Analysis: The path to emergency powers in Texas might run through the courts

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Texas courts are being pulled into the war between the state of Texas and its local governments as what has been primarily a legislative and political fight grows into a legal one.

The pandemic is testing the authority of the governor, city and county government officials, state district judges, businesses and individuals on issues from masks to haircuts to voting — even to whether a state attorney general can make a rhetorical and political appeal to try to get a trial judge to change a ruling.

So you find Attorney General Ken Paxton asking the Texas Supreme Court to tell county election officials that a voter’s risk of infection from the coronavirus is no justification for voting by mail. While that one’s pending, a state appellate court in Houston upheld a temporary order that would allow voters susceptible to the virus to vote by mail instead of getting in line to vote in public.

Paxton’s losing at the moment, but either way, that question is going to the state’s highest civil court. The attorney general’s case is aimed at five Texas counties — Cameron, Dallas, El Paso, Harris and Travis — that he says are planning to count “fear” of coronavirus under the law’s definition of “sickness or physical condition” as a disability. The timer is running: The primary runoff elections are set for July 14, and early voting begins June 29.

And that’s the same Texas Supreme Court that set Dallas hairstylist Shelly Luther free last week, undoing a seven-day sentence she was serving for contempt of court. Luther had told state District Judge Eric Moyé that she wouldn’t honor a court order to keep her salon closed.

Paxton is also tussling with local leaders over their pandemic orders, saying rules in Austin, Dallas and San Antonio can’t be stricter than the state's on issues like requiring face masks, asking people to stay at home, and telling businesses when they can open and to how many customers. Local officials contend their orders are in harmony with the state’s.

For what it’s worth, the state’s letters to the cities were signed by the same lawyer — Ryan Vassar, Paxton’s deputy attorney general for legal counsel — who had earlier warned local officials that Gov. Greg Abbott’s order closing bars, gyms and hair salons like Luther’s was “neither vague nor unenforceable.” As the Luther spectacle unfolded, that turned out to have a short shelf life.

Paxton triggered the judicial branch during that same case, when he blasted Moyé for the jail sentence, writing, “your actions abused your discretion in holding Ms. Luther in contempt and ordering her to jail in a civil court proceeding. For these reasons, the Court should immediately reconsider its order and release Ms. Luther from confinement.”

The attorney general (and Luther) won the political battle but earned an admonishment from the 12 state district judges in Dallas, who told Paxton that his letter was both inappropriate and unwelcome.

“We trust that this shall not happen further,” they wrote. “For the sake of ALL of the citizens of Texas, please let the Judicial process play out without any further interference.”

The state got knocked around for its pandemic orders in federal court, too.

In a case filed by a Houston strip club that wanted to reopen as a restaurant, U.S. District Judge Vanessa Gilmore of Houston said Abbott’s changing series of orders “has caused a state of confusion that rests clearly on the Governor’s doorstep.”

Gilmore ruled that Onyx Houston could open only “without additional entertainment” — in other words, no dancers, “even if the entertainers are fully clothed.”

But she went on to suggest some flaws in the state’s executive orders.

“As previously stated, the Plaintiff has failed to add the State as a party to this action to address the First Amendment and equal protection issues raised by the Governor’s orders. Nonetheless, the Court feels compelled to point out the constitutional problems raised by the Governor’s various orders.

“The fact that the governor has now apparently decided that jail time is too harsh a penalty for a violation of his orders is little comfort,” the judge wrote, “as even that action seems to have been motivated by the impact of his order on a single violator, Dallas salon owner Shelley Luther, leaving many business owners unsure, even now, if the orders would be equally applied to them.”

Those business owners — and regular people, too — have to sort out what they’re hearing from the state, local government, the medical community and everybody else. Perhaps the courts can quiet the tug-of-war over who’s in charge. Maybe something else will work.

Local and legislative leaders from El Paso are trying a different tack, asking Abbott to issue an order opting them out of the overall state plan, to let them chart their own course.

“El Paso has not reached its peak. El Paso County has been under a Stay at Home, Work Safe Order since March 24, 2020,” they wrote after the governor started loosening restrictions to try to reopen the Texas economy. They said the restrictions in place “have contributed to minimizing the spread of the virus but unfortunately, additional time is needed for El Paso to reach its peak while minimizing the number of deaths in our community.”