disaster.
This executive order supersedes Executive Orders GA- 17, GA-25, GA-29, GA-31, and
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GA-32, but does not supersede Executive Orders GA-10 or GA- 13. This executive order
shall remain in effect and in full force unless it is modified, amended, rescinded, or
superseded by the governor. This executive order may also be amended by proclamation
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of the governor.
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Given under my hand this the 2nd

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day of March, 2021.

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GREG ABBOTT
Governor

SECREJM . y OFO'CLOCK
1: )!2_Ef\o'\ STATE
MAR O2 2021
March 2, 2021 Page4
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UTHR. HUGHS
Secretary of State
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SECRETARY OF STATE
1: ts e
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MARO 2 2021
Filed 2-16-2021 at 3:17 pm
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STAY HOME, MASK, AND OTHERWISE BE SAFE
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ORDER NO. 20210216-026
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BY
THE MAYOR OF THE CITY OF AUSTIN
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WHEREAS, on March 6, 2020, I, Mayor Steve Adler, issued a Declaration of Local
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Disaster pursuant to Texas Government Code Chapter 418, ratified by City Council Resolution
No. 20200312-074, to allow the City of Austin to take measures in response to the COVID-19
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pandemic and protect the health and safety of Austin residents; and
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WHEREAS, on March 13, 2020, Governor Greg Abbott proclaimed a state-wide state of
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disaster due to the COVID-19 pandemic and has since issued numerous Executive Orders related
to the pandemic, including Executive Orders GA-29 on July 2, 2020, GA-31 on September 17,
2020, and GA-32 on October 7, 2020; and
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WHEREAS, infected persons can transmit the COVID-19 virus to others before showing
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any symptoms, and widespread and consistent use of face coverings over the nose and mouth when
in public is a critical and necessary measure to help slow the spread of the virus while allowing
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local businesses to remain open and help the Austin economy recover; and
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WHEREAS, Governor Abbott has clarified that his plan to reopen the Texas economy
includes maintaining the authority of local governments to require businesses to adopt and enforce
health policies that include face covering requirements; and
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WHEREAS, by proclamation Governor Abbott amended GA-28 to prohibit outdoor

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gatherings of more than 10 persons, subject to certain exceptions; and

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WHEREAS, Governor Abbott issued Executive Order GA-29 requiring all persons in
Texas age 10 and over, subject to certain exceptions, to wear a face covering while inside a
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commercial entity or other building or space open to the public, or when outside and unable to
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properly social distance; and

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WHEREAS, Governor Abbott issued Executive Order GA-30 allowing areas of the State
that are not experiencing high rates of hospitalizations to increase occupancy limits with an
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understanding that existing health protocols must continue to be enforced including the wearing
of face coverings and limiting groups to no more than 10 persons, subject to certain exceptions;
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and
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WHEREAS, Governor Abbott issued Executive Order GA-32 allowing areas of the State
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that are not experiencing high rates of hospitalizations to further increase occupancy limits, as well
as providing county judges with the option of allowing bars to reopen with an understanding that
Page 1 of 9
certain health protocols must continue to be enforced, including the wearing of face coverings and
limiting groups to no more than 10 persons, subject to certain exceptions; and
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WHEREAS, in October 2020, the number of new confirmed COVID-19 cases began to
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surge across large portions of the State;
WHEREAS, on November 10, 2020, Interim Travis County Judge Sam Biscoe issued a
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statement electing not to authorize the reopening of bars based on the increase in the number of
COVID-19 cases in the community; and
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WHEREAS, on December 15, 2020, the local Health Authority adopted, in accordance
with Ordinance No. 20201203-043, new emergency rules that address quarantine requirements
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and operational requirements for sites that offer dine-in food and beverage service that the local
Health Authority finds are necessary to protect the public health; and
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WHEREAS, on December 23, 2020, the City entered the Stage 5 Risk Level based on
the recommendations of the Local Health Authority due to the continued increase in the 7-day
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moving average of new hospitalizations; and
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WHEREAS, current protections must remain in place to flatten the curve in new hospital
admissions and to ensure that ICUs do not reach capacity; and
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WHEREAS, the local Health Authority continues to encourage people to stay home except
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when necessary, and to wear face coverings to provide for the safety of the public while businesses
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are reopening and when individuals are outside their household; and
WHEREAS, COVID-19 continues to menace the health of Austin residents and the Austin
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economy, and the local Health Authority has advised on the need for continued vigilance by
individuals and Austin businesses in complying with mandatory health measures.
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NOW THEREFORE, I, MAYOR OF THE CITY OF AUSTIN, PURSUANT TO

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THE AUTHORITY VESTED BY TEXAS GOVERNMENT CODE CHAPTER 418,

HEREBY ORDER, EFFECTIVE AS OF 12:01 A.M. ON FEBRUARY 17, 2021, AND
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CONTINUING THROUGH APRIL 21, 2021, THAT IN THE CITY OF AUSTIN:

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SECTION 1. All individuals and business establishments are ORDERED to practice the
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social distancing, hygiene, and face covering behaviors set forth in Sections 2 through 5 and
Exhibits A and C, unless excepted by this Order or otherwise provided by the Governor’s
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Executive Orders GA-29, GA-31, GA-32 and any other executive order in effect (cumulatively
referenced as the “Governor’s Order”). Further, to the extent this Order does not mandate or
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directly address a course of action, all individuals and business establishments shall at a minimum
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comply with any emergency rules adopted by the local Health Authority and the health protocols
otherwise recommended in the Governor’s Open Texas Checklists, found at:
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https://gov.texas.gov/organization/opentexas.
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Social gatherings of any size shall be avoided or minimized. High risk individuals (those
over 65, who are immunocompromised, or who have underlying health conditions putting them at
Page 2 of 9
Mayor’s Order No. 20210216-026
increased risk of harm from COVID-19) shall particularly avoid groups of more than two beyond
the members of their single household or residence.
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Further, pursuant to the Governor’s Order and the advice of the local Health
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Authority, gatherings or presence at any outdoor area, event, or establishment of more than
10 persons are PROHIBITED except as provided in this Section.
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While it is recommended that everyone should avoid taking advantage of the following
exceptions if reasonably possible, pursuant to the Governor’s Order, there is no occupancy limit
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for the following:
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a. any services listed by the U.S. Department of Homeland Security’s Cybersecurity and
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Infrastructure Security Agency (CISA) in its Guidance on the Essential Critical
Infrastructure Workforce, Version 4.0, or any subsequent version;
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b. religious services conducted in churches, congregations, and houses of worship;
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c. local government operations;
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d. child-care services;
e. youth camps, including but not limited to those defined as such under Chapter 141 of
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the Texas Health and Safety Code, and including all summer camps and other daytime
and overnight camps for youths;
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f. recreational sports programs for youth and adults;
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g. any public or private schools, and any public or private school of higher education, not
already covered above;
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h. drive-in concerts, drive-in movies, or similar events, under guidelines that facilitate
appropriate social distancing, that generally require spectators to remain in their
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vehicles, and that minimize in-person contact between people who are not in the same
household or vehicle; and
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i. the following establishments that operate with at least six feet of social distancing
between work stations: cosmetology salons, hair salons, barber shops, nail
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salons/shops, and other establishments where licensed cosmetologists or barbers

practice their trade; massage establishments and other facilities where licensed massage
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therapists or other persons licensed or otherwise authorized to practice under Chapter

455 of Texas Occupations Code practice their trade; and other personal-care and beauty
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services such as tanning salons, tattoo studios, piercing studios, hair removal services,
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and hair loss treatment and growth services.

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While it is recommended that everyone should avoid taking advantage of the following
exceptions if reasonably possible, pursuant to the Governor’s Order, the outdoor gathering ban in
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this Section does not apply to the following outdoor areas, events, or establishments, except that
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the following outdoor areas or outdoor venues shall operate at no more than 75 or 50 percent, as
applicable based on the rate of hospitalization provided for in the Governor’s Order, of the normal
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operating limits as determined by the owner:

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a. amusement parks;
b. water parks;
c. swimming pools;
Page 3 of 9
d. museum and libraries; and
e. zoos, aquariums, natural caverns, and similar facilities.
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Purusant to the Governor’s Order, all indoor and outdoor professional, collegiate and
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similar sporting events, including rodeos and equestrian events, are limited to 50 percent of the
normal operating limits as determined by the owner.
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All participants in lawful gatherings or groups expressly permitted by this Order or the
Governor’s Order are nonetheless subject to the required social distancing, hygiene, and face
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covering behaviors set forth in Sections 2 through 5 and Exhibits A and C, including or as may
be limited by any other requirements imposed by the Governor’s Order. Nothing in this Order
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prohibits the gathering of members of a household within the household’s residence.
Nursing homes, retirement, and long-term care facilities may permit non-critical assistance
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visitors or providers to access their facilities, in accordance with the guidance and emergency rules
issued by the Texas Health and Human Services Commission. All non-residents in nursing homes,
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retirement, and long-term care facilities must wear a face covering as set forth in Section 3 (Face
Covering Behaviors).
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Each school that offers instruction to students in one or more grades, pre-kindergarten
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through grade 12 must follow the phased- in approach in Exhibit E unless it will result in a loss
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of funding from the Texas Education Agency (TEA).
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Wearing a face covering is not a substitute for maintaining 6-feet social distancing
and hand washing, as these remain important steps to slowing the spread of the virus.
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If someone in a household is COVID-19 positive or is awaiting the results of a COVID-19

test, the entire household is ORDERED to isolate and not travel outside of the City of Austin
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except to seek medical attention until cleared by Austin Public Health. When seeking medical care
or emergency medical care, a person must notify the healthcare provider in advance (or the 9-1-1
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call taker and first responders in the event of an emergency) if they have tested positive for
COVID-19 or show symptoms consistent with COVID-19 such as cough, fever, sore throat, runny
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nose or congestion, chills, muscle or body aches, loss of smell, loss of taste, shortness of breath,
difficulty breathing, vomiting, nausea, and/or diarrhea, or if they have been exposed to another
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individual who tested positive or displayed symptoms consistent with COVID-19.

SECTION 2. Social Distancing and Hygiene. All persons MUST practice social
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distancing except when in the presence of only members of one’s own household or residence,
when passing another individual is incidental and momentary, when dining in groups of 10 or less,
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or when otherwise exempted by this Order. Parents and guardians of children under 10 shall be
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responsible for maintaining social distance between child members of their household and others’
households. For purposes of this Order, and as outlined in the guidelines from the CDC and
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Austin/Travis County Health Authority, social distancing and hygiene means maintaining at least
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a six-foot distance from other individuals, washing hands with soap and water for at least 20
seconds as frequently as possible or using hand sanitizer with at least 60% alcohol if soap and
Page 4 of 9
water are unavailable, covering coughs or sneezes (into the sleeve or elbow, not into hands),
regularly cleaning high-touch surfaces, and not shaking hands.
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SECTION 3. Individual Face Covering Behaviors: Because an infected person can
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transmit the COVID-19 virus to others before showing any symptoms and for other reasons, the
covering of a person’s nose and mouth is necessary to help slow the spread of the virus. All
persons, including those persons attending a protest or demonstration, MUST wear some form of
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covering that fits snugly over their nose and mouth, such as a commercially made or homemade
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fabric mask, scarf, bandana, when outside of his or her residence, however, this face-covering
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requirement does not apply to the following:
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a. any person younger than 10 years of age (though it is still recommended for children
two years of age and older);
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b. any person with a medical condition or disability that prevents wearing a face covering;
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c. any person while the person is eating or drinking, or is seated at a restaurant to eat or
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drink;
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d. any person while the person is (1) exercising outdoors or engaging in physical activity
outdoors and (2) maintaining a safe distance from others not in the same household;
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e. any person while the person is driving alone or with passengers of the same household
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as the driver;
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f. any person obtaining a service that requires temporary removal of the face covering for
security surveillance, screening, or the need for specific access to the face, such as while
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visiting a bank or while obtaining a personal care service involving the face, but only to
the extent necessary for the temporary removal;
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g. any person while the person is in a swimming pool, lake, or similar body of water;
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h. any person who is voting, assisting a voter, serving as a poll watcher, or actively
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administering an election, but wearing a face covering is strongly encouraged;

i. any person who is actively providing or obtaining access to religious worship, but
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wearing a face covering is strongly encouraged;

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j. any person while the person is giving a speech for a broadcast or to an audience;
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k. any person while temporary removal of the face covering is necessary for
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communication by or with a person who is hearing impaired; or

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l. any person who is alone, or in the presence of only members of the same household or
residence, in a separate room or single space not accessible to the public, and not in an
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indoor common area.

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Parents and guardians of children under the age of 10 are responsible for appropriately
masking their children when outside their residence.
Page 5 of 9
All non-residents in nursing homes, retirement and long-term care facilities shall wear a
face covering, except as otherwise required by an order issued by the Health Authority. In addition,
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residents in facilities with confirmed COVID-19 cases shall follow requirements of Exhibit A,
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except when doing so poses a greater mental or physical health, safety or security risk.
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See Exhibit C for further direction and guidance on Face Covering Behaviors.
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SECTION 4. Face Coverings at City Facilities. Individuals over the age of six must wear
face coverings at all times (subject only to the exceptions set forth in Section 3.b-3.l) while present
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on or in City property or facilities, unless expressly exempted by a City policy applicable to the
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premises or facility.
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SECTION 5. Mandatory Face Covering Policies for Business Establishments (both
Publicly Accessible and Accessible Only to Employees). All businesses (including not-for-profit
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entities) and commercial entities (including without limitation condominium and multi-family
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residential, office common areas, and individual office spaces), and the operators of any venues or
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events open to the public, are ORDERED to implement and maintain in force and effect during
the term of this Order a health and safety policy or plan related to preventing transmission of the
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COVID-19 virus. tri
The health and safety policy or plan must, at a minimum, require that all employees,
customers, and visitors wear face coverings over their nose and mouth (subject only to the
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exceptions set forth in Section 3) while in any part of the business’s or venue’s premises or facility,
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and must require of and enforce this health and safety policy or plan as to all who enter upon or
into the premises or facility.
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The health and safety policy or plan required by this Section may also include the
implementation of other mitigating measures designed to control and reduce the transmission of
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COVID-19 such as temperature checks or health screenings as reasonable and appropriate. This
Order does not preclude a business or venue from adopting more stringent face covering or hygiene
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requirements than those required herein. All business establishments and venues subject to this
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Order must post conspicuous signage displaying the requirements of the health and safety policy
or plan required by this Order at or near each entrance (on each entry door if feasible) to the
premises in a manner sufficient to provide clear notice to employees, customers, and visitors at
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least of the face covering requirement. A sample health and safety policy and signage that is
minimally compliant with this Section is attached as Exhibit B and can be obtained at
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http://austintexas.gov/page/printed-materials-and-required-signage.
Business employers shall require all employees to comply with the Face Covering
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Behaviors in this Section while present on the business premises or conducting the employer’s
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business outside the employee’s residence. See Exhibit C for further direction and guidance on
Face Covering Behaviors.
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SECTION 6. Reopened Businesses. All business establishments allowed to remain

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reopened by the Governor’s Orders are strongly encouraged to operate at a capacity less than
otherwise permitted to make it more feasible for customers and staff to maintain proper social
Page 6 of 9
distancing within their establishment, and to provide services remotely or in a manner maximizing
social distancing (e.g., curb-side pickup, delivery, etc.) as much as possible.
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SECTION 7. City Deadlines. All deadlines and expiration dates for site plans,
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subdivisions, zoning, building permits, and similar development applications or permits are
extended until December 31, 2021, or the date they would have normally expired, whichever is
later. The deadlines extended by this Section remain in effect beyond the expiration of this Order
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unless specifically modified by separate order or ordinance. All other deadlines or expiration dates
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imposed by City code, ordinance, rule, or regulation remain in effect as provided by the code
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provision, rule, or regulation, unless otherwise extended by separate order or ordinance.
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A manufacturer that retools its business for the primary purpose of manufacturing and
producing ventilators, masks, personal protective equipment, or any supplies necessary for
Healthcare Operations and Critical Infrastructure may apply for a temporary permit or temporary
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change of use permit for such manufacturing. The Building Official may suspend any City
ordinance, order or regulation which would prevent a manufacturer from retooling its business to
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produce such equipment in the official’s sole discretion, and the official’s decision on approving
the permit is final.
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SECTION 8. Hospital, Pharmacy, and Clinic Data. Hospitals, pharmacies, and clinics,
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or any other entity or person who performs or obtains testing for COVID-19, shall provide the
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local Health Authority test results twice weekly on Mondays and Thursdays. The test results must
include: PCR, antigen, antibody testing, and other information when specifically requested by the
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Health Authority; and must be provided in electronic form and in the manner directed by Austin
Public Health. Any data that is required to be provided to the State under state law, shall be
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simultaneously provided to the City of Austin Health Authority if the individual is tested within
the City of Austin or Travis County.
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SECTION 9. Retail, Restaurant Dine-In and Reopened Service Logs and Privacy
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Protection. To assist in both the statewide and local contact tracing programs, all retail,
restaurants and bars allowing indoor service and all reopened services are encouraged to maintain
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an activity log of, as reasonably possible, the contact information for all inside or sit-down
customers and employees including the dates and times they were present in the business and the
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location they occupied for more than a passing moment. Voluntary maintaining of such a log may
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obviate the need for the Austin Public Health normal protocol otherwise of to publicly release,
without limitation and in its discretion, the location where people with confirmed infections have
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been, with relevant dates and timeframes, so as to otherwise trace contacts.

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To protect the privacy of customers, the logs shall be maintained only for a one-month
period and shall be the property of the business, not the City. The log may be used only by public
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health authorities if needed for contact tracing. The logs shall not be part of a database and shall
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not be used for law enforcement purposes.

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SECTION 10. Criminal Offense. A violation of this Order is a violation of Austin City
Code Section 2-6-24 and a criminal offense. A violation of this Order may be punishable through
criminal enforcement, except as limited by state order. Peace officers, City of Austin Code
Page 7 of 9
Department inspectors, and the Office of the Austin Fire Marshal are hereby authorized to enforce
this Order and the Governor’s Order. Except as provided below, a criminal violation of this Order
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is a misdemeanor punishable by a fine not to exceed $1,000, but not by confinement. With respect
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to Section 5, each day or a portion of each day during which the violation occurs or continues
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constitutes a separate offense. An individual, rather than a business, who violates any provision of
this Order concerning the mandatory wearing of face coverings shall first be given a verbal or
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written warning. Each subsequent violation is punishable by a fine not to exceed $250 per
violation, but not by confinement.
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A criminal violation of this Order may be enforced by the filing of a probable cause
affidavit alleging the violation with the appropriate court or by issuing a citation to the person
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violating that contains written notice of the time and place the person must appear before a
magistrate of this state, the name and address of the person charged, and the offense charged.
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Enforcement of this Order is substantially reliant on self-regulation and a community
commitment to public health and safety under the threat of COVID-19. If there is not widespread
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compliance with this Order, the City will increase enforcement efforts, as allowed by law.
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SECTION 11. Savings Clause. If any provision of this Order or its application to any
person or circumstance is held to be invalid, then the remainder of the Order, including the
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application of such part or provision to other persons or circumstances, shall not be affected and
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shall continue in full force and effect. To this end, the provisions of this Order are severable.
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SECTION 12. Posting. The Austin Public Health Department and the City Clerk will
post this Order on their websites. In addition, the owner, manager, or operator of any facility that
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is likely to be impacted by this Order is strongly encouraged to post a copy of this Order onsite
and to provide a copy to any member of the public asking for a copy.
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SECTION 13. Exhibits. This Order incorporates by reference the following:

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Exhibit A: Requirements and Recommendations by the Austin / Travis

County Health Authority
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Exhibit B: Sample Business Health and Safety Policy and Signage

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Exhibit C: Face Covering Behaviors

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Exhibit D: Construction Requirements

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Exhibit E: Phased-in Approach to On-Campus Instruction Based on Risk-

Based Stages
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SECTION 14. This order supersedes Order No. 20201215-021.

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Exhibit A
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Austin/Travis County Health Authority
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Requirements and Recommendations
for Individuals, Families and Businesses
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I. Individuals All individuals shall comply with the Governor’s Minimum Standard Health
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Protocols, checklist for all individuals, found at:
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https://gov.texas.gov/uploads/files/organization/opentexas/OpenTexas-Checklist-
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Individuals.pdf
A. COVID-19 Positive Individuals, Suspected Positives, those currently being tested,
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and Untested Individuals with cough, fever, sore throat, runny nose or congestion,
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chills, muscle or body aches, loss of smell, loss of taste, shortness of breath, difficulty
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breathing, fatigue, vomiting, nausea, and/or diarrhea shall:
i. Not leave their residence without a mask or fabric face covering to prevent the
spread to others.
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ii. Be permitted to do the following while wearing a mask or fabric face covering:
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a. Seek medical care or emergency medical care related or unrelated to

COVID-19. In doing so, they shall notify first responders at the time of the call
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to 9-1-1 or prior to visiting other healthcare providers that they have tested
positive for COVID-19, or been exposed to individuals who have tested
positive, are suspected positive for COVID-19 or untested individuals with
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cough and/or fever.

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b. Walk or exercise alone in the immediate vicinity of their residence.

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c. Seek testing for COVID-19.

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iii. Not leave the City of Austin without prior notification to Austin Public Health at
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APH.Preparedness@austintexas.gov.
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iv. Practice Social Distancing and Hygiene within the residence, observe hygiene
practices for prevention of household spread in accordance with the Centers for Disease
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Control (CDC) guidelines.

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v. Notify Austin Public Health if the residence does not allow for physical separation
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from other household contacts (separate room and bathroom).

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vi. Notify Austin Public Health if a member of their household is over the age of 65
and/or if they have underlying medical conditions identified by the CDC of increasing
the risk of complications from COVID-19.
Page 1 of 7
vii. Remain in home quarantine for at least 10 days following the first appearance of
symptoms, at least 24 hours with no fever (without use of fever-reducing medication),
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and symptoms have improved.
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B. Household Members of COVID-19 Positive Individuals, Suspected Positives, those
currently being tested, or Untested Individuals with cough, fever, sore throat, runny
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nose or congestion, chills, muscle or body aches, loss of smell, loss of taste, shortness
of breath, difficulty breathing, vomiting, nausea, and/or diarrhea shall:
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i. Not leave the residence without a mask or fabric face covering to prevent the spread
to others.
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to 9-1-1 or prior to visiting other healthcare providers that they have been
exposed to individuals who have tested positive, are suspected positive for
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COVID-19 or untested individuals with cough and/or fever.
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iii. Not leave the City of Austin without prior notification to Austin Public Health at
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APH.Preparedness@austintexas.gov.
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practices for prevention of household spread in accordance with CDC guidelines.
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vi. Notify Austin Public Health or your Primary Care Provider if they develop
symptoms consistent with COVID-19 as defined by the CDC.
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vii. Quarantine as described in Section C of this Exhibit.

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C. Quarantine Requirements
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i. High Risk Individuals means an individual described in Section E.i. of this

Exhibit.
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ii. High Risk Settings means long-term care facilities, residential facilities, jails, and
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detention centers.
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Page 2 of 7
iii. An individual shall quarantine for at least 14 days if the individual was exposed to
someone with COVID-19 and
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a. was not wearing a mask; or
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b. lives with high risk individuals or works in a high risk setting.
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iv. An individual who does not live with high risk individuals or work in a high risk
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setting and is not a healthcare worker or a first responder shall either:
a. quarantine for at least 10 days and monitor symptoms if the individual was
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exposed to someone with COVID-19 and was wearing a mask; or
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b. quarantine for at least 7 days and monitor symptoms if the individual:
i. was exposed to someone with COVID-19;
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ii. was wearing a mask; and
iii. receives a negative COVID-19 test on or after the 5th day following
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exposure.
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v. An individual who does not live with high risk individuals or work in a high risk
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setting shall quarantine for at least 7 days and monitor symptoms if the individual:
a. is a health care worker or first responder;
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b. was exposed to someone with COVID-19;
c. was wearing a mask; and
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d. receives a negative COVID-19 test on or after the 7th day following
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exposure.
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vi. An individual who is an employee of a government service or CISA industry shall

quarantine as set forth in:
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a. this Exhibit; or
b. an alternative plan approved by the Health Authority.
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D. Individuals should refrain from reporting to work when falling within any of the
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following criteria:
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i. Has signs or symptoms of a COVID-19 infection, such as cough, fever, sore throat,
runny nose or congestion, chills, muscle or body aches, loss of smell, loss of taste,
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shortness of breath, difficulty breathing, vomiting, nausea, and/or diarrhea;

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ii. Has a fever greater than 99.6°F;

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iii. In the previous 14 days has had contact with someone with a confirmed diagnosis
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of COVID-19 and did not have the appropriate personal protective equipment
designated by the Centers for Disease Control and Prevention (CDC); is under
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investigation for COVID-19; or is ill with a respiratory illness; or

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iv. Has traveled to an area the World Health Organization or CDC considers a
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“Hotspot.”
Page 3 of 7
If someone in a household has tested positive for COVID-19, or is awaiting results of
a COVID-19 test, and a member of the household is an employee of an government service
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or CISA industry, an exception may be made by Austin Public Health allowing that
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member of the household to voluntarily return to work after finding the risk of reduced
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essential services is greater than the risk of infection.
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E. High Risk Individuals
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i. A high risk individual is an individual who:
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a. is 65 years old and older; or
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b. has certain health conditions such as cancer, heart conditions (such as heart
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failure, coronary artery disease, or cardiomyopathies), obesity (body mass
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index of 30 kg/m2), pregnancy, sickle cell disease, lung disease, diabetes,
chronic kidney disease, Human Immunodeficiency Virus (HIV), Acquired
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Immune Deficiency Syndrome (AIDS), and weakened immune systems; or
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c. smokes. tri
ii. High risk individuals shall:
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a. Avoid group gatherings unless it is essential;

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b. Avoid people who are sick,

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c. Wear a mask or fabric face covering at all times when in public, and
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d. Comply with the Governor’s Special Guidance for Texans Over 65, found
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at: https://gov.texas.gov/uploads/files/organization/opentexas/OpenTexas-
Special-Guidance-For-Texans-Over-65.pdf
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F. Individual Gatherings
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i. All social indoor or outdoor gatherings outside of a single household or dwelling

should be avoided or minimized. No more than 10 individuals may stand or gather
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together, except as expressly permitted by this Order or the Governor’s Order.

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ii. Do not attend any events or gatherings if sick.

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iii. For household and other gatherings permitted by the Order:

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a. Have hand washing capabilities, hand sanitizers, and tissues available;

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b. Frequently clean high-touch surface areas like countertops, doorknobs, and

handrails; and
Page 4 of 7
c. Find ways to create physical space (minimum of six (6) feet distance
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between people) to minimize close contact as much as possible.
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d. Find ways to ensure six feet of social distancing from another group or
gathering.
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G. Schools and Daycare. To the extent that schools and daycare are open under
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current orders:
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i. Do not have your child attend school or daycare if sick.
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ii. If you have a child with chronic health conditions, consult the child’s doctor about
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school and daycare attendance.
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iii. Frequently re-educate students and staff regarding Social Distancing and Hygiene
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and Face Covering behaviors and ensure that appropriate signs are posted.
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iv. Explore remote teaching and online options to continue learning.
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v. Comply with “City of Austin Guidance for Open Child Care Programs.”
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II. Businesses shall operate only to the extent permitted by order of the Texas Governor.
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III. Businesses and services permitted to operate by the Governor’s Order shall comply
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with the following:
A. To prevent stigma and discrimination in the workplace, employers shall only adhere to
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the recommendations described in this Order to determine risk of COVID-19.

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Employers should contact their own human resources advisors and shall not make
determinations of risk based on race, color, religion, sex, sexual orientation, gender
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identity, age, familial status, disability, marital status, student status, creed, or national
origin. To the extent possible, employers should maintain confidentiality of people with
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suspected or confirmed COVID-19.

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B. Employers shall only allow persons in and around their premises that are: (1) essential
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employees not subject to any of the criteria in Section I of this Exhibit, (2) delivery
personnel, suppliers, customers or members of the public practicing Social Distancing
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and Hygiene and Face Covering behaviors as set forth in Sections 2, 3, and 5
(Mandatory Health Plans) of this Order, and (3) persons with legal authority to enter
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such as law enforcement.

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C. Prior to allowing employees into its facility, employers shall ask all employees if they
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meet any of the criteria in Section I of this Exhibit, and shall direct employees to return
home or other appropriate shelter and services if the employee is exhibiting symptoms
and presenting a threat of infecting others.
Page 5 of 7
D. Employers shall immediately separate an employee who becomes sick or demonstrates
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a temperature greater than 99.6°F while at work from other employees and send that
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employee home or to other appropriate shelter and services.
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E. Human resources departments shall create alternate work plans to help employees
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remain productive while keeping the workforce safe and healthy.
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F. Employers are strongly encouraged to require employees (either those exhibiting
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symptoms or all employees) to undergo a COVID-19 symptom check and non-invasive
temperature readings prior to entering a worksite; however, employers are not
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mandated to take the temperature of employees prior to entrance to its worksite.
If the employer does take employees’ temperatures and/or has first-hand knowledge
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that the employee’s temperature exceeds 99.6°F, then the employer shall prohibit the
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employee from entering the facility or property.
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G. Employers shall create and implement an infectious disease response plan.
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H. Employers shall comply with the Governor’s Minimum Standard Health Protocols,
checklist for employers, found at:
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Employers.pdf
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I. Where appropriate employers shall:

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i. Suspend nonessential employee travel;
ii. Prohibit employees working within six (6) feet of one another unless necessary to
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provide continuity of essential services;

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iii. Minimize or cancel in-person meetings and conferences including canceling,

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postponing or moving to on-line formats for all indoor or outdoor gatherings of any
number of people.
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iv. Require employees to stay home when they are sick and maximize flexibility in
sick leave benefits.
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v. Permit sick employees to stay home without providing a doctor’s note.

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vi. Utilize telecommuting options to minimize person-to-person interaction.

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vii. Alter, stagger or otherwise schedule or separate employees or teams of employees

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so not all employees are present at one time but are present at alternative days and
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times, unless necessary to provide continuity of essential services.
Page 6 of 7
viii. Limit or restrict the number of customers or visitors permitted in a workplace at
one time.
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ix. Ensure that individuals (employees and clients) queuing inside and outside of the
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business or workplace can maintain six (6) feet of separation.
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x. Designate special separate shopping times for high-risk clients as designated by
the CDC.
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xi. Increase the use and capability of on-line, drive-thru, curbside, or delivery
services.
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xii. Provide hand washing capabilities, hand sanitizers, and tissues.
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xiii. Clean high-touch surface areas like countertops, doorknobs, and handrails at least
twice per day with CDC recommended surface cleaners for COVID-19.
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xiv. Require and allow employees to practice the Face Covering Behaviors as set forth
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in Sections 3 and 5 and Exhibit C of this Order.
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Page 7 of 7
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Exhibit B
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SAMPLE HEALTH AND SAFETY POLICY & SIGNAGE
[ATTACHED]
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COVID-19 HEALTH & SAFETY POLICY
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POLICY. The virus that causes COVID-19 can be spread to others by infected
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persons who have few or no symptoms. Because of the hidden nature of this threat,
it is the policy of this business, as required by City and County Orders, to require the
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following:
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1. FACE COVERING REQUIRED IN ORDER TO ENTER PREMISES.
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All persons over the age of ten (10), including employees, customers, visitors,
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invitees, and contractors (“Patrons”), who enter this business MUST wear a
face covering over their nose and mouth, such as a commercially made or
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homemade mask, scarf, bandana, or handkerchief. This requirement does not
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apply if covering the nose or mouth poses a greater mental or physical health,
safety, or security risk to the Patron, such as anyone having trouble breathing
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due to a medical condition, or is unconscious, incapacitated, or otherwise
unable to remove the cover without assistance.
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2. SOCIAL DISTANCING PROTOCOLS. Even with the use of appropriate
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face coverings, individuals should maintain six (6) feet of social distancing
from others outside their own household whenever possible.
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a. Employees should not work within six (6) feet of one another, except
to the extent necessary to provide services.
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b. Patrons should maintain six (6) feet of separation from others outside
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their own household to the extent feasible when inside these premises
and must do so while queuing or waiting.
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3. VIOLATIONS. Patrons who do not wear a face covering will be asked to

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leave the premises and may not be provided goods or services until the face
covering requirements of this policy and City and County Orders are
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followed.
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4. NOTICE AND SIGNAGE. Notice of this Health and Safety Policy will be
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posted in a conspicuous location on these premises.

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Exhibit C
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Face Covering Behaviors
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A significant percentage of individuals with the COVID-19 virus lack symptoms. Because
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an infected person can transmit the virus to others before showing any symptoms, the covering of
a person’s nose and mouth when outside their home or residence is necessary to help prevent the
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spread of COVID-19. This is consistent with the findings of the CDC and Austin-Travis
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Unless you already have your own personal used masks that cannot be donated, the fabric
face coverings recommended are not surgical masks or N-95 respirators, which are critical supplies
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that must continue to be reserved for healthcare workers and first responders. Staying home is the
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best way to help reduce the spread of the virus, but if an individual must leave their place of
residence, wearing a fabric face covering shall be used as outlined in this Exhibit and this Order.
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Wearing a face covering is not a substitute for maintaining 6-feet social distancing and hand
washing, as these remain important steps to slowing the spread of the virus.
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The public in general and employers and employees shall adhere to the following:
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a. All persons shall wear some form of covering over their nose and mouth, such as a
commercially made or homemade mask, scarf, or bandana, when outside of his or
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her residence.
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b. This section shall not apply to:
1. any person younger than 10 years of age (though masks are recommended for
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children two years of age and older);

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2. any person with a medical condition or disability that prevents wearing a face
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covering;
3. any person while the person is eating or drinking, or is seated at a restaurant to
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eat or drink;
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4. any person while the person is (a) exercising outdoors or engaging in physical
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activity outdoors and (b) maintaining a safe distance from others not in the same
household;
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5. any person while the person is driving alone or with passengers of the same
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household as the driver;

6. any person obtaining a service that requires temporary removal of the face
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covering for security surveillance, screening, or the need for specific access to
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the face, such as while visiting a bank or while obtaining a personal care service
involving the face, but only to the extent necessary for the temporary removal;
Page 1 of 3
7. any person while the person is in a swimming pool, lake, or similar body of
water;
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8. any person who is voting, assisting a voter, serving as a poll watcher, or actively
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9. any person who is actively providing or obtaining access to religious worship,
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but wearing a face covering is strongly encouraged;
10. any person while the person is giving a speech for a broadcast or to an audience;
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11. any person while temporary removal of the face covering is necessary for
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12. any person while alone, or in the presence of only members of the same
household or residence, in a separate room or single space not accessible to the
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public, and not in an indoor common area
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Parents and Guardians of children under 10 shall be responsible for
appropriately masking children when outside their residence.
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All non-residents in nursing homes, retirement and long-term care facilities shall
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wear a fabric face covering as provided for in this Exhibit and set forth in Section
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3 of this Order (Face Covering Behaviors), except as otherwise required by an order
issued by the Health Authority. In addition, residents in facilities with confirmed
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COVID-19 cases shall follow requirements of Exhibit A, except when doing so

poses a greater mental or physical health, safety or security risk.
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d. All COVID-19 Positive Individuals, Suspected Positives, those currently being

tested, and untested individuals with cough, fever, sore throat, runny nose or
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congestion, chills, muscle or body aches, loss of smell, loss of taste, shortness of
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breath, difficulty breathing, vomiting, nausea, and/or diarrhea and household

members of same category of individuals shall not leave their residence without a
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mask or cloth face covering to prevent the spread to others.

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e. All individuals working for a business shall wear a mask or cloth face covering
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whenever in public and whenever performing job duties in the presence of others.
f. Unless you already have your own personal used masks that cannot be donated,
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medical grade (N95) and surgical masks should be reserved and used only by
medical professionals and first responders.
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Examples of how to make cloth face coverings can be found online

including guidance from the CDC and guidance from Austin/ Travis County Health
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Authority.
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g. The fabric face covering should:
1. fit snugly but comfortably against the side of the face;

Page 2 of 3
2. be secured with ties or ear loops;
3. include multiple layers of fabric;
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4. allow for breathing without restriction; and
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5. be able to be laundered and machine dried without damage or change to
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shape.
h. Employers shall require and allow employees to practice Face Covering
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Behaviors as set forth in Section 3 and this Exhibit C.
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i. Even with the use of appropriate face coverings, individuals shall maintain six
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feet of social distancing whenever possible.
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j. Individuals should avoid touching their face and should wash their hands or use
hand sanitizer.
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k. For further information, individuals can access information at
https://traviscountytx.gov/news/2020/1945-novel-coronavirus-covid-19-
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information and www.AustinTexas.gov/COVID19.
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Page 3 of 3
Exhibit D
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CONSTRUCTION REQUIREMENTS
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1. The person in charge of the overall site (“Site Manager”) shall ensure the following is
implemented and maintained at the work site. For sites not large enough by virtue of physical size
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or number of workers, or which do not have a general contractor, the responsibilities of a Site
Manager in this document are also conferred on each subcontractor on a site.
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a. Ensure workers practice the Social Distancing and Face Covering Behaviors as set forth in
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Sections 2 and 3 and Exhibits A and C of this Order during non-construction activities and,
to the greatest extent possible, during construction activities, with careful attention paid to
“choke points” and “high-risk areas” where workers are at greater risk to closely gather,
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such as hallways, hoists and elevators, and break areas;
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(1) Follow healthy work practices in Exhibit A of this Order;
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(2) Ensure all workers wear a fabric face covering consistent with Section 3 and Exhibit C
of this Order;
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(3) For all construction sites within the City, except as noted, Site Manager shall:
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i. Institute staggered shifts for sites with more than 10 active workers and post at these
sites, in languages understood by all persons working there, a notice showing the sizes
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and types of shift crews working there, and directions on how the Site Manager is
limiting crew sizes and rotating shifts.
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ii. Every day before the commencement of work, for and understood by each
worker, conduct a jobsite pre-screening of the general health of each worker, provide a
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briefing reiterating the COVID-19 safety requirements, and check for personal
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protective equipment.
iii. Ensure that the site has at least one handwashing station with soap or hand sanitizer
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and one portable restroom stocked with hand soap and/or hand sanitizer with at least
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60% alcohol for every 15 workers, and the handwashing station and restroom(s) must
be spaced six feet apart or more from each other.
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iv. Mandate handwashing of at least twenty seconds for workers as follows:

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(a) Before workers begin work;

(b) After workers remove gloves;
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(c) Before and after the use of high-touch items such as tools, electronic devices or
multi-user devices;
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(d) Before and after any meal or restroom breaks; and

(e) After a worker’s shift or work time ends.
Page 1 of 3
v. Prohibit the use of community water coolers and provide individual water bottles or
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instruct workers to bring their own.
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vi. Ensure that shared tools are disinfected between users, and that common areas
(lunch and break areas, toolbox talk areas, large equipment, electronic devices etc.) and
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collective touch points (doorknobs, counters, keyboards, etc.) are cleaned and
disinfected at least twice a day.
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vii. Post in a conspicuous place or places on a site where notices to employees are
customarily posted, once such signage is made available by the City, a sign in English
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and Spanish providing the Social Distancing and Hygiene and Face Covering
Behaviors as set forth in Sections 2 and 3 and Exhibits A and C of this Order, the
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Requirements and Recommendations for Employees in Exhibit A of this Order, and
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information for workers to submit complaints of any violations.
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viii. Post at least one Austin Public Health “Help Prevent Disease” sign at each
entrance and on each portable restroom door (available for download and print at:
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http://www.austintexas.gov/sites/default/files/files/Health/General%20Hygiene%20F
lyer%20Final2-1-eng-051120.pdf).
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ix. Provide single use disposable paper towels and no-touch trash receptacles.
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x. Keep toilets clean, sanitary, and operational at all times and ensure proper disposal
of waste from these facilities.
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xi. Designate a COVID-19 Safety Monitor who has the authority to enforce these rules
and shall be on-site at all times. The contact information for the Safety Monitor must
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be made available to the City. The Safety Monitor may also be the Site Manager and
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shall advise the City if that is the case when providing their contact information.
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b. If a worker at a construction site is confirmed to have contracted COVID-19, the Site

Manager shall immediately send the worker home, notify Austin Public Health, and follow
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all directions from Austin Public Health concerning that worker and workers that may have
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come in contact with the infected worker.

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c. The Site Manager shall ensure that every worker who enters a jobsite has signed in and shall
keep a list of and contact information for every worker that enters the jobsite every day for
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the purpose of identifying and notifying workers if they have shared a jobsite with someone
who has been confirmed to have COVID-19.
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d. All Construction Industry employers are encouraged to observe the following employment
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practices for the health of the workers, the health of the community generally, and for the
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benefit of the overall economy of the City:
Page 2 of 3
(1) Take no adverse action against a worker who declines to work at a construction site if
the worker believes in good faith that the site presents an imminent health risk of the worker
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or others due to COVID-19.
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(2) Take no adverse action against a worker who has been quarantined, or advised to self-
quarantine, due to possible exposure to COVID-19.
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(3) Do not contest a claim for unemployment benefits filed by a worker temporarily
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furloughed as the result of the closure of a construction site due to COVID-19.
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e. Continuing review of health conditions. The City will continue to monitor closely the health
condition of the community and the statistical models for the likely spread of the COVID-19
virus in the community on an ongoing basis. If this evidence indicates that the City’s ability to
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provide adequate care for those with serious cases of COVID-19 is significantly compromised,
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additional emergency orders or guidance may be issued. All persons in the construction
industry should be aware of this risk and are strongly encouraged to take all feasible steps to
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eliminate person-to-person contact at construction sites, and to practice the City’s Social
Distancing and Hygiene and Face Covering Behaviors at all times.
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Page 3 of 3
Exhibit E
Phased-in Approach to On-Campus Instruction Based
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on Risk-Based Stages
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Each school must follow this phased-in approach unless following this approach will result in a
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loss of funding from the Texas Education Agency (TEA). The percentages described below also
apply to school gatherings and sports activities. A school can determine the stage by checking
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http://www.austintexas.gov/page/covid-19-risk-based-guidelines.
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COVID-19: Risk-Based Stages for Phased-in Learning
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CDC Level of Community On-campus
Transmission Population
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Stage No to Up to 100%
1
minimal
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on-campus learning
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transmission
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Stage Minimal to Up to 75%

moderate on-campus learning
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2 transmission
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Stage Substantial, controlled Up to 50%

transmission on-campus learning
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Stage
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Substantial, Up to 25%
uncontrolled on-campus learning
4
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transmission
Widespread uncontrolled
Stage
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transmission threatening our 100% virtual learning

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5 healthcare infrastructure
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NOTICE OF RULES
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BY: Dr. Mark Escott, Interim, Medical Director and Health Authority.
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ADOPTION DATE:
The Health Authority adopted the following rules as authorized by Ordinance No. 20201203-043. This notice is
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issued as required in Ordinance No. 20201203-043.
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EFFECTIVE DATE OF RULES
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The rules adopted by this notice are effective on December 15,2020 and expire on April 15,2021 unless the rules
are withdrawn or amended.
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SUMMARY OF RULES
The rules govern individuals and sites within the City ofAustin; and impose requirements reasonably necessary to
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protect public health related to the transmission of COVID-19. These rules replace and supersede Health Authority
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Rules adopted on November 10,2020.
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TEXT OF THE RULES
See Exhibit A attached to this Notice of Rules Adoption.
RULES ARE NECESSARY ct

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The Health Authority finds that the rules attached to this notice are reasonably necessary to protect the health of
persons within the City. Specifically, these rules are necessary to reduce the spread of COVID-19 and to protect
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public health.
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AUTHORITY FOR ADOPTION OF PROPOSED RULES

The authority and procedure to adopt these rules is established in Ordinance No. 20201203-043.
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CERTIFICATION BY CITY ATTORNEY

By signing this Notice of Rules, the City Attorney certifies the City Attorney has reviewed the rules and finds that
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adoption of these rules is a valid exercise of the Health Authority and City Manager's authority.
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REVIEWED AND APPROVED

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"/Date: /t //S'//tote DKe': December 15.2020

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Dr. Mark Escott, Interim Medical Director

and Health Authority Stncer Cronk, City Manager
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A,ute' L /kler*1* Date: 12/15/2020

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Anne L. Morgan, City Attorney

6-CC EECEIVE:D FT
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HEALTH AUTHORITY RULES
December 15, 2020
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1. Definitions.
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A. CLOSE CONTACT means sharing eating or drinking utensils with a COVID-19 positive
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individual; caring for a COVID-19 positive individual; or being:
1. exposed during an event such as a cough or sneeze to the respiratory droplets of a
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COVID-19 positive individual; or
2. within six feet of another individual for 15 or more minutes within 48 hours of
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experiencing symptoms consistent with COVID-19
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B. COHORT means a stable group of students and teachers that is smaller than a normal class
size.
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C. COVID-19 means the pandemic that is the subject of the Local Disaster Declaration, dated
March 6, 2020.
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D. COVID-19 POSITIVE means an individual who tested positive for COVID-19.
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E. EXTRACURRICULAR ACTIVITIES means an activity involving students that may have
an indirect relation to some areas of the curriculum. Activities include, but are not limited
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to, public performances, contests, demonstrations, displays, and club activities; and include
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both University Interscholastic League (UIL) sponsored activities and activities that are
not sponsored by UIL.
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F. FACE COVERING means a covering that fits snugly over an individual’s nose and mouth,
such as a commercially made or homemade fabric mask, scarf, bandana, handkerchief, or
shield. Although the CDC does not recommend that face shields be used for normal
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everyday activities or as a substitute for cloth face coverings, individuals who cannot wear
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a cloth face covering may consider wearing a face shield.

G. GENERAL HEALTH PRE-SCREENING means:
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1. asking questions intended to find out whether a worker is experiencing symptoms

or has been exposed to someone with COVID-19;
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2. reiterating public health requirements; and

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3. checking face covering.

H. HAND SANITIZER means a liquid or gel generally used to decrease infectious agents on
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the hands that consists of at least 60% alcohol.

I. HEALTH AUTHORITY means City of Austin /Travis County Health Authority or his
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designee.
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J. HIGH RISK INDIVIDUAL means an individual who:

1. is 65 years old and older; or
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2. has certain health conditions such as cancer, heart conditions (such as heart failure,
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coronary artery disease, or cardiomyopathies), obesity (body mass index of 30

kg/m2), pregnancy, sickle cell disease, lung disease, diabetes, chronic kidney
Page 1 of 10
December 15, 2020
disease, Human Immunodeficiency Virus (HIV), Acquired Immune Deficiency
Syndrome (AIDS), and weakened immune systems; or
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3. smokes.
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K. HIGH RISK SETTING means long-term care facilities, residential facilities, jails, and
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detention centers.
L. HIGH TOUCH ITEM means an object, surface, tool, equipment, or piece of electronics
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that is utilized by individuals multiple times a day. This includes, but is not limited to,
levers, light switches, phones, remote controls, counters, tabletops, doorknobs, bathroom
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fixtures, toilets, keyboards, tablets, hammers and wrenches.
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M. KNOWN EXPOSURE means close contact with an individual who is confirmed or
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suspected COVID-19 positive.
N. MAINTAINS means to own, operate, manage, or oversee a site.
O. PERSON IN CONTROL means a person who maintains a site.
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P. SITE means property. A site does not include:
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1. property maintained by a governmental entity that is not a school district;
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2. property where medical services are provided;
3. dwelling unit where the individual resides.
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Q. STANDARD PRECAUTIONS means a group of infection prevention practices that apply
to all patients, regardless of suspected or confirmed diagnosis or presumed infection status;
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and is a combination and expansion of Universal Precautions 780 and Body Substance
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Isolation 1102.
R. SYMPTOMS CONSISTENT WITH COVID-19 means cough, fever, sore throat, runny
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nose or congestion, chills, muscle or body aches, loss of smell, loss of taste, shortness of
breath, difficulty breathing, fatigue, vomiting, nausea, and/or diarrhea.
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S. TRANSMISSION-BASED PRECAUTIONS means the second tier of basic infection

control and are to be used in addition to Standard Precautions for patients who may be
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infected or colonized with certain infectious agents for which additional precautions are
needed to prevent infection transmission.
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T. WORKER means an employee, independent contractor, subcontractor, or other similar

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agent present at the site

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2. Rules Applicable to Individuals.

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2.1. Face Coverings.

2.1.1. Except as provided in 2.1.2, an individual must wear a face covering when outside
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of his or her residence.

2.1.2. Exceptions. A face covering is not required for:
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2.1.2.1. any person younger than 10 years of age (though it is still recommended
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for children two years of age and older);

2.1.2.2. any person with a medical condition or disability that prevents wearing a
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face covering;
2.1.2.3. any person while the person is eating or drinking, or is seated at a
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restaurant to eat or drink;
Page 2 of 10
December 15, 2020
2.1.2.4. any person while the person is (a) exercising outdoors or engaging in
physical activity outdoors and (b) maintaining a safe distance from others
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not in the same household;
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2.1.2.5. any person while the person is driving alone or with passengers of the
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same household as the driver;
2.1.2.6. any person obtaining a service that requires temporary removal of the face
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covering for security surveillance, screening, or the need for specific
access to the face, such as while visiting a bank or while obtaining a
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personal care service involving the face, but only to the extent necessary
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for the temporary removal;
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2.1.2.7. any person while the person is in a swimming pool, lake, or similar body
of water;
2.1.2.8. any person who is voting, assisting a voter, serving as a poll watcher, or
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actively administering an election, but wearing a face covering is strongly
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encouraged;
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2.1.2.9. any person who is actively providing or obtaining access to religious
worship;
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2.1.2.10. any person while the person is giving a speech for a broadcast or to an
audience; or
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2.1.2.11. any person while temporary removal of the face covering is necessary for
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2.1.2.12. any person who is alone, or in the presence of only members of the same
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household or residence, in a separate room or single space not accessible

to the public, and not in an indoor common area.
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2.2. No more than ten individuals may stand or gather together.

2.3. Physical Distancing
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2.3.1. Except as provided in 2.3.2, an individual must be at least six feet apart from
another individual.
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2.3.2. Exceptions. An individual is not required to stay six feet from another individual in
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the following circumstances:

2.3.2.1. When passing another individual is incidental and momentary.
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2.3.2.2. When all individuals reside in the same household.

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2.3.2.3. When it is not feasible to maintain six feet distance between a service
provider and patron.
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2.3.2.4. When the individual is dining with nine or fewer individuals.

2.3.3. A parent or guardian of a child who is under the age of 10 is responsible for
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maintaining physical distance between the child in their household and others’
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households.
2.3.4. A group of ten or fewer individuals must be at least six feet from another group of
of
ten or fewer individuals except when the groups are seated at tables that are at least
four feet apart and separated by a solid barrier.
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2.4. Positive Test, Pending Test, Known Exposure, or Symptomatic.

2.4.1. If someone in a household is COVID-19 positive or is awaiting the results of a
COVID-19 test, the entire household shall isolate and avoid travel outside of the
Page 3 of 10
December 15, 2020
City of Austin except to seek medical attention until the household is cleared by
Austin Public Health.
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2.4.2. When seeking medical care or emergency medical care, an individual who is
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COVID-19 positive, is experiencing symptoms consistent with COVID-19, or
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experienced a known exposure must notify the healthcare provider in advance or,
in the event of an emergency, the 9-1-1 call taker and first responders.
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2.4.3. An individual who tested positive shall:
2.4.3.1. notify Austin Public Health if the residence does not allow for physical
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separation from other household contacts (separate room and bathroom);
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2.4.3.2. notify Austin Public Health if a member of their household is over the age
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of 65 and/or if they have underlying medical conditions identified by the
Centers for Disease Control (CDC) of increasing the risk of complications
from COVID-19; and
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2.4.3.3. remain in home quarantine for at least 10 days after symptoms first
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appeared, at least 24 hours with no fever without fever-reducing
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medication, and symptoms have improved.
2.4.4. An individual who experienced a known exposure and becomes symptomatic shall
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follow the requirements in 2.4.3.
2.5. Quarantine. An individual who experienced a known exposure shall quarantine as set forth
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in this rule.
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2.5.1. An individual shall quarantine for at least 14 days if the individual was exposed to
someone with COVID-19 and:
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2.5.1.1. was not wearing a mask, or

2.5.1.2. lives with high risk individuals or works in a high risk setting
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2.5.2. An individual who does not live with high risk individuals or work in a high risk
setting and is not a healthcare worker or a first responder shall either:
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2.5.2.1. quarantine for at least 10 days and monitor symptoms if the individual
was exposed to someone with COVID-19 and was wearing a mask; or
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2.5.2.2. quarantine for at least 7 days and monitor symptoms if the individual:
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2.5.2.2.1. was exposed to someone with COVID-19;

2.5.2.2.2. was wearing a mask, and
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2.5.2.2.3. receives a negative COVID-19 test on or after the 5th day

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following exposure.
2.5.3. An individual who does not live with high risk individuals or work in a high risk
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setting shall quarantine for at least 7 days and monitor symptoms if the individual:
2.5.3.1. is a health care worker or first responder;
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2.5.3.2. was exposed to someone with COVID-19;

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2.5.3.3. was wearing a mask; and

2.5.3.4. receives a negative COVID-19 test on or after the 7th day following
of
exposure.
2.5.4. An individual who is an employee of a government service or CISA industry shall
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2.5.4.1. this rule; or
2.5.4.2. an alternative plan approved by the Health Authority.
Page 4 of 10
December 15, 2020
3. Rules Applicable to Sites.
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3.1. General. Rules 3.1-3.3 do not apply to a site that where child care programs operate.
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3.2. A person in control of a site must:
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3.2.1. require each individual to wear a face covering except as provided in 2.1.2;
3.2.2. clean and disinfect high touch items at least twice per day;
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3.2.3. limit the number of individuals who gather or stand together to ten or less;
3.2.4. require at least six feet between groups of individuals except when the groups are
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seated at tables that are at least four feet apart and separated by a solid barrier;
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3.2.5. conduct a general health pre-screening of each worker every day before the worker
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begins his or her shift unless the site is a school;
3.2.6. keep toilets clean, sanitary and operational at all times and ensure proper disposal
of waste from these facilities;
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3.2.7. provide single use disposable paper towels and no-touch trash receptacles in
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restrooms and breakrooms;
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3.2.8. mandate workers wash their hands for at least twenty seconds at the following
times:
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3.2.8.1. before workers begin work;
3.2.8.2. after workers remove gloves;
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before and after the use of high touch items;
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3.2.8.3. before and after any meal or restroom breaks;

3.2.8.4. after a worker’s shift or work time ends; and
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3.2.9. for workers confirmed to have contracted COVID-19, follow all directions from
Austin Public Health concerning that worker and other workers that may have come
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in contact with the infected worker.

3.3. Signs required. A person in control of a site shall post:
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3.3.1. at least one face covering signs at or near each entrance;

3.3.2. at least one Austin Public Health “Help Prevent Disease” signs at each entrance and
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on each restroom door (available for download and print at:

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http://www.austintexas.gov/sites/default/files/files/Health/General%20Hygiene%
20Flyer%20Final2-1-eng-051120.pdf ); and
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3.3.3. where information for workers is customarily posted, at least one sign in English
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and at least one sign in Spanish that explains the requirement to remain at least six
feet apart and the requirement to wear a face covering.
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4. Rules Applicable to Hospitals, Pharmacies, Clinics, and Similar Entities.

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4.1. A hospital, pharmacy, clinic, or any other entity or person who performs or obtains testing
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for COVID-19 shall provide the Health Authority test results at least weekly on Thursdays
and, beginning August 31, 2020, twice weekly on Mondays and Thursdays. The test
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results must include PCR, antigen, antibody testing, and other information when
specifically requested by the Health Authority; and must be provided in electronic form
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and in the manner directed by Austin Public Health. In this provision, test results means
the tests performed and those reported positive, negative, or inconclusive.
Page 5 of 10
December 15, 2020
4.2. Any data that is required to be provided to the State of Texas under state law shall be
simultaneously provided to the Health Authority if the individual is tested within the City
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of Austin or Travis County.
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5. Rules Applicable to Specific Types of Sites.
5.1. Construction Sites. A person in control of a construction site shall comply with Rules
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Applicable to Sites and:
5.1.1. institute staggered shifts for sites with more than 10 active workers and post at these
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sites, in languages understood by all persons working there, a notice showing the
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sizes and types of shift crews working there, and directions on how the person in
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control is limiting crew sizes and rotating shifts;
5.1.2. ensure handwashing station and restroom(s) are spaced six feet apart or more from
each other;
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5.1.3. prohibit the use of community water coolers;
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5.1.4. provide individual water bottles or instruct workers to bring their own;
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5.1.5. designate a COVID-19 safety monitor who is always on-site; and
5.1.6. ensure that each worker who enters a jobsite has signed in and keep a list of and
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contact information for each worker that enters the jobsite every day for the purpose
of identifying and notifying workers if they have shared a jobsite with someone
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who has been confirmed to have COVID-19.
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5.2. Child Care Facilities.

5.2.1. Notify Austin Public Health’s Nurse Line at 512-972-5560 to report any laboratory
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confirmed cases of COVID-19 among children or staff.

5.2.2. Follow the steps provide by Austin Public Health regarding suspected or confirmed
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cases of COVID-19.
5.2.3. Comply with “City of Austin Guidance for Open Child Care Programs.”
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5.3. Schools. A person in control of a school that offers instruction to students in one or more
grades, pre-kindergarten through grade 12, shall comply with Rules Applicable to Sites
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and the requirements described in this rule.

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5.3.1. COVID-19 Point of Contact.

5.3.1.1. Each school district must designate a district-wide COVID-19 point of
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contact. A person designated as a district-wide COVID-19 point of

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contact must notify Austin Public Health at 512-972-5560 when a student

or worker is COVID-19 positive
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5.3.1.2. A person in control of a school that is within a school district must

designate a COVID-19 point of contact who will communicate with
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workers, students, and families about COVID-19 concerns.

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5.3.1.3. A person in control of a school that is not within a school district must
designate a COVID-19 point of contact.
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5.3.1.3.1. A person designated as a COVID-19 point of contact in Rule

5.3.1.3 must notify Austin Public Health at 512-972-5560
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when a student or worker is COVID-19 positive.
Page 6 of 10
December 15, 2020
5.3.1.3.2. A person designated as a COVID-19 point of contact in Rule
5.3.1.3 must communicate with workers, students, and
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families about COVID-19 concerns.
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5.3.2. A person in control must:
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5.3.2.1. provide soap, single use disposal paper towels, and tissues in each
classroom, restroom, and break room where a sink or handwashing station
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is present;
5.3.2.2. provide hand sanitizer for use by older children and workers in each
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classroom, at building entrances and exits, in the cafeteria, and in the gym;
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5.3.2.3. incorporate handwashing breaks into classroom activity;
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5.3.2.4. train workers and students about hand hygiene, respiratory etiquette, and
proper use of face coverings;
5.3.2.5. limit the use of shared supplies and equipment to one group of children at
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a time and clean and disinfect between uses
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5.3.2.6. require at least six feet between workers, students, and visitors when
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stationary and, to the greatest extent possible, six feet between seating in
classrooms, reception areas, and cafeterias;
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5.3.2.7. require workers and students to screen for COVID-19 symptoms and
exposure at home each day prior to arriving at school;
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5.3.2.8. limit the number of visitors and activities involving external groups or
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organizations; and
5.3.2.9. provide cloth face coverings or disposable face coverings for workers,
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visitors, and students who do not have them or if a face covering becomes
soiled.
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5.3.3. When feasible, a person in control must divide students and teachers into cohorts
that are static and must limit mixing between cohorts.
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5.3.4. A person in control must:

5.3.4.1. create a process for students, families, and workers to self-identify as being
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at increased risk of severe illness from COVID-19 or as living in a

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household with someone at high risk; and

5.3.4.2. review all current plans for accommodating students with special
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healthcare needs and update their care plans as needed to decrease the risk
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for exposure to COVID-19.

5.3.5. A person in control must ensure that:
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5.3.5.1. ventilation systems operate properly and increase circulation of outdoor air
as much as possible; and
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5.3.5.2. building water systems and related devices are safe after a prolonged shut
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down by following CDC Guidance for Building Water Systems.

5.3.6. Food service.
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5.3.6.1. A person in control of a school that serves food must serve food as
individually plated meals.
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5.3.6.2. A person in control must provide disposable food service items unless
non-disposable food service items are handled with gloves and washed
with dish soap and hot water or in a dishwasher.
Page 7 of 10
December 15, 2020
5.3.6.3. An individual who touches used food service items must wash their hands
even if the individual wears gloves.
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5.3.7. Outdoor Activities.
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5.3.7.1. A person in control must require students practice physical distancing
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during recess or in physical education class.
5.3.7.2. A person in control must limit the use of shared equipment.
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5.3.8. Band, Choir, or Music Class
5.3.8.1. When students are not singing or playing an instrument that requires the
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use of their mouth, a person in control must require students to wear face
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coverings except as provided in 2.1.2.
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5.3.8.2. When students are singing or playing an instrument, a person in control
must use visual clues to require students to maintain at least six feet of
distance.
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5.3.9. Sports and Extracurricular Activities.
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5.3.9.1. A person in control must provide each parent or guardian of a student who
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participates in sports or extracurricular activities with a written notice
that:
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5.3.9.1.1. explains these activities increase the risk of COVID-19
transmission to the student and the household; and
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5.3.9.1.2. recommends each student practice physical distancing and
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wear face coverings while at home.

5.3.9.2. The notice described in Rule 5.3.9.1 applies to sports and extracurricular
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activities where physical distancing or masking is not possible or

practical.
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5.3.9.3. Strength and Conditioning

5.3.9.3.1. A person in control may allow strength and conditioning
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activities to resume beginning on August 17, 2020 if the

notice described in Rule 5.3.91 is provided and the person in
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control of a school complies with the guidance promulgated

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by the University Interscholastic League (UIL)

5.3.9.3.2. A person in control must clean surfaces and equipment (i.e.
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benches, barbells, dumbbells, kettlebells, training ropes,

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medicine balls, pull-up bars, weight bars, etc.) after

individual use.
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5.3.9.3.3. A person in control must limit the use of shared equipment

to one individual or a group of individuals.
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5.3.10. Procedures when an individual exhibits symptoms consistent with COVID-19

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while at school.
5.3.10.1. A person in control must isolate an individual who develops symptoms
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consistent with COVID-19 and follow the school’s illness management

policy.
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5.3.10.2. A person in control must provide an individual who is required to leave

the school with information on quarantine, isolation, and return-to-
campus criteria.
Page 8 of 10
December 15, 2020
5.3.10.3. A person in control must ensure that an isolation area is cleaned in a
manner that complies with CDC’s “Considerations for Cleaning and
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Disinfecting Your Building or Facility If Someone Is Sick”.
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5.3.10.4. A person in control must follow Standard Precautions and Transmission-
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Based Precautions when caring for an individual who becomes ill at
school.
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5.3.10.5. A person in control must provide equipment for and training on the use of
Standard and Transmission-based Precautions and Personal Protective
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Equipment (PPE).
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5.3.11. COVID-19 Positive.
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5.3.11.1. A person in control must establish procedures that will allow workers to
determine when the individual was last on campus.
5.3.11.2. A person in control must follow any protocols, including privacy
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protocols, for identifying and notifying individuals who were in close
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contact with the individual who is COVID-19 positive.
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5.3.11.3. A person in control must ensure that any area used by the COVID-19
positive individual is cleaned in a manner that complies with CDC’s
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“Considerations for Cleaning and Disinfecting Your Building or Facility
If Someone Is Sick.”
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5.4. After School Programs. A person who operates an after-school program at a school shall
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comply with Rules Applicable to Sites and Rule 5.3.

5.5. Transportation provided for schools. A person in control of a bus or other similar vehicle
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used to transport students must:

5.5.1. create distance between and among the driver and passengers when possible;
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5.5.2. limit each bus seat to one passenger unless the students are members of the same
household;
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5.5.3. institute measures that physically separate or create distance that exceeds six feet
between a bus operator and passengers;
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5.5.4. clean, sanitize, and disinfect equipment including items such as car seats and seat
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belts, wheelchairs, walkers, and adaptive equipment being transported to schools;

5.5.5. clean and disinfect frequently touched surfaces in the vehicle (e.g., surfaces in the
driver’s cockpit, hard seats, arm rests, door handles, seat belt buckles, light and air
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controls, doors and windows, and grab handles) prior to morning routes and prior
to afternoon routes; and
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5.5.6. provide hand sanitizer.

5.6.Sites that offer dine-in food or beverage services indoors. A person in control of a site that
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offers dine-in food or beverage services indoors shall comply with Rules Applicable to
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Sites and this rule.

5.6.1. A person in control of a site subject to this rule may not provide dine-in services,
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including seating, at a counter except as provided in 5.6.2.

5.6.2. Dine-in services at a counter.
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5.6.2.1.A person in control of a site subject to this rule that includes counter seating
shall:
Page 9 of 10
December 15, 2020
5.6.2.1.1. limit groups of individuals who sit together at the counter to two
individuals except as provided in 5.6.2.2;
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5.6.2.1.2. arrange seats at the counter so that each seat is at least six feet
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apart from another seat except when a group of two individuals
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are seated at the counter or when each seat is separated by a solid
barrier;
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5.6.2.1.3. if the seats at the counter cannot be moved, limit the seats
available for use so that individuals or groups of individuals are
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six feet apart;
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5.6.2.1.4. require at least six feet between groups of individuals unless
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groups are separated by a solid barrier; and
5.6.2.1.5. unless separated by a solid barrier, maintain at least six feet
between seats at the counter and other tables.
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5.6.2.2.When counter seating is the only seating provided at a site subject to this
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rule, a person in control of the site may limit groups of individuals who sit
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at the counter to six individuals.
5.6.3. For food or beverage to-go orders that are placed or picked up at a counter with
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seating, a person in control of a site subject to this rule shall:
5.6.3.1.designate a space specifically for placing or picking up to-go orders that is:
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5.6.3.1.1. located at least six feet from seating at the counter and seating at
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a table; or
5.6.3.1.2. separated by solid barrier from seating at the counter and seating
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at a table; and
5.6.3.2.create a line using floor markings that are spaced six feet apart and six feet
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from seating at the counter and seating at a table.

5.6.4. A person in control of a site subject to this rule shall require individuals waiting to
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be seated or for a to-go order to remain at least six feet from:

5.6.4.1.seating at the counter;
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5.6.4.2.seating at a table;
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5.6.4.3.line for to-go orders; and

5.6.4.4.another individual or a group of individuals who are waiting to be seated or
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for a to-go order.

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5.6.5. A person in control of a site subject to this rule may not provide dine-in service to
an individual who is not seated unless compliance with federal law requires
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otherwise.
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Page 10 of 10
ORDINANCE NO. 20201203-043
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AN ORDINANCE REAUTHORIZING THE HEALTH AUTHORITY TO
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ADOPT ADMINISTRATIVE RULES TO PROTECT INDIVIDUALS FROM
COVID-19; AMENDING THE EXPIRATION DATE IN ORDINANCE NO.
L.
20200709-003; AND CREATING AN OFFENSE AND PENALTY.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF AUSTIN:
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PART 1. FINDINGS. The council finds:
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(1) Coronavirus (COVID-19) is a virus that spreads mainly between people
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who are in close contact with one another (within about 6 feet) through
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respiratory droplets produced when an infected person speaks, sings,
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coughs, or sneezes; and it also may be possible that a person can get
COVID-19 by touching a surface that has the virus on it and then
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touching their own mouth, nose, or possibly their eyes; and
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(2) A significant percentage
of individuals with the COVID-19 virus lack
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symptoms, which means an infected person can transmit the virus to

others before showing any symptoms; and
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(3) Section 122.006 of the Texas Health and Safely Code states that a home-
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rule municipality may adopt rules to protect the health of individuals in

the municipality; and
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(4) Section 121.003 of the Texas Health and Safety Code states that a home-
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rule municipality may enforce any law reasonably necessary to protect

the public health; and
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(5) The Austin City Charter, Article I, Section 3 (General Powers)

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establishes the City as a home-rule municipality; and

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(6) On July 9, 2020, council adopted Ordinance No. 20200709-003 that

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authorized the health authority to adopt rules reasonably necessary to

protect the public health; and
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(7) Because COVID-19 remains a public health threat, it is necessary to

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reauthorize the health authority to adopt rules reasonably necessary to

protect public health; and
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Page 1 of 3
(8) Because the rules reasonably necessary to protect public health against
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COVID-19 evolve as the number of cases and resources to fight COVID-
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19 change and medical professionals learn new information about
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COVID-19, the rules adoption process established in City Code Chapter
1-2 (Adoption ofRules) must be waived.
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PART 2. DEFINITIONS.
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(1) A term defined in City Code Section 1-1-2 (General Definitions) has the
in this ordinance.
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same meaning
(2) HEALTH AUTHORITY RULE means an administrative rule adopted in
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accordance with Part 3 of this ordinance.
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PART 3. PROTECTIONS FOR THE HEALTH OF PERSONS.
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(A) To protect the health of individuals within the City, the health authority
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may adopt administrative rules reasonably necessary to protect the health
of persons within the City, including mitigating and reducing the
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transmission of COVID-19.
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(B) A rule adopted under this ordinance must be accompanied by a notice

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that is signed by the city manager, health authority, and city attorney that
includes:
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(1) the text of the rule;

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(2) the health authority's statement why the rule is necessary under
this ordinance;
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(3) reference to this ordinance; and

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(4) acertification that the rule was reviewed by the city attorney and is
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authorized by this ordinance.

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(C) A ruleadopted under this ordinance is not effective until the notice and
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the rule are posted as set forth in Subsection (D).

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(D) The city clerk shall:

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(1) post the notice and the rule on the City website used for notice of
public meetings; and
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Page 2 of 3
(2) record on the notice the date and time that the notice was posted.
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(E) Unless a health authority rule is withdrawn, superseded, or the health
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authority provides an earlier expiration date, a rule adopted under this
ordinance expires on the 121 st day after the date on which it becomes
effective.
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(F) The council waives the requirements in Chapter 1 -2 (Adoption of Rules).
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(G) The city manager may designate one or more city departments to assist
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the health authority with administering, implementing, and
ordinance.
enforcing this
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PART 4. OFFENSE AND PENALTY.
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(A) A person who knowingly violates health
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a authority rule commits an
offense.
(B) Each day that a violation occurs is a separate offense.
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(C) Each offense is punishable by a fine not to exceed $2,000.
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PART 5. The council amends Ordinance No. 20200709-003 to amend

the
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expiration to read as follows:

PART 5. This ordinance expires
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December 15 [34-], 2020.

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PART 6. This ordinance expires on December 31,2021.

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PART 7. This ordinance takes effect on December

15,2020.
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PASSED AND APPROVED

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§
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December 3 ,2020
tev Adler
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Mayor
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APPROVED: 4.1 44
IAnnet. horgin 1?
ATTEST: 4.0/4 t--1 Rt/
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1
City Attorndy
/
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bM
AA,6
19*nette S. Goodall
City Clerk
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Page 3 of 3
DocuSign Envelope ID: 5472FF1D-2260-41FF-94BF-C6C6BF3A629D
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2/16/2021
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Exhibit A
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List of Cities and Municipalities within Travis County Jurisdiction
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covered by the Order
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L.
• City of Austin
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• City of Bee Cave
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• City of Cedar Park
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• City of Creedmoor
• City of Elgin
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• City of Jonestown
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• City of Lago Vista
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• City of Lakeway
• City of Leander
• City of Manor ct
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• City of Mustang Ridge
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• City of Pflugerville
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• City of Rollingwood
• City of Round Rock
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• City of Sunset Valley

• City of West Lake Hills
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• Village of Briarcliff
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• Village of Point Venture

• Village of San Leanna
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• Village of The Hills

•
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Village of Volente
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• Village of Webberville
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Exhibit B-1
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Austin/Travis County Health Authority
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Requirements and Recommendations
for Individuals, Families and Businesses
L.
I. Individuals All individuals shall comply with the Governor’s Minimum Standard Health
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Protocols, checklist for all individuals, found at:
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Individuals.pdf
A. COVID-19 Positive Individuals, Suspected Positives, those currently being tested,
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and Untested Individuals with cough, fever, sore throat, runny nose or congestion,
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chills, muscle or body aches, loss of smell, loss of taste, shortness of breath, difficulty
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breathing, fatigue, vomiting, nausea, and/or diarrhea shall:
i. Not leave their residence without a mask or fabric face covering to prevent the
spread to others.
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to 9-1-1 or prior to visiting other healthcare providers that they have tested
positive for COVID-19, or been exposed to individuals who have tested
positive, are suspected positive for COVID-19 or untested individuals with
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cough and/or fever.

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c. Seek testing for COVID-19.

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iii. Not leave the County of Travis without prior notification to Austin Public Health
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at APH.Preparedness@austintexas.gov.
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practices for prevention of household spread in accordance with the Centers for Disease
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Control (CDC) guidelines.

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vi. Notify Austin Public Health if a member of their household is over the age of 65
and/or if they have underlying medical conditions identified by the CDC of increasing
the risk of complications from COVID-19.
Page 1 of 7
vii. Remain in home quarantine for at least 10 days following the first appearance of
symptoms, at least 24 hours with no fever (without use of fever-reducing medication),
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and symptoms have improved.
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B. Household Members of COVID-19 Positive Individuals, Suspected Positives, those
currently being tested, or Untested Individuals with cough, fever, sore throat, runny
L.
nose or congestion, chills, muscle or body aches, loss of smell, loss of taste, shortness
of breath, difficulty breathing, vomiting, nausea, and/or diarrhea shall:
a
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i. Not leave the residence without a mask or fabric face covering to prevent the spread
to others.
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to 9-1-1 or prior to visiting other healthcare providers that they have been
exposed to individuals who have tested positive, are suspected positive for
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COVID-19 or untested individuals with cough and/or fever.
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iii. Not leave the County of Travis without prior notification to Austin Public Health
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at APH.Preparedness@austintexas.gov.
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practices for prevention of household spread in accordance with CDC guidelines.
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vi. Notify Austin Public Health or your Primary Care Provider if they develop
symptoms consistent with COVID-19 as defined by the CDC.
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vii. Quarantine as described in Section C of this Exhibit.

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C. Quarantine Requirements
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i. High Risk Individuals means an individual described in Section E.i. of this

Exhibit.
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ii. High Risk Settings means long-term care facilities, residential facilities, jails, and
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detention centers.
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iii. An individual shall quarantine for at least 14 days if the individual was exposed to
someone with COVID-19 and
Page 2 of 7
a. was not wearing a mask, or

b. lives with high risk individuals or works in a high risk setting.
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iv. An individual who does not live with high risk individuals or work in a high
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risk setting and is not a healthcare worker or a first responder shall either:
a. quarantine for at least 10 days if the individual was exposed to someone
L.
with COVID-19 and was wearing a mask; or
b. quarantine for 7 days and monitor symptoms if the individual:
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i. was exposed to someone with COVID-19
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ii. was wearing a mask, and
iii. receives a negative COVID-19 test on or after the 5th day following
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exposure
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v. An individual who does not live with high risk individuals or work in a high
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risk setting shall quarantine for 7 days and monitor symptoms if the
individual:
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a. is a health care worker or first responder
b. was exposed to someone with COVID-19
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c. was wearing a mask, and
d. receives a negative COVID-19 test on or after the 7th day following
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exposure.
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vi. An individual who is an employee of a government service or CISA industry

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shall quarantine as set forth in:

a. this Exhibit; or
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b. an alternative plan approved by the Local Health Authority.
D. Individuals should refrain from reporting to work when falling within any of the
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following criteria:
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i. Has signs or symptoms of a COVID-19 infection, such as cough, fever, sore throat,
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runny nose or congestion, chills, muscle or body aches, loss of smell, loss of taste,
shortness of breath, difficulty breathing, vomiting, nausea, and/or diarrhea;
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ii. Has a fever greater than 99.6°F;

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iii. In the previous 14 days has had contact with someone with a confirmed diagnosis
of COVID-19 and did not have the appropriate personal protective equipment
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designated by the Centers for Disease Control and Prevention (CDC); is under
investigation for COVID-19; or is ill with a respiratory illness; or
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iv. Has traveled to an area the World Health Organization or CDC considers a
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“Hotspot.”
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If someone in a household has tested positive for COVID-19, or is awaiting results of

a COVID-19 test, and a member of the household is an employee of an government service
Page 3 of 7
or CISA industry, an exception may be made by Austin Public Health allowing that
member of the household to voluntarily return to work after finding the risk of reduced
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essential services is greater than the risk of infection.
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E. High Risk Individuals
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i. A high risk individual is an individual who:
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a. is 65 years old and older; or
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b. has certain health conditions such as cancer, heart conditions (such as heart
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failure, coronary artery disease, or cardiomyopathies), obesity (body mass
index of 30 kg/m2), pregnancy, sickle cell disease, lung disease, diabetes,
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chronic kidney disease, Human Immunodeficiency Virus (HIV), Acquired
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Immune Deficiency Syndrome (AIDS), and weakened immune systems; or
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c. smokes.
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ii. High risk individuals shall: tri
a. Avoid group gatherings unless it is essential;
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b. Avoid people who are sick,

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c. Wear a mask or fabric face covering at all times when in public, and
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d. Comply with the Governor’s Special Guidance for Texans Over 65, found
at: https://gov.texas.gov/uploads/files/organization/opentexas/OpenTexas-
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Special-Guidance-For-Texans-Over-65.pdf
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F. Individual Gatherings
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i. All social indoor or outdoor gatherings outside of a single household or dwelling

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should be avoided or minimized. No more than 10 individuals may stand or gather

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together, except as expressly permitted by this Order or the Governor’s Order.

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ii. Do not attend any events or gatherings if sick.

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iii. For household and other gatherings permitted by the Order:

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a. Have hand washing capabilities, hand sanitizers, and tissues available;

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b. Frequently clean high-touch surface areas like countertops, doorknobs, and

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handrails; and
Page 4 of 7
c. Find ways to create physical space (minimum of six (6) feet distance
between people) to minimize close contact as much as possible.
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d. Find ways to ensure six feet of social distancing from another group or
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gathering.
L.
G. Schools and Daycare. To the extent that schools and daycare are open under
current orders:
a
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i. Do not have your child attend school or daycare if sick.
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ii. If you have a child with chronic health conditions, consult the child’s doctor about
school and daycare attendance.
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iii. Frequently re-educate students and staff regarding Social Distancing and Hygiene
and Face Covering behaviors and ensure that appropriate signs are posted.
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iv. Explore remote teaching and online options to continue learning.
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Comply with Exhibit E, “City of Austin/Travis County Guidance for Open Child
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Care Programs.”
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II. Businesses shall operate only to the extent permitted by order of the Texas Governor.
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III. Businesses and services permitted to operate by the Governor’s Order shall comply
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with the following:
A. To prevent stigma and discrimination in the workplace, employers shall only adhere to
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the recommendations described in this Order to determine risk of COVID-19.

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Employers should contact their own human resources advisors and shall not make
determinations of risk based on race, color, religion, sex, sexual orientation, gender
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identity, age, familial status, disability, marital status, student status, creed, or national
origin. To the extent possible, employers should maintain confidentiality of people with
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suspected or confirmed COVID-19.

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B. Employers shall only allow persons in and around their premises that are: (1) essential
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employees not subject to any of the criteria in Section I of this Exhibit, (2) delivery
personnel, suppliers, customers or members of the public practicing Social Distancing
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and Hygiene and Face Covering Requirements as set forth in Sections 6, 7, and 8
(Mandatory Health Plans) of this Order, and (3) persons with legal authority to enter
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such as law enforcement.

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C. Prior to allowing employees into its facility, employers shall ask all employees if they
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meet any of the criteria in Section I of this Exhibit, and shall direct employees to return
home or other appropriate shelter and services if the employee is exhibiting symptoms
and presenting a threat of infecting others.
Page 5 of 7
D. Employers shall immediately separate an employee who becomes sick or demonstrates
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a temperature greater than 99.6°F while at work from other employees and send that
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employee home or to other appropriate shelter and services.
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E. Human resources departments shall create alternate work plans to help employees
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remain productive while keeping the workforce safe and healthy.
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F. Employers are strongly encouraged to require employees (either those exhibiting
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symptoms or all employees) to undergo a COVID-19 symptom check and non-invasive
temperature readings prior to entering a worksite; however, employers are not
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mandated to take the temperature of employees prior to entrance to its worksite.
If the employer does take employees’ temperatures and/or has first-hand knowledge
that the employee’s temperature exceeds 99.6°F, then the employer shall prohibit the
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employee from entering the facility or property.
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G. Employers shall create and implement an infectious disease response plan.
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H. Employers shall comply with the Governor’s Minimum Standard Health Protocols,
checklist for employers, found at:
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Employers.pdf
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I. Where appropriate employers shall:

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i. Suspend nonessential employee travel;
ii. Prohibit employees working within six (6) feet of one another unless necessary to
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provide continuity of essential services;

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iii. Minimize or cancel in-person meetings and conferences including canceling,

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postponing or moving to on-line formats for all indoor or outdoor gatherings of any
number of people.
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iv. Require employees to stay home when they are sick and maximize flexibility in
sick leave benefits.
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v. Permit sick employees to stay home without providing a doctor’s note.

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vi. Utilize telecommuting options to minimize person-to-person interaction.

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vii. Alter, stagger or otherwise schedule or separate employees or teams of employees

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so not all employees are present at one time but are present at alternative days and
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times, unless necessary to provide continuity of essential services.
Page 6 of 7
viii. Limit or restrict the number of customers or visitors permitted in a workplace at

one time.
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ix. Ensure that individuals (employees and clients) queuing inside and outside of the
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business or workplace can maintain six (6) feet of separation.
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x. Designate special separate shopping times for high-risk clients as designated by
the CDC.
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xi. Increase the use and capability of on-line, drive-thru, curbside, or delivery
services.
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xii. Provide hand washing capabilities, hand sanitizers, and tissues.
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xiii. Clean high-touch surface areas like countertops, doorknobs, and handrails at least
twice per day with CDC recommended surface cleaners for COVID-19.
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xiv. Require and allow employees to practice the Face Covering requirements as set
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forth in Section 6 and Exhibits B-1 and C of this Order.
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Page 7 of 7
DocuSign Envelope ID: 5472FF1D-2260-41FF-94BF-C6C6BF3A629D Exhibit B-2
How Long To Quarantine
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Close contact
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with COVID-19
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infection? * High-Risk Settings
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• Long-term care
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facilities
• Residential facilities
• Jails and detention
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centers
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10-day
symptom-free Are you a
• healthcare ct
Do you live or work
• in a high-risk
Were masks
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quarantine or 7-day worn at the
symptom-free worker or setting,* or
No No Yes time of No
quarantine and a • ﬁrst responder? • with someone who exposure?
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negative test*** on is at increased risk**

or after the 5th day for severe disease?
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Note
Yes
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Practice wearing a mask, washing

your hands and watching your
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distance for the full 14 days

following your last exposure, 14-Day
even within your household. Quarantine
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Yes
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7-day symptom-free
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quarantine and
*** Tests
negative test*** on
or after the 7th day
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PCR or Rapid Antigen

** Individuals With Increased Risk
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• Persons > 65 years of age

• Persons with underlying
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conditions:
If you test*** positive for COVID-19 self-isolate for:
 Cancer  Obesity (body mass index
• 10 days since symptoms ﬁrst appeared and
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 Chronic kidney disease [BMI] of 30 kg/m² or

• 24 hours with no fever without the use of
 Heart conditions, such as higher but <40 kg/m²)
fever-reducing medications and
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heart failure, coronary artery  Severe obesity (BMI>40

• Other symptoms of COVID-19 are improving****
disease, or cardiomyopathies kg/m²)
****Loss of taste and smell may persist for weeks or  Immunocompromised state  Pregnancy
months after recovery and need not delay the end (weakened immune system)  Sickle cell disease
of isolation. from solid organ transplant  Smoking
 Chronic Obstructive  Type II diabetes mellitus
Pulmonary Disease (COPD)
Published 12/10/2020 See additional conditions from the CDC.

Guidelines are subject to change.
Exhibit C
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Face Covering Behaviors
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A significant percentage of individuals with the COVID-19 virus lack symptoms. Because
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an infected person can transmit the virus to others before showing any symptoms, the covering of
a person’s nose and mouth when outside their home or residence is necessary to help prevent the
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spread of COVID-19. This is consistent with the findings of the CDC and Austin-Travis
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Unless you already have your own personal used masks that cannot be donated, the fabric
face coverings recommended are not surgical masks or N-95 respirators, which are critical supplies
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that must continue to be reserved for healthcare workers and first responders. Staying home is the
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best way to help reduce the spread of the virus, but if an individual must leave their place of
residence, wearing a fabric face covering shall be used as outlined in this Exhibit and this Order.
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Wearing a face covering is not a substitute for maintaining 6-feet social distancing and hand
washing, as these remain important steps to slowing the spread of the virus.
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The public in general and employers and employees shall adhere to the following:
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a. All persons ten years of age and older shall wear some form of covering over their
nose and mouth, such as a commercially made or homemade mask, scarf, or
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bandana, when outside of his or her residence.

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b. This section shall not apply to:
1. any person younger than 10 years of age;

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2. any person with a medical condition or disability that prevents wearing a face
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covering;
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3. any person while the person is eating or drinking, or is seated at a restaurant to

eat or drink;
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4. any person while the person is (a) exercising outdoors or engaging in physical
activity outdoors and (b) maintaining a safe distance from others not in the same
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household;
5. any person while the person is driving alone or with passengers of the same
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household as the driver;

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6. any person obtaining a service that requires temporary removal of the face
covering for security surveillance, screening, or the need for specific access to
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the face, such as while visiting a bank or while obtaining a personal care service
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involving the face, but only to the extent necessary for the temporary removal;
7. any person while the person is in a swimming pool, lake, or similar body of
water;
Page 1 of 3
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9. any person who is actively providing or obtaining access to religious worship,
but wearing a face covering is strongly encouraged;
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11. any person while temporary removal of the face covering is necessary for
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12. any person while alone, or in the presence of only members of the same
household or residence, in a separate room or single space not accessible to the
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public, and not in an indoor common area
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Parents and Guardians of children under 10 shall be responsible for
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appropriately masking children when outside their residence.
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c. All non-residents in nursing homes, retirement and long-term care facilities shall
wear a fabric face covering as provided for in this Exhibit and Order (Face
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Coverings), except as otherwise required by an order issued by the Health
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Authority. In addition, residents in facilities with confirmed COVID-19 cases shall
follow requirements of Exhibit B-1 and B-2, except when doing so poses a greater
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mental or physical health, safety or security risk.

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d. All COVID-19 Positive Individuals, Suspected Positives, those currently being

tested, and untested individuals with cough, fever, sore throat, chills, muscle aches,
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loss of smell, loss of taste, shortness of breath, vomiting, and/or diarrhea and
household members of same category of individuals shall not leave their residence
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without a mask or cloth face covering to prevent the spread to others.

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e. All individuals working for a business shall wear a mask or cloth face covering
whenever in public and whenever performing job duties in the presence of others.
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f. Unless you already have your own personal used masks that cannot be donated,
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medical grade (N95) and surgical masks should be reserved and used only by
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medical professionals and first responders.

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Examples of how to make cloth face coverings can be found online

including guidance from the CDC and guidance from Austin/ Travis County Health
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Authority.
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g. The fabric face covering should:

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1. fit snugly but comfortably against the side of the face,

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2. be secured with ties or ear loops,

3. include multiple layers of fabric,
4. allow for breathing without restriction, and
Page 2 of 3
5. be able to be laundered and machine dried without damage or change to

shape.
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h. Employers shall require and allow employees to practice Face Covering
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Behaviors as set forth in the Order and this Exhibit C.
i. Even with the use of appropriate face coverings, individuals shall maintain six
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feet of social distancing whenever possible.
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j. Individuals should avoid touching their face and should wash their hands or use
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hand sanitizer.
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k. For further information, individuals can access information at
https://traviscountytx.gov/news/2020/1945-novel-coronavirus-covid-19-
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information and www.AustinTexas.gov/COVID19.
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Page 3 of 3
DocuSign Envelope ID: 5472FF1D-2260-41FF-94BF-C6C6BF3A629D Exhibit D
ALL CUSTOMERS
WEAR FABRIC FACE COVERINGS
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1
PER CITY AND COUNTY
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ORDER, ALL CUSTOMERS
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MUST BE WEARING A
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FACE COVERING
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Cloth face coverings should—
2 ct
• fit snugly but comfortably against
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the side of the face
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• be secured with ties or ear loops

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• include multiple layers of fabric

• allow for breathing without restriction
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• ability to be laundered
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Fabric face coverings are not a substitute for

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physical distancing measures. Continue to

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maintain 6-feet when outside your home.

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DIY face cover instructions available

at austintexas.gov/covid19
04/13/2020
TODOS LOS CLIENTES DEBEN USAR

CUBIERTAS DE TELA PARA LA CARA
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1
POR ORDEN DE LA CIUDAD Y
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DEL CONDADO, TODOS LOS
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CLIENTES DEBEN USAR UNA
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CUBIERTA PARA LA CARA
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Las cubiertas de tela para la cara deben:
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• ser cómodas pero quedar bien
2 ct
ajustadas a los lados de la cara
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• asegurarse con tiras de amarre o

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elásticos alrededor de las orejas

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• incluir múltiples capas de tela

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• permitir respirar sin restricción

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• ser lavables en la lavadora de ropa

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Las cubiertas de tela para la cara no son un

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sustituto para las medidas de distanciamiento

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físico. Continúe guardando 6 pies de distancia

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cuando esté fuera de su casa.

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Instrucciones sobre cómo hacer usted

mismo cubiertas de tela para la cara
en austintexas.gov/covid19
04/13/2020
DocuSign Envelope ID: 5472FF1D-2260-41FF-94BF-C6C6BF3A629D Exhibit E
City of Austin/Travis County
Guidance for Open Child Care Programs
Last updated: September 16, 2020
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Child care programs must operate in accordance with:
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• This City of Austin/Travis County Guidance for Open Child Care Programs,
• The Emergency rules from the Texas Health and Human Services Commission, which include
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many of the guidelines from the state’s Open Texas Child Care Checklist, and
• The Guidance for Child Care Programs that Remain Open released by the Centers of Disease
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Control.
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In addition, child care programs located in the City of Austin and/or in Travis County must comply with
the guidelines in this document. To the greatest extent possible, programs should also follow the
recommendations in this document. This guidance is designed to minimize the risk of coronavirus
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transmission and help keep staff, children, and families safe.
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The latest local information on COVID-19, including local control orders, can be found at this City of
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Austin web site: www.austintexas.gov/covid19.
GUIDELINES ct
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How to contact Austin Public Health (APH), the local health department
• Child care programs must call the Austin Public Health Nurse Line at 512-972-5560 to report
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laboratory confirmed cases of COVID-19 among children and/or staff.

• Programs may also call the Austin Public Health Nurse Line at 512-972-5560 to ask questions
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about suspected or potential cases in child care programs or about COVID-19 exposure of staff,
children, or families.
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o The APH Nurse Line staff will advise child care programs on next steps regarding
COVID-19 cases, suspected cases, or potential exposure.
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Notification of COVID-19 Cases

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• When a laboratory-confirmed COVID-19 case has entered a program, child care programs
must communicate with staff and parents about closure decisions, possible COVID-19
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exposure, and guidance from Austin Public Health on appropriate quarantine or isolation
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measures.
• Plan to include messages to counter potential COVID-19 stigma and discrimination.
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• It is critical to maintain confidentiality of the student or staff member as required by the

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Americans with Disabilities Act and the Family Education Rights and Privacy Act.
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Face Coverings
• It is required that the following people wear fabric face coverings:
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o All child care staff

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o Parents and guardians dropping off and picking up children
Page 1 of 3
• Children age 10 and older Face coverings should not be worn by:
o Children younger than 2 years old
o People who cannot take off the coverings without assistance
o Anyone who has trouble breathing or is unconscious
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o Anyone who is incapacitated or otherwise unable to remove the cloth face covering without
assistance
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o A child with a significant behavioral or psychological issue undergoing treatment that is exacerbated
specifically by a face covering
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o A child with severe autism or with extreme developmental delay who may become agitated or
anxious wearing a mask
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o A child with a facial deformity that causes airway obstruction
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• Teachers should use their best judgement to determine if children should remove face coverings
in these situations:
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o While engaging in outdoor physical activity when physical distancing is maintained
o During extreme heat when a face covering could contribute to a greater risk of heat-
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related illness
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Temperature checks
• Deny entry to any adult or child with a measured temperature greater than 99.6°F per the City
of Austin Medical Authority.
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• This temperature threshold, which is lower than that recommended by the CDC, should be
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followed.
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Enrolling New Children in Care

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• Child care programs shall use the forms in Appendix A when enrolling a new child in the
program. These forms provide child care programs with the child’s recent enrollment history in
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a child care program or school and health/exposure status.

o It is recommended that the new program contact the child care program or school
the child was in previously to verify whether or not they have had a recent closure
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due to COVID-19.
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• Child care programs shall not begin caring for a newly enrolled child until the criteria on the
“Health Screening Questions for Newly Enrolling Children” form in Appendix A is met.
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Signs required
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• Child care programs shall post:

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o At least one face covering sign at or near each entrance; and

o At least one Austin Public Health “Prevent the Spread of COVID-19” sign at each
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entrance and on each restroom door (available in various languages for download and
print at: http://austintexas.gov/page/printed-materials-and-required-signage; and
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o Where information for workers is customarily posted, at least one sign in English and at
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least one sign in Spanish that explains the requirement to wear a face covering.
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Health and Safety Plan required

• Child care programs must prepare and implement a health and safety plan that explains how the
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program is meeting the standards for child care operations to control and reduce the
transmission of COVID-19.
Page 2 of 3
• An electronic or hard copy of this plan shall be shared with staff, parents, and guardians, or at a
minimum, be provided to staff, parents, and guardians upon request.
• Child care programs must post conspicuous signage displaying the requirements of the health
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and safety policy or plan at or near each entrance (on each entry door if feasible) to the
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premises in a manner sufficient to provide clear notice to employees, customers, and visitors at
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least of the face covering requirement.
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RECOMMENDATIONS
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Testing
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• It is strongly recommended that staff exhibiting new or worsening symptoms of possible COVID-
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19 seek a COVID-19 test.
• Persons with health insurance are encouraged to seek testing through their healthcare provider.
• Enrollment for free public testing can be found at www.austintexas.gov/covid19. Click on the
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“Take a Self-Assessment” link to begin enrollment.
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Group Sizes, Gatherings & Events
• It is strongly recommended that child care programs not exceed the ratio and group size limits
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specified in the Minimum Standards Health Protocols Check List for Child Care Centers.
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• It is strongly recommended that, to the greatest extent feasible, child care programs limit
group sizes to no more than 10 people, including children and adults.
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• It is strongly recommended that child care programs:

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o Not hold group gatherings, events, or assemblies, and

o Not invite outside visitors or guests whose presence or service is not essential
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Field trips
• It is strongly recommended that child care programs:
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o Not take field trips to locations where children will come in contact with large groups of
people or many people crowded together, and
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o Consider planning walking field trips rather than trips requiring transport in vehicles
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• Walking trips to nearby outdoor natural spaces may be a safer option than field trips to
indoor locations
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Transportation
• If transport is provided, in addition to what is stated in the Open Texas Child Care
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Checklist, it is strongly recommended that child care programs:

o Screen all passengers before they enter the vehicle; and
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o Follow the same screening protocols used for people entering the child care program; and
o Follow guidance from the American Camp Association that could also pertain to child
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care regarding Transportation To or From programs and Travel by Bus or Van.

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Page 3 of 3
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Appendix A- Parent verification forms for:
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• Previous Child Care Information for Newly Enrolling Children
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(Note, this form has been updated to capture information about a child’s recent enrollment
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in a school or child care program.)
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• Health Screening Questions for Newly Enrolling Children
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Previous Child Care Information for Newly Enrolling Children
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(Updated 9/16/2020)
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Austin Public Health requires that this document be completed when children are being newly
enrolled in care with a licensed, registered, or listed child care program located in the City of
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Austin and/or in Travis County to help mitigate the spread of COVID-19.
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1. Has your child been in care in another child care program or school within the last two weeks?
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☐ Yes
☐ No
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2. If you answered yes to question 1, please provide:
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Name of the program or school:
Program/school phone number:

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3. If you answered yes to question 1, has there been a closure of your child’s classroom or
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the entire child care program or school due to cases of COVID-19 within the last two
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weeks?
☐ Yes
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☐ No
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By signing and dating below, I verify that the above information is true and correct, and I give
permission for the child care program in which I am enrolling my child/children to contact my
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child’s/children’s previous child care program or school to obtain information regarding

closure due to COVID-19.
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Signature: Date:
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Health Screening Questions for Newly Enrolling Children
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(Updated 9/16/2020)
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Austin Public Health requires that this document be completed for each child being newly enrolled in care with a
licensed, registered, or listed child care program located in the City of Austin and/or in Travis County to help
mitigate the spread of COVID-19.
L.
1. Does the child you are enrolling currently have any signs or symptoms of a respiratory infection or COVID-
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19, such as cough, shortness of breath, or sore throat; chills, muscle aches, loss of smell, loss of taste,
lv
vomiting, and/or diarrhea?
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☐ Yes
☐ No
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If yes, your child may not begin care in this child care program until all three conditions have been met:
• at least 24 hours have passed since recovery (e.g., resolution of fever without the use of fever-
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reducing medications); AND
• the individual has improvement in respiratory symptoms (e.g., cough, shortness of breath); AND
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• at least 10 days have passed since symptoms first appeared.
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2. Has the child had close contact* in the last 14 days with someone who:
• Has a confirmed diagnosis of COVID-19; or
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• Is under investigation for COVID-19; or

• Is ill with a respiratory illness?
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☐ Yes
☐ No
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If yes, the child should not begin care in the program until after completing a 14-day quarantine period
beginning from the last date of exposure to the individual with suspected or confirmed COVID-19. If the
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child becomes symptomatic, the child should not begin care until criteria listed above under #1 are met.
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By signing and dating below, I verify that the above information is true to the best of my knowledge.
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Signature: Date:
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* For COVID-19, a close contact is defined as any individual who was within 6 feet of an infected person for at
least 15 minutes during the 48 hours before the person began feeling sick (or, for asymptomatic patients, 2 days
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prior to positive specimen collection) until the sick person begins isolation.
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14 2021050198
1111111111111111111111111 pgs
RESOLUTION AND RENEWAL OF ORDER.OF. THE TRAVIS COUNTY

COMMISSIONERS COURT MANDATING CONTINUED COMPLIANCE WITH
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LOCAL HEALTH AUTHORITY ORDERSAND ADOPTING CRITERIA FOR
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DECLARING A PUBLIC HEALTH NUISANCE, AUTHORIZING ENFORCEMENT
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STATE OF TEXAS §
§
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COUNTY OF TRAVIS §
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RECITALS AND FINDINGS
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I. On March 6, 2020, a, Declaration of Local Disaster was issued by the Travis County Judge to
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allow the County of Travis, Texas ("County" or "Travis County") to take measures to reduce the
possibility of exposure to COVID-19 .and promote the health and safety of Travis County
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residents; and
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2. On ·March 13, 2020, a Declaration of State of Disaster was issued by Governor Greg Abbott to
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take additional steps to prepare for, respond to, and mitigate the spread of COVID-19 to protect
the health and welfare of Texans; and
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3. The virus .that causes COVID 0 19 is contagious and spreads through person-to-person contact,
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especially in group settings; and
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4. COVID-19 is a virus that spreads mainly between people who are in close contact with one
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another {within about 6 feet) through respiratory droplets produced when an infected person
speaks, sings, coughs, or sneezes; and it also may be possible that a perso11 can get COVID-19 by
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touching a surface that has the virus on it and then touching their own mouth, nose, or possibly
their eyes; and
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5. A significant percentage of individuals with the COVID-19•virus Jack symptoms, which

means an infected person can transmit the virus to others before showing any symptoms; and
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6. The transmission of COVID-19 remains a significant threat to the health and safety of the
Travis County community as indicated by the County's Local Health Authority; and
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7. On July 14, 2020 and July 29,2020,based on a finding of imminent peril to the public health
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and safety, Dr. Mark Escott, interim health authority for Austinffravis County (the "Local
Health Authority") and through an Interlocal Cooperation Agreement for Public Health Services
lc
executed by City and County, issued· a notice,adopting emergency rules for the City of Austin
and Travis County, respectively, for the purpose ofreducing the possibility of exposure to
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COVID-19 and protecting the public health; and

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8. On November 6, 2020, Dr. Escott issued a notice continuing the adoption of emergency rules
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for Travis County effective November 12, 2020 and extending the .term to February 18, 2021,
and on December 15, 2020, issued rules for the City of Austin continuing through April 15,
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2021, based on the same findings and reasons as previously set forth in the initial notice of
emergency rules and as set forth herein; and
9. On August 4, 2020, the Travis County ,Commissioners Court approved a Resolution and
Order to mandate compliance with the Health Authority's Rules and Orders issued July 29, 2020,
for the unincorporated.areas ofthe County, and adopt criteria·for declaring a public health
nuisance and authorizing enforcement, and on November 10, 2020, approved a subsequent Order
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continuing compliance with the Health Authority Rules and Order; and
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I 0. The Health Authority has issued emergency rules for the unincorporated areas of Travis
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County effective on March 4, 2021 through April 15, 2021, consistent with the City of Austin
and based on the same findings and reasons as previously set forth in the initial notice of
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emergency rules; and
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11. The County has the authority to provide for-the care of indigents· and other qualified recipients
lv
(Texas Local Government Code, Section 81.027, and other statutes, including Tex. Gov't Code,
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Section 418.054) and the County has the authority to provide for public health education and
information services (Texas Health and Safety Code, Chapters 81, 121 and 122, and other
statutes);.and
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12. The County and the City of Austin- ("City") are authorized to cooperate with one another in
making necessary improvements artd providing services to promqte the public health (Texas
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Health and Safety Code, Section 121.003 and. Tex. Gov't Code, Chapters 4.18 and 791 ); and
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13. The Local Health Authority has supervisory authority and control over the administration of
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communicable disease control measures within his jurisdiction, and isauthorizedto perform
each duty that is necessary to implement and enforce a law necessary to protect the public health
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(Texas Health and Safety Code, sections 81.082, 81.084, 81.086 and 121.024); and
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14. Section 121.003 of the Texas Health and Safety Code authorizes the Commissioners Court
of the County to enforce any law that is reasonably necessary to protect the public health, and to
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grant a County employee the power to issue a citation in an :unincorporated area of the County in
order to enforce any law or order of the commissioners court that is reasonably necessary to
protect the public health; and
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15. The Travis County Commissioners Court finds that extraordinary emergency measures must
be taken-to mitigate the effects of this public health emergency and facilitate a response to the
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public health threat, and· pursuant to section 121.003 of the Texas Health and Safety Code, that
this Order of the Commissioners Court adopting continued compliance with the Local Health
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Authority's emergency rules is necessary to protect the public health; and

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16. Section 341.011 of the Texas Health and Safety Code defines.a "public health nuisance" to
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include an object, place, or condition that is a possible and probable medium of disease
transmission in or between humans; and
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17. These measures include abating a public health nuisance as allowed by Texas Health and
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Safety Code, Section 341.012; and

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18. This Order is necessary for the protection-of public health by continuing to follow the
directives and advice of the Austin/Travis County Health Authority and the vast majority of
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medical professionals until at the minimum, we have concluded the period of Spring Break and
at a time when the number of vaccines administered to individuals in Travis County have
reached a significant and meaningful number; and
19. Recognizing that with the Governor's assistance.in providing additional vaccines to Travis
County, along with Bastrop, Caldwell and:Hays Counties, it will help to achieve a.significant
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number of persons vaccinated that would justify the easing of restrictions.
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NOW;.THEREFORE, HEIT RESOLVED AND ORDERED BY THE COMMISSIONERS
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COURT OF TRAVIS COUNTY, TEXAS, THAT:
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SECTION I. EFFECTIVE DATE AND INCORPORATION. The Recitals and Findings set
out above are true and correct, and are adopted' by the Commissioners Court and incorporated
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into this Order for all purposes. The·COVID-19 pandemic and related emergency declarations
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and orders authorizing the operation of various businesses jeopardize public health and safety
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within -the County. Because of this emergency, this. Order takes effect immediately upon
.approval by the Travis County Commissioners Court.
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SECTION 2. DEFINITIONS
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A. In this Order, the following definitions shall apply:
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L COVID-19 means the pandemic that is the subject of the Local Disaster Declaration,
dated March.6,.2020.
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2. FACE COVERING means a covering that fits snugly,over an individual's nose and
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mouth, such as a commercially made or homemade fabric mask, scarf, bandana,

. handkerchief, or shield.
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3. GENERAL HEALTH PRE-SCREENING means:

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(I.) asking questions intended to find out whether a worker is experiencing symptoms of
(2.) reiterating,public health requirements; and
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(3.) checking face covering.

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4. HIGH TOUCH ITEM means an object, surface, tool, equipment, or piece of electronics
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5. LOCAL HEALTH AUTHORITY means a physician appointed pursuant to Section

121.021 of the Texas Health & Safety Code to administer state and local laws relating to
public health in Travis County.
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6. LOCAL HEALTH AUTHORITY ORDER means any rule issued by the Local.Health
Authority in accordance with Section 3 of this order.
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7. MAINTAINS means to own, operate, manage, or oversee a-Site.

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8. MINIMUM STANDARD means a standard set forth in Section 7 of this Order.
9. PERSON IN CONTROL means a person who maintains a Site.

10. SITE means property. A Site does·not include:
1. property maintained .by a governmental entity;
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2. property where medical services are provided;
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3. dwelling unit where the individual resides; or
4. a school that offers instruction to students in one or more grades, pre-kindergarten
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through grade 12.
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11. WORKER means an employee, independent contractor, subcontractor, or other similar
agent present at the Site.
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SECTION 3. EMERGENCY HEALTH AUTHORITY RULES AND ORDER FOR
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PROTECTION OF PUBLIC HEALTH
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A. To protect the health of individuals within the County, the Local Health Authority may adopt
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local rules in the form of Local Health Authority Orders reasonably necessary to protect the
health of persons within the County, including mitigating and reducing the transmission of
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COV!D 0 19.
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B. Local Health Authority Order must be execut_ed by the Local Health Authority.
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C. The Local Health Authority for Travis County issued Emergency Rules and Orders for the
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unincorporated areas of Travis County on March 4, 2021, and effective through April 15, 2021.
A copy of the Emergency Rules and.Order for Travis County is attached as Exhibit A.
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D. The Commissioners Court may designate one or more county employees to assist the Local
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Health Authority with administering, implementing, and enforcing this order in the
unincorporated areas of the county.
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SECTION 4. DECLARATION OF NUISANCE. By this Order and pursuant to its authority

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under the aforementioned provisions of the Texas Health and Safety Code, the Commissioners
Court declares a Site that does not .follow the Minimum Standards established in this Order as a
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public health nuisance because it is a place or condition that is a possible and probable medium
of COVID- I 9 transmission in.or between humans.
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SECTION 5. APPLICABILITY. This Order applies to a Site with IO or more individuals

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present at any one time.

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SECTION 6. PUBLIC HEALTH NUISANCE. A person who Maintains a Site that does not
comply with Minimum Health Standards descdbed in this Order maintains a public health
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nuisance that is subject to abatement.

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SECTION 7. MINIMUM STANDARDS:

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A. A Person In Control of a Site shall:

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1. require each individual to wear a Face Covering except as provided in Subsection (B)
below in Section 7(B);
2. clean and disinfect High Touch Items at least twice per day;
3. limit the number of individuals who gather or stand together to l Oor less;
4. require at least six feet of distance between groups ofindividuals except when the groups
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are seated at tables that are at least four feet apart and separated by a·solid barrier;
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5. conduct a general health pre-screening of each worker every day before the worker
begins his or her shift;
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6. keep toilets clean, sanitary and operational at all times and ensure proper disposal of
waste from these facilities;
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7. provide single use disposable paper towels and no-touch trash receptacles in restrooms
and breakrooms; ·
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8. mandate workers wash their hands for at least twenty seconds at times designated in
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Exhibit A, Health Authority Rules and Order.
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9. for workers confirmed to have contracted COVID-19, follow all directions from Austin
Public Health concerning that worker and other workers that may have come in contact
with the infected worker
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I 0. Follow requirements for the posting of signs as set forth in Exhibit A.
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11. A person who maintains a Site that ·does not comply with minimum standards maintains a
public health nuisance.
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B. Face Covering Exceptions. A Face Covering is not required for:
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I. any person younger than IO years of age;
2. any person with a medical condition or disability that prevents wearing a Face Covering;
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3. any person while the person is eating or drinking, or is seated at a restaurant to eat or
drink;
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4. any person while the person is:

a. exercising outdoors or engaging in physical activity outdoors and
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b. maintaining a safe distance from others not in the same household;

5. any person while the person is driving alone or with passengers of the same household as
the driver;
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6. any person obtaining a service that requires temporary removal of the Face Covering
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for security surveillance, screening, or the need for specific access to the face, such as
while visiting a bank or while obtaining a personal care service involving the face, but
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only to the extent necessary for the temporary removal;

7. any person while the person is in a swimming pool, lake, or similar body of water;
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administering an election;
9. any person who is actively providing or obtaining access to religious worship;
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I l. any person while -temporary removal of the Face Covering is necessary for
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12. any person who is alone,. or in the. presence of only members of the same household
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or residence, in a separate room or single space not accessible to the public, and not in
an indoor common area.
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C. Rules Applicable to Specific Types of Sites: In ·addition to the Minimum Standards

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described in subsection A, a Person in Control of Specific Types of Sites, including Construction

and Child Care Facilities, shall follows the rules set forth in Exhibit A, Health Authority Rules
and Order, Section 5.
SECTION 8. ENFORCEMENT AND ,PENALTY. This Order may be enforced as follows:
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A. The Travis County Fire Marshal's Office, the Travis County Sheriff's Office and
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other peace officers, as well as any county employee designated by the Travis County
Commissioners Court pursuant to Sec. 121.003, Texas Health and Safety Code, may
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issue a citation in the unincorporated area of the county to enforce any law and this Order
of the Commissioners Court that is reasonably necessary to protect the public health. A
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violation of the Local Health Authority Rules and Order, Sections 3 and 5 (Rules
Applicable to Sites), in the unincorporated areas of Travis County is punishable by
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citation not to exceed $500.00.
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B. Through.a civil suit filed in district court for civil penalties and injunctive relief
that:
(1) requires specific conduct necessary to abate-the public health nuisance; and
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(2) prohibits specific conduct that constitutes a public health nuisance.
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C. The Commissioners Court authorizes the County Attorney to file civil suits
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seeking the relief described in Subsection (B).
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SECTION 9. NON°EXCLUSIVITY. The enforcement mechanisms provided for herein are not
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intended, nor shall they. be construed, to limit in any way other remedies, causes ofaction, or
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rights provided for by law. Additionally, the adoption of this Order does not restrict, limit, or
replace any other County authority for abating public nuisances.
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SECTION 10. SAVINGS CLAUSE, If any provision of this Order or its application to any
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person or circumstance is held to be invalid, then the remainder of the Order, including the
application of such· part or provision to other persons or circumstances, shall not be affected and
shall continue in full force and effect. To this end, the provisions of this Order are.severable.
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SECTION II.This Order incorporates by reference the following:

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Exhibit A: Health Authority Rules and Order dated March 4, 2021

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NOTICE OF EMERGENCY RULES ADOPTION AND ORDER
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BY: Mark E. Escott, MD, MPH FACEP FAEMS, lilterim, Medical Director and Health Authority.
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ADOPTION DATE:
The Health Authority has. adopted the following Emergency Rules and Order pursuant to Chapters 121
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and 8 I of the Texas Health and Safety Code:
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EFFECTIVE DATE OF EMERGENCY RULES
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The Emergency Rules and Order adopted by this notice are effective on March 4, 2021 and expire on
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.April 15, 2021 unless the rules are withdrawn or amended ..
SUMMARY OF RULES•
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The Emergency Rules govern individuals and sites within the unincorporated areas of Travis County; and
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impose requirements reasonably necessary to protect public health related to the transmission of COVID-
19.
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TEXT OF THE RULES
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See Exhibit A attached to this Notice of Emergency Rules Adoption.
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NATURE OF EMERGENCY
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The Health Authority find that an imminent peril to the public health, safety, or welfare requires
adoption of.the rules on an emergency basis. Specifically, emergency rules are required to reduce the
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possibility of exposure to COVID-19 and protect public health.

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AUTHORITY FOR ADOPTION OF PROPOSED RULES AND ORDER

The authority and procedure for the implementation and adoption of a rule necessary to protect the
public is provided in the Texas Health and Safety Code, chapters 81 and 121, including section
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121.024 (b), 81.082, 81.084 and 81.086.

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REVIEWED AND APPROVED

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Date: March 4. 2021

Mark E. Escott, MD, MPH FACEP FAEMS
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Interim Medical Director/Health Authority

City of Austin/Travis County
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L.
NOTICE OF EMERGENCY
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RULES ADOPTION
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HEALTH AUTHORITY
RULES AND ORDER ct
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. EXHIBIT A,
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March 4, 2021
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Austin
APH Public
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Health
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PREVENT. PROMOTE. 'PROTECT.
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HEALTH AUTHORITY RULES AND ORDER
MARCH 4, 2021
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1. Definitions.
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A. COVID-19 means the pandemic that is the subject of the Local Disaster Declaration, dated
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March 6, 2020.
B. COVID-19 POSITIVE means an individual who tested positive for COVID-19.
C. FACE COVERING means a covering that fits snugly over an individual's nose and mouth,
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such as a commercially made or homemade fabric mask, scarf, bandana, handkerchief, or
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shield.
D. GENERAL HEALTH PRE-SCREENING means:
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I) asking questions intended to find out whether a worker is experiencing symptoms
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2) reiterating public health requirements; and
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3) checking face covering.
E. HAND SANITIZER means a liquid or gel generally used to decrease infectious agents on
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the hands that consists of at least 60% alcohol.

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F. HEALTH AUTHORITY means City of Austin /Travis County Health Authority or his
designee.
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G. HIGH TOUCH ITEM means an object; surface, tool, equipment, or piece of electronics
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H. KNOWN EXPOSURE means close contact with an individual who is confirmed or
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suspected COVID-19 positive.

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I. MAINTAINS means to own, operate, manage, or oversee a site.

J. PERSON IN CONTROL means a person who maintains a site.
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K. SITE means property. A site does not include:

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I) property maintained by a governmental entity;

2) property where medical services are provided;
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3) dwelling unit where the individual resides;

4) a school that offers instruction to students in one or more grades, pre-kindergarten
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through grade 12
L. SYMPTOMS CONSISTENT WITH COVID-19 means cough, fever, sore throat, runny
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nose or congestion, chills, muscle aches, loss of smell, loss of taste, shortness of breath,
vomiting, and/or diarrhea.
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M. VULNERABLE INDIVIDUAL means an individual who:

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I) is 65 years old and older; or

2) has certain health conditions such as heart disease, lung disease, diabetes, kidney
disease, Human Immunodeficiency Virus (HIV), Acquired Immune Deficiency
Syndrome (AIDS), or a weakened immune system
MARCH 4, 2021
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3) WORKER means an employee, independent contractor, subcontractor, or other
similar agent present at the site ·
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2. Rules Applicable to Individuals.
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2.1. Face Coverings.
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2.1.1. Except as provided in 2.1.2, an individual must wear a face covering when
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outside of his or her residence.
2.1.2. Exceptions. A face covering is not required for:
2.1.2.L any person younger than 10 years of age (though it is still recommended
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for children two years of age and older);
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2.1.2.2. any person with a medical condition or disability that prevents wearing a
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face covering;
2.1.2.3. any person while the person is eating or drinking, or is seated at a
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restaurant to eat or drink;
2.1.2.4. any person while the person is (a) exercising outdoors or engaging in
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physical activity outdoors and (b) maintaining a safe distance from others
not in the same household;
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2.1.2.5. any person while the person is driving alone or with passengers of the
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same household as the driver;

2.1.2.6. any person obtaining a service that requires temporary removal of the
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face covering for security surveillance, screening, or the need for specific
access to the face, such as while visiting a bank or while obtaining a
personal care service involving the face, but only to the extent necessary
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for the temporary removal;

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2.1.2. 7. any person while the person is in a swimming pool, lake, or similar body
of water;
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2.1.2.8. any person who is voting, assisting a voter, serving as a poll watcher, or
actively administering an election, but wearing a face covering is
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strongly encouraged;
2.1.2.9. any person who is actively providing or obtaining access to religious
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worship;
2.1.2.10. any person while the person is giving a speech for a broadcast or to an
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audience; or
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2.1.2.11. any person while temporary removal of the face covering is necessary for
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2.1.2.12. any person who is alone, or in the presence of only members of the same
household or residence, in a separate room or single space not accessible
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to the public, and not in an indoor common area.

2.2. No more than ten individuals may stand or gather together.
2.3. Physical Distancing
2.3.1. Except as provided in 2.3.2, an individual must be at least six feet apart from
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MARCH 4, 2021
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another individual.
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2.3.2. Exceptions. An individual is not required to stay six feet from another individual
in the following circumstances:
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2.3.2.1. When passing another individual is incidental and momentary.
2.3.2.2. When all individuals reside in the same household.
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2.3.2.3. When it is not feasible to maintain six feet distance between a service
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provider and patron.
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2.3.2.4. When individuals are dining in groups ofless than ten.
2.3.3. A parent or guardian ofa child who is under the age of 10 is responsible for
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maintaining physical distance between the child in their household and others'
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households.
2.3.4. A group often or fewer individuals must be at least six feet from another group
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of ten or fewer individuals except when the groups are seated at tables that are at
least four feet apart and separated by a solid barrier.
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2.4. Positive Test, Pending Test, Known Exposure, or Symptomatic.
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2.4.1. If someone in a household is COVID-19 positive or is awaiting the results ofa
COVID-19 test, the entire household shall isolate and avoid travel outside of the
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County of Travis except to seek medical attention until the household is cleare.d
by Austin. Public Health.
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2.4.2. When seeking medical care or emergency medical care, an individual who is
COVID-19 positive, is experiencing symptoms consistent with COVID-19, or
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experienced a known exposure must notify the healthcare provider in advance or,
in the event of an emergency, the 9-1-1 call taker and first responders.
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2.4.3. An individual who tested positive shall:

2.4.3.1. notify Austin Public Health if the residence does not allow for physical
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separation from other household contacts (separate room and bathroom);

2.4.3.2. notify Austin Public Health if a member of their household is over the
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age of 65 and/or if they have underlying medical conditions identified by

the Centers for Disease Control (CDC) of increasing the risk of
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complications from COVID-19; and

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2.4.3.3. remain in home quarantine for at least IO days after symptoms first appeared,
at least 24 hours with no fever without fever-reducing medication, and
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symptoms have improved.

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2.4.4. An individual who experienced a known exposure and becomes symptomatic

shall follow the requirements in 2.4.3.
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2.5. Quarantine. An individual who experienced a known exposure shall quarantine as set forth in
this rule.
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2.5.1. An individual shalr quarantine for at least 14 ciays if the individual was exposed to
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someone with COVlD-19 and:

2.5.1.1. was not wearing a mask, or
2.5.1.2. lives with high risk individuals or works in a high risk setting
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MARCH 4, 2021
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2.5.2. An individual who does not live with high risk individuals .or work in a high risk setting
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and is not a healthcare worker or a first responder shall either:
2.5.2.L quarantine for at least 10 days and monitor symptoms if the individual was
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exposed to someone with COVID-19 and was wearing a mask; or
2.5.2.2. quarantine for at least 7 days and monitor symptoms if the individual:
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• was exposed to someone with COVID-19;
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• was wearing a mask, and
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• receives a negative COVID-19 test on or after the 5th day
following exposure.
2.5.3. An individual who does not live with high risk individuals or work in a high risk setting
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shall quarantine for at le.ast 7 days and monitor.symptoms if the individual: ·
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2.5.3.1. is a health care worker or first responder; ·
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2.5.3.2. was exposed to someone with COVID-19;
2.5.3.3. was wearing a mask; and
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2.5.3.4. receives a negative COVID-19 test on or after the 7th day following exposure.
2.5.4. An individual who is an employee of a government service or CISA industry shall
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2.5.4.I. this rule; or
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2.5.4.2. an alternative plan approved by the Health Authority.

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3. Rules Applicable to Sites.

3.1. General. Rules 3.1-3.3 do not apply to a site that wher.e child care programs operate.
3.2. A person in control ofa site must:
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3.2.1. require each individual to wear a face covering except as provided in 2.1.2;
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3.2.2. clean and ·disinfect high touch items at least twice per day;
3.2.3. limit the number of individuals who gather or stand together to ten or less;
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3.2.4. require at least six feet between groups of individuals except when the groups are
seated at tables that are at least four feet apart and separated by a solid barrier;
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3.2.5. conduct a general health pre-screening of each worker every day before the
worker begins his or her shift;
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3.2.6. keep toilets clean, sanitary and operational at all times and ensure proper disposal
of waste from these facilities;
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3 .2. 7. provide single use disposable paper towels and no-touch trash receptacles in
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restrooms and breakrooms;

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3.2.8. mandate workers wash their hands for at least twenty seconds at the following
times:
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3.2.8.1. before workers begin work;

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3.2.8.2. after workers remove gloves;

3.2.8.3. before and after the use of shared items such as tools, electronic;
3.2.8.4. devices or multi-user devices;
3.2.8.5. before and after any meal or restroom breaks; and
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MARCH 4, 2021
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3.2.8.6. after a worker's shift or work time ends; and
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3.2.9. for workers confirmed to have contracted COVID-19, follow all directions from
Austin Public Health concerning that worker and other workers that may have
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come in contact with the infected worker.
3.3. Signs required. A person in control of a site shall post:
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3.3.1. at least one face covering signs at or near each entrance;
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3.3.2. at least one Austin Public Health "Help Prevent Disease" sigris at each entrance
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and on each restroom door (available for download and print at:
http://www.austintexas,gov/sites/default/files/files/Health/General%20Hygiene%
20Flyer%20Final2-l-eng,05 I 120.pdf); and
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3.3.3. where information for workers is customarily posted, at least one sign in English
and at least one sign in Spanish that explains the requirement to remain at least
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six feet apart and the requirement to wear a face covering.
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4. Rules Applicable to Hospitals, Pharmacies, Clinics, and Similar Entities.
4.1. A hospital, pharmacy, clinic, or any other entity or person who performs or obtains testing
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for COVID-19 shall provide the Health Authority tc,st results at least weekly on Thursdays
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and, beginning August 31, 2020, twice weekly on Mondays and Thursdays. The test
results must include PCR, antigen, antibody testing, and other information when
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specifically requested by the Health Authority; and must be provided in electronic form
and in the manner directed by Austin Public Health. In this provision, test results means
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the tests performed and those reported positive, negative, or inconclusive

4.2. Any data that is required to be provided to the State of Texas under state law shall be
simultaneously provided to the Health Authority if the individual is tested within the City
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of Austin or Travis County.

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5. Rules Applicable to Specific Types of Sites.

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5.1. Construction Sites. A person in control of a construction site shall comply with Rules
Applicable to Sites and:
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5.1.1. institute staggered shifts for sites with more than l Oactive workers and post at
these sites, in languages understood by all persons working there, a notice
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showing the sizes and types of shift crews working there, and directions on how
the person in control is limiting crew sizes and rotating shifts;
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5.1.2. ensure handwashing station and restroom(s) are spaced six feet apart or more
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from each other;

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5.1.3. prohibit the use of community water coolers;

5.1.4. provide individual water bottles or instruct. workers to bring their own;
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5.1.5. designate a COVID-19 safety monitor who is always on-site; and

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5.1.6. ensure that each worker who enters ajobsite has signed in and keep a list of and
contact information for each worker that enters the jobsite .every day for the
purpose of identifying and notifying workers if they have shared ajobsite with
someone who has been confirmed to have COVID-19. J
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MARCH 4, 2021
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5-.2'. Child Care Facilities.
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5.2.1. Notify Austin Public Health's Nurse Line at 512-972-5560 to report any
laboratory confirmed cases of COVID-19 among children or staff.
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5.2.2. Follow the steps provide by Austin Public Health regarding suspected or
confirmed cases of COVID-19.
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5.2.3. Comply with "City of Austin/Travis County Guidance for Open Child Care
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Programs."
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FILED AND RECORDED

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OFFICIAL PUBLIC RECORDS

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Dana DeBeauvoir, County Clerk

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Travis County, Texas

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2021050198 Mar 09, 2021 05:46 PM

Fee: $0.00 GUERREROR
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Page6of6
District Clerk
El Paso County
2020DCV3515
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GROUP, INC., d/b/a WING DADDY’S, §
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RUN BULL RUN, LLC d/b/a/ TORO §
BURGER BAR, CHARCOALER, LLC, §
TRIPLE A RESTAURANT INC., CC §
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VERLANDER ENTERPRISES, LLC, and §
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BAKERY VENTURES I, LTD., §
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§
Plaintiffs, §
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§
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STATE OF TEXAS, §
§
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§
v. §
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§
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official capacity as County Judge, El Paso §

County, Texas, §
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______________________________________________________________________________
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STATE OF TEXAS’ PLEA IN INTERVENTION

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______________________________________________________________________________
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INTRODUCTION
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1. The Attorney General of Texas, on behalf of the State, respectfully

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intervenes in this case under Texas Rule of Civil Procedure 60. The Attorney General
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intervenes to: (1) prevent Defendants from nullifying Governor Greg Abbott’s COVID-
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19-related executive order GA-32; (2) preserve the State’s need for a clear and
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consistent response to the pandemic, which is being undermined by Judge Ricardo

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Samaniego’s recent emergency order (“EO-13”); and (3) protect the residents of El
Paso County and the Texas Disaster Act (“TDA”) at large from the unlawful and
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unconstitutional EO-13.
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BACKGROUND
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disasters.” 1
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3. The TDA strengthens the role of both state and local governments in
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preparing for, responding to, and recovering from disasters. 2 But the TDA makes the
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sitting Texas Governor the leader and focal point of the State’s emergency response. 3
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this weighty task. 6 Relevant here, the Governor is given the powers to: (1) control the
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executive orders that “have the force and effect of law”; and (3) suspend statutes,
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1 TEX. GOV’T CODE § 418.002(1), (3).

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2 Id. at § 418.002(4).
3 See id. at §§ 418.011–.026.
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4 Id. at § 418.011.
5 Id. at § 418.015(c).
6 See id. at §§ 418.011–.026.
7 Id. at § 418.018(c).
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6. The TDA gives local officials far more limited powers than those afforded
to the Governor. Local officials generally derive their power from two sources under
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the TDA.
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appropriate local scale.” Under this section, an emergency management director
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control. 9 ct
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8 Id. at § 418.016(a).
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10 Id. at § 418.108(g).
11 Id.
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GA-32 states: “Every business establishment in Texas shall operate at
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13. But the order specifies that “[t]here is no occupancy limit” for certain
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services and businesses, such as: (1) religious services; (2) local government
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can remain open.

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12 Id. at § 418.1015(b).
13 Id.
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14 Ex. A.
15 TEX. GOV’T CODE § 418.012.
16 Ex. A, 2.
17 Id. at 2–3.
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17. The order states that “[p]eople may visiting nursing homes” and similar
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GA-32 does not require persons to “stay at home.” Quite the opposite.
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18 Id. at 3.
19 Id. at 4.
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20 Id.
21 Id. at 5.
22 Id. at 4.
23 Id. at 5.
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disasters.” 26 Judge Samaniego’s impermissibly and unconstitutionally undercuts
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these reopening efforts.
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III. Judge Samaniego’s Recent Order Unlawfully Undermines GA-32.
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22. On October 29, 2020, Judge Samaniego issued an emergency order (“EO-
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13”) that effectively nullified GA-32 and undermined the State’s reopening efforts.
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23. At the outset of the order, Judge Samaniego notes that sections
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418.1015(b) and 418.018 provide the bases for his authority to issue emergency
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orders. 27 Judge Samaniego acknowledges that, under section 418.1015, he “serv[es]
as the Governor’s designated agent.” 28 Judge Samaniego then proceeds to undercut

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Governor Abbott’s response to this pandemic in a manner conflicting with, and

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expressly prohibited by, GA-32.

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24 Id. at 5.
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25 See id. at 2.
26 TEX. GOV’T CODE § 418.002(3).
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27 Ex. B, 1–2.
28 Id. at 2.
29 Id. at 5.
30 See Ex. A, 4.
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32. 32
26. EO-13 provides limited exceptions for people and businesses engaged in
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provided in this Order.” 36 This conflicts with GA-32 which, for instance, allows
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Ex. B, 6.
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32 See Ex. A.
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33 Ex. B, 5–12.
34 Id. at 6.
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35 Compare Ex. A, 2–5, with Ex. B, 5–12.

36 Ex. B, 6 (emphasis in original).
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37 Ex. A, 4.
38 Ex. B, 6.
39 See Ex. A.
40 Ex. B, 9.
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and consistent response to COVID-19.
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32. For instance, GA-32 states that it supersedes more restrictive local
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prevail.” 45 ct
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33. Judge Samaniego has no authority under the TDA to preempt or
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34. It is a Class C misdemeanor, punishable by an up to $500 fine, if a
person violates EO-13’s provisions. This leaves El Paso County residents with no
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choice but to ignore GA-32 and comply with the stricter EO-13. The TDA does not
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STANDARD FOR INTERVENTION

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35. “Any party may intervene [in a case] by filing a pleading, subject to being
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stricken out by the court for sufficient cause on the motion of any party.” 46 An
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41 See Ex. A.
42 Ex. B, 9.
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43 See Ex. A.
44 Ex. A, 5.
45 Ex. B, 16.
46 TEX. R. CIV. P. 60.
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intervenor is not required to secure a court’s permission to intervene in a cause of
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action. 47 Rather, an intervenor need only show a “justiciable interest in a pending
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suit to intervene in the suit as a matter of right.” 48 “A party has a justiciable interest
in a lawsuit, and thus a right to intervene, when his interests will be affected by the
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litigation.” 49 “The interest asserted by the intervenor may be legal or equitable.” 50
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36. With respect to the timing of an intervention, there is no pre-judgment
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deadline for intervention. 51 Texas courts recognize an “expansive” intervention
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doctrine in which a plea in intervention may be untimely only if it is “filed after
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judgment,” 52 though even post-judgment interventions are permissible under certain
circumstances. 53 ct
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37. This intervention was brought shortly after this lawsuit was filed.
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Texas’ intervention is timely.

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THE STATE’S INTERESTS
38. Texas, as a sovereign entity, “has an intrinsic right to enact, interpret,

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and enforce its own laws.” 54 This includes a right to “reassert the control of the state”
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47 Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).
48 In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008).
49 Jabri v. Alsayyed, 145 S.W.3d 660, 672 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Law
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Offices of Windle Turley v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.—Fort Worth 2003, no pet.)).
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50 Guar. Fed. Sav. Bank, 793 S.W.2d at 657 (citation omitted).

51 Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008) (citing Tex. R. Civ. P. 60; Citizens State
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Bank of Sealy v. Caney Invs., 746 S.W.2d 477, 478 (Tex. 1988)).
52 Texas v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (quoting First Alief Bank v. White, 682 S.W.2d 251,
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252 (Tex. 1984)).

53 Ledbetter, 251 S.W.3d at 36 (citing In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 725–26 (Tex.
2006)).
54 State v. Naylor, 466 S.W.3d 783, 790 (Tex. 2015).
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and “enforce existing policy” as declared by the Texas Legislature. 55 Injuries to this
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right are sufficient to both create standing to sue and show irreparable harm. 56
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39. This interest logically extends to issues concerning the applicability of
the State’s laws. The State is “the guardian and protector of all public rights” and has
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authority to sue to redress any violations of those rights. 57 The State’s interests
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extend to preventing “an abuse of power by public officers” and to issues concerning
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the “maintenance and operation of its municipal corporations in accordance with
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law.” 58
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40. The State’s interests are arguably at their apex when seeking to protect
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its citizens from “an epidemic of disease which threatens the safety of its members.” 59
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41. EO-13 implicates these, and many other, important State interests. As
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explained above, EO-13 violates GA-32, the TDA, and undermines the State’s need
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for a clear and consistent response to the COVID-19 pandemic.
42. EO-13 should be declared invalid and unconstitutional under TEX. CIV.
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PRAC. & REM. CODE § 37.006(b). EO-13 also constitutes an ultra vires act. There are
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three main reasons why.

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55 City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).

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56 See, e.g., Valentine v. Collier, 956 F.3d 797, 803 (5th Cir. 2020); Texas v. EEOC, 933 F.3d 433, 447
(5th Cir. 2019); Texas Ass'n of Bus. v. City of Austin, Texas, 565 S.W.3d 425, 441 (Tex. App.
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2018), review denied (June 5, 2020).

57 Yett v. Cook, 115 Tex. 205, 219 (1926); see also Alfred L. Snapp & Son, Inc. v. Puerto Rico ex re.
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Barez, 458 U.S. 592, 607 (1982) (“a State has a quasi-sovereign interest in the health and wellbeing—
both physical and economical—of its residents in general.”).
58 Yett, 115 Tex. at 219–20.
59 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 27–28 (1905).
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43. First, EO-13 was expressly preempted by GA-32. 60 The TDA gave Texas
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Governors the responsibility to manage a disaster on a statewide level and the power
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to issue statewide disaster orders carrying the force and effect of law. GA-32 was
effectively a state law that carries the same preclusive effect as any other state law.
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GA-13 expressly superseded more restrictive local ordinances such as EO-13. EO-13
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is preempt and invalid as a result. 61
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44. Second, Judge Samaniego did not have authority to issue emergency
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orders more restrictive than Governor Abbott’s. GA-32 suspended the sole statutory
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bases for Judge Samaniego’s emergency order (TEX. GOV’T CODE §§ 418.1015(b) and
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418.108) to the extent necessary to ensure that local officials “do not impose
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32].” 62 EO-13 is an ultra vires act and an invalid ordinance because Judge Samaniego
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had no authority to issue this more restrictive order.
45. Third, EO-13’s order was unconstitutional and violates separation of

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powers principles. The Texas Constitution vests lawmaking power in the Texas
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Legislature. 63 The Legislature delegated this authority to sitting Governors during

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times of emergency. 64 Local emergency directors such as Judge Samaniego can

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exercise this gubernatorial power, but they do so only as “the governor’s designated
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60 See Ex. A, 5.
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61 See, e.g., BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 18–19 (Tex. 2016) (“[A local]
ordinance which conflicts or is inconsistent with state legislation is impermissible.”) (quotations
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omitted); see also S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).
62 Ex. A, 5.
63 See, e.g., Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
64 TEX. GOV’T CODE § 418.012.
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agent[s].” 65 Judge Samaniego was not acting as Governor Abbott’s “designated agent”
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when he issued an emergency order that expressly conflicted with GA-32. Thus, his
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order usurps both the Texas Legislature’s ability to control who exercises legislative
authority and Governor’s Abbott’s role as the designated individual responsible for
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meeting disasters on a statewide level.
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46. Judge Samaniego will point to section 418.018 as the basis for his
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lawmaking power (which, again, was suspended under the circumstances). This
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statute, while allowing county judges and mayors to control the movement of persons
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and the occupancy of premises, does not grant county judges and mayors the power
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to issue orders carrying the force and effect of law. 66 The TDA only gives local officials
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such authority when they act as local emergency management directors, meaning
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when they act as designated agents of the Governor. 67

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47. This conclusion is supported by a clear reading of the two statutes’
language. It is further justified by the fact that the TDA clearly contemplated that
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the Governor would be the leader of the State’s emergency response. 68 Any other
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conclusion would lead to the absurd result where the Governor—the individual
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mainly responsible for guiding the State through a crisis—is unable to do so because
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his or her executive orders keep getting nullified by local officials. That is precisely
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what occurred here with Judge Samaniego’s unlawful EO-13.

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65 Id. at § 418.1015(b).
66 See id. at § 418.108(g).
67 See id. at § 418.1015(b).
68 See id. at §§ 418.011–.026.
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PRAYER
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For the reasons discussed above, the State of Texas respectfully prays that this
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Court:
A. Through counsel below, enter an appearance for the State of Texas in
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this cause;
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B. Declare EO-13 to be invalid and unconstitutional;
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C. Issue preliminary and permanent injunctions against EO-13; and
D. Award any further relief that the Court deems just and proper.
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KEN PAXTON
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BRENT WEBSTER
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RYAN L. BANGERT
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DARREN L. MCCARTY
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THOMAS A. ALBRIGHT
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/s/ Todd Dickerson

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TODD DICKERSON
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Austin, TX 78711-2548
(512) 475-4072 PHONE
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(512) 320-0667 FAX

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ATTORNEYS FOR INTERVENOR STATE OF TEXAS
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I hereby certify that on the 30th day of October, 2020 a true and correct copy
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counsel of record. A true and correct copy was also sent via email to:
Joe Anne Bernal
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County Attorney for
El Paso County, Texas
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joanne.bernal@epcounty.com
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/s/ Todd Dickerson
TODD DICKERSON
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14
El Paso County - 34th District Court Filed 11/2/2020 12:00 AM
District Clerk
El Paso County
2020DCV3515
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GROUP, INC., d/b/a WING §
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DADDY’S, RUN BULL RUN, LLC §
d/b/a/ TORO BURGER BAR, §
CHARCOALER, LLC, TRIPLE A §
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RESTAURANT INC., CC §
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VERLANDER ENTERPRISES, LLC, §
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and BAKERY VENTURES I, LTD., §
Plaintiffs, §
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STATE OF TEXAS, §
§
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§
v. § ct EL PASO COUNTY, TEXAS
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§
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official capacity as County Judge, El §

Paso County, Texas, §
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______________________________________________________________________________
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INTERVENOR-PLAINTIFF STATE OF TEXAS’S

MOTION FOR A TEMPORARY INJUNCTION
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______________________________________________________________________________
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INTRODUCTION
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1. Judge Ricardo Samaniego’s recent emergency order (“EO-13”): (1)

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conflicts with Governor Greg Abbott’s COVID-19-related executive order GA-32; (2)
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undermines the State’s need for a clear and consistent response to this pandemic; and
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(3) disrupts the Texas Legislature’s division of emergency powers as reflected in the
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Texas Disaster Act (“TDA”). EO-13 is patently unlawful and reflects a clear abuse of
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power by Judge Samaniego. El Paso authorities have begun citing businesses
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consistent with Judge Samaniego’s unlawful order. This order should be immediately
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enjoined.
FACTUAL BACKGROUND
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2. TDA is designed to mitigate the “damage, injury, and loss of life and
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disasters.” 1
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TDA strengthens the role of both state and local governments in
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preparing for, responding to, and recovering from disasters. 2
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4. TDA makes the sitting Texas Governor the leader and focal point of the
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State’s emergency response. 3
5. Under TDA, the Governor is “responsible for meeting . . . the dangers to

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the state and people presented by disasters” 4 and is the “commander in chief” of the
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State’s response to a disaster, including the State’s response to rehabilitating persons

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and reopening businesses that have suffered from a disaster. 5

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6. TDA gives the Governor broad powers necessary to accomplish this

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weighty task. 6 Relevant here, the Governor is given the powers to: (1) control the
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1 TEX. GOV’T CODE § 418.002(1), (3).

2 Id. at § 418.002(4).
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3 See id. at §§ 418.011–.026.

4 Id. at § 418.011.
5 Id. at § 418.015(c).
6 See id. at §§ 418.011–.026.
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executive orders that “have the force and effect of law” 8; and (3) suspend statutes,
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7. TDA gives local officials far more limited powers than those afforded to
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the Governor. Per Defendants, local officials generally derive their power from two
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sources under TDA.
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appropriate local scale.” 10 Under this section, an emergency management director
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control. 11
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7 Id. at § 418.018(c).
8 Id. at § 418.012.
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9 Id. at § 418.016(a).
10 Id. § 418.1015(b).
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12 Id. at § 418.108(g).
13 Id.
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11. Rather, a local official’s power to issue emergency orders is derivative of
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and subservient to the Governor’s power. TDA grants local officials derivative use of
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a Governor’s powers only when they are acting in their capacities as local “emergency
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management director[s.]” 14 When acting in this capacity, the local official is a
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“designated agent” of the Governor and thus is subject to the Governor’s control. 15
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12. ct
On October 7, 2020, Governor Abbott issued Executive Order GA-32 to
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13. GA-32 states: “Every business establishment in Texas shall operate at

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14. However, the order specifies that “[t]here is no occupancy limit” for
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certain services and businesses, such as: (1) religious services; (2) local government
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14 Id. at § 418.1015(b).
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15 Id.
16 Ex. A.
17 TEX. GOV’T CODE § 418.012.
18 Ex. A at 2.
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can remain open.
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18. The order states that “[p]eople may visit nursing homes” and similar
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19. GA-32 does not require persons to “stay at home.” Quite the opposite.
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19 Id. at 2–3.
20 Id. at 3.
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21 Id. at 4.
22 Id.
23 Id. at 5.
24 Id. at 4.
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Government Code . . . and any other relevant statutes, to the extent necessary to
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disaster that are inconsistent with this executive order . . . .” 26
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22. The Governor has therefore suspended Judge Samaniego’s powers
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under TDA.
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safely. 27 It aims to fulfill one of TDA’s core purposes: “[T]he rapid and orderly
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restoration and rehabilitation of persons and property affected by disasters.” 28
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However, EO-13 impermissibly and unconstitutionally undercuts these reopening

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efforts.
III. Judge Samaniego’s Recent Order Unlawfully Conflicts With, And Is

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Therefore Preempted By, GA-32.

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24. On October 29, 2020, Judge Samaniego issued EO-13 that purports to
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nullify GA-32 and undermine the State’s reopening efforts.

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25. At the outset of EO-13, Judge Samaniego notes that sections 418.1015(b)
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and 418.018 of the Government Code provide the bases for his authority to issue
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emergency orders. 29 Judge Samaniego acknowledges that, under section 418.1015, he

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25 Id. at 5.
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26 Id. at 5.
27 See id. at 2.
28 TEX. GOV’T CODE § 418.002(3).
29 Ex. B at 1–2.
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“serv[es] as the Governor’s designated agent.” 30 Judge Samaniego then proceeds to
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undercut Governor Abbott’s response to this pandemic in a manner conflicting with,
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and expressly prohibited by, GA-32.
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32. 34
28. ct
EO-13 provides limited exceptions for people and businesses engaged in
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provided in this Order.” 38 This conflicts with GA-32, which, for instance, allows
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Id. at 2.
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31 Id. at 5.
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32 See Ex. A at 4.
33 Ex. B at 6.
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34 See Ex. A.
35 Ex. B at 5–12.
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36 Id. at 6.
37 Compare Ex. A at 2–5, with Ex. B at 5–12.
38 Ex. B at 6.
39 Ex. A at 4.
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and consistent response to COVID-19. ct

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34. For example, GA-32 states that it supersedes more restrictive local
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prevail.” 47
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35. Judge Samaniego has no authority under TDA to contradict or

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36. In any event, Governor Abbott has suspended Judge Samaniego’s

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powers under the TDA, including the power to issue orders.

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40 Ex. B at 6.
41 See Ex. A.
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42 Ex. B at 9.
43 See Ex. A.
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44 Ex. B at 9.
45 See Ex. A.
46 Ex. A at 5.
47 Ex. B at 16.
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37. It is a Class C misdemeanor, punishable by a fine of up to $500, if a
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person violates EO-13’s provisions. This leaves El Paso County residents with little
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choice but to ignore GA-32 and comply with the stricter EO-13. TDA does not
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PROCEDURAL BACKGROUND
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38. Plaintiffs consist of 10 El Paso County-based businesses. 48 Defendants
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are El Paso County, a political subdivision of the State of Texas, and Judge
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Samaniego, the County Judge of El Paso County. 49
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39. Plaintiffs filed this action against Defendants on October 30, 2020 and
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sought to have EO-13 declared invalid and illegal as an invalid act on behalf of Judge
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Samaniego. 50
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40. The State intervened that same day and also asserted claims against
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Defendants. 51 As described in the plea, EO-13 is invalid and unconstitutional under
TEX. CIV. PRAC. & REM. CODE § 37.006(b) and constitutes an ultra vires act. This is
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because: (1) GA-32 expressly preempts EO-13; (2) Governor Abbott suspended the
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only statutes that would have allowed Judge Samaniego to issue binding emergency
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orders; and (3) Judge Samaniego exceeded the scope of his authority as Governor
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Abbott’s “designated agent” when he issued an emergency order expressly conflicting

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with GA-32. 52
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48 Plaintiffs’ Original Petition, ¶¶ 2–11.

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49 Id. at ¶¶ 12–13.
50 Id. at ¶¶ 21–23.
51 See generally State of Texas’ Plea in Intervention (“State’s Plea”).
52 See id. at ¶¶ 41–47.
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41. The State’s ultra vires and declaratory judgment claims are not barred
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by governmental immunity. 53
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ARGUMENT
42. “A temporary injunction’s purpose is to preserve the status quo of the
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litigation’s subject matter pending a trial on the merits.” 54 The applicant must prove
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three elements to obtain a temporary injunction: (1) a cause of action against the
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adverse party; (2) a probable right to the relief sought; and (3) a probable, imminent,
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and irreparable injury in the interim. 55 These requirements are readily met here.
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I. The State is Likely to Succeed on the Merits.
A. GA-32 Expressly Preempts EO-13. ct

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emergency orders, and EO-13 is far more restrictive than GA-32. Thus, the only open
issue is whether GA-32 should be considered a “state law.”

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44. GA-32 carries the same preemptive effect as any other state law, as will
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be shown below.
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45. TDA makes the Governor “responsible for meeting . . . the dangers to the
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state” presented by disasters. 57

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53 See, e.g., Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017); City of Dallas v. Albert, 354 S.W.3d 368,
378 (Tex. 2011).
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55 Id.
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46. TDA authorizes the Governor to declare a “state of disaster” for the
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entire State. 58 Governor Abbott did that when he declared that COVID-19 “poses an
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imminent threat of disaster for all counties in the State of Texas.” 59
47. TDA gives the Governor the power to issue emergency orders that have
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49. GA-32 expressly preempts EO-13, rendering it invalid from the outset.
Therefore, EO-13 should be enjoined. ct

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B. Governor Abbott Suspended the Only Statutes that Would have
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Allowed Judge Samaniego to Issue Binding Emergency Orders.

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50. Judge Samaniego identifies sections 418.1015(b) and 418.018 of the

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Government Code as the bases for his authority to issue local emergency orders. 62
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Governor Abbott, using his TDA-granted suspension power, 63 suspended these two
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statutes to the extent necessary to ensure that local officials “do not impose
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32].” 64 Judge Samaniego had no authority to issue the more restrictive EO-13—or
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any other order—under these circumstances.

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59 Ex. A at1 (emphasis added).

60 TEX. GOV’T CODE § 418.012.
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61 Ex. A at 2.
62 Ex. B at 1–2.
63 TEX. GOV’T CODE § 418.016(a).
64 Ex. A at 5.
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51. Defendants argue TDA “does not give the Governor the authority to
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suspend the power of the County Judge in times of emergency.” 65 Section 418.016(a)
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of TDA authorizes Governor Abbott’s suspension power. This statute reads:
The governor may suspend the provisions of any regulatory statute
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prescribing the procedures for conduct of state business or the orders or
rules of a state agency if strict compliance with the provisions, orders,
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or rules would in any way prevent, hinder, or delay necessary action in
coping with a disaster. 66
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52. Defendants claim sections 418.1015(b) and 418.018 are not “regulatory
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statute[s] that prescribe[] the conduct of state business . . . .” 67 They do not argue the
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term “regulatory” imposes any meaningful limits here. 68 Thus, the focus is on
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whether sections 418.1015(b) and 418.018 “prescribe[] the conduct of state business
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or the orders of rules of a state agency.” 69
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53. Indeed, this analysis must focus on TDA. Texas counties, as subdivisions
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of the State, have only those powers specifically conferred on them by statute or
constitution. 70 There is no constitutional basis for any powers Defendants assert here,
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leaving them with only what was granted under the TDA.
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54. TDA makes all levels of an emergency response matters of “state

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business.” A look at how TDA distributes power to local officials, and specifically at
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Subchapter E of TDA, 71 confirms this point.

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65 Defendants’ Answer and Plea to the Jurisdiction to Plaintiffs’ Original Petition (“Defendants’ Plea”)
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at 6–7.
66 TEX. GOV’T CODE § 418.016(a).
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67 Defendants’ Plea at 6–7.

68 See id.
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70 See, Tex. Const. art. IX, § 1; Guynes v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993); Avery v.
Midland County, 406 S.W.2d 422, 426 (Tex. 1966), rev'd on other grounds, 390 U.S. 474 (1968).
71 TEX. GOV’T CODE § 418.101 et seq.
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55. Section 418.1015 is the second statute listed in Subchapter E. This
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statute governs “emergency management directors.” Per section 418.1015(a), the
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designated “emergency management directors” are: (1) the “presiding officer” of an
incorporated city; (2) the “presiding officer” of a county; and (3) the “chief
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administrative officer” (“CAO”) of a joint board.
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56. Section 418.1015(b) states that an emergency management director (1)
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“serves as the governor’s designated agent in the administration and supervision of
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duties under this chapter” and (2) “may exercise the powers granted to the governor
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under this chapter on an appropriate local scale.” 72
57. ct
A mayor is a city’s presiding officer, 73 and a county judge is a county’s
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presiding officer. 74 TDA gives mayors, county judges, and joint board CAOs derivative
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gubernatorial emergency powers. And when these local officials exercise such powers,
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they do so only as the Governor’s “designated agent.” This is the plain reading of
section 418.1015. It is also supported by TDA as a whole, which reflects the

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Legislature’s overall intent to make the Governor the leader of the State’s emergency
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response. 75
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58. Next is section 418.108 (titled “Declaration of Local Disaster”), which is

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listed near the end of Subchapter E.

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72 Id. at § 418.1015(b).
73 TEX. LOC. GOV'T CODE § 22.037.
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74 See, e.g., County judge, 36 TEX. PRAC., COUNTY AND SPECIAL DISTRICT LAW § 22.5 (2d ed.) (“The
county judge is considered by many the highest ranking county official.”); Ex. B (wherein County Judge
Samaniego effectively acknowledges he is El Paso County’s presiding officer).
75 See id. at §§ 418.011–.026.
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59. Defendants contend that section 418.108 gives county judges and
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mayors independent emergency powers. They are mistaken.
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60. Section 418.108 distinguishes between, and resolves conflicts among,
emergency management directors. 76 Section 418.108 does not use the catchall term
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“emergency management directors,” instead referring to them by their offices:
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mayors, county judges, and CAOs. True, section 418.1015 refers to mayors and city
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judges as city and county “presiding officers.” But this term is synonymous with
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“mayor” and “county judge,” as explained above.
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61. After resolving a conflict about which emergency management director
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has exclusive authority over an airport (the joint board CAO does), 77 section
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418.108(f)–(g) then states:
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(f) The county judge or the mayor of a municipality may order the
evacuation of all or part of the population from a stricken or threatened
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area under the jurisdiction and authority of the county judge or mayor
if the county judge or mayor considers the action necessary for the
preservation of life or other disaster mitigation, response, or recovery.
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(g) The county judge or the mayor of a municipality may control ingress
to and egress from a disaster area under the jurisdiction and authority
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of the county judge or mayor and control the movement of persons and
the occupancy of premises in that area. 78
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62. Defendants read these provisions as an independent grant of local

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emergency power. But that interpretation makes these provisions superfluous.

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76 See id. at § 418.108(e)–(g).

77 See id. at § 418.108(e).
78 Id. at § 418.108(f)–(g).
14
Mayors and county judges already have these powers under section 418.1015(b). 79 It
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would be meaningless to give the same officials the same powers a second time.
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63. The only plausible reading of section 418.018(f)–(g) is that it
distinguishes which executive management directors can use the Governor’s power
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to restrict movement. Under these sections, mayors, and county judges can
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derivatively use this power. However, the CAO of a joint board, which is referenced
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in section 418.018(e) but not in section 418.018(f)–(g), cannot.
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64. The powers listed in section 418.018(f)–(g) mirror the “movement”
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emergency powers granted to the Governor. 80 That only makes sense. All local
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emergency authority is derived from the Governor’s emergency powers, as
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established in section 418.1015(b).
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65. The next subsection (section 418.018(h)) further undermines

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Defendants’ proposed interpretation. This subsection states that, when a county
judge’s and mayor’s “jurisdiction and authority” conflict, “the decision of the county
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judge prevails.” 81 This subsection does not address conflicts between a local official’s
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and a Governor’s use of emergency powers. It does not have to because section
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418.1015(b) resolves the issue by making local officials “the governor’s designated
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agent[s]” whenever they exercise their derivative emergency powers. And it is well
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settled that an agent must “act on the principal’s behalf and [is] subject to the
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principal’s control.” 82
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79 See also id. at § 418.018.

80 Compare id. at § 418.108(g)–(f), with § 418.018.
81 Id. at § 418.108(h).
82 RESTATEMENT (THIRD) OF AGENCY § 1.01 (2006).
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66. Defendants’ proposed interpretation would also lead to absurd results.
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67. Under Defendants’ proposal, mayors and county judges would have two
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“hats.” While wearing the hat of a “mayor” or “county judge” under section 418.018,
these officials would have emergency powers independent of the Governor’s powers.
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But if they changed their hat to an “emergency management director” and exercised
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the same powers, these local officials would become “the governor’s designated
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agent[s]” and thus would be subject to his or her control. 83
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68. To find for Defendants here, this Court would also need to believe that
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the Legislature intentionally made the Governor the leader of the State’s emergency
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response, 84 while simultaneously creating a loophole leaving mayors and county
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judges free to undermine the State’s emergency response at their whim.
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69. The Court would then need to ignore common sense and TDA at large
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and conclude that, somehow, laws governing the State’s response to a disaster do not
address matters of “state business.” 85

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70. Governor Abbott lawfully suspended sections 418.1015(b) and 418.018.

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Under the circumstances, Judge Samaniego had no legal authority to issue EO-13,
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which makes his order invalid, and his conduct ultra vires.
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83 TEX. GOV’T CODE § 418.1015(b).

84 See id. at §§ 418.011–.026.
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C. Judge Samaniego Exceeded the Scope of His Authority as
Governor Abbott’s “Designated Agent” when He Issued an
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Emergency Order Expressly Conflicting with GA-32.
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71. As discussed above, Judge Samaniego was using derived gubernatorial
powers and acting as Governor Abbott’s agent when he issued EO-13. Judge
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Samaniego could not lawfully issue an order expressly conflicting with GA-32. Thus,
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Judge Samaniego exceeded the scope of his authority, making EO-13 unlawful.
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73. ct
There, the Court explained that a century’s worth of precedent
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actions.” 89
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86 No. 20-0729, 2020 WL 5919729, at *7 (Tex. Oct. 7, 2020).

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88 Id.
89 Id.
90 Id. at *7.
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75. Per Hollins, the irreparable injury requirement favors the State. 92
L.
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III. A Temporary Injunction is Necessary to Preserve the Status Quo.
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76. This factor also favors the State. “The status quo is the last actual,
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peaceable, noncontested status which preceded the pending controversy.” 93 Here,
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that would be the parties’ status before Judge Samaniego’s EO-13.
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CONCLUSION
77. ct
As shown above, all three temporary injunction factors are strongly in
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the State’s favor.
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78. Thus, the State asks this Court to grant this motion and order
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Defendants to, during the pendency of this suit: (1) stop, or order stopped, all
enforcement efforts of EO-13; (2) rescind EO-13; and (3) refrain from issuing any new
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emergency orders more restrictive than, or conflicting with, GA-32.

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79. The State respectfully requests that it be heard regarding this motion
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within 24 hours of its filing because of the ongoing irreparable injury and the highly
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time-sensitive circumstances.
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91 Id.
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92 See State’s Plea at ¶¶ 38–47 (listing additional ways Defendants’ challenged conduct has irreparably
injured the State).
pet.).
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Respectfully submitted.
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KEN PAXTON
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BRENT WEBSTER
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RYAN L. BANGERT
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DARREN L. MCCARTY
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THOMAS A. ALBRIGHT
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/s/ Todd Dickerson
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TODD DICKERSON
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Austin, TX 78711-2548
(512) 475-4072 PHONE
(512) 320-0667 FAX
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ATTORNEYS FOR INTERVENOR-PLAINTIFF STATE

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OF TEXAS
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I hereby certify that on the 1st day of November, 2020, a true and correct copy
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counsel of record.
/s/ Todd Dickerson
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TODD DICKERSON
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20

SoT Original Petition

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3/11/2021 12:09 PM

STATE OF TEXAS’S VERIFIED ORIGINAL PETITION AND APPLICATIONS FOR

carry criminal penalties substantially impacting peoples’ lives and

1. This case raises a pressing question: who is ultimately responsible for

Act (“TDA”) charges the Governor—not an assortment of thousands of county judges,

Defendants’ last attempt to undermine Governor Abbott’s emergency orders in such

Defendants’ unlawful and invalid business and facemask restrictions.

REQUEST FOR AN EXPEDITED HEARING ON THE STATE’S APPLICATIONS FOR A

requests an expedited setting on its applications for a temporary restraining order

their differences or secure an agreed setting.

Travis County, Texas.

Lavaca, Ste. 2.300, Austin, Travis County, Texas.

Austin, Travis County, Texas.

Road, Austin, Travis County, Texas.

12. The State is seeking non-monetary relief. Discovery is intended to be

conducted under Level 1.

and orderly restoration and rehabilitation of persons and property affected by

the State’s emergency response. 3

the State’s response to a disaster. 5

2 TEX. GOV’T CODE § 418.002(1), (3).

20. Section 418.1015(b) provides: “An emergency management director may

governor’s designated agent” and thus is subject to the Governor’s control. 12

6 See id. at §§ 418.011–.026.

agencies, boards, and commissions having emergency responsibilities.”).

III. An Overview of Governor Abbott’s Executive Order GA-34.

24. On March 2, 2021, Governor Abbott issued Executive Order GA-34 to

25. There are three GA-34 provisions relevant here.

jurisdiction to wear or to mandate the wearing of a face covering.” 20 An “[a]rea with

are no high hospitalizations areas in Texas at the moment.

28. Finally, GA-34 expressly preempts and supersedes “any conflicting

inconsistent with this executive order.” 25

disasters.” 27 Defendants’ emergency orders impermissibly and unconstitutionally

31. At least four of Defendants’ emergency orders are at issue here

(collectively, “Defendants’ Emergency Orders”).

A. City of Austin Order No. 20210216-026 (“Order 26”).

charged with a criminal misdemeanor punishable by a fine up to $1,000. 31

2021, 11:25 AM), https://www.kxan.com/news/local/austin/masks-still-required-austin-will-keep-

B. City of Austin’s December 15, 2020 Health Authority Rules (the

“Austin Health Rules”).

are seemingly punishable by a fine up to $2,000. 37

32 Id. at 2 (emphasis added).

34 See Ex. A at 2–3.

Rules’ facemask and business-related restrictions don’t survive GA-34.

orders or proclamations by the Governor relating to the COVID-19 disaster.” 43 Thus,

by its own terms, Order 2021-02 defers to GA-34.

39. Order 2021-02 imposes facemask requirements and other business-

this order is punishable by a fine up to $500. 46

CLAIMS FOR RELIEF

preemption principles, the State alleges as follows.

43. The enforcement of Defendants’ Emergency Orders constitutes an ultra

Defendants to issue these emergency orders.

44. The enforcement of Defendants’ Emergency Orders is invalid, unlawful,

I. The State will Likely Succeed on the Merits.

local emergency orders in circumstances virtually identical to this case.

facemask requirements and business restrictions in a manner at odds with, and

law.” The only logical conclusion is that it is.

to the state” presented by disasters. 56

B. Governor Abbott Suspended Defendants’ Statutory Authority to

Signed this _ day of March, 2021 at _.