The Covid-19 pandemic produced many interesting and important constitutional questions. From vaccine mandates[1] to student loan relief[2] to eviction moratoriums,[3] courts around the country had to wrestle with government entities using the pandemic to exercise power in new ways.

Texas was no different. One case at the Texas Supreme Court last term involved Governor Greg Abbott’s attempt to prohibit local governments from issuing mask mandates.[4] Although three cases brought this issue to the court, the Texas Supreme Court issued its primary opinion on the issue on June 30, 2023, in Abbott v. Harris County.[5]

In an opinion written by Justice James Blacklock, a unanimous Texas Supreme Court sidestepped many novel constitutional questions due to constitutional avoidance and instead focused on the text of statutes to recognize the Governor’s broad, but not unlimited, ability to preempt local government actions during emergencies.

In 2020, with the Covid-19 pandemic raging across the country, three different authorities in Harris County, Texas, issued mandates requiring individuals to wear masks within their respective jurisdictions.[6] A year later, with the mask mandates still in effect, the Governor, utilizing authority from the Texas Disaster Act,[7] issued Executive Order GA-38, which prohibited localities from imposing pandemic-related restrictions, including the mask mandates.[8] The Harris County authorities disputed the Governor’s ability to issue such a preemptive order and brought a challenge to GA-38. The challengers received a temporary restraining order from the district court to prevent the Governor’s enforcement of GA-38, and the court of appeals affirmed.[9]

The Texas Supreme Court framed the case this way: “The question, in the end, is who has the final say when the state government disagrees with a local government about how best to strike the balance between respecting the liberties of the People and attempting to reduce the spread of a contagious disease.”[10]

To answer that question, the court separated the mask mandates into two categories. The first bucket involved Harris County Judge Lina Hidalgo’s order which required masks in all county-owned buildings.[11]

Under the Texas Disaster Act, Judge Hidalgo was empowered to issue such an order as an “emergency management director.”[12] However, the Disaster Act clarifies that “[a]n emergency management director serves as the Governor’s designated agent in the administration and supervision of duties under this chapter.”[13]

By reading the two provisions “in tandem rather than as separate, stand-alone rules” the court read this section of the Disaster Act to place emergency management directors under the Governor.[14] “The two sentences thus work together to broadly empower local officials on a local scale, but only within their role as the Governor's ‘designated agents.’” This, the court held, was what allowed the Governor to preempt any rules imposed by an emergency management director since they are the Governor’s agents.

Judge Hidalgo countered that “gubernatorial actions eliminating local disease control measures are invalid because they do not aim to reduce the effects of the disease.”[15] However, the court, relying on its previous decision in Abbott v. Anti-Defamation League, reaffirmed that the Disaster Act gives the Governor powers which include “encouraging economic recovery” and “preserving constitutional rights.”[16]

The second bucket of restrictions included the Harris County Commissioners Court’s requirement that county employees wear masks in county buildings, and the Harris County Health Authority’s mandate that schools follow the CDC’s mask recommendations.[17] Because neither of the orders came from “designated agents,” the court analyzed these claims by looking at the Governor’s powers under the Disaster Act to suspend “the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.”[18]

The state and the local officials offered competing views of this power. The Harris County officials offered the narrow interpretation that this section only applies to state statutes and regulations, not local government regulations. Texas, on the other hand, read the power broadly to allow it to suspend any law on any subject so long as it relates to the disaster.[19]

The court noted that Texas’s interpretation raised constitutional problems under both Texas’s Suspension Clause in Article I, Section 28, and Texas’s Separation of Powers Clause, in Article II, Section 1.[20] While the court acknowledged each potential conflict, it punted on answering these “serious question[s] of constitutional law” by charting a path between Texas’s interpretation and Harris County’s interpretation of the Disaster Act.[21] Under this more limited view, “the Governor’s authority to issue executive orders “[u]nder this chapter” is not an open-ended font of law-making authority but instead is a means of exercising the specific powers granted by the Disaster Act.”[22]

Having provided Governor Abbott with a narrow way to preempt local ordinances, the court looked at the specific powers granted to the Governor under the Disaster Act to see if any granted the Governor the authority to preempt mask mandates. They turned to § 418.018(c), which gives the Governor authority to “control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area.”[23]

The court acknowledged that the power to “control” people’s movement or occupancy within an area “is potentially an enormously invasive power over the daily life of every Texan.”[24] But, again, the court avoided determining “the outer bounds of Governor’s authority.”[25] Instead, the court held that the power to control government actors is a “common and unremarkable” function of government and therefore the authority to override local orders that “control” people’s movement or occupancy within areas (such as the mask mandates) is well within the powers granted by the Disaster Act.[26]

Justice Lehrmann issued a short, four-page concurrence to the court’s decision.[27] In it, Justice Lehrmann provided the context for the court’s reading of the Disaster Act to allow the Governor–and not local officials–to balance liberty and safety interests during emergencies.[28] Justice Lehrmann emphasized that the reason the Governor had that power was not because the court was anti-mask or pro-mask, but rather because the Disaster Act gave that power to the Governor.[29] Justice Lehrmann reiterated a point that courts around the country which dealt with cases involving Covid-19 often pointed out: it is for the executive and legislative branches to make policy decisions during emergencies, not the judiciary.[30]

While most will focus on the outcome of this case regarding mask mandates, the case’s enduring significance will likely lie in the Texas Supreme Court’s decision to pass on dealing with novel constitutional questions due to constitutional avoidance, along with the court’s approach to statutory interpretation. While the court refused to recognize the full extent of gubernatorial powers that the state argued he had, it did read the Disaster Act to give the Governor broad, preemptive power both to respond to emergencies and to promote citizens’ liberty interests even during those emergencies.



[1] Nat’l Fed’n of Independent Bus. v. Dep’t of Lab., 142 S. Ct. 661 (2022).

[2] Biden v. Neb., 143 S. Ct. 2355 (2023).

[3] Ala. Ass'n of Realtors v. HHS, 141 S. Ct. 2485 (2021).

[4] The Governor of the State of Tex., Exec. Order GA-38 (issued July 29, 2021), 46 Tex. Reg. 4913, 4914–15 (2021) (Exec. Order GA-38).

[5] 672 S.W.3d 1 (Tex. 2023); see also Abbott v. City of San Antonio, 671 S.W.3d 959 (Tex. 2023), Bexar Cnty., No. 21-1079; Abbott v. Jenkins, 671 S.W.3d 960 (Tex. 2023).

[6] Harris Cnty., 672 S.W.3d at 4–5.

[7] Tex. Gov’t Code § 418.1015.

[8] Exec. Order GA-38, supra note 4.

[9] Harris Cnty., 672 S.W.3d at 6–7.

[10] Id. at 5.

[11] Id. at 6.

[12] Id. at 10

[13] Tex. Gov’t Code § 418.1015(b).

[14] Harris Cnty., 672 S.W.3d at 10–11.

[15] Id. at 11 (emphasis in original).

[16] Id. (citing Abbott v. Anti-Defamation League, 610 S.W.3d 911, 918 (2020)).

[17] Id. at 6.

[18] Tex. Gov’t Code § 418.016(a).

[19] Harris Cnty., 672 S.W.3d at 13.

[20] Id. at 14–17.

[21] Id. at 16, 17.

[22] Id. at 17.

[23] Id.

[24] Id.

[25] Id. at 18.

[26] Id.

[27] Harris Cnty., 672 S.W.3d at 21–22 (Lehrmann, J., dissenting).

[28] Id. at 21.

[29] Id. at 21–22.

[30] Id.

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