Appeals court rules Governor Abbott's lockdown orders trump those of El Paso County Judge

The Eighth Court of Appeals ruled late Friday night to overturn El Paso County Judge Ricardo Samaniego’s order to shut down non-essential businesses. A temporary halt to the order was issued Thursday and that halt was upheld in the court’s final ruling Friday.

The battle between El Paso County Judge Ricardo Samaniego and the orders issued by Governor Abbott to manage the coronavirus outbreak in Texas began when Samaniego issued a shutdown order on Oct. 29. The county judge was responding to an increase in cases and hospitalizations in the El Paso area. The number of total cases in El Paso has surpassed 70,000 as of Friday. Samaniego extended the original shutdown order past Thanksgiving. Responding to the extension, a group of restaurant owners and Texas Attorney General Ken Paxton filed a lawsuit to stop the extended lockdown.

This is the problem with the lockdowns – they begin and then they are extended with no end in sight. Samaniego’s reasoning was that closing non-essential businesses would stop the spread of the virus in El Paso County. His initial lockdown order didn’t achieve that result, though, and hospitalizations are continuing to rise. The appeals court ruled that the county judge didn’t have the authority to make separate rules for the county. Just like all the other counties in Texas, El Paso County must follow the governor’s orders. Chief Justice Alley acknowledged the uptick in cases despite previous lockdown orders but said, “A servant cannot have two masters.” That means if the governor allows something, the county can’t prohibit it.

El Paso County will remain under the governor’s latest orders – limit capacity of most businesses to 50%, keep bars closed and ban restaurants from offering dine-in services after 9 p.m. Texas has not fully re-opened since the first statewide shutdown earlier this year. It’s been a bumpy ride for Governor Abbott to manage the pandemic and health risks for Texans while trying to keep as many businesses operating as possible to manage the economic crisis brought about by the shutdowns. The appeals court encouraged local officials to find some middle ground between stricter restrictions and current state mandates. “If conduct is allowed under the Governor’s order, that County cannot prohibit it,” the judges wrote. “If activities are prohibited by the Governor’s order, the County cannot allow them.” The court ruled, however, that the brief submitted by El Paso County didn’t indicate any attempts to work out some middle ground.

The court allows “for the possibilities that parties might identify some stand-alone restrictions in [the county order] that would not be inconsistent with [Abbott’s order],” the court wrote. “None of the briefing before us has attempted to tease out any discrete restriction which might compliment or otherwise not conflict … and it would be inappropriate for us to attempt to do so here.”

County attorneys argued last week that Samaniego’s order could stand based on the provisions of the Texas Disaster Act of 1975. But Paxton’s office argued that the act supersedes local declarations. The opinion issued Friday sided with the state.

The battle continues, though, at least on Twitter. Politics and emotions surfaced after the court’s final ruling Friday. Attorney General Paxton celebrated the win while Judge Samaniego took his frustrations out on Paxton.

That tweet prompted a response from Samaniego which reminded Paxton that El Paso residents are also Paxton’s constituents despite the long distance from Austin.

Samaniego also finds himself at odds with the Mayor of El Paso. Mayor Dee Margo noted that he was not consulted with Samaniego before extending the lockdown order and worries about local businesses. He pointed out that 26% of small businesses have closed, and more than 15,000 jobs have been lost because of the pandemic.