Affirm and Opinion Filed November 22, 2021

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00733-CV

GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE 

STATE OF TEXAS, AND THE STATE OF TEXAS, Appellants

V.

CLAY JENKINS, IN HIS OFFICIAL CAPACITY AS COUNTY JUDGE OF 

DALLAS COUNTY, TEXAS, Appellee

On Appeal from the 116th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-21-10101

MEMORANDUM OPINION

Before Justices Osborne, Pedersen, III, and Nowell

Opinion by Justice Nowell

The parties dispute whether the governor has the authority to preclude county 

judges from issuing orders that mandate the wearing of face coverings within 

counties in Texas in response to the COVID-19 disaster. Appellants Greg Abbott, in 

his official capacity as Governor of the State of Texas, and the State of Texas appeal 

the trial court’s temporary injunction granted in favor of Clay Jenkins, in his official 

capacity as County Judge of Dallas County, Texas. Appellants make two arguments 

on appeal: (1) the trial court erred by denying Abbott’s plea to the jurisdiction; and
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(2) the trial court abused its discretion by granting Jenkins’s request for a temporary 

injunction.

FACTUAL BACKGROUND

A. Texas Disaster Act

The Texas Disaster Act of 1975, which appears as Chapter 418 of the Texas 

Government Code, is a comprehensive, detailed continuity-of-government 

framework that allocates powers, duties, and responsibilities across various levels of 

government and multiple agencies. Ector Cty. All. of Businesses v. Abbott, No. 11-

20-00206-CV, 2021 WL 4097106, at *2 (Tex. App.—Eastland Sept. 9, 2021, no pet. 

h.) (mem. op.) (citing 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) (mem. op.)). The stated purposes of the Disaster Act are to, among 

other things, “clarify and strengthen the roles of the governor . . . and local 

government in . . . response to, and recovery from disasters”; “authorize and provide 

for cooperation in disaster mitigation, preparedness, response, and recovery”; and 

“provide an emergency management system embodying all aspects of predisaster 

preparedness and postdisaster response.” TEX. GOV’T CODE ANN. §418.002(4), (5), 

(7). 

The Disaster Act charges the governor with meeting “the dangers to the state 

and people presented by disasters,” id.§ 418.011(1), and empowers the governor to 

declare a state of disaster by executive order if the governor finds a disaster has 
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occurred, see id. § 418.014(a). The Disaster Act further empowers the governor to 

issue executive orders, proclamations, and regulations, which “have the force and 

effect of law.” Id. § 418.012.

On March 13, 2020, Abbott issued a proclamation pursuant to the Disaster

Act certifying that “COVID-19 poses an imminent threat of disaster.” For purposes 

of this appeal, the parties agree the COVID-19 pandemic is a disaster as that term is 

used in the Disaster Act. See id. § 418.004(1).

B. Executive Order GA-38

In response to the COVID-19 disaster, Abbott issued Executive Order GA-38 

(GA-38) on July 29, 2021. GA-38’s stated aim is “protecting the health and safety 

of Texans, ensuring uniformity throughout Texas, and achieving the least restrictive 

means of combatting the evolving threat to public health by adjusting socialdistancing and other mitigation strategies.”

To that end, GA-38 states that it suspends the authority of local officials to 

issue contradictory orders and contains the following directives in paragraph 3:

(b) In areas where the COVID-19 transmission rate is high, 

individuals are encouraged to follow the safe practices they have 

already mastered . . . but no person may be required by any jurisdiction 

to wear or to mandate the wearing of a face covering.

. . . 

(g) As stated above, business activities and legal proceedings are 

free to proceed without COVID-l9-related limitations imposed by local

governmental entities or officials. This paragraph number 3 supersedes 

any conflicting local order in response to the COVID-l9 disaster, and 

all relevant laws are suspended to the extent necessary to preclude any 

such inconsistent local orders. Pursuant to the legislature’s command 

in Section 418.173 of the Texas Government Code and the State’s 
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emergency management plan, the imposition of any conflicting or 

inconsistent limitation by a local governmental entity or official 

constitutes a “failure to comply with” this executive order that is subject 

to a fine up to $1,000.

Additionally, to “further ensure that no governmental entity can mandate masks,”

paragraph 4(a) of GA-38 states that “[n]o governmental entity, including a county, 

city, school district, and public health authority, and no governmental official may 

require any person to wear a face covering or to mandate that another person wear a 

face covering.” Subsection (b) of the same paragraph expressly “supersede[s] any 

face-covering requirement imposed by any local governmental entity or official, 

except as explicitly provided.” With the stated purpose of “further ensur[ing] 

uniformity statewide,” paragraph 5 of GA-38 suspends sections 418.1015(b) and 

418.108 of the Texas Government Code “[t]o the extent necessary to ensure that 

local governmental entities or officials do not impose any such face-covering 

requirement.”

C. Clay Jenkins’s Order

On March 12, 2020, Jenkins declared a state of local disaster in Dallas County 

due to the imminent threat arising from COVID-19. The Dallas County 

Commissioners Court subsequently approved an Order Continuing Declaration of 

State of Local Disaster for Dallas County. Jenkins’s subsequent orders state the 

commissioners court “authorized the Dallas County Judge to take such actions as are 

necessary in order to protect the health, safety and welfare of the citizens of Dallas 

County by the issuance of executive orders as necessary.” 
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According to Jenkins’s pleading filed on August 9, 2021, Texas lagged behind 

other states in vaccinations against COVID-19 and had among the highest total 

number of cases of coronavirus transmission. A more dangerous variant of the 

coronavirus, known as the delta variant, began surging in the summer of 2021 and, 

as a result, Dallas County faced “climbing cases and hospitals are reaching 

dangerous capacity issues that threaten lives.” Jenkins alleged that if Dallas “County 

and schools are barred from engaging in mandatory mitigation practices like 

requiring face coverings, the Delta Variant will overwhelm hospitals, and people 

will die.” 

On August 11, 2021, Jenkins issued an order stating:

WHEREAS, the transmission of COVID-19 has not dissipated 

but remains a significant threat to the health and safety of the Dallas 

County community and rates of infection are increasing at an alarming 

exponential rate and the number of people ending up in the hospital, 

ICU, or on ventilators is also dramatically rising despite efforts by local 

authorities to control the spread; 

. . . 

WHEREAS, a County Judge is authorized to protect the health, 

safety, and welfare of the citizens of Dallas County, including but not 

limited to, controlling ingress to and egress from a disaster area and 

controlling the movement of persons and occupancy of premises on an 

appropriate local scale in accordance with Section 418.108(g) of the 

Texas Government Code and his authority as Emergency Management 

Director[.] 

The order mandated that all commercial entities in Dallas County providing goods 

or services directly to the public develop and implement health and safety policies. 

Those policies must, at a minimum, require “universal indoor masking for all 
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employees and visitors to the commercial entity’s business premises or other 

facilities.” Additionally, Jenkins ordered that face coverings would be required for 

all employees, contractors, and visitors when on the premises of a building or office 

owned or operated by Dallas County. 

D. Pending Litigation

This litigation began when J.J. Koch, the Dallas County Commissioner for 

District Two in Dallas County, sued Jenkins in Jenkins’s official capacity. Koch, 

who is not a party to this appeal, alleges Jenkins made a “unilateral decision to 

require face coverings” during a meeting of the Dallas County Commissioners in 

contravention of GA-38, “which specifically denies any authority to Jenkins to make 

or enforce such rules.” Koch sought a declaration that Jenkins’s enforcement of a 

face-covering requirement is illegal. 

In response, Jenkins filed a counterclaim against Abbott in his official 

capacity. Jenkins contends that Abbott’s efforts, through GA-38, “to try to ban local 

officials from requiring masking within their localities are actions taken without 

legal authority and are in effect ultra vires acts by Governor Abbott.” Requesting a 

declaratory judgment, Jenkins seeks declarations that: (1) “as the presiding officer 

of the governing body of Dallas County, following his declaration of a local state of 

disaster on March 12, 2020, Judge Jenkins has the full authority and discretion 

vested to him under [Texas Government Code section] 418.108(g), including the 

discretion to order mask mandates in the Commissioners Court or in public”; (2) 
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GA-38 paragraphs 3(b), 3(g), and (4) exceed the authority delegated to the governor 

and, therefore, are not lawful orders and are unenforceable; and (3) Texas 

Government Code section 418.016(a) does not authorize Abbott to suspend section 

418.108(g) for the express purpose of preventing county judges or mayors from 

issuing orders that cope with the COVID-19 disaster by requiring face coverings, 

and Governor Abbott’s attempt to do so in GA-38 paragraph (4)(b)(1) is statutorily 

impermissible and unenforceable. Jenkins also requested a temporary injunction to 

“maintain the status quo in which his authority within the County allowed him, 

without question, to protect its citizens” and restrain Abbott from acting to enforce 

sections of GA-38 that seek to ban face-covering mandates. 

The Attorney General of Texas, on behalf of the State, then filed a verified 

plea in intervention and application for temporary and permanent injunctions

prohibiting Jenkins from enforcing a face-covering requirement “for so long as GA38 (or a future executive order containing the same prohibitions) remain [sic] in 

effect.” 

Following a hearing, the trial court granted Jenkins’s request for a temporary 

restraining order (TRO) preventing Abbott1from enforcing paragraphs (3)(b), 

(3)(g), and (4) of GA-38. Appellants immediately appealed the TRO to this Court 

and then to the Texas Supreme Court. The Texas Supreme Court found the TRO 

1 The TRO restrained “Greg Abbott in his official capacity as Governor of the State of Texas as well as 

any of his agents, servants, employees, attorneys, representatives, or any persons in active concert or 

participation with” Abbott. 
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altered the status quo and stayed “its effect . . . pending [the trial] court’s hearing 

and decision on plaintiffs’ request for a temporary injunction.” In re Abbott, No. 21-

0686, Order (Tex. Aug. 15, 2021).

On August 24, 2021, the trial court conducted a hearing on Jenkins’s request 

for a temporary injunction. At the hearing, Jenkins presented evidence detailing the 

effects of the COVID-19 pandemic on Dallas County and the effectiveness of facecoverings to prevent the spread of COVID-19. He argued the governor does not have 

the power to suspend the authority given to local officials to manage local disasters 

under the Disaster Act. Conversely, appellants presented no evidence and argued 

Jenkins had no legal authority to issue a mandate for face coverings in contravention 

of GA-38. Following that hearing, the trial court entered an order granting the 

temporary injunction. The order finds that Jenkins showed a probable right to relief 

on the merits of his claims against appellants; unless appellants are temporarily 

enjoined, Jenkins and the residents of Dallas County whom he serves in his official 

capacity will suffer probable imminent and irreparable injury from the 

unencumbered spread of COVID-19; and the issuance of a temporary injunction 

would maintain the status quo between the parties. The temporary injunction 

restrains appellants2from enforcing paragraphs (3)(b), (3)(g), and (4) of GA-38 “to 

2 The temporary injunction restrains “Greg Abbott in his official capacity as Governor of the State of 

Texas, and each of his agents, servants, employees, attorneys, representatives, or any persons in active 

concert or participation with him who receive actual notice of the Temporary Injunction, and the State of 

Texas, and each of its agents, servants, employees, attorneys, representatives, or any persons in active 

concert or participation with the State of Texas who receive actual notice of the Temporary Injunction.”
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the extent those provisions prohibit Jenkins from requiring persons in Dallas County 

to wear, or mandate the wearing of, masks or face coverings in Dallas County to 

address the particularized local disaster in such county in light of, among other 

things, the number of infections, hospitalizations, and overall ripple effect on the 

healthcare system.” This appeal followed.

E. Role of the Judiciary

As our sister court recognized in a case presenting a similar issue: 

[T]he issue before this Court is not the wisdom or efficacy of the actions 

taken by either the Governor or the County Judge. A court is illequipped, nor empowered to make such difficult policy decisions. 

Rather, the only question that we are capable of answering is, under the 

text of the statute, who is the proverbial captain of the ship to make the 

difficult decisions embodied in these competing orders. 

State v. El Paso Cty., 618 S.W.3d 812, 819 (Tex. App.—El Paso 2020, no pet.), 

(mandamus dismissed Nov. 20, 2020). Similarly, Justice Guzman recently wrote 

about the Disaster Act’s application to an election question in the era of COVID-19:

[T]he Texas Constitution commits the balancing of competing interests 

and policy objectives to the executive and legislative branches of 

government. The judiciary’s function is only to say what the law is, not 

what it should be. In our constitutional role, judges are not empowered 

to substitute our policy choices, preferences, or rules for those of the 

coordinate branches. So long as the law as written complies with the 

federal and state constitutions, our duty is to enforce it.

Abbott v. The Anti-Defamation League Austin, No. 20-846, 610 S.W.3d 911, 924 

(Tex. Oct. 27, 2020) (per curiam) (Guzman, J., concurring) (footnotes omitted).

When evaluating the parties’ arguments, we remain mindful of the role of the 

judiciary.
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LAW & ANALYSIS

A. Plea to the Jurisdiction

We begin with the jurisdictional analysis.3 Appellants argue Jenkins’s claims 

against Abbott are barred by sovereign immunity, Jenkins lacks standing, and only 

the Texas Supreme Court—not a trial court—has authority to enjoin the governor. 

A plea to the jurisdiction is a dilatory plea that contests the trial court’s 

authority to determine the subject matter of the cause of action. Tarrant Cty. Coll. 

Dist. v. Sims, 621 S.W.3d 323, 327 (Tex. App.—Dallas 2021, no pet.) (citing Bland 

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). When a plea to the 

jurisdiction challenges the pleadings, we must determine if the pleader has alleged 

sufficient facts to demonstrate affirmatively the trial court’s jurisdiction to hear the 

cause. Id. (citing Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 

927 (Tex. 2015); City of Plano v. Hatch, 584 S.W.3d 891, 895 (Tex. App.—Dallas 

2019, no pet.)). To make this determination, we look to the pleader’s intent, construe 

3 The trial court’s order granting the temporary injunction states that appellants’ plea to the jurisdiction 

was not set for a hearing, has not been heard or determined, and remains pending before the court. However, 

this Court has previously held the grant of injunctive relief serves as an implicit denial of the plea to the 

jurisdiction. Tex. Dep’t of Family & Protective Servs. v. ASI Gymnastics, Inc., No. 05-09-01469-CV, 2010 

WL 2764793, at *1 n.2 (Tex. App.—Dallas July 14, 2010, no pet.) (mem. op.). Further, even if the trial 

court did not implicitly deny appellants’ plea to the jurisdiction, jurisdictional arguments can be raised for 

the first time on appeal. See Am. K-9 Detection Servs., LLC v. Freeman, 556 S.W.3d 246, 260 (Tex. 2018).

We also note that the Texas Supreme Court ordered the effect of the TRO in this case “stayed pending 

the [trial] court’s hearing and decision on plaintiffs’ request for a temporary injunction.” Although 

appellants did not raise their jurisdictional arguments in the prior proceeding, the supreme court, like all 

courts, must consider its jurisdiction even when not raised by the parties. Id. (“Subject matter jurisdiction 

is an issue that may be raised for the first time on appeal[,] it may not be waived by the parties, and it may—

indeed, must—be raised by an appellate court on its own.”). Accordingly, we conclude the supreme court 

resolved any jurisdictional questions by its order for further proceedings. 
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the pleadings liberally in favor of jurisdiction, and accept the allegations in the 

pleadings as true. Id. (citing Hatch, 584 S.W.3d at 895). Whether a court has subjectmatter jurisdiction is a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 

133 S.W.3d 217, 228 (Tex. 2004).

1. Sovereign Immunity

Appellants argue Jenkins’s claims against Abbott are barred by sovereign 

immunity. State employees acting in their official capacities have sovereign 

immunity from suit. See Tex. S. Univ. v. Villarreal, 620 S.W.3d 899, 904 (Tex. 

2021). However, a claim may proceed against a governmental official in his official 

capacity if the plaintiff successfully alleges that the official is engaging in ultra vires

conduct. Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 344 

(Tex. 2019). A plaintiff bringing an ultra vires claim must “allege, and ultimately 

prove, that the officer acted without legal authority or failed to perform a purely 

ministerial act.” Id. at 344–35 (internal quotation marks omitted). Retrospective 

monetary relief is generally barred; only prospective injunctive relief is available on 

an ultra vires claim. Id. at 345. 

In this case, Jenkins alleges the Disaster Act delegates authority to county 

judges to declare local disasters and seek to mitigate those disasters. See TEX. GOV’T 

CODE ANN. § 418.108. His pleading states the Disaster Act does not authorize 

Abbott, an officer of the State, to limit a local county judge’s actions; rather, the 

Disaster Act authorizes the governor to act only at the state level and establish state 
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policy. Abbott’s actions, through GA-38, seeking to constrain Jenkins’s power to 

manage the local disaster in Dallas County by precluding Jenkins from enacting and 

enforcing a face-covering requirement within Dallas County violate the Texas 

Government Code. Thus, Jenkins pleaded: “Abbott’s ‘ban’ in GA-38 is an ultra vires

act. He was not legislatively entitled to try to ban such actions by Judge Jenkins.”

Construing Jenkins’s pleadings liberally in favor of jurisdiction and accepting 

the allegations in the pleadings as true, Jenkins alleged sufficient facts that Abbott’s

ban constraining Jenkins’s power to enforce a face-covering requirement within 

Dallas County, enacted through GA-38, was an ultra vires action. Jenkins challenges 

Abbott’s past conduct and seeks to bring Abbott into prospective compliance with 

the Texas Government Code. Therefore, immunity does not bar the suit. See 

Chambers-Liberty Ctys. Navigation Dist., 575 S.W.3d at 344–45. 

2. Standing

Appellants contend Jenkins lacks standing to sue Abbott. Standing is a 

threshold requirement to maintaining a lawsuit. Farmers Tex. Cty. Mut. Ins. Co. v. 

Beasley, 598 S.W.3d 237, 240 (Tex. 2020). “A court has no jurisdiction over a claim 

made by a plaintiff who lacks standing to assert it.” Heckman v. Williamson Cty., 

369 S.W.3d 137, 150 (Tex. 2012). The standing doctrine identifies suits appropriate 

for judicial resolution and assures there is a real controversy between the parties that 

will be determined by the judicial determination sought. Patel v. Tex. Dep’t of 

Licensing & Regulation, 469 S.W.3d 69, 77 (Tex. 2015). 
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The Texas Supreme Court adopted the standard for standing articulated by the 

United States Supreme Court. To establish standing, a plaintiff must show: (1) an 

injury in fact, which is concrete and particularized and actual or imminent, not 

conjectural or hypothetical; (2) that is fairly traceable to the defendant’s conduct; 

and (3) that is likely to be redressed by the requested relief. Heckman, 369 S.W.3d 

at 154-55 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)); see 

also In re Abbott, 601 S.W.3d 802, 808 (Tex. 2020) (per curiam). The standing 

determination is made by looking to the plaintiff’s pleadings, and the mere fact that 

a plaintiff may not ultimately prevail on the merits of the lawsuit does not deprive 

the plaintiff of standing. Beasley, 598 S.W.3d at 241.

Jenkins alleges he suffered an injury when Abbott, through GA-38,

unlawfully suspended Jenkins’s authority to enact and enforce a face-covering 

requirement within Dallas County. Jenkins’s executive orders state he is authorized 

to take actions to protect the health, safety, and welfare of the citizens of Dallas 

County. At the temporary injunction hearing, Jenkins presented evidence showing 

mask mandates are critical to managing the COVID-19 pandemic and the healthcare 

system within his jurisdiction. Jenkins cannot fulfill his duties to protect the citizens 

of Dallas County and manage the COVID-19 pandemic within the county because 

of the provisions of GA-38. 

Construing Jenkins’s pleadings liberally in favor of jurisdiction and accepting 

the allegations in the pleadings as true, Jenkins alleged Abbott inflicted a concrete 
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and particular injury on him by constraining his statutory authority to implement 

mask mandates. Jenkins met the first element of standing by showing he has an 

actual injury. See Abbott v. City of San Antonio, No. 04-21-00342-CV, 2021 WL 

5217636, at *8 (Tex. App.—San Antonio Nov. 10, 2021, no pet. h.) (concluding city 

and county making similar allegations met first element of standing).

Jenkins also meets the “traceability” element of standing. To establish 

“traceability,” a plaintiff must show that the injury complained of must be “fairly . .

. trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] 

the independent action of some third party not before the court.” Lujan, 504 U.S. at 

560–61. The injuries Jenkins alleges arise from Abbott’s promulgation of GA-38 in 

which he limited Jenkins’s statutory authority to manage a local disaster. Had Abbott 

not issued an executive order limiting Jenkins’s authority, Jenkins would have 

proceeded to act pursuant to his authority under the Texas Government Code. It is 

Abbott’s proclamation itself that is the source of Jenkins’s alleged injuries. 

Construing Jenkins’s pleadings liberally in favor of jurisdiction and accepting the 

allegations in the pleadings as true, Jenkins has alleged injuries directly traceable to 

Abbott’s action in promulgating GA-38. See id. (concluding city and county making 

similar allegations met traceability element of standing). 

Finally, Jenkins pleaded facts that his injury would be redressed by the 

requested relief. Jenkins seeks a declaratory judgment that he has the statutory 

authority to order mask mandates and Abbott’s suspension of his authority to do so 
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is an ultra vires act. 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. Construing Jenkins’s 

pleadings liberally in favor of jurisdiction and accepting the allegations in the 

pleadings as true, Jenkins alleged sufficient facts showing the requested relief would 

redress the alleged injury. See id. (concluding city and county making similar 

allegations met redressability element of standing).

Jenkins has alleged an actual concrete injury caused by Abbott’s Executive 

Order, GA-38. Further, if Jenkins obtains the relief he seeks, the injury will be 

redressed. We conclude Jenkins has standing to sue Abbott. See id.

3. Original Jurisdiction

Appellants argue the trial court lacked jurisdiction because only the Texas 

Supreme Court—not a trial court—has authority to enjoin executive officers such as 

the governor. The basis for this argument is section 22.002(c) of the Texas 

Government Code. Section 22.002(c) states: 

Only the supreme court has the authority to issue a 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 a 

judicial, ministerial, or discretionary act or duty that, by state law, the 

officer or officers are authorized to perform.

TEX. GOV’T CODE ANN. § 22.002(c) (emphasis added). In response, Jenkins argues 

his claim does not fall within the purview of section 22.002(c) because he does not 

seek to compel Abbott to act. Jenkins also argues the Legislature has no authority to 
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grant original jurisdiction to the supreme court in suits against the governor, and thus 

section 22.002(c) should be read to exclude the governor from the grant of original 

jurisdiction. For the purposes of this appeal we assume section 22.002(c) does not 

exclude the governor from the grant of original jurisdiction. 

We agree with Jenkins that his claim against Abbott does not seek to order or 

compel an action; rather, he seeks to prevent Abbott from taking an action. Jenkins 

requests the trial court enjoin Abbott from enforcing portions of GA-38, thus 

preventing Abbott from performing what Jenkins deems to be ultra vires acts. See 

Canales v. Paxton, No. 03-19-00259-CV, 2020 WL 5884123, at *2 (Tex. App.—

Austin Sept. 30, 2020, pet. ref’d) (mem. op.) (“A district court has original 

jurisdiction to issue an injunction prohibiting unlawful executive action.”) (citing 

Witt v. Whitehead, 900 S.W.2d 374, 375–76 (Tex. App.—Austin 1995, writ denied) 

(holding that where state executive’s delegation of responsibility was beyond 

officer’s authority, district court “can grant permanent injunctive relief to prohibit 

enforcement” of that unlawful delegation); 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 that 

state executives “are authorized to perform,” but not orders prohibiting acts that 

“have been, or will be, committed without and in excess of lawful authority”)). 

Because Jenkins does not seek to compel Abbott to perform any act or duty 

that Abbott is authorized to perform, but instead endeavors to enjoin Abbott from 
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performing an allegedly ultra vires act, section 22.002(c) of the Texas Government 

Code did not preclude the trial court from enjoining the governor in this instance.

B. Temporary Injunction

A temporary injunction must comply with the requirements of rule of civil 

procedure 683. See TEX. R. CIV. P. 683. To obtain a temporary injunction, the 

applicant must plead and prove three elements: (1) a cause of action against the 

defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, 

and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 

204 (Tex. 2002). “A temporary injunction is an extraordinary remedy and does not 

issue as a matter of right.” Anti-Defamation League Austin, 610 S.W.3d at 916.

Appellants assert Jenkins failed to demonstrate a probable right to relief and 

probable, imminent, and irreparable injury in the interim, and thus the trial court 

abused its discretion by granting Jenkins’s request for a temporary injunction.

1. Standard of Review 

A reviewing court should reverse an order granting injunctive relief only if 

the trial court abused its discretion. See id. However, a court has no discretion to 

incorrectly analyze or apply the law. Id.

Statutory construction is a legal question that we review de novo. Entergy 

Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). Our primary focus 

in statutory interpretation is to give effect to legislative intent, considering the 

language of the statute, as well as its legislative history, the objective sought, and 
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the consequences that would flow from alternate constructions. Crown Life Ins. Co. 

v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000). We seek that intent “first and foremost”

in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006); 

see also Bosque Disposal Sys., LLC v. Parker Cty. Appraisal Dist., 555 S.W.3d 92, 

94 (Tex. 2018) (“[T]he Legislature expresses its intent by the words it enacts and 

declares to be the law.”); BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 

S.W.3d 76, 86 (Tex. 2017) (“The text is the alpha and the omega of the interpretive 

process.”). We consider the words in context, and not in isolation. In re Office of the 

Atty. Gen. of Tex., 456 S.W.3d 153, 155 (Tex. 2015) (per curiam) (“Given the 

enormous power of context to transform the meaning of language, courts should 

resist rulings anchored in hyper-technical readings of isolated words or phrases.”). 

When construing statutory language, “we presume the Legislature chose the 

statute’s language with care, purposefully choosing each word, while purposefully 

omitting words not chosen.” In re CenterPoint Energy Houston Elec., LLC, 629 

S.W.3d 149, 158-59 (Tex. 2021) (quoting In re Commitment of Bluitt, 605 S.W.3d 

199, 203 (Tex. 2020)). We must give effect to all words of a statute and not treat any 

language as surplusage. Id. at 159. We must not add words to the statute that are not 

there, and we must not ignore the words the Legislature has chosen, either, 

particularly in situations where we are being urged to read grants of authority from 

statutory silence. See Newman v. Obersteller, 960 S.W.2d 621 (Tex. 1997)(Abbott, 

J., dissenting) (the Legislature’s omission of words from a statute is significant and 
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“[i]t is not the province of this Court to expand” a limited statutory provision by 

making inferences of authority from silence, “no matter the policy rationale behind 

such an expansion”); see also City of San Antonio, 2021 WL 5217636, at *3 (same).

2. Probable Right to Relief

Appellants contend Jenkins failed to establish a probable right to relief for 

three reasons: (1) the Legislature designated the governor as the “commander in 

chief” for managing statewide disasters and GA-38’s prohibition of face-covering 

mandates fits within the governor’s authority; (2) county judges are agents of the 

governor during the pendency of a statewide disaster and an agent cannot 

countermand the objectives of the principal; therefore, Jenkins lacks authority to 

issue orders that contradict Abbott’s; and (3) Abbott suspended the statute upon 

which Jenkins relies to craft local face-covering rules.4

a. Commander In Chief

Appellants argue the Disaster Act deputizes the governor as the “commander

in chief” of Texas’s response to a statewide disaster, see TEX. GOV’T CODE ANN.

§ 418.015(c), and as the commander in chief, the governor has the power to “control 

ingress and egress to and from a disaster area and the movement of persons and the 

occupancy of premises in the area,” id. § 418.018(c). Appellants maintain that Dallas 

County falls within the declared disaster area and GA-38’s prohibition on face4 Appellants’ brief also includes an argument about the constitutionality of the Disaster Act. The trial 

court did not determine the constitutionality of the Disaster Act, and no party is arguing it is unconstitutional 

in this appeal. Therefore, we do not consider the issue to be before us at this time. 
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covering mandates is within the governor’s power to control the movement of 

persons and occupancy of premises in the area. Were a county judge to issue an order 

contradicting the governor’s executive order, the governor’s executive order would 

prevail because the Disaster Act empowers the governor to issue executive orders, 

proclamations, and regulations, which “have the force and effect of law.” Id.

§ 418.012. Jenkins responds that the statutory language on which appellants rely 

identifies a limited role for the governor during disasters and does not “authorize the 

governor to act as an omnipotent leader in the disaster.”

Section 418.015(c) states: “During a state of disaster and the following 

recovery period, the governor is the commander in chief of state agencies, boards, 

and commissions having emergency responsibilities.” Id. § 418.015(c). This 

provision expressly limits the governor’s commander-in-chief authority to state 

agencies, state boards, and state commissions. See id. Dallas County is none of 

these. Rather, Dallas County falls within the Disaster Act’s definitions of a “political 

subdivision” and a “local government entity.” See id. § 418.004(6) (defining 

“political subdivision” as a “county or incorporated city”), 418.004(10) (defining 

“local government entity” to include a county). The Disaster Act does not empower 

the governor to act as the commander in chief of political subdivisions, local 

government entities, or counties. Thus, we must conclude section 418.015(c) limits 

the governor’s authority to act as commander in chief only to specific state entities.

See id. § 418.015(c); see also In re CenterPoint, 629 S.W.3d at 158-59.
–21–

Appellants concomitantly discuss the effect of the governor’s executive orders

in relation to his authority under the Disaster Act. In the event of a statewide disaster, 

the governor “may control ingress and egress to and from a disaster area and the 

movement of persons and the occupancy of premises in the area.” TEX. GOV’T CODE

ANN. § 418.018(c). However, in the event of a local disaster, the county judge or 

mayor of a municipality “may control ingress to and egress from a disaster area 

under the jurisdiction and authority of the county judge or mayor and control the 

movement of persons and the occupancy of premises in that area.” Id. § 418.108(g). 

Appellants argue that section 418.012 is the tiebreaker between these two grants of 

authority. See id. § 418.012 (governor may issue executive orders, proclamations, 

and regulations, which “have the force and effect of law.”).5

Appellants’ construction of the Disaster Act requires that we assume a disaster 

may be either a statewide disaster controlled by a state-level authority such as the 

governor or a local disaster controlled by a local authority such as a county judge, 

but a disaster cannot simultaneously be both. The Disaster Act does not directly 

address this conundrum. Nonetheless, we cannot dismiss the likelihood that a 

disaster (such as the COVID-19 pandemic) can be both statewide and local, have 

disparate impacts throughout the numerous counties of the state, and necessitate 

different responses in different localities. In the event of a disaster that is both local 

5 Appellants also argue that GA-38 suspended section 418.108 and, therefore, Jenkins cannot rely on 

it. We address the issue of whether the governor has the authority to suspend section 418.018 below.
–22–

and statewide, the Disaster Act requires state and local level officials cooperate in 

their responses to the disaster. Indeed, the stated purposes of the Disaster Act include 

“clarify[ing] and stengthen[ing] the roles of the governor, state agencies, the judicial 

branch of state government, and local government in prevention of, preparation for, 

response to, and recovery from disasters” and providing for “cooperation in disaster 

. . . response.” Id. § 418.002(4), (5). Through its stated purposes, the Disaster Act 

envisions authorities in multiple levels of government and in multiple branches 

coordinating their respected responses to the disaster.

Rather than seeking to coordinate and cooperate with local authorities during 

a disaster, Abbott maintains that, because section 418.012 states the governor’s 

executive orders “have the force and effect of law,” coordination and cooperation 

with local authorities is secondary to his statutory duty to respond to a disaster on a 

statewide basis. See id. § 418.012. While recognizing that section 418.012 states that 

executive orders have the force and effect of law, we cannot read the provision to 

empower the governor to issue orders that exceed his legal powers and duties; 

section 418.012 does not give the governor carte blanche to issue executive orders 

empowering him to rule the state in any way he wishes during a disaster. 

The Disaster Act does not provide specific instructions explaining how 

authorities should proceed when, as here, the governor and a county judge issue 

contradictory orders pursuant to similar statutory grants of authority. The Disaster 

Act does, however, expressly provide a hierarchy when a county judge and a mayor 
–23–

issue contradictory orders. Section 418.108(h)(2) states that when a city mayor and 

a county judge both use their inherent statutory authorities to manage certain disaster 

relief activities in their jurisdictions and orders issued by a mayor conflict with 

orders issued by a county judge, the orders of the county judge control over those of 

the mayor, even inside the boundaries of incorporated territory. See id. § 418.108(h). 

That section clearly resolves contemplated conflicts among two actors with 

concurrent jurisdiction and establishes an explicit chain of command. Abbott has not 

pointed us to a similar provision (and we have not found one) giving his orders 

priority over those of a county judge. The Legislature did not include similar 

language to evaluate competing orders between the governor and a county judge. 

The Legislature’s silence is noteworthy. We must not add words into the text that 

the Legislature chose not to include. See, e.g., In re CenterPoint, 629 S.W.3d at 158-

59. The Disaster Act does not explicitly state that executive orders issued by the 

governor preempt contrary laws issued by local entities. Had the Legislature 

intended the governor’s executive orders to trump local laws, it would have stated 

as much, as it did for conflicts between a county judge and mayor. 

As Chief Justice Rodriguez explained:

Laws conflict with one another frequently, but there is no legal 

principle that automatically elevates certain laws above others as a 

matter of course. Certain laws preempt other laws not because there is 

an inherent hierarchy in government that says a law passed by a higher 

part of government necessarily preempts a law passed by a lower part 

of government. Laws preempt other laws because constitutions and 

other foundational texts create conflict-of-law schemes that establish 
–24–

priority ranks among different types of valid laws. 

El Paso Cty., 618 S.W.3d at 832–33 (Rodriguez, J., dissenting). In this instance, 

there is nothing in the Texas Constitution giving executive orders preemptive power 

over laws passed by counties and cities, and section 418.012 does not provide such 

preemptive power either. Id. at 833 (Rodriguez, J., dissenting). “The grant of power 

in Section 418.012 is simply that—a grant of power. It does not make an executive 

order superior to a local order, nor does it make an executive [order] inferior to a 

local order. The Executive Order by its terms purports to preempt local laws, but 

Section 418.012 is silent on the issue of whether the Executive Order can in fact 

preempt those laws.” Id.

The Disaster Act does, however, provide specific instances when a county 

judge’s orders would prevail over the governor’s orders. Compare TEX. GOV’T CODE

ANN. § 418.018(a) (“The governor may recommend the evacuation of all or part of 

the population from a stricken or threatened area in the state if the governor considers 

the action necessary for the preservation of life or other disaster mitigation, response, 

or recovery.”)(emphasis added) with id. § 418.108(f) (“The county judge or the 

mayor of a municipality may order the evacuation of all or part of the population 

from a stricken or threatened area under the jurisdiction and authority of the county 

judge or mayor if the county judge or mayor considers the action necessary for the 

preservation of life or other disaster mitigation, response, or recovery.”)(emphasis 

added). To conclude the governor owns the tiebreaking authority, we would have to 
–25–

ignore a stated purpose of the Disaster Act and provisions that delineate the 

responsibilities of the governor and county judges, among others.

Reading the Disaster Act as a whole, we conclude that the governor’s 

executive orders under section 418.018(c) do not trump a county judge’s order under 

section 418.108(g) as a matter of course.

b. County Judges as Agents of the Governor

Appellants argue that Jenkins may not issue a face-covering mandate that 

conflicts with the governor’s executive order because a county judge may only act 

as the governor’s agent during a disaster. The Disaster Act designates “[t]he 

presiding officer of the governing body of an incorporated city or a county . . . as the 

emergency management director,” and makes the “emergency management 

director[s] . . . the governor’s designated agent[s] in the administration and 

supervision of duties under this chapter.” Id. § 418.1015(a),(b). Applying agency 

law, appellants argue section 418.1015 creates a principal-agent relationship

between the governor and a county judge, and as Abbott’s agent, Jenkins cannot take 

actions that are inconsistent with GA-38.6In response, Jenkins argues, section 

418.1015 expands rather than restricts a county judge’s power, and his power to 

issue a local mask mandate does not stem from section 418.1015, but instead from 

section 418.108(g). 

6 We do not reach the question of whether the term “agent” as used in section 418.1015 creates a 

principal-agent relationship. 
–26–

Section 418.1015 does not limit a county judge’s role to that of the governor’s 

agent during a disaster. Appellants’ reliance on section 418.1015 ignores the 

delegation of power to county judges pursuant to section 418.108. If county judges 

could only act as the governor’s agents during a statewide disaster, then, to avoid 

being surplusage, section 418.108 would need to state it does not apply in the event 

of a statewide disaster. But it does not. “Unlike Section 418.1015(b), which directly 

ties the exercise of a county judge’s power to gubernatorial authority, none of the 

subsections contained in Section 418.108 frame a county judge’s authority in 

relation to the Governor; the subsections describe the powers of local authorities to 

act on their own.” El Paso Cty., 618 S.W.3d at 836 (Rodriguez, J., dissenting). 

Section 418.108 solely addresses the inherent authority county judges and mayors 

possess to manage disaster areas under their jurisdictions and to declare disasters 

and act autonomously under certain enumerated circumstances without the need to 

seek preapproval from the governor. Id. The Legislature’s exclusion of the governor 

from section 418.108 illustrates the Legislature did not intend to tether this power of 

local officials to the governor.

Reading section 418.108 as a whole, and comparing section 418.108 to 

section 418.1015, we conclude section 418.1015 expands rather than constricts a 

county judge’s authority; section 418.1015 does not restrict a county judge to acting 

only as the governor’s agent during a disaster. Thus, Jenkins could issue “his order 

under his own freestanding, autonomous inherent statutory authority granted by 
–27–

Section 418.108(g), unfettered by any concerns he was acting as the Governor’s 

agent.” Id.

c. Suspension of Section 418.018

To appellants, our analysis above would be unavailing because they claim

Abbott suspended Jenkins’s authority under section 418.018. Paragraph 5(a) of GA38 states that it “invokes the Governor’s statutory power under section 418.016(a) 

of the Government Code to suspend section 418.108” “to the extent necessary to 

ensure that local governmental entities or officials do not impose any such facecovering requirements” and “to the extent necessary to ensure that local officials do 

not impose restrictions in response to the COVID-19 disaster that are inconsistent 

with this executive order.”

Abbott’s March 13, 2020 proclamation certifying that “COVID-19 poses an 

imminent threat of disaster” triggered several statutory gubernatorial powers, 

including, as relevant here, the governor’s power 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.” See TEX. GOV’T CODE ANN. § 418.016(a). 

Jenkins responds that section 418.016(a) did not empower the governor to 

suspend section 418.108 and, by attempting to do so, Abbott exceeded his authority. 

In the trial court, Jenkins argued Abbott could not suspend section 418.108 because
–28–

(1) section 418.108 is not a “regulatory statute” that “prescribes procedures”; 

(2) section 418.108 does not concern the “conduct of state business”; and 

(3) Jenkins’s reliance on section 418.108 to impose a face-covering mandate does 

not “prevent, hinder, or delay necessary action in coping with a disaster.” Appellants 

claim these arguments do not have merit. 

Appellants rely on Abbott v. Anti-Defamation League Austin, in which the 

supreme court stated the governor is not required to prevent the transmission of 

COVID-19 at all costs. See 610 S.W.3d at 918. “Nothing in the [Disaster] Act 

suggests any limitation on the Governor’s ability to consider valid policy goals, such 

as encouraging economic recovery, preserving constitutional rights, or promoting 

ballot integrity.” Id. Appellants argue that, through GA-38, Abbott seeks to balance 

a variety of competing considerations, including “the ability of Texans to preserve 

livelihoods” and “protecting lives” through “the least restrictive means of 

combatting the evolving threat to public health.” They assert Abbott could have 

concluded that Jenkins’s efforts to impose a face-covering mandate would “prevent, 

hinder, or delay [Abbott’s] necessary action in coping with a disaster.”

If we assume for purposes of this argument that GA-38 balances the variety 

of considerations that appellants outline,7 we still must consider whether a county 

judge’s face-covering mandate “prevent[s], hinder[s], or delay[s] necessary action 

7 Appellants did not present evidence at the temporary injunction hearing to show GA-38 seeks to 

achieve or does achieve this balance. 
–29–

in coping with a disaster.” Interestingly, appellants do not present any argument 

about how a face-covering mandate would impede their ability to cope with this

disaster. Unlike the other questions we consider today, this is a question of fact, and 

we must determine whether the trial court abused its discretion by concluding that

Jenkins showed a probable right to the relief sought on this issue.

During the temporary injunction hearing, the trial court heard several hours of 

testimony and was provided hundreds of pages of exhibits to consider. The evidence 

presented by Jenkins shows that masks are the most effective nonpharmacological 

tool for reducing the transmission of COVID-19. Masks reduce viral loadsfor people 

who come into contact with COVID-19 and help prevent disease. Improving the 

population’s compliance with masking will result in lower transmission within the 

community. However, when wearing face coverings is voluntary rather than 

mandatory, the level of compliance is not high enough to reduce the transmission 

rate. Additionally, economists have determined that failing to minimize the 

transmission of COVID-19 could result in preventable losses to the economy 

through reduced employment and decreased productivity. 

The temporary injunction record also includes the executive order that Abbott 

issued on July 2, 2020 (Executive Order 29). Executive Order 29 required every 

Texan (with specific exceptions) to wear a face covering when inside a commercial 

entity or other building or space open to the public. In Executive Order 29, Abbott 

proclaimed: 
–30–

WHEREAS, I have joined the medical experts in consistently 

encouraging people to use face coverings, and health authorities have 

repeatedly emphasized that wearing face coverings is one of the most 

important and effective tools for reducing the spread of COVID-19; and

WHEREAS, given the current status of COVID-19 in Texas, 

requiring the use of face coverings is a targeted response that can 

combat the threat to public health using the least restrictive means . . .; 

and

WHEREAS, wearing a face covering is important not only to 

protect oneself, but also to avoid unknowingly harming fellow 

Texans[.]

Not only has Abbott acknowledged that wearing face covering is “one of the 

most important and effective tools for reducing the spread of COVID-19,” he also 

proclaimed that wearing face coverings is one of “the least restrictive means” of 

combating the threat to public health. The evidence Jenkins presented at the 

temporary injunction hearing supported Abbott’s proclamations in Executive Order 

29 and showed that mandatory mask requirements would reduce the viral 

transmission rate and prevent additional economic losses. 

Based on the evidence in the record, the trial court acted within its discretion 

to conclude that Jenkins demonstrated a probable right to relief on the ground that 

Abbott lacked authority to suspend section 418.108 because imposing a facecovering mandate does not prevent, hinder, or delay necessary action in coping with 

a disaster.8 Arguably, the evidence shows the opposite—that by imposing a face8 Our sister court recently reached the same conclusion, albeit on different legal grounds. See City of 

San Antonio, 2021 WL 5217636, at *6 (“Applying the plain language of the [Disaster] Act, we conclude 
–31–

covering mandate, Jenkins furthered Abbott’s stated goals to preserve livelihoods 

and protect lives through the least restrictive means available. 

Because we conclude Jenkins met his burden to show his imposition of a facecovering mandate does not prevent, hinder, or delay necessary action in coping with 

a disaster, we need not consider whether any section of the Disaster Act is a 

regulatory statute prescribing procedures for the conduct of state business. 

3. Irreparable Harm

Appellants argue the trial court’s balancing of the equities “went awry”

because the trial court “ignored the interests of the Governor and the State in 

enforcing the law and ensuring the State has an orderly, efficient, and uniform 

response to the COVID-19 pandemic.” Because an injunction is an equitable 

remedy, a trial court weighs the respective conveniences and hardships of the parties 

and balances the equities. Graham Mortg. Corp. v. Hall, 307 S.W.3d 472, 477–78 

(Tex. App.—Dallas 2010, no pet.) (citing Computek Computer & Office Supplies, 

Inc. v. Walton, 156 S.W.3d 217, 220 (Tex. App.—Dallas 2005, no pet.); TEX.R.CIV.

P. 693 (principles of equity shall govern proceedings in injunctions when the same 

are not in conflict with rules or statutes)).

the City and County demonstrated a probable right to relief that the Governor's power to suspend laws, 

orders, and rules under section 418.016(a) does not include the power to prohibit face-covering mandates 

that local governments may adopt to respond to public-health conditions or the power to suspend publichealth statutes authorizing local governments to act for the benefit of public health.”).
–32–

Appellants assert the trial court “wholly failed to consider the irreparable harm 

that will be visited upon the State by issuance of this injunction”; that irreparable 

harm stems from the injunction preventing the governor from carrying out his duties 

as commander in chief, which “frustrate[es] the State’s interest in enforcing State 

law.” However, as discussed above, the Disaster Act does not support appellants’

argument that the governor’s authority to act as the commander in chief during a 

disaster includes acting as the commander in chief of individual counties in Texas. 

As is relevant here, Abbott lacks legal authority to act as he attempted. Instead, by 

endeavoring to exercise power beyond that given to him in the Disaster Act, he 

attempted to infringe on Jenkins’s powers. As the trial court concluded, it is Jenkins

who would be harmed if the injunction did not issue.

Further, appellants did not present any evidence to the trial court at the 

temporary injunction hearing, including evidence about how the issuance of a 

temporary injunction would adversely impact the State. Appellants instead argued 

the issue was purely a legal one. Jenkins, however, presented the previously 

discussed evidence at the hearing. Jenkins’s evidence showed that a universal 

masking requirement is a better alternative for mitigation of the pandemic than 

voluntary, individual choice masking. Thus, when asked to balance the equities, the 

only evidence the trial court was left to consider demonstrated how face coverings

reduce transmission of COVID-19 and mitigate its effects.
–33–

Following the hearing, the trial court found that, unless appellants are 

enjoined,

County Judge Jenkins and the residents of Dallas County whom he 

serves in his official capacity, will suffer probable imminent and 

irreparable injury through County Judge Jenkins being precluded from 

exercising his authority, as a County Judge who has declared a local 

state of disaster in Dallas County, to require persons in Dallas County 

to wear, or mandate the wearing of, masks or face coverings in Dallas 

County to reduce the spread of the COVID-19 virus, particularly the 

highly transmissible delta variant, which threatens to overwhelm the 

capacity of the healthcare system in Dallas County and result in 

increased hospitalizations and deaths in Dallas County and result in 

increased hospitalizations and deaths in Dallas County. 

Based on our interpretation of the parties’ respective authority under the 

Disaster Act and the evidence presented at the temporary injunction hearing, we 

conclude the trial court did not abuse its discretion when reaching this conclusion.

See City of San Antonio, 2021 WL 5217636, at *7 (reaching same conclusion based 

on facts presented to trial court at temporary injunction hearing). 

4. Status Quo

Appellants argue the temporary injunction “upended—rather than 

preserved—the status quo” because the last actual, peaceable non-contested statute 

preceding the controversy was GA-36, which was materially similar to GA-38 and 

prohibited localities from imposing mask requirements. A temporary injunction’s 

purpose is to preserve the status quo of the litigation’s subject matter pending a trial 

on the merits. Butnaru, 84 S.W.3d at 204. Status quo is defined as “the last, actual, 

peaceable, non-contested status which preceded the pending controversy.” Pierce v. 
–34–

State, 184 S.W.3d 303, 308 (Tex. App.—Dallas 2005, no pet.) (quoting In re 

Newton, 146 S.W.3d 648, 651 (Tex. 2004)). However, “continuation of illegal 

conduct cannot be justified as preservation of the status quo.” Id. When the court 

determines the law is being violated, the court has a duty to restrain that violation. 

See id.

The trial court found that the issuance of the temporary injunction will 

maintain the status quo between the parties by returning Jenkins to the position he 

was in before GA-38 restrained his local response to the resurgence of COVID-19 

infections and hospitalizations in Dallas County due to the highly contagious delta 

variant. We have determined that Jenkins has a probable right to relief on his claim 

that Abbott’s actions are ultra vires and Abbott has no authority to act unilaterally 

to ban local mandates for face coverings. Thus, the status quo cannot be the 

governor’s prior executive order if that order contained language to a similar effect. 

Because the preservation of the status quo could not as a matter of law include the 

continuation of actions in violation of and beyond the scope of authority granted in 

the Disaster Act, we conclude the trial court did not abuse its discretion by imposing 

a temporary injunction to prevent such conduct. See City of San Antonio, 2021 WL 

5217636, at *7 (“Enjoining enforcement of the Governor's Executive Order GA-38 

is necessary because allowing continued enforcement of the order would be 

unlawful.”).

CONCLUSION
–35–

We affirm the trial court’s August 25, 2021 order granting Jenkins’s request 

for a temporary injunction.

210733f.p05 /Erin A. Nowell//

ERIN A. NOWELL

JUSTICE
–36–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

GOVERNOR GREG ABBOTT, IN 

HIS OFFICIAL CAPACITY, AND 

THE STATE OF TEXAS, Appellants

No. 05-21-00733-CV V.

CLAY JENKINS, IN HIS 

OFFICIAL CAPACITY, Appellee

On Appeal from the 116th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-21-10101.

Opinion delivered by Justice Nowell. 

Justices Osborne and Pedersen, III 

participating.

In accordance with this Court’s opinion of this date, we AFFIRM the trial 

court’s August 25, 2021 order granting the request for a temporary injunction 

sought by Clay Jenkins, in his official capacity.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 22nd day of November, 2021.