The Eighth Court of Appeals in El Paso, Texas is composed of a Chief Justice and two justices and has appellate jurisdiction of both civil and criminal cases appealed from district and county courts in the 17 counties. The two justices are Democrats and the Chief Justice is a Republican. In a bipartisan 2-1 decision Thursday the court temporarily halted El Paso County Judge Ricardo Samaniego’s order shutting down nonessential businesses in El Paso County.

The Texas Attorney General’s Office and a group of 10 El Paso restaurant companies requested that Judge Samaniego’s order be halted. Their argument is that the judge’s order was illegal because it is counter to Gov. Abbott’s Oct. 7 order tied to reopening Texas businesses. Samaniego’s order involved shutting down businesses deemed as non-essential. The court ruled that several sections of Samaniego’s order cannot be enforced, including the business closures. The ruling overrides Samaniego’s order until a final decision is made by the court, likely to come today.

“We exercise our discretion to preserve the status quo as it existed just prior to the issuance of the county’s later, more restrictive Stay-at-Home Order” until the court makes its final judgment, the court ruled.

Last week, state 34th District Court Judge William Moody in El Paso denied the Attorney General’s Office and restaurant group’s motions to temporarily halt the shutdown order. Moody’s decision was then appealed to the appeals court.

It’s likely the case will end up in the Texas Supreme Court.

This struggle between local elected officials ordering shutdowns versus Governor Abbotts orders for managing the coronavirus pandemic in Texas is an ongoing one. Local officials are on the ground in communities and don’t always agree with Governor Abbott’s decisions, especially as some counties are seeing new waves of the virus. El Paso is one of those areas right now that is a hot spot. The increase in cases was unexpected, frankly, but in recent days the positivity rate has declined, which is good news.

The dissenting justice, Justice Yvonne Rodriguez, wrote that the court didn’t have the authority to rule on Judge Samaniego’s order.

Justice Yvonne Rodriguez argued that the court does not have authority to rule on Samaniego’s new order. She said the Texas Attorney General’s Office and the El Paso restaurant group must go back to the lower court and ask for a temporary halt for the new order as it did for the original order.

Rodriguez also said the appeals court was moving too fast on issuing its final opinion on Friday because, she said, “The stakes are too high to make a snap decision. …”

“The County’s order, right or wrong (I cannot say just yet) is an attempt to stem a rising tide. On the other side of the equation, the harm the Governor cites is that his dignity as the State’s top law enforcement officer will be offended until we answer the question” of “… not only whether County Judge Samaniego had the authority to do what he did, but also whether the Governor did as well.”

She also noted that “bodies continue to stack up in refrigerated trucks in El Paso,” adding, “Every other patient in our hospitals is a COVID-19 patient.”

The 2-1 decision was a bipartisan one. Chief Justice Jeff Alley (Republican) was appointed by Governor Abbott in October 2019. The justices are elected by the voters. Justice Gina Palafox (Democrat) was elected in 2017 and Justice Rodriguez was elected in 2013. While politics often intrudes into coronavirus mitigation decisions, it should be noted that Palafox sided with the chief justice.

County judges in Texas are essentially county CEOs, the position is a nonjudicial position. A county judge doesn’t have to have a background in law or have a law degree. Judge Samaniego does not have a legal background. He was sworn in as the El Paso County Judge on January 1, 2019. He holds several college degrees, according to his official website – Bachelor’s Degree in Sociology from the University of Texas at El Paso, a Master’s Degree in Educational Psychology from the University of Texas at El Paso, a Master’s Degree in Bilingual Bi-Cultural Education from New Mexico State University, and a Master’s Degree in International Economics and Public Policy from the University of Notre Dame. I mention this because since the coronavirus pandemic surfaced in Texas, major city officials have often had conflicts with Governor Abbott and state officials. Abbott has tried to balance the struggles of small business owners while managing the spread of the virus. Harris County (Houston) looks to be on this same path as the number of cases ticks up. The Harris County Judge has a political science degree but is not a lawyer. She is indicating that she will order more lockdown measures if the spread of the virus continues to rise.

Judge Samaniego encourages El Paso residents to continue to wear masks and social distance while a final ruling is being deliberated. He said he’ll be pursuing all legal options to stop the spread of the virus. The mayor of El Paso is looking for a balance between lockdowns and keeping residents healthy.

Samaniego also noted that parts of his order remain in place under the court ruling, including 50% capacity limits at most nonessential businesses; and restaurants must close dining rooms between 9 p.m,-6 a.m. Takeout is permitted after 9 p.m.

After the courts ruling came out, the City of El Paso announced it would return to enforcing its previous emergency directive and Abbott’s executive order allowing non-essential businesses to reopen with limits.

“Today’s ruling from the 8th Court of Appeals restores our previous directive; and as I have stated, the City must follow the law,” El Paso Mayor Dee Margo said in a statement. “We must balance the lives and the livelihoods of our community, and this requires all of us to change our social behavior.”

Texas Attorney General Ken Paxton is pleased with the temporary halt to the order.

I commend the 8th Court of Appeals for stopping El Paso Co. Judge Samaniego’s shutdown order – pending the final decision on the merits. It is important that we do not shutdown the economy ever again, & this decision allows small businesses to continue to operate & pay employees.

— Texas Attorney General (@TXAG) November 13, 2020

The mayor’s concern for the survival of small businesses in El Paso was evident during a news conference Thursday. From January to October, El Paso has lost more than 25% of its small businesses. The first coronavirus case in El Paso was recorded in mid-March. Some businesses have been ignoring Judge Samaniego’s order and potential fines in order to stay open and keep workers employed. The argument is the same as it has been from the beginning of the pandemic – if big box stores can stay open, why can’t small businesses?

Gov. Greg Abbott’s office announced Wednesday that state agencies sent more than 1,350 additional medical personnel to El Paso, with more available as needed.