# Fourth Court of Appeals San Antonio, Texas
Au gust 19, 2021
N o. 04

- 21

- 00342

- CV Greg ABBOTT , in his Official Capacity as Governor of Texas, Appellant

v. CITY OF SAN ANTONIO and County of Bexar,

Appellees From the 45th Judicial District Court , Bexa r County, Texas

Tri al Court No. 2021CI16133 Honorable Antonia Arteaga , Judge Presiding

O R D E R Sitting: Iren e Rios, Justic e

Beth Watkins, Justice Liza A. Rodriguez, Justice Bef ore us is an emergenc y motion asking this court to exercise its authority under R u l e 29. 3 of the Texas Rules of Appellate Procedure to reinstate a temporary injunction dur ing the pendency of this appeal

. This appeal , which is acce lerated in na ture, challenges a temporary inju nction restraining the Texas Governor , Greg Abbott , and his a gents and emp loyees , from enforcing sections of E xecutive Order GA

- 38 to the extent it pr ohibit s local o fficial s and governmental ent ities from requiring mask s or face coverings be worn in certa in settings in the City of San Anto nio and Bexar County

. See T ex. C IV
. P RAC
. & R EM
. C ODE A NN . § 51.014(a)(4) (aut horizing an appe al from a n interlocutory order that grants or refuses a temporary injunction )

. For the reasons set out below, w e grant the emergency motion. See T EX
. R. A PP
. P. 29.3.Backgro und

On August 10, 2 021, the City of San Anto nio and Bexar County fil ed a declarat ory judgment suit challenging Executive Order GA

- 38 , which was signed by the Governor on July 29, 2021. Executive Order GA

- 38 provides , with some exceptions , that : “No governmental

e ntity, including a county, c ity, scho ol district, and public health author ity , and no governmental official may require any perso n to wear a face covering or to mandate that another person wear a face covering

. . . . ” The City and County ’ s suit allege s th at the Governor acted ultra vires and outside the sc ope of his a uthority under t he Texas Disaster Act of 1975 and , alternatively, that the Texas Disaster Act of 1975 violates the Texas Constitution. The City and County’s suit also include s an application f

or a te mporary injunction. The trial court held a hear in g on the temporary inj u nction application on Monday, August 16, 2021, at 9:00 a.m. After the hearing, the trial court signed an order granting the t emporary injunction

. 1 Specifically , t he temporary injunct ion order restr ain s the Governor , in his official capacity “ and eac h of his agents , employees, or those in active participation i n concer t with him from , enforcing [ s ] ect ions 3(b), 3(g), 4 , and 5(a) of Ex ecutive Order G A

- 38 to the extent those provi sions ( 1) prohib it the City of San Antonio and Bexar Co un ty from requiring C ity and County employees or visitors to City

- and County

- owned facilities to wear masks o r face

cove rings; or (2) prohibit the San Ant onio and Bexar County P ublic H ealth Authority from

re quiring masks in public schools in the City and Co unty

. ” 2 The tempo ra ry inju nction order also
set s the case for trial on the merits on December 13, 2021 , at 9:00 a.m.

1 Executive O rder GA

- 38 states as follows: Section 3(b) prov ides that “no person may be required by any jur isdicti on to wea r or to mandate the wearing of a face covering ” ; Section 3(g) provides that failure to com ply with the executive order may be “subjec t to a fine up to $1,000 ” ; Section 4 provides that “[n]o gov ernm ental entity, including a co unty , city, sch ool dis trict, an d public health authority, and no governmental official m ay require any person to wear a f

ace covering or to mandate that another per son w ear a face covering....” ; and Section 5(a) provides , amon g ot her things , Executive Order GA

- 38 “shall su persede any c onfli ctin g order issued by local official in response to the COVID

- 19 disaster....”

2 The temporary inju nction order was signed by the tr ial court on Au gust 16, 20 21 , at 4:52 p.m.H ours after the trial court sign ed the temporary injunction order, the Governor fi led a

n otice of appeal in this court. 3 The Governor ’ s notice of appeal sta te s that “ [u ]pon filing of this instrument ” the temporar y injunct ion order “ is superseded ” pur suant to Rule 29.1 (b) of the T exas Ru l es of Appellate Procedure 4 and section 6.00 1(b) of the Te xas Civi l Practice and Remedies Code

. 5
T he appellees, the City of San Antonio and Bexa r C ou nty , acknowle dge that the
Governor ’ s notice of appeal su spend ed the tria l court ’ s temporary injunction. However, in the
emerg ency m otion , the Cit y and C ounty ask us to preserve the ir rights b y issu ing an order reinstati ng th e trial court ’ s tempora ry inju nc tion

. Analysis Initially, we address this court ’ s authority to grant the relief sought in the emergency motion

. “ When an appeal from an interl ocutory or der is perfected, the appellate court may make any temporary ord ers necessary to preserve the parti es ’ rights until disposition of the appeal and may require appropriate security.” T EX
. R. A PP
. P. 29.3

. Under Rule 29. 3, Texas interm ediate appella te cour ts have in herent jud icial power to preserve the pa rties ’ rights dur ing the pendency of an interlocutor y appeal. Tex

. Ed u c . Agency v. Houston Indep. Sch. Dist. , 609 S .W.3d 569, 577 (Tex. App.

— Austin 2020, order )

. The Texas Supreme Court has acknowled ged th i s inherent judicial pow er , holding that one of our sister court s, the Austin court of appeals, had th e authority under Rule 29. 3 to provide relie f from the s tate ’ s aut omatic right to sus pend a temporary i njunction

. I

n re Tex

. Educ. Agency , 619 S.W.3 d 692 ( Tex. 2021) (orig. proceeding) (holding “ court of ap peals was not without p ower to issue temporary re li e f ” under Rule 29.3 from st ate ’ s autom atic suspending of the trial court ’ s tempo rary injunction ). In another case, t he

3 The notice of appe al was filed in this court on August 1 6, 20 21, at 7 :23 p .m.

4 Rule 29.1 (b) stat es: “ Perfecting an appeal from an order granting interlocutory relief does not suspen d the order appeal ed from u nless

. . . the appellant is entit led to super sed e t he order without securi ty b y filing a notice of appeal

. ” T EX
. R. A P P
. P. 29.1(b).

5 Sect ion 6.001(b) states: “ The following are exempt from th e bond r equirements: ( 1) this s tate

. . . . ” T EX
. C IV
. P RA C
. & R EM
. C ODE A NN
. § 6.00 1(b).Texas S upreme C ourt confirme d t hat noth ing prevents a party “ from asking the court of appeals

to pr o tect it from irreparable harm. Rule 2 9.3 expressly cont emplates that such relief is directly avai lable in t he court of appeals. ” In re Geomet Recycling LLC , 578 S.W.3d 82, 89 (Tex. 201 9) (ori g. proce eding)

. W e concl ude that we have the authority to grant the emergency m otion under Rule 29.3 and the relev an t case law.
T he Texas Supreme Court has also reco gnized that u nder Rule 29. 3 , Texas intermediate appella te court s have “ great flexib ility i n preserving the s tatus quo based on the unique facts and circumstances present ed. ” Id

. The Texa s Supreme Court de fin es “ the s tatus quo ” as “ the last, actual, peaceable, non

- contested status which preceded the pending controversy. ” In re Newton , 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding) (citing J a nus Films , Inc. v. City of Fort
Wor th , 358 S.W.2d 589, 589 (Tex . 1962) )

. T he City and County ’s authority to administer public health measures i s established by the Texas Legislature. See , e. g., T EX
. H EALT H & S AFETY C ODE A NN
. § § 81.082 , 121.00 3, 122.006 , 341.081 ; see also T EX
. G OV ’ T C ODE A NN . §§ 418.1015 , 418.108 ; see also T EX
. L OCAL G OV ’ T C ODE Ch

. 54

. Effective July 29, 2021, Executive Order GA

- 38 suspe nded these and

“ [a]ny other statute invoked by any loc al governm ental entity or official in support of a face

covering requirement

. ” By their suit, the City and County challe nge the issu ance of Execut ive Order GA

- 38 , alleg ing that the Governor acted ultra vires and outside the sc ope of his a uthority

un der the Texa s Disaster Act of 1975 and , alterna ti vely, that the Texas Disaster Act of 1975 violates the Texas Constitution. In the present case , Executive Order GA

- 38 , which was issued
on J uly 2 9, 2021, altered the status quo , which had allowed local gover nmental enti ties to implement and e n force polici es reasonably necessary to protect public health

. T he trial court ’ s temporary i njunction restor ed th e status quo

. However, as p reviously mentioned, t he filing of the notice of appeal automatically suspended t he temp orary injunction order and , once again , altered the status quo

. See In re Tex

. E duc. Agency , 619 S.W.3d at 683

- 84 ( “ Instead of pr eserving thestatus quo, however, su s p ension of the temporary injunction would, in this case , have the

contradict ory eff

ect of perm itting the status quo to be altered. ” ).
In their emergency motion , the City and Cou nty argue that a n order reinstating the trial
court ’ s temporary injunction wil l pre vent irreparable harm and preserve their rights. They emphasize that the trial court e xpr e ssly found in its temporary inju nction order that the City and County “ will suffer irre parable injury before trial on the merits through the inability to impose

ma sking requirements to control the spread of the COVID

- 19 virus that threatens to o verwhel m th e cap acity of the healthcare system in the City and County and to cause the City and Co unty to reduce servic es to the community and furlough work ers. ” They als o point to a previous Executive Order, GA

- 29, in which the Governor recognized that “ w earing face coverings is one of the most imp ortant and effective tools fo r reducing the spread of COVID

- 19. ” Additionally, attached to the emergency motion are affid avits from two of the witnes ses who testifi ed at the temporary injunction hear ing . Th ese affidavits include the affidavit of Dr. Junda Woo, a medical doctor and the San Antonio and Bexar Coun ty Pu bl ic Health Auth ority , and Eri k Walsh, the City Manager for the City of San Antonio. 6
In her affidavit , which is dated Augus t 9, 2 0 21, Dr. Woo testifies that in her capacity as the local health authority, she is responsible for enfor cing publ ic health law and imple menting rules and guidelines to slow the spread of the diseas e in the lo cal community. Dr. Woo evalu ates the effect of the delta variant of COVID

- 19 on loca l hos pitals, public s chools, and city and
count y operations. Sp ecif i cally, Wo o testifies that “ Be xar County is currently at a ‘ severe level ’ under our risk guidelines, with a hospital stre ss score tha t is app r oachin g criti cal levels ” ; that

“ [i]n the next week, local hosp itals are likely to surpass the number of patients t h ey had du ring
June 2020 ” ; that “ [t]his situation is due to the contagiousness of the [d] elta variant and the fact that significant poc kets of the p opulati on remain unvaccinated ” ; and that “ [u]nlike last year w hen each person with COVID would typically inf e ct two ot hers, each person with the now

- ubiquitous

6 Al so attached to the emergency motion is t he a ffidavit of County Judge Ne lson W. Wolff . The emergency motion does not indicate that Judge Wo lff testified at the temporary injunction hearing.delta variant is believed to infect 8 or 9 people. ” Dr. Woo further testifie s that the public s chools

in Be xar County are beginning their semesters and with the d elta variant schools need every tool
at th eir dis posal , including the ability to require masks . According to Dr. Woo, “ Most s t udies that have show n success in limiting transmission in schoo ls have involved sta ff and/or students wearing masks as one of the school ’ s prevention strategies. ” And, D r . Woo tes tifie s that, absent the effect of GA

- 38 on her authority under state law , she “ would exercise [he r] authority as Publi c Health Authority to direct actions to ab ate the spread of COVID

- 19 , to include re quiring the use of ma sks in pu blic s chools. ” Dr. Woo al so tes tifies that “ [t]he highly contagious nature of the d elta variant is also impacting ” City an d County operations. “ The number of City an d Count y emplo yees who have had to quarantine due to the d elta variant has increased over the past few

wee ks, reachi ng levels near those at the height of the pandemic

. ” F inally, Dr. Woo te stifie s that

“ [t] he sprea d of the d elta variant among City and Count y emplo yees as well as among visitors to City and County fa cilities can be significa ntly decreased by the req uired u se of ma sks. ” In his affidavit , which is dated August 9, 2021, San Antonio city manager , Walsh , testifie s that he is responsible f

or ensu ring that city operations are provided in an efficient and e ffective

manner and that he overse es over 13, 000 city employees who work at city

- owned bu ildings or facilities. Walsh fur ther testifies that the C ity owns and operates facilities , such as s enior c enters and child care assistance sites, that serve “ vulnerable populations or children who are too young to receive a COVID

- 19 vaccine

. ” And, according to Walsh , “ with the onset of the [d]elta variant, infe ction rates have increased to levels consis tent wi th the height of the pandemic ” and that he

was “ advised by the local Public Health Authority t hat the [d] elta variant is si gnificantly more contagious than the original CO V ID strain and that using ma sks is necessary to help curtail its spread. ” Fina lly , Wa lsh testifies that “ [ w ] ith the virulent spread of the [d]elta variant ” Exec utive Order GA

- 38 ’ s prohibitio n against mask man dates “ will impact the ability of the City to operate and to prov ide necessary serv ices to its citizens. ”Based on the tem porary inju nction order and t he evidence at tached to the emergency

motion, the City and County have d emonstrated that reinstating the trial court ’ s temporary inju nction is necessa ry to prevent irrepara b le h arm and preserve their r ights during the pe nd ency of this accelerated appeal. The circumstances of this case are unique and , quite frankly, unprecede nted

. As the Texas Suprem e Court has recognized, this court has “ great flexibility in preserving the s t atus quo [when] unique facts and circumstances [are] p resented. ” See In re
Geomet , 578 S.W.3d at 89

. Accordingly, w e exercise our in herent authority unde r Rule 29.3 , to main tain the s t atus quo and p reserve the parties ’ right s until the disposition of this acce lerated appeal. See Houston Indep. Sch. Dis t. , 609 S.W.3d at 577 ( granting a Ru le 29.3 motion and ordering the trial court ’ s temporary inju nction ord er to r emain in effect until the disposition of the appeal) ; T EX
. R. A PP
. P. 29.3

. W e grant the emergen cy m otio n and reinst ate the trial court ’ s tempo rary in

junction pending final disposition of this appeal. It is so O R DERED on August 19, 2021

.

P ER CURIAM

ATTESTED TO :

__________________________

MICHAEL A. CRUZ , CLERK OF COURT