Article II, Section 1 of the Texas Constitution (discussion page)
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governor is excuting a constitional statute in an unlawful manner injuirous to the plaintiffs. planitiffs cannot and do not seek any remedgy for past damagesl but the gover shuold be enjoined from injring plaintiffs in the future,
Fitts v. McGhee, 172 US 516 530 - Supreme Court 1899 "It is to be observed that neither the Attorney General of Alabama nor the Solicitor of the Eleventh Judicial Circuit of the State appear to have been charged by law with any special duty in connection with the act of February 9, 1895. In support of the contention that the present suit is not one against the State, reference was made by counsel to several cases, among which were Poindexter v. Greenhow, 114 U.S. 270; Allen v. Baltimore & Ohio Railroad, 114 U.S. 311; Pennoyer v. McConnaughy, 140 U.S. 1; In re Tyler, 149 U.S. 164; Reagan v. Farmers' Loan and Trust Co., 154 U.S. 362, 388; Scott v. Donald, 165 U.S. 58, and Smyth v. Ames, 169 U.S. 466. Upon examination it will be found that the defendants in each of those cases were officers of the State, specially charged with the execution of a state enactment alleged to be unconstitutional, but under the authority of which, it was averred, they were committing or were about to commit some specific wrong or trespass to the injury of the plaintiff's rights. There is a wide difference between a suit 530*530 against individuals, holding official positions under a State, to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State. In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the Governor and the Attorney General, based upon the theory that the former as the executive of the State was, in a general sense, charged with the execution of all its laws, and the latter, as Attorney General, might represent the State in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons. If their officers commit acts of trespass or wrong to the citizen, they may be individually proceeded against for such trespasses or wrong.
Poindexter v. Greenhow, 114 US 270 293- Supreme Court 1885 The argument, therefore, which seeks to defeat the present action, for the reason that it is a suit against the State of Virginia, because the nominal defendant is merely its officer and agent, acting in its behalf, in its name, and for its interest, and amenable only to it, falls to the ground, because its chief postulate fails. The State of Virginia has done none of these things with which this defence charges her. The defendant in error is not her officer, her agent, or her representative, in the matter complained of, for he has acted not only without her authority, but contrary to her express commands. The plaintiff in error, in fact and in law, is representing her, as he seeks to establish her law, and vindicates her integrity as he maintains his own right.
Reagan v. Farmers' Loan & Trust Co., 154 US 362 - Supreme Court 1894 Neither will the constitutionality of the statute, if that be conceded, avail to oust the Federal court of jurisdiction. A valid law may be wrongfully administered by officers of the State, and so as to make such administration an illegal burden and exaction upon the individual. A tax law, as it leaves the legislative hands, may not be obnoxious to any challenge, and yet the officers charged with the administration of that valid tax law may so act under it in the matter of assessment or 391*391 collection as to work an illegal trespass upon the property rights of the individual. They may go beyond the powers thereby conferred, and when they do so the fact that they are assuming to act under a valid law will not oust the courts of jurisdiction to restrain their excessive and illegal acts challenging the governor's action, not the legisalature
governor can change his eo, he cannot change statute which all cases cites involve
whether he implements poicly in proclamation, exo or regulation or leeter or internet or vebally in person = no difference he is actor causing damage, not the leg or ag or da
governor is litigating on behalf of the state of texas, not himself Hutto v. Finney, 437 US 678, 699 - Supreme Court 1978 Although the Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit against prison officials was, for all practical purposes, brought against the State.The actions of the Attorney General himself show that. His office has defended this action since it began.
Boston v. Garrison, 256 SW 2d 67 70 - Tex: Supreme Court 1953 There is a well defined difference between injunction and mandamus. One is preventive and the other remedial. "The functions of an injunction are to restrain motion and to enforce inaction, those of mandamus to set in motion and to compel action."
x Lane v. Ross, 249 SW 2d 591 - Tex: Supreme Court 1952 wilson dissenting The functions of both mandamus and injunction have overlapped in the past and an examination of the long history of both demonstrates that there has always been a borderland of overlapping functions. Yett v. Cook, 115 Tex. 175, 268 S.W. 715, 281 S.W. 843. This Court has in the past used its original jurisdiction of mandamus to restrict a public official from illegally performing his duty.
in this case, the plaintiffs do not seek to compel the Governor to grant them some form of aproval and/or authority to ..., but rather seek to restrain the gov from prohibiting them from exercsing their statutaory authority to ..., the relief sout is propery chacarterixed as inmuuntive and ot mandamsu.
DJ again eo and injunction against reinstating include next 30 days.
Mandatory v perscrtive determines by gist of suit not literal body movements
Kaufman County v. McGaughey, 21 S.W. 261, ???, 3 Tex. Civ. App. 655, 670 (Tex.Civ.App.--Austin 1893, writ ref'd) ("This law does not, in terms or by implication, prohibit the issuance of writs of injunction against the officers of the Executive Departments of the State in all cases; but the inhibition is, by the very words of the statute, limited to such writs and process as are issued 'to order or compel any act or duty, which by the laws of the State they or either of them are authorized to perform, whether such act or duty be judicial, ministerial or discretionary.' In this suit it is not sought to compel either of the defendants to do any act or perform any duty which they are authorized to perform; but on the contrary, the gist of the plaintiff's case lies in the averment that the acts complained of have been, or will be, committed without and in excess of lawful authority.").
No requirement that Gov put his order in executive order or even in letter. Could be oral.
dj against governor is in substance dj against stat of texas that ad, da, and courts resolving private claims must adhere to=change in relationship x Hewitt v. Helms, 482 U.S. 755, 761 (1987)
only state action under legislation was enfocement x Fitts v. McGhee, 172 U.S. 516, 530, 19 S. Ct. 269, 43 L. Ed. 535 (1899) ("There is a wide difference between a suit 530*530 against individuals, holding official positions under a State, to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State. In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the Governor and the Attorney General, based upon the theory that the former as the executive of the State was, in a general sense, charged with the execution of all its laws, and the latter, as Attorney General, might represent the State in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons. If their officers commit acts of trespass or wrong to the citizen, they may be individually proceeded against for such trespasses or wrong.
The Governor is a proper party in this lawsuit. He is the state official who committed the ultraH vires act and has the authority to rescind the unlawful executive order. See City of El Paso v. Heinrich, 284 S.W.3d 3636, 373 (Tex. 2009) (holding that the state actor who commits the ultra vires conduct is the proper party in an ultra vires lawsuit).
passed in 1881, always undertood to prevent mandatory injuctions and other compulsory wirts against exectuive officers for 140 years texas district courts have been issuing injuctions restraining exectuive offiers ... TSC has never written extensively on the question but twice approved after being briefed
Plaintiffs entitled to injunction retraining the Governor from suspending, controlling, regulating, contesting, or otherwise interfering with their statutory authority to require "City and County employees or visitors to City- and County-owned facilities to wear masks or face coverings." public health statutes that authorize certain local government entities, including the plaintiffs, to impose face covering requirements on their own employees and members of the public who visit their facilities
Fourth CA opinion (additional cases):
"The City and County seek a declaratory judgment that the Governor’s suspension of laws allowing local governments to impose mask requirements is ultra vires and outside the scope of his authority under the Act. Such declaratory relief will redress the City and County’s injuries by allowing them to exercise their authority delegated by the Legislature, including authority to impose mask requirements within their jurisdictions." Yes, but how ...
Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 438 (Tex. 2016)
Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012)
Mi Familia Vota v. Abbott, 497 F. Supp. 3d 195, 210 (W.D. Tex. 2020)
Governor's Opening Brief in CA:
And the Texas Government Code provides that “[o]nly the supreme court has the authority to issue a writ of mandamus or injunction . . . against any of the officers of the executive departments of the government of this state.”
Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 843-44 (Tex. 2007)
City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009)
Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011)
Hall v. McRaven, 508 S.W.3d 232, 240-41 (Tex. 2017)
6th Street Bus. Partners LLC v. Abbott, No. 1:20-CV-706-RP, 2020 WL 4274589, at *3 (W.D. Tex. July 24, 2020)
Tex. Democratic Party v. Abbott, 961 F.3d 389, 400 (5th Cir. 2020)
Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995)
A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 672 (Tex. 1995)
In re B.N.A., 278 S.W.3d 530, 533 (Tex. App.—Dallas 2009, no pet.)
Plaintiffs' reply brief:
Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016)
Texas Parks and Wildlife Dept. v. Sawyer Trust, 354 S.W.3d 384, 393 (Tex. 2011)
Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 519 (5th Cir. 2017)
Witt v. Whitehead, 900 S.W.2d 374, 375 (Tex. App.—Austin 1995, writ denied)
Canales v. Paxton, No. 03-19-00259-CV, 2020 WL 5884123, at *2 (Tex. App.—Austin Sept. 30, 2020, pet. denied)
Terrell v. Middleton, 187 S.W. 367, 369 (Tex. Civ. App.—San Antonio 1916, writ denied)
Governor's reply brief:
Wasson Ints., Ltd. v. City of Jacksonville, 489 S.W.3d 427, 429-30 (Tex. 2016)
Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981)
State v. Naylor, 466 S.W.3d 783, 790 (Tex. 2015)
State v. Hollins, 620 S.W.3d 400 (Tex. 2020)
Ector County All. of Bus. v. Abbott, No. 11-20-00206-CV, 2021 WL 4097106, at *10 (Tex. App.—Eastland Sept. 9, 2021, no pet. h.)
In re C.H., No. 13-17-00544-CV, 2019 WL 5251145, at *3–4 (Tex. App.—Corpus Christi Oct. 17, 2019, no pet.)
In re Off. of Att’y Gen. of Tex., No. 05-18-00086-CV, 2018 WL 1725069, at *6 (Tex. App.—Dallas Apr. 10, 2018, orig. proceeding)
In re C.D.E., 533 S.W.3d 367, 372 (Tex. App.—Houston [14th Dist.] 2015, no pet
CA "Such declaratory relief, if granted, will redress Jenkins’s injuries by allowing Jenkins to once again exercise his statutory authority, including his authority to impose mask mandates within his jurisdiction."
Houston Cmty. Coll. v. Hall Law Grp., PLLC, No. 01-20-00673-CV, 2021 WL 2369505, at *11 (Tex. App.—Houston [1st Dist.] June 10, 2021, pet. filed)
City of Dallas v. Sabine River Auth. of Tex., 2017 WL 2536882, at *4 (Tex. App.—Austin June 7, 2017, no pet.)
Harris County case:
Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 302 n.13 (1979)
Lone Starr Multi Theatres, Inc. v. State, 922 S.W.2d 295, 298 (Tex. App.—Austin 1996, no writ)
California v. Texas, 141 S. Ct. 2104, 2115 (2021)
Am. Veterans, Dep't of Tex. v. City of Austin, No. 03-03-00762-CV, 2005 WL 3440786, at *2 (Tex. App.—Austin Dec. 15, 2005, no pet.)
K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)
The Governor’s past representations to this Court in this case further demonstrate that he has the power to enforce his executive order. Although the Governor now asserts that an injunction prohibiting the Governor from enforcing GA-38 would not do anything, the Governor previously said the opposite. In arguing against the County’s requested Rule 29.3 relief, the Governor represented to the Court that the trial court’s temporary injunction had to be suspended because if the injunction were in effect, the Governor would not be able to enforce his executive order. Response to Emergency Motion for Temporary Order at 3–4 (asserting that the temporary injunction “enjoined enforcement of GA-38’s face covering mandate in Fort Bend County”), 9 (representing that the Governor “would be impotent” to enforce the executive order if the temporary injunction were not suspended). If it is true that the injunction does not do anything, why is the Governor fighting so hard against it? Of course, the temporary injunction does do something
lugan: "When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has 562*562 caused him injury, and that a judgment preventing or requiring the action will redress it.
"The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents' alleged injury unless the funding agencies were bound by the Secretary's regulation, which is very much an open question."
Q: Whether it is "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
"The essence of the standing inquiry is whether the parties seeking to invoke the court's jurisdiction have `alleged such a personal stake in the outcome of the controversy as to assure 239*239 that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' " Duke Power Co. v. Carolina Environmental Study Group, 438 U. S. 59, 72 (1978), quoting Baker v. Carr, 369 U. S. 186, 204 (1962).
declaration is res judicata against the state and starie decises against private plaintiffs cf Steffel v. Thompson, 415 U.S. 452, 469-70, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) ("Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear.").
would greg abbott have authority/standing to sue plaintiffs? no; AG yes Of the governor, the consti- “ tution says: The supreme executive power of this State shall be vested in the chief magistrate, who shall be styled the governor of the State of Texas.” (Hart. Dig. 64.) “He shall take care that the laws be faithfully executed.” (Id. 66.) The Constitution, after providing for their appointment, prescribes, that “the duties, salaries and perquisites of the attorney-general and district attorneys, shall be prescribed by law.” (Id. 63, 84.) “ The statute makes it the duty of the attorney-general, to prosecute and defend all actions in the Supreme Court of the State, in which the State may be interested; and also to perform such other duties as may be prescribed by the constitution and laws of the State.” (Id. 104.) The statute makes it the duty of the district attorney, to attend “ all terms of the District Court, to conduct all prosecutions for crimes and offences cognisable in such court, to prosecute and defend all other actions in which this State is interested, and to perform such other duties as may be prescribed by the constitution and laws of the State.” (Hart. Dig. 226.) In England, the king could direct and control the bringing of suits, by his direct control over the officerwho might be attorney-general. In this state, such direct control, as a legal power, is cut off by the independence of the law-officersof the State. Still it does not follow that all official connexion is severed between the supreme executive officer of the State, and those who represent the State in our courts. The power of the governor may be advisory or suggestive of duty in this case, as it is in many of his functions. And, although absolute subjection does not exist, harmony between executive officers, who are impelled by a common duty, is to be expected generally, unless a difference of opinion should exist as to the proper course to be pursued. That is an inconvenience, which is consequent upon maintaining' the independence of the inferior officers. Its only effect may be, to prevent suits from being brought occasionally, which might otherwise be brought. BThe State v. The Southern Pacific Railroad Company, 24 Tex., 80 117 1859
This suit is, in substance but not law, a suit against the State of Texas by two of its political subdivisions seeking declaratory and prospective injunctive relief. cf,Davis v. Gray, 83 US 203 - Supreme Court 1873Justice DAVIS, with whom concurred the CHIEF JUSTICE, dissenting, s I am constrained to enter my dissent to the opinion and judgment of the court in this case, for the reason that this suit, although in form otherwise, is in effect against the State of Texas. The object which it seeks to obtain shows this to be so, which is to deprive the State of the power to dispose, in its own way, of its public lands, and this object, by the decision just rendered, is accomplished. In my judgment the bill should have been dismissed, because the State is exempt from suit at the instance of private persons, and on the face of the bill it is apparent that the State is arraigned as a defendant.
Three jurisdictional challenges: first, district court does not have jurisdiction to issue prospective injunctive relief against the Govenor, AG, etc.; second, the Governor, in his official capacity, is shielded from this suit by sovereign immunity; and lastly, the plaintiffs lack standing to bring their suit.
It is well-established that claims for ultra vires acts are not barred by sovereign immunity. See City of El Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009) (finding sovereign immunity “does not preclude prospective injunctive remedies in official-capacity suits against government actors who violate statutory or constitutional provisions.”). Under the ultra vires doctrine, “a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.” Turner v. Robinson, 534 S.W.3d 115, 126 (Tex. App. 2017). Appellees’ Petition clearly alleged, and evidence at the hearing established, that the Governor exceeded his authority under the Disaster Act when limiting ballot return locations. As the Texas Supreme Court has explained, “ultra vires suits do not attempt to exert control over the state—they attempt to reassert the control of the state.” City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). The purpose of an ultra vires suit, therefore, is to bring an actor that has acted beyond his or her authority “into compliance with the law.” PermiaCare v. L.R.H., 600 S.W.3d 431, 442 (Tex. App.—El Paso 2020, no pet.). Thus, the proper party to an ultra vires suit is always “the state actor” who exceeded his authority. Heinrich, 284 S.W.3d at 373; see also City of Houston v. Little Nell Apartments, L.P., 424 S.W.3d 640, 647 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“[Ultra vires suits] must be brought against the allegedly responsible government actors in their official capacities.”). And the proper remedy is “prospective injunctive relief . . . to require compliance with their duties going forward.” PermiaCare, 600 S.W.3d at 442.
The cases cited by Plaintiffs in support of their claim that Defendant Abbott cannot be sued because he does not “enforce” his Proclamation are inapposite. First, several of the cases cited by Defendants do not involve state law ultra vires claims, but instead are federal cases applying the Ex Parte Young framework to determine whether a plaintiff has Article III standing to maintain a federal constitutional claim against a state actor. See Okpalobi v. Foster, 244 F.3d 405, 416 (5th Cir. 2001) (“[T]he question raised before this en banc court is whether the Young [framework] requires that the defendant state official have some enforcement powers with respect to the particular statute at issue . . . .”); City of Austin v. Paxton, 943 F.3d 993, 997-98 (5th Cir. 2019) (“In conducting our Ex parte Young analysis, we first consider whether the plaintiff has named the proper defendant or defendants.”); In re Abbott, 956 F.3d 696, 708-09 (5th Cir. 2020) (“Ex parte Young allows suits for injunctive or declaratory relief against state officials, provided they have sufficient “connection” to enforcing an allegedly unconstitutional law.”). The Ex Parte Young doctrine “does not directly apply” to an ultra vires state lawsuit where the claim is not whether the challenged act was constitutional, but instead whether the state court official exceeded his or her authority. Schraer v. Texas Health & Human Servs. Comm’n, 2014 WL 586036, at*5 (Tex. App.—Corpus Christi Feb. 13, 2014, no pet.).5 As discussed, the proper party to an ultra vires state law suit is always the official who exceeded his or her authority, not the official charged with enforcing the unlawful act. Hall v. McRaven, 508 S.W.3d 232, 240 (Tex. 2017) (“[A]n ultra vires claim . . . must be confined to conduct pursuant to [the officer’s] authority.”). And this makes sense: if another government official had “nothing to do with the allegedly ultra vires actions,” that official cannot be held liable for it. Id. Second, Defendants rely on cases where the party responsible for enforcement was the proper party because the plaintiff’s injury was the enforcement or threat of enforcement for non-compliance with the challenged law.6 5 The only context in which the Ex Parte Young framework has been applied to a state court ultra vires suit is to require that the relief sought by the plaintiff be prospective, not retrospective. See Heinrich, 284 S.W.3d at 376 (“The best way to resolve this conflict is to follow the rule, outlined [by the federal courts], that a claimant who successfully proves an ultra vires claim is entitled to prospective injunctive relief.”). 6 Defendants spend much of their argument attempting to analogize this case to In re Abbott, 601 S.W.3d 802 (Tex. 2020), a case involving a challenge by county judges to a directive limiting the availability of bail for certain offenders. Id. at 805. But the injury alleged was the threat of criminal prosecution if the judges did not comply with the directive. Id. at 812. The Texas Supreme Court held that because defendants in that case did not have or otherwise had disclaimed enforcement authority, there was no “credible threat of prosecution,” and thus plaintiffs did not have a legally cognizable injury. Id.; see also Lone Staff Multi Theaters, Inc., 922 S.W.2d 295, 297 (Tex. App.—Austin 1996, no writ) (finding that plaintiff required to sue party with authority to bring criminal charges in a challenge to constitutionality of criminal obscenity statute); Garcia v. City of Wills, 593 S.W.3d 201, 206-07 (Tex. 2019) (finding no standing to pursue prospective injunctive relief against City where there was no imminent threat of future prosecution). 7 Defendants’ reliance on OHBA Corp. v. City of Carrollton, 203 S.W.3d 1, 3 (Tex. App.—Dallas 2006) is also misplaced. There, the court unremarkably concluded that there was “no live controversy” where the plaintiff did not “challenge the validity or constitutionality” of any ordinance. Plaintiffs here directly challenge the validity of Defendant Abbott’s Proclamation as outside the scope of his authority. Here, Plaintiffs have been harmed by the Proclamation itself, rather than by the threat of enforcement for non-compliance with the Proclamation. Accordingly, Plaintiffs’ ultra vires claim is properly asserted against the Governor because he is the officer who issued the Proclamation.
no question that there is a case or controversy between plaintiffs and State of Texas; question is, or at least should be, who is most appropriate officer to represent the state (neither AG nor Bexar County attorney-class B misdemeanor offense with $1000 fine of which county courts has jurisdiction-has done anything wrong) (county attorney believes unlawful so no case or controversy) (governor knows most and has most motive to defend aggressively)
The plaintiffs are entitled to an injunction prohibiting the Governor from suspending under the Texas Disaster Act of 1975 the public health laws that allow the City and County to impose masking requirements on its own employees and members of the public who visit City and County-owned facilities.
Conley v. Daughters of the Republic, 156 S.W. 197, 106 Tex. 80 (Tex. 1913) !!! REVIEW REHEARING ??? 157 S.W. 937 (Tex. 1913) ("No mandatory or compulsory writ is sought. Nor is it the purpose of the proceeding to compel the performance of any duty enjoined by law.")
Missouri, Kansas & Texas Railway Co. v. Shannon, ___ S.W. ___, 100 Tex. 379 (Tex. 1907) ("The principle, as we understand it, is, that the courts have no power to enjoin the officers of a State from taking action under a statute claimed to be unconstitutional and deemed to be prejudicial to the complainants, unless the officers are about to do some act which, if not authorized by a valid law, constitutes an unlawful interference with their rights.).
This is why Relators attempt, unsuccessfully, to characterize Plaintiffs’ claims as compelling the Governor to take action to rescind his order. But Plaintiffs have never asked for such relief, and the TRO’s text is clear.
If the ultimate requested relief were granted, the Court would simply declare the Executive Order null and void and restrict any enforcement or implementation by Relators—the Governor and the Attorney General would not be required to take any action. The TRO issued by the District Court therefore is not within the scope of Section 22.002(c).
prospective relief only !!! Plaintiffs have not requested any retrospective relief, relief that would require Relators to perform an act, or any relief that would require the expenditure of state funds. See id. at 375 (noting that “the modern justification for [sovereign] immunity” is “protecting the public fisc.”).
suit does not seek to enforce any purported legal right under the TDA75 to have GA-38 repealed rather it seeks to restrain the Governor from unlawfully preventing the plaintiffs from exercising their statutory authority. accordingly, a prohibitory injunction rather than a mandatory injunction is the appropriate remedy
An injunction is usually a preventive remedy. Its province is not to afford a remedy for what is past, but to prevent future mischief. It is not used for the purpose of punishment, or to compel persons to do right, but merely to prevent them from doing wrong . It is a general rule, therefore, that rights already lost and wrongs already perpetrated cannot be corrected by injunction, and that the party aggrieved must seek some other remedy for redress.
In general, however, it is used to prevent future injury rather than to afford redress for wrongs already committed, and it is therefore to be regarded more as a preventive than as a remedial process. High
enjoin governor from issuing rule prohibiting plaintiffs from using their statutory implementing mask mandate (governor has no constitutional or statutory duty to plaintiffs, ministerial or otherwise, to repeal his unlawful executive order)
enjoin governor from suspending statutes and/or controlling movement regarding mask mandates without authority
get back to basic: who best to defend the suit on behalf of state (=res judicata) than governor
can ag file suit without approval/request of governor?
this challenge to administrative action by executive branch, not to statute enacted by legislative
after TRO governor did not sign new executive order, he simply informed others that GA-38 partially invalid
every injunction involves some change in action by officer, e.g. do not restrain v release detainee
equity may enjoin a state officer from executing a state law in conflict with the Constitution or a statute of the United States ...
1881 law responded to this case: "According to the jurisprudence of Texas, suits like this can be maintained against the public officers who appropriately represent her touching the interests involved in the controversy.21 In the application of this principle there is no difference between the governor of a State and officers of a State of lower grades. In this respect they are upon a footing of equality.22... Davis v. Gray, 83 U.S. 203, --- (1872)
Canales v. Paxton, No. 03-19-00259-CV, 2020 WL 5884123, at *2 (Tex. App.—Austin Sept. 30, 2020, pet. denied) (mem. op.) (collecting cases)
need to search texas register for new EO and monthly proclamations plus old TR for 1980s rules adopting ag opinion
stop restraining prisoner or release prisoner is the same: both require some action of behalf of officer
enjoin Governor from "renewing" disaster declaration that suspends the authority of local gov entities to requires masks
commissioners court order/ordinance not challenged by suing county attorney
governor has authority to bring state into compliance with TDA
AG represents rr comm. Railroad Commission v. Houston & T. C. R. Co., 38 S.W. 750 (Tex. 1897) in rulemaking challenges
what is ultra vires doctrine re challenged to state and federal rulemaking ?
In re Abbott, 601 S.W.3d 802, ??? (Tex. 2020): "[W]e conclude the judicial plaintiffs have not alleged the personal, legally cognizable injury required for standing."
special rule bc executive v judicial (separation of powers): Raines v. Byrd, 521 U.S. 811, 819–20 (1997)
Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 485 (Tex. 2018)
Houston Belt & Terminal Ry. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016)
Heckman v. Williamson County, 369 S.W.3d 137, 155 (Tex. 2012)
Town of Shady Shores v. Swanson, 590 S.W.3d 544, 552 (Tex. 2019)
Tex. Democratic Party v. Abbott, 961 F.3d 389, 400 (5th Cir. 2020)
Thus, in Pruett v. Harris County Bail Bond Board, the defendants did not act ultra vires because the Occupations Code permitted their actions—even though those actions violated the plaintiff’s First Amendment right to commercial speech. 249 S.W.3d 447, 452, 461-62 (Tex. 2008). Similarly, in Patel v. Texas Department of Licensing and Regulation, this Court held that officials were not acting ultra vires when they acted pursuant to state statute, but left open the question of whether the statute itself was unconstitutional. 469 S.W.3d 69, 77 (Tex. 2015). In both cases the defendants acted within the authority granted by the statute, and therefore were not acting ultra vires regardless of whether the authorizing statute was constitutional.
Rather, the proper party is the official who exceeded their authority, even if another person will enforce that policy. This Court’s decision in Hall v. McRaven, 508 S.W.3d 232 (Tex. 2017), is illustrative. There, Hall, a University of Texas regent, filed an ultra vires suit against McRaven, the chancellor, for failing to turn over certain University-held information. See id. at 239-40. But in denying Hall the information, McRaven was only following rules established by the Board of Regents. See id. at 240. This Court held that to the extent Hall took issue with the rules McRaven followed, his complaint was with the Board itself, not McRaven. I
"This Court applies the ultra vires doctrine only where the defendant had authority to enforce or implement the law giving rise to the injury. See, e.g., Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 165-69 (Tex. 2016) (defendant authorized to impose drainage charges); Klumb v. Hous. Mun. Emp’s Pension Sys., 458 S.W.3d 1, 3-4, 9 (Tex. 2015) (defendants authorized to set pension benefits); cf. Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 393-94 (Tex. 2011) (instructing plaintiff to sue officers authorized to take possession of a streambed)."
Under Texas law, while the official who acts ultra vires in promulgating a policy can be the same official who actually follows or implements the policy, this is not always the case. Relators fail to mention, much less address, this key distinction for purposes of Texas law. As explained in Plaintiffs’ Response, for an ultra vires suit in which a policy was implemented outside of a policymaker’s authority, the proper party is the policymaker himself and not the person implementing or enforcing. Response at 35-38 (citing Hall v. McRaven, 508 S.W.3d 232, 239-40 (Tex. 2017) (holding that to the extent the plaintiff took issue with the rules the defendant followed, his complaint was with the Board members who promulgated the rules, not the defendant who was charged with enforcement of the rules); see also Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015) (finding that while county officials acted ultra vires in directing a city official to send a letter, the city official himself did not act ultra vires in following those instructions)). In cases in which it is the same actor who both makes a decision and is in charge of implementing that decision, the decision-making itself is the ultra vires act. See, e.g., Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016) (“[The defendant’s] determinations are still ultra vires because he acted beyond his granted discretion in making them.”). Here, the Governor acted ultra vires in issuing GA-13. Response 30-32. He is therefore not shielded by sovereign immunity. Response 34-38. District Attorneys, on the other hand, who would be following the Governor’s Order, would not be acting ultra vires if they prosecuted violations of GA-13; they would be acting pursuant to both GA-13 and Tex. Gov’t Code § 418.173. Response 37-38; McRaven, 508 S.W.3d at 239-40. If Relators were correct that sovereign immunity applies in this case, then there is no way to ever challenge a Governor’s executive order, no matter how unconstitutional, which purports to be self-effecting. A governor could, for example, shutter a district court, dismiss an elected official, or restrict judges’ constitutional and statutory authority, and claim the act is unreviewable by
City of El Paso v. Heinrich, 284 S.W.3d 366, 374-75 (Tex. 2009)
Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019)
Hall v. McRaven, 508 S.W.3d 232 (Tex. 2017)
"Southwestern Bell v. Emmett, this Court held that defendant county officials acted ultra vires when instructing a city official to send a letter, but that the city official, who acted pursuant to the county officials’ instruction, was not himself acting ultra vires because he was authorized to send the letter under city ordinance. 459 S.W.3d 578, 588 (Tex. 2015). Here, the Governor acted ultra vires by issuing an executive order he had no authority to issue, and is therefore the proper defendant. It is unclear whether prosecutors would be acting ultra vires by enforcing the Order under Tex. Gov’t Code § 418.173. Accordingly, injunctive relief in this ultra vires action must run at least against Relators." sw bell: 459 S.W.3d 578 (2015)
Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016)
??? Pruett v. Harris County Bail Bond Board, 249 S.W.3d 447, 452, 461-62 (Tex. 2008)
??? Patel v. Texas Department of Licensing and Regulation, 469 S.W.3d 69, 77 (Tex. 2015)
In re Abbott, 954 F.3d 772, 795 (5th Cir. 2020)
"Relators mistakenly rely on federal Ex Parte Young doctrine to attempt to import a federal standard into Texas law. This Court’s ultra vires doctrine does not require that the named officials threaten enforcement action if Plaintiffs fail to comply with an unconstitutional policy, and Relators cite no case to the contrary. In fact, this Court has found that a simple determination by a government official can be an ultra vires act under Texas law. See Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016) (finding that making a determination while ignoring a constraint is an ultra vires act)."
"The Texas ultra vires doctrine is distinct from and cannot be conflated with federal Ex Parte Young doctrine.
suits against states in federal court for violating federal law (Pennhurst) which implicates unique federalism concerns
Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011)
For over 100 years, Texas courts consistently have interpreted Section 22.002(c) and its predecessor to apply only to orders that compel affirmative performance of an act, consistent with the language of the statute. See Tex. Gov’t Code § 22.002(c); Kaufman Cty. v. McGaughey, 21 S.W. 261, 262 (Tex. App.— Austin 1893, writ ref’d) (holding that predecessor to section 22.002(c), identical in relevant respects, applied to orders compelling action by state executives, but not orders prohibiting acts that “have been, or will be, committed without and in excess of lawful authority”); Terrell v. Middleton, 187 S.W. 367, 369 (Tex. App.—San Antonio 1916) (“By the terms of that law no court could compel, by any writ, the performance of any act or duty of any state officer; but it is not even hinted that the district court would not have the power and authority to restrain the performance of an illegal and unconstitutional act by a state officer.” (interpreting predecessor to section 22.002(c))), writ ref’d, 191 S.W. 1138 (1917); Witt v. Whitehead, 900 S.W.2d 374, 375–76 (Tex. App.—Austin 1995, writ denied) (holding that where a state executive officer’s delegation of responsibility was beyond the officer’s authority, the district court “can grant permanent injunctive relief to prohibit enforcement” of that unlawful delegation). See also 14 Tex. Prac., Texas Methods of Practice §63:68 (3d ed.)
This Court has routinely affirmed prohibitory trial-court injunctions against executive officers, or if it reversed has done so on non-jurisdictional grounds. See, e.g., Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989); Thompson v. Calvert, 489 S.W.2d 95 (Tex. 1972); Calvert v. Hull, 475 S.W.2d 907 (Tex. 1972); House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654 (Tex. 1965); Gordon v. Lake, 356 S.W.2d 138 (Tex. 1962); Port Arthur Tr. Co. v. Muldrow, 291 S.W.2d 312 (Tex. 1956); Rogers v. Daniel Oil & Royalty Co., 110 S.W.2d 891 (Tex. 1937).
Relators cite no authority contradicting this plain-language interpretation of Section 22.002(c). Indeed, the unpublished child support cases cited by the Relators are consistent with this interpretation because they involve orders requiring executive officers to perform an act or duty. See In re C.H., No. 13-17-00544-CV, 2019 WL 5251145, at *4 (Tex. App.—Houston [14th Dist.] Oct. 17, 2019, no pet.) (concerning district court order that the Attorney General rescind writs of withholding already issued and stop further withholding efforts); In re Office of Att’y Gen., No. 05-18-00086-CV, 2018 WL 1725069, at *1-2 (Tex. App.—Dallas Apr. 10, 2018, orig. proceeding [mand. denied]) (holding that district court did not have jurisdiction under § 22.002(c) to issue “direct and mandatory” order compelling the Attorney General to withhold child support payments); In re H.G.-J., 503 S.W.3d 679, 682 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (district court lacked jurisdiction to issue order compelling Attorney General to distribute child support payments); In re A.B., Jr., 267 S.W.3d 564, 565 (Tex. App.—Dallas 2008, no pet.) (district court lacked jurisdiction to issue order directing Attorney General to remit child support payments to particular party).
Tex. Gov’t Code § 22.002(c)
"By its terms, Section 22.002(c) reserves for the Supreme Court original jurisdiction to issue only an injunction that (1) is “against any of the officers of the executive departments of the government of this state,” and (2) is to “order or compel the performance of a judicial, ministerial, or discretionary act or duty that, by state law, the officer or officers are authorized to perform.” Id. (emphasis added).
injunction to stop violating TDA (undo something he had no authority to do) not order to execute/perform some constitutional or statutory duty of the governor
Government Code Sec. 2001.202. COURT ENFORCEMENT OF FINAL ORDERS, DECISIONS, AND RULES. (a) The attorney general, on the request of a state agency [which includes the governor!] to which it appears that a person is violating, about to violate, or failing or refusing to comply with a final order or decision or an agency rule, may bring an action in a district court authorized to exercise judicial review of the final order or decision or the rule to: (1) enjoin or restrain the continuation or commencement of the violation; or (2) compel compliance with the final order or decision or the rule. (b) The action authorized by this section is in addition to any other remedy provided by law."
if no suit allowed against governor any court, open courts violation
Witt v. Whitehead, 900 S.W.2d 374, 376 (Tex. App.—Austin 1995, writ denied)
Kaufman Cty. v. McGaughey, 21 S.W. 261, 262 (Tex. Civ. App.—Austin 1893, writ ref’d)
Frank W. Elliott & Nancy Saint-Paul, Texas Methods of Practice § 63:68 (3d ed. 2020)
Terrell v. Middleton, 187 S.W. 367, 369 (Tex. App.—San Antonio 1916) writ ref’d, 191 S.W. 1138 (Tex. 1917)
enjoin illegal act or maybe next executive order=relief within 30 days
"This Court has routinely affirmed prohibitory trial-court injunctions against executive officers, or if it reversed has done so on non-jurisdictional grounds. See, e.g., Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989); Thompson v. Calvert, 489 S.W.2d 95 (Tex. 1972); Calvert v. Hull, 475 S.W.2d 907 (Tex. 1972); House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654 (Tex. 1965); Gordon v. Lake, 356 S.W.2d 138 (Tex. 1962); Port Arthur Tr. Co. v. Muldrow, 291 S.W.2d 312 (Tex. 1956); Rogers v. Daniel Oil & Royalty Co., 110 S.W.2d 891 (Tex. 1937)."
unconstitutional re mandamus? County of Anderson v. Kennedy, 58 Tex. 616, 622-23 (1883)
"No court of this State shall have power, authority or jurisdiction to issue the writ of mandamus, or injunction, or any other mandatory or compulsory writ or process against any of the officers of the executive departments of the government of this State, to order or compel the performance of any act or duty, which, by the laws of this State, they or either of them are authorized to perform, whether such act or duty be judicial, ministerial or discretionary. Approved February 15, A. D. 1881." SB 73
"-The care of the general government has been extended to the · agemcnt, promotion and protection of private intcre8ts through ta courts, to make citizens and officers of States obey the laws of their own States. Even writs of mandamus and injunction have been issued to require governors and other 11xecntive officers to exe- ute State laws in the discharge of their duties accofdmg to the con- itructlon of district Federal judges, and even further than thut, tate judges have been indicted and imprisoned hy the Fedora! urts for deciding according to their convictions of right, in mat- "rs coming before them under State laws. Alfred the Great was in. · e habit of beheading his judges, and that is an English precedent .f very ancient authority. ·M1mv and various are the ways and constructions, by which the ederal courts have extended their control over the priva•e und pub- fo affairs of the State and its citizens, arising under the laws of the tate. A law has even been passed to authorize a Federal court to decide a contested election between Srate offici:rs; and that id to . rotect tlle right to vote of a class of citizens of the tate in a State election held within u State. ·Thus every epartmenl of the general governmeut is, and. has been, tep by step ex•ending its assumption of right to regulate, ntrol and promote the private rights nud interests of the people of State, which must necessarily result iu CO!llplete centralism, 1f tihould continue to increase. We need not look for that to be nc- . mplished by the assumption of supreme power hy a military diclor, but it is being accomplished by the gredual process under tile peratlon of the general government in absorbing and appropriating · Itself the powers and duties appropriately belonging to the States. . Thus, too, it will be seen, that the State government has a com- titor within our own territory, for developing the private interests d protecting the rights of the people of Texas. !!! page 32 of house journal" see also page 78 re changing election dates
https://lrl.texas.gov/scanned/Housejournals/17/H_17_0.pdf#page=144 debate is revealing
https://lrl.texas.gov/scanned/Senatejournals/17/S_17_0.pdf#page=71 orginal language section 4 semate amended again 84
The objection was taken that the State could not be sued. This court answered that the objection involved a question of local law, and that as the State permitted herself to be sued in her own tribunals, that was conclusive upon the subject. According to the jurisprudence of Texas, suits like this can be maintained against the public officers who appropriately represent her touching the interests involved in the controversy.[‡] In the application of this principle there is no difference between the governor of a State and officers of a State of lower grades. In this respect they are upon a footing of equality.[§]
"If the Lel;l'islaturc should deem it proper to take any such action as here indicated, upon a thorough cxa·i.inatiou of the sliuject it may he found thut they will have to go further. and provide against a mandamus being issued against the Comptroller of the StatP, -to compel him to issue a warrant for the salary, which might be done by enacting a law that no such compulsory wnt should issue against any State executive uiliccr, which I reconuncnd to be passed at all . events. Sllch writ !ms ueen issued, as well as ti.111t of iujunction, against the heutb of executive dep:1rtment in thi>- State, to control them in the dischlll'ge of their ollicial duties, 11rid,.. sanctioned by a decision of the Supreme Court of the United titates, upon the ground that it was in uccordauce with the law of this State, wl'ich conclusion such 11 statute would expressly ne)!at1ve an<l put an end to; which is believed 10 \Jc. a most desirable objec·~, l\s our future ex- perience will be certain to demonstute, if it is not done.
Conflating the federal Ex Parte Young doctrinal requirement that plaintiffs sue the person chiefly in charge of enforcement with ultra vires doctrine would mean courts could provide no remedy in an ultra vires action against an executive order, no matter its contents. So long as a Governor does not personally “enforce” an executive order and instead ordered some other official to do it, no court could reach the question of whether the governor had acted ultra vires in issuing the order. Any official that did enforce it would be acting pursuant to the executive order, which would have the full effect of law, and therefore would not be acting ultra vires. And as discussed infra, Relators also argue that the UDJA does not waive sovereign immunity for executive orders. Thus, under Relators’ interpretation of the law, there is no recourse available under state law to challenge an executive order, no matter how unauthorized or unconstitutional it is. This is plainly wrong.
The inappropriateness of the district attorneys as defendants is illustrated by Southwestern Bell, in which this Court held that defendant county officials acted ultra vires when directing a city official to send a letter, but the city official did not act ultra vires in executing the county officials’ instructions because they were authorized to do so under city ordinance. Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015); accord McRaven, 580 S.W.3d at 240. District attorneys, in enforcing the illegal Order, would not be acting ultra vires because they would be acting pursuant to the Governor’s Executive Order, which purports to have the full effect of law, and pursuant to Tex. Gov’t Code § 418.173. Here, the Governor has issued an executive order he had no authority to issue, and is therefore a proper defendant
Appellants next contend that the relief sought by the School Districts would not redress the harms alleged because the School Districts “would still be committing a criminal offense under GA-38” even if they ultimately obtain a declaratory judgment. But Appellants offer no explanation in support of this assertion. A declaratory judgment that Governor Abbott’s prohibition on mask mandates was ultra vires would necessarily mean that lack of compliance with that portion of GA38 would no longer be a criminal offense because that portion of the executive order could not be enforced by local district attorneys or any other party. Finally, Appellants assert that filing lawsuits seeking judicial declarations enforcing GA-38 is not enforcement of the statute. But Appellants cite no authority 52 in support of this contention. And Appellants do not explain how the non-criminal provisions of GA-38 could be enforced other than through the filing of a lawsuit
overlap While mandamus, in general, is a remedy whereby a person or officer is required to do something which he wrongfully declines to do, nevertheless in exceptional cases it may properly be given a restraining effect
Pennhurst State School and Hospital v. Halderman, 465 US 89 - Supreme Court 1984
This was the holding in Ex parte Young, 209 U. S. 123 (1908), in which a federal court enjoined the Attorney General of the State of Minnesota from bringing suit to enforce a state statute that allegedly violated the Fourteenth Amendment
Midwest Inst. of Health, PLLC v. Gov. of Mich. No. 161492, 2020 WL 5877599 (Mich. Oct. 2, 2020) Furthermore, we conclude that the EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government--including its plenary police powers--and to allow the exercise of such powers indefinitely. As a consequence, the EPGA cannot continue to provide a basis for the Governor to exercise emergency powers.
State v. Rhine, 297 S.W.3d 301, 306 (Tex. Crim. App. 2009), analyzing: The legislature may delegate some of its powers to another branch, but only if those powers are not more properly attached to the legislature. For example, legislative power cannot be delegated to the executive branch, either directly or to an executive agency. The issue becomes a question of the point at which delegation becomes unconstitutional. The Texas Supreme Court has described the problem: "the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree." This Court [has] stated that sufficient standards are necessary to keep the degree of delegated discretion below the level of legislating.
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000). Generally, legislative power is “the power to make rules and determine public policy.” Id. Whether a delegation of legislative power is unconstitutional devolves to “a debate not over a point of principle but over a question of degree.” Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 466 (Tex. 1997) (quoting Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting)). The Legislature may delegate legislative power to another branch “as long as the Legislature establishes reasonable standards to guide the agency in exercising those powers.” FM Props., 22 S.W.3d at 873; see Boll Weevil, 952 S.W.2d at 467 (noting that “the nondelegation doctrine [is] sparingly applied”).
if no limiting principle (i.e., Governor's literal interpretation is correct & he is King), then 418.108(c) is unconstitutional as applied
complete discretion (same power as Legislature) for executive officer for over 19 months regarding 100-year public health crisis
In Williams v. State, the defendant was convicted of growing cotton in an area designated by the Pink Bollworm Commission as a regulated zone and in violation of regulations promulgated by the Commissioner on Agriculture. We held that the Legislature did not improperly delegate its authority: The generally accepted rule governing such matters now appears to be that a legislative body may, after declaring policy and fixing a primary standard, confer upon executive or administrative officers the power to fill up the details, by prescribing rules and regulations to promote the purpose and spirit of the legislation and to carry it into effect. In such cases the action of the Legislature in giving such rules and regulations the force of laws does not violate the constitutional inhibition against delegating the legislative function.
"Nevertheless, courts have also recognized that standards should not be so vague as to confer discretion that is absolute,68 unbridled,69 open-ended,70 arbitrary,71 or uncontrolled.72" In addition, a number of courts have held that procedural safeguards must accompany broad standards to ensure that the agency action conforms to those standards.73 The required procedural safeguards typically include a pre-adoption public hearing and post-adoption judicial review.74 Procedural safeguards ensure that the administrative agency really is doing the will of the Legislature: The pre-adoption public hearing ensures that the administrative agency takes the legislative standards into account, engaging in factual determinations that relate to the legislative standards rather than simply dictating policy, and judicial review ensures that the administrative agency's rules and other actions actually conform to the legislative standards.75 Of course, for safeguards to have meaning, the legislative standards must be sufficiently specific to allow the agency and the courts to determine whether the agency is carrying out the intent of the legislature.76... From this discussion, I conclude that a delegation of authority to an administrative agency is constitutionally permissible under the separation-of-powers provision of the Texas Constitution if the following four conditions are met: (1) the delegation can, at least by implication, be characterized as the delegation of authority to make a factual determination relevant to the purpose of the statute, rather than simply a policy decision, (2) the statute contains standards, expressly provided or implied from an express statutory purpose, that are sufficiently specific to give guidance to the agency and to the courts as to what types of rules or other actions are and are not permissible, (3) pre-adoption procedural safeguards exist to ensure that the agency has the opportunity to consider whether the rule or other action conforms to the legislative standards, and (4) post-adoption judicial review is available to ensure that the agency rule or other action does in fact comply with the legislative standards. An agency's action under this four-pronged approach is essentially an implied fact determination. As is usual with fact determinations, deference should be accorded on judicial review to the agency's action.121 I now turn to the application of those conditions to the case at bar." State v. Rhine, 297 S.W.3d 301 (Tex.Crim.App. 2009)
"Despite the general rule against the delegation of the power of general legislation, there are many powers that may be delegated by the Legislature. When the Legislature itself cannot practically or efficiently perform the functions required, it has the authority to designate some agency to carry out the purposes of such legislation. The trend of modern decisions is to uphold such laws. See 12 Tex.Jur.2d, Constitutional Law, § 65, pp. 409-410; Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927); Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.Civ.App. Amarillo, 1971, writ ref'd., n.r.e.). Generally, a legislative body, after declaring a policy and fixing a primary standard, may delegate to the administrative tribunal or officer power to prescribe details, Margolin v. State, 151 Tex.Cr.R. 132, 205 S.W.2d 775 (1947); Williams v. State, 146 Tex.Cr.R. 430, 176 S.W.2d 177 (1943), such as to establish rules, regulations or minimum standards reasonably necessary to carry out the expressed purpose of the act. Beall Medical Surgical Clinic and Hospital, Inc. v. State Board of Health, 364 S.W.2d 755 (Tex.Civ.App. Dallas, 1963), and cases there cited. Thus, the existence of an area for exercise of discretion by an administrative officer under delegation of authority does not render delegation unlawful where standards formulated for guidance and limited discretion, though general, are capable of reasonable application. Nichols v. Dallas, supra, and cases there cited. So long as the statute is sufficiently complete to accomplish the regulation of the particular matters falling within the Legislature's jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute. Commissioners Court of Lubbock v. Martin, supra." Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978)
In Boreali v. Axelrod, the New York Court of Appeals addressed the constitutionality of regulations on the indoor smoking of tobacco.88 The Public Health Council promulgated "regulations prohibiting smoking in a wide variety of indoor areas that are open to the public, including schools, hospitals, auditoriums, food markets, stores, banks, taxicabs and limousines."89 The rules required restaurants with seating capacities of greater than fifty people to provide nonsmoking areas, and employers were required to provide smoke-free work areas for nonsmoking employees.90 Some areas were exempt from the regulations, including restaurants with seating capacities of less than fifty, conventions, trade shows, and bars.91 A waiver of the regulations could be obtained from the Commissioner "upon a showing of financial hardship."92 The claimed authority for these regulations was a statute that authorized the Public Health Council to "deal with any matter affecting the ... public health."93 The New York court declined to say that the broad enabling statute was itself an unconstitutional delegation of legislative authority, but the court concluded that the agency "stretched that statute beyond its constitutionally valid reach when it used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be."94 The court gave four reasons for its conclusion: First, the court observed that, while "acting to further the laudable goal of protecting nonsmokers from the harmful effects of `passive smoking,'" the agency in reality "constructed a regulatory scheme laden with exceptions based solely upon economic and social concerns."95 Second, the agency wrote on a "clean slate," creating "a comprehensive set of rules without the benefit of legislative guidance."96 Third, the agency "acted in an area in which the Legislature had repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions."97 Finally, no special expertise or technical competence in the field of health was involved in the development of the anti-smoking regulations.98
"It will be noted, however, that while the ordinance attempts to grant permission to the chief of police to designate what vehicles shall have the privileges of an "authorized emergency vehicle," and thus be exempted from many of the provisions of the ordinances regulating others, it sets up no standard by which the chief of police is to be guided in making such a designation. It is left to his unbridled discretion to say to whom the law shall be applicable, and to whom it shall not be applicable. For that reason Section 1 of said ordinance, in so far as it applies to public service corporations to be designated by the chief of police, is invalid." Walsh v. Dallas Railway & Terminal Co., 167 S.W.2d 1018, 140 Tex. 385 (Tex. 1943)
Ray, "Delegation of Power to State Administrative Agencies in Texas," 16 Texas L. Rev. 20 (1937) fn.12: "In interpreting this provision, the courts usually point out that previous Texas constitutions stipulated that laws might be suspended only by the Legislature "or its authority." The present constitution omits the quoted words. The courts have suggested that this omission should create the presumption that the present provision must be more strictly construed. Arroyo v. State, 69 S.W. 503 (Tex.Crim.Rep. 1902); it is difficult to determine what the framers intended here. McKAY, DEBATES IN THE TEXAS CONSTITUTIONAL CONVENTION OF 1875 (1930) 294, mentions the provision, but does not comment on this change."
"Nor can mere usage be properly invoked to invest state officials or administrative boards with authority or powers not fairly or properly within the legislative grant. As was pointedly said by Mr. Justice Brewer in Interstate Commerce Commission v. Cincinnati N. O. & T. P. R. Co., 167 U.S. 479, 17 S.Ct. 896, 904, 42 L.Ed. 243: "It is urged that the commission has decided that it possesses this power, and has acted upon such decision, and an appeal is made to the rule of contemporaneous construction. But it would be strange if an administrative body could by any mere process of construction create for itself a power which congress had not given to it." Railroad Commission v. Red Arrow Freight Lines, 96 S.W.2d 735 (Tex. App. 1936)
HB 3111: House hearing 04/14/05 (2:25) sponsor: hurricane preparedness study ... "also authority to control the entrances and exits to and from the area"
HB 3111: House floor 05/03/05 (2:02) sponsor: " " " ... "and control the entrances and exits of the disaster area"
HB 3111: Senate hearing 05/20/05 nothing of substance, senate sponsor not present
HB 3111: Senate floor 05/24/05 nothing of substance added by senate sponsor
SB 1818: Senate hearings 04/27/21 (23:50) & 05/04/21 subject to homeland security ... nothing revealing
Legislative history regarding SB 968 (Regular Session 2021) effective 06/16/21
Hearing Senate Health & Human Services 03/31/21 9am 2.21 (author: narrow language re DSHS authority over control measures) (TDEM "you move stuff"); 04/13/21 9am 0.03 (passed w/o substantive comment)
Debate Senate floor 2nd & 3rd reading 04/21/21 1.22pm 1.00+/- (no substantive comment re DSHS authority over control measures)
Hearing House State Affairs 05/10/21 11:09am 0.01 (focus on vaccine mandate) (no substantive comment re DSHS authority control measures); 05/18/21 part II 0.11 (nothing)
Debate House floor 2nd reading 05/25/21 (nothing); 3rd reading 05/26/21 part I 8.09 (several amendments but nothing re DSHS authority control measures)
Debate Senate floor re House amendments 05/30/21 part I 0.42 (nothing re DSHS authority control measures)
"In times of declared disaster, local officials may utilize the emergency powers outlined in Texas Government Code, Chapter 418, as amended, and local emergency management plans. Source Note: The provisions of this [TAC Chapter 37 §7.29 adopted to be effective January 1, 1976 [TR first published 1976]; amended to be effective December 22, 1982, 6 TexReg 4541; amended to be effective March 14, 1999, 24 TexReg 1636."
AG opinion re cjs and mayors under TDA https://texashistory.unt.edu/ark:/67531/metapth271985/m1/2/?q=%22disaster%20act%22
1981 rules proposed: https://texashistory.unt.edu/ark:/67531/metapth244821/m1/19/?q=%22disaster%20act%22
WPC 90-9 first to expressly state cjs and mayors powers as agents: https://texashistory.unt.edu/ark:/67531/metapth201777/m1/14/?q=%22disaster%20act%22
rules re local recc rather than order bc that's governors power: https://texashistory.unt.edu/ark:/67531/metapth113881/m1/129/?q=%22disaster%20act%22
RP-34 2--4 https://texashistory.unt.edu/ark:/67531/metapth101104/m1/9/?q=%22disaster%20act%22 2004 last before 2007 addition of §418.1015
https://lrl.texas.gov/scanned/Housejournals/47/H_47_0.pdf (review messages & index)
https://texashistory.unt.edu/ark:/67531/metapth6733/m1/201/ 1891 adopted Art V !!!
https://lrl.texas.gov/scanned/Housejournals/21/H_21_0.pdf#page=562 1889 leg Art V proposal
https://lrl.texas.gov/scanned/Senatejournals/20/S_20_0.pdf#page=77 1887 bar Art V proposal
https://texashistory.unt.edu/ark:/67531/metapth6729/m1/224/ 1881 amend Article V
https://texashistory.unt.edu/ark:/67531/metapth6729/m1/101/ sov immunity officers of state
https://texashistory.unt.edu/ark:/67531/metapth18824/m1/355/ (Volume 31-1939 was last in series)
briefing: Trimmier v. Carlton, No. 4226, June 4, 1927 (296 S. W. 1070)
SB 786 bill analysis: https://lrl.texas.gov/LASDOCS/63R/SB786/SB786_63R.pdf#page=26
1975 SR 656 requesting Senate Jurisprudence Committee to study all aspects of disaster prevention, mitigation, emergency operations and recovery
1980 & 1982 legislative committees conducted interim studies on disaster act ...
1981 SR 810 Establishing an interim committee to study disaster response. Senate: Administration
1981 bill analysis: https://lrl.texas.gov/LASDOCS/67R/HB36/HB36_67R.pdf#page=77
The committee recommends that the Legislature consider allowing the Governor, on the advice of the DSHS commissioner to exercise greater authority over local health authorities during a public health emergency.
"The Governor has broad authority to suspend statutes and rules that prevent, hinder or delay response efforts to a disaster. Even as Harvey was approaching, the Governor’s Office was asking agencies for, and many agencies were requesting, waivers to allow response and recovery to proceed as quickly as possible. The Governor’s Office compiled a comprehensive list of the waivers requested and granted. The Governor’s Office should ask appropriate state agencies to review this list for accuracy and completeness. The resulting list should be maintained for use when future disaster events require its activation."
Tx Disaster Act 1975: https://statutes.capitol.texas.gov/Docs/GV/htm/GV.418.htm
Mississippi Attorney General Opinions 2010 No. 2009-00724 (not relevant)
Louisiana Hosp. Ass'n v. State, (La.App. 1 Cir. 12/30/14), 168 So.3d 676, 685, writ denied
Reading the HSEDA as a whole, it is clear that the legislature did not intend to convey legislative authority upon the governor during a state of emergency. As previously indicated, La. R.S. 29:724(A) permits the governor to issue executive orders, proclamations, and regulations to "effectuate the provisions of [the HSEDA]." The specific powers granted to the governor under the HSEDA are set out in La. R.S. 29:724(D). While Section (D)(1) permits the governor to "[s]uspend the provisions of any regulatory statute prescribing the procedures for conduct of state business ... if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency," there is no provision in La. R.S. 29:724 that permits the governor to enact substantive law, (Emphasis added.) As pointed out by LHA in brief to this court, had the legislature deemed it appropriate for the governor to enact substantive legislation, it could have easily included same in the series of items designated in La. R.S. 29:724(D)
SJR 45: https://capitol.texas.gov/BillLookup/History.aspx?LegSess=87R&Bill=SJR45 (listen to comm test 03/31/21)
Guar. Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 531 (Tex. 1980) ("A political subdivision differs from a department board or agency of the State. A political subdivision has jurisdiction over a portion of the State; a department, board or agency of the State exercises its jurisdiction throughout the State. Members of the governing body of a political subdivision are elected in local elections or are appointed by locally elected officials; those who govern departments, boards or agencies of the State are elected in statewide elections or are appointed by State officials. Political subdivisions have the power to assess and collect taxes; departments, boards and agencies do not have that power.").
texas ag interpreted WC-11 to imply agency to mayors/cjs in 1980 then accepted by WC in 1990
local officials governor's agent 2007 HB 1471 substituted in senate and explained codification of RP-57 but 2006 task force report says nothing re issue = no legislative history available
Sec. 418.106. LOCAL AND INTERJURISDICTIONAL EMERGENCY MANAGEMENT PLANS. (a) Each local and interjurisdictional agency shall prepare and keep current an emergency management plan for its area providing for disaster mitigation, preparedness, response, and recovery. (b) The plan must provide for: (1) wage, price, and rent controls and other economic stabilization methods in the event of a disaster; and (2) curfews, blockades, and limitations on utility use in an area affected by a disaster, rules governing entrance to and exit from the affected area, and other security measures. ...
fact finding and administrative ?
Not all "overlapping" is constitutionally proscribed, particularly involving low level "administrative matters." But where the acts are "ongoing and are in the upper level of governmental affairs" and have a substantial policy-making character, the "trespass reaches constitutional proportions." The essence of Alexander is that no officer of one department may perform a function "at the core" of the power properly belonging to either of the other two departments. (citations omitted).
AG Opinion: "The questions presented are not free from difficulty due to the confusion of the opinions and the differences that existed between the Court of Criminal Appeals and the Supreme Court in the so-called pool hall cases." https://lrl.texas.gov/scanned/Housejournals/44/H_44_1.pdf page 187
1920 martial law in Galveston !!! https://lrl.texas.gov/scanned/Housejournals/36/H_36_4.pdf page 66
1871 SJR 22 rejected by Republican Senate: "It expressly prohibits martial law, and the suspension of all the great constitutional guarantees, under pretence of an authority supposed to exist in this section."
legislature instead of executive give opportunity for political minority to find and publish facts and make and publish publish public policy arguments in order to change votes in next election
case of first impression: neither this court nor the CCA has ever reviewed an express delegation to suspend unnamed statutes (the constitution was amended in 1874 to address this situation)
local option violates Article II Section 1 (express delegation to suspend general law in your locality); charter cases were implicit delegation to suspend unnamed but apparent statutes
suspending law is different from making law in new area or filling in details; existing statutes reflect considered legislative public policy (compare judicial lawmaking-cannot suspend/repeal statute)
the wider the "subject matter" discretion, the stronger and clearer the purpose/standards must be; otherwise, the delegation is unconstitutional grant of inherent legislative power
unconstitutional to delegate lawmaking power regarding epidemics without cabining the governor's discretion with judicially enforceable standards reflecting the legislature's policy choices
can't just say handle pandemics for us in the best interest of the citizens of the state; must state policy followed by primary standards (doesn't appear to be any standards re epidemic)
legislature must suspend group of unnamed statutes (enable another to repeal by implication); major public policy must be made by legislature; may delegate only filling in details or true administration
The test of the constitutionality of the delegation of power is whether the legislature has prescribed sufficient and adequate standards to guide the discretion conferred
legislature is elected from single-member districts to make general laws and has expertise & procedures to legislate effectively; should at least supervise/oversee by making major public policy decisions
unconstitutional delegation of inherent lawmaking power: if determine economic slowdown, governor authorized to take any actions or suspend any statutes necessary in his opinion to ameliorate said slowdown
original beef/concern was executive/king power; more than one statute indicates more public policy at stake
in non-war/non-emergency, major public policy must be made by legislature; may delegate only filling in details or true administration
expressly authorize agent to make exception particular statute to carry out stated legislative policy not suspending statute for your policy but carrying out policy enacted by legislative
literal text and its plain meaning are ambiguous (two or more reasonable constructions)
restricted to action in times of war or sudden crisis; action not justified in ordinary, noncritical circumstances
drafters of 1874 amendment did not clarify text; eliminated text
meaning of 1874 amendment: remove language/argument for absolute authority to delegate &/or legislature must make important policy decisions itself (questionable passage & just Radical committee oversight)
martial law/emergency declaration implied exception to written constitution: but only the extent absolutely required by the exigencies of the situation
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905) ("[U]nder the pressure of great dangers," constitutional rights may be reasonably restricted "as the safety of the general public may demand.").
"Courts rigorously reviewing broad delegations typically look for adequate statutory guardrails to guide implementation and judicial review to determine whether the legislature’s authorization of decisionmaking power crosses the line from executive implementation into improper policy-making by executive-branch officials.273 This doctrine has reared its head in several state-court decisions reviewing coronavirus emergency measures."
Lindsay F. Wiley, Democratizing the Law of Social Distancing, 19 YALE J. HEALTH POL'Y L. & ETHICS (2020)
non-war, non-emergency delegation must be justified by practical necessity (i.e., legislature cannot "practically and efficiently exercise")
delegate to fill-in substance but not to overrule substance
narrow (minor) effect v (major) statewide, every citizen effect; ie, it's the legislature's job to solve the state's big and/or controversial problems
simple untrue that Texas Legislature, in March 2021, has more important things to work on during the current legislative session than this small problem
cannot delegate "substantial legislative determination"
former: Texans had right that Legislature control decision now: Texans have right that Legislature make decision (i.e., no delegation)
what is effect of 1874 amendment: complete prohibition; no delegation similar to Davis delegation; or removed no limits argument & now governed by Article II, Section 1
if in initial delegation, legislature could determine fact of "disaster" or fact that "legislature is institutionally capable of addressing disaster" and end governor's powers (no necessity for new law)
questionable whether legislature delegated pandemic emergency power but if did, provided insufficient (substantive) standards to confine discretion; if disaster, handle in best interests of Texans constitutional only as emergency powers
also, agency rulemaking (procedural) guardrails not applicable plus governor's office has no institutional expertise in pandemic management
what standards exist that allow court to ensure that governor stays within his delegated authority; if none, then legislature has unconstitutionally delegated general lawmaking power
The nondelegation principle also reinforces the constitutional commitment to representative democracy. Congress possesses the 52 lawmaking power because it is the most democratic of the three branches of government. It thus would subvert the political accountability hardwired into the legislative process for Congress to farm out its lawmaking authority to institutions that are less democratic, and therefore less accountable, in their decision-making.45
The early Court’s essential position was that Congress could “commit something to the discretion” of executive officers as long as the lawmakers fulfilled their legislative duty by enacting a statute that provided sufficient policy direction to those officers.
As the Court in American Trucking explained, Schechter teaches the functional lesson that “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” According to American Trucking, Congress must offer “substantial guidance” to administrators when it gives them broad regulatory authority.
That test simply requires that an enabling act “lay down . . . an intelligible principle to which [an administrator] is directed to conform.” The justices endorsed as well the long-standing pragmatic approach to the nondelegation principle, advising that they intended to apply the test with “a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” So long as Congress provides 68 intelligible principles as guidance, Mistretta settled, the nondelegation doctrine imposes no constitutional barrier to enabling acts that vest administrators with “significant discretion” to decide “matters of policy.”
The central criticism is that such a permissive nondelegation doctrine undermines democracy because it allows elected representatives to avoid public accountability by passing “important policy choices” to unelected administrators.114 “That legislators often find it convenient to escape accountability,” Dean John Hart Ely has argued, “is precisely the reason for a nondelegation doctrine.”
Significant statewide effect and health & economy; legislature had the time, the information, the expertise, and the prescience to settle basic policy questions associated with managing the pandemic
new problem no past informally developed & generally accepted guardrails (hurricane) plus long-term, pervasive, & statewide; cf. pandemic law already on the books ?
note that governor's power to call special session is legislative power
1975 Disaster Act. Ambiguous. Ignore "regulatory", at most .... Regulatory probably means provide details (ie, not who makes decision but how)
regulation of state business or state agency action ....
In times of war, of extra,1:.rdinary perili when il.Il organized effort is made, not only to upset the whole system of laws, but when the life of the body politic is itself attacked, this unusual and seldomresorted~to po,ver may be exercjsed so long as tho necessity or exigency exists, and no longer. https://lrl.texas.gov/scanned/Housejournals/12/H_12_0.pdf#page=1221
1883 quarantine power of governor: https://lrl.texas.gov/scanned/Senatejournals/17/S_17_0.pdf#page=16
Regulatory statutes are those that are directed at or implemented by state agencies. See Beal Br. 3 (“[T]he legal meaning of a regulatory statute is one of a civil nature to be administered by an Executive agency.”).
Or could be statute that regulates state government ...
Whether person can move around changes locations
per Beal: "Clearly, reading the provision as a whole, the Governor is vested with power to regulate the physical presence “of the population” due to the declaration of a stricken or threatened area in the state, Id. at Section 418.018(a). A common sense reading of these words is that the Governor is able to order citizens where they must go or not go, when he otherwise has no authority to do so. It removes the power and discretion of a citizen to be or not to be in any legal place he or she chooses."
§ 418.018 allows the Governor to control physical movements—whether ingress to the disaster area, egress from the disaster area, or movement of persons in the disaster area—and to limit the ability of individuals to physically occupy premises in a disaster area. 00428 BRIEF OF APPELLEES, INTERVENOR-PLAINTIFF SCHOOL DISTRICTS, REQUESTING ORAL ARGMENT
movement of persons means location of persons
Beal 20-0291 amicus at 5 ("A common sense reading of these words is that the Governor is able to order citizens where they must go or not go, when he otherwise has no authority to do so. It removes the power and discretion of a citizen to be or not to be in any legal place he or she chooses.").