# Greg Abbott, in His Official Capacity as Governor of Texas State of Texas And Ken Paxton, in His Official Capacity as Attorney General of Texas v. La Joya Independent School District, Edinburg Consolidated Independent School District, Hidalgo Independent School District, Brownsville Independent School District, Crowley Independent School District, Edcouch-Elsa Independent School District, Lasara Independent School District, Pharr-San Juan-Alamo Independent School District, DeSoto Independent School District, Lancaster Independent School District, Ben Bolt-Palito Blanco Independent School District, Fort Worth Independent School District

> Texas Court of Appeals, 3rd District (Austin) · March 17, 2022

URL: https://www.frixlaw.com/law-library/cases/6325369

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** March 17, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00428-CV

Greg Abbott, in his Official Capacity as Governor of Texas; State of Texas; and
Ken Paxton, in his Official Capacity as Attorney General of Texas, Appellants

v.

La Joya Independent School District, Edinburg Consolidated Independent School District,
Hidalgo Independent School District, Brownsville Independent School District, Crowley
Independent School District, Edcouch-Elsa Independent School District, Lasara
Independent School District, Pharr-San Juan-Alamo Independent School District, DeSoto
Independent School District, Lancaster Independent School District, Ben Bolt-Palito
Blanco Independent School District, Fort Worth Independent School District, El Paso
Independent School District, Shanetra Miles-Fowler, Elias Ponvert, Kim Taylor, Austin
Community College District, Houston Independent School District, Dallas Independent
School District, Northside Independent School District, Austin Independent School
District, Aldine Independent School District, and Spring Independent School District,
Appellees

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-21-003897, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING

MEMORANDUM OPINION

A group of independent school districts and other related parties sued Greg

Abbott, Governor of Texas; Ken Paxton, Texas Attorney General; and the State of Texas seeking

declaratory and injunctive relief to prevent enforcement of GA-38, Governor Abbott’s executive

order prohibiting local governmental entities and officials from requiring face coverings in

response to the COVID-19 pandemic. After the trial court denied their plea to the jurisdiction

and granted a temporary injunction in favor of the plaintiffs, Governor Abbott, Attorney General
Paxton, and the State of Texas filed this interlocutory appeal, see Tex. Civ. Prac. & Rem. Code

§ 51.014(a)(4), (8), advancing the same arguments that we recently rejected in Abbott v. Harris

County, __ S.W.3d __, No. 03-21-00429-CV, 2022 Tex. App. LEXIS 64 (Tex. App.—Austin

Jan. 6, 2022, pet. filed). Because we conclude that the trial court had subject-matter jurisdiction

over the dispute and that it did not abuse its discretion in granting temporary injunctive relief,

we affirm the trial court’s orders.

BACKGROUND

Chapter 418 of the Texas Government Code, known as the Texas Disaster Act,

establishes a detailed, comprehensive framework that, in the case of a disaster, allocates powers,

duties, and responsibilities across various levels of state government and multiple agencies.

Ector Cnty. Alliance of Bus. v. Abbott, No. 11-20-00206-CV, 2021 Tex. App LEXIS 7492, at *3

(Tex. App.—Eastland Sept. 9, 2021, no pet.) (mem. op.); see Tex. Gov’t Code §§ 418.001-.307.

Among the stated purposes of the Act are to (1) clarify and strengthen the roles of the governor,

state agencies, the judicial branch of state government, and local governments in prevention

of, preparation for, response to, and recovery from disasters; (2) authorize and provide for

cooperation in disaster mitigation, preparedness, response, and recovery; and (3) authorize and

provide for coordination of activities relating to disaster mitigation, preparedness, response, and

recovery by agencies and officers of this state, and similar state-local, interstate, federal-state,

and foreign activities in which the state and its political subdivisions may participate. Tex. Gov’t

Code § 418.002 (“Purposes”).

On March 13, 2020, Governor Abbott, in his official capacity, issued a statewide

disaster declaration, certifying that “the novel coronavirus (COVID-19) poses an imminent threat

2
of disaster for all Texas Counties,” and he has renewed that proclamation every month since.

See id. §§ 418.011 (charging governor with meeting the “dangers to the state and people

presented by disasters”), .014(a), (c) (providing that governor may declare state of disaster within

defined geographic area “if the governor finds that a disaster has occurred or that the occurrence

or threat of disaster is imminent”). In addition, the Governor has issued a series of executive

orders, for the stated purpose of, among other things, “protecting the health and safety of Texans,

ensuring uniformity throughout Texas, and achieving the least restrictive means of combating the

evolving threat to public health by adjusting social-distancing and other mitigation strategies.”

See id. § 418.012 (empowering governor to issue executive orders, proclamations, and

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

On July 29, 2021, citing his authority under the Act, Governor Abbott issued the

executive order that is the subject of this dispute, Executive Order GA-38 (GA-38). In relevant

part, GA-38 states, “No 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.” GA-38 also states that it “supersede[s]

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

relevant here, GA-38 purports to suspend several specific statutes “to the extent necessary

to ensure that local government entities or officials do not impose any such face-covering

requirements,” including certain provisions in the Texas Disaster Act, pertaining to local

officials’ powers under the Act, and “[a]ny other statute invoked by any local governmental

entity or official in support of a face-covering requirement.”

In August 2021, a group of thirteen independent school districts (collectively, the

“School District Plaintiffs”) filed suit against Governor Abbott, later adding as defendants

3
Attorney General Paxton and the State of Texas (collectively, the “State Defendants”), to

challenge the validity of GA-38. Six additional school districts, a community college district,

and three parents later intervened as co-plaintiffs (collectively, the “Intervenors”).1 According to

the School District Plaintiffs’ live petition, beginning in the spring of 2020, school districts

throughout Texas used remote instruction to protect the health and safety of their students

from the spread of COVID-19. However, education professionals subsequently discovered that

this use of remote instruction was resulting in learning loss for some students. With the

introduction of the COVID-19 vaccine in early 2021, and the number of deaths, hospitalizations,

and infections declining, school districts began to transition from remote instruction back to

in-person classroom instruction.

The School District Plaintiffs further allege that as the 2021-22 school year

approached, the COVID-19 vaccine still had not been approved for children under the age of

twelve, and due to the highly transmissible Delta variant, the number of COVID-19 infections in

Texas was increasing rapidly. Consequently, many school districts, including those in this suit,

adopted face-covering requirements to prevent further spread of COVID-19 while providing a

majority of their students with in-person classroom instruction. The face-covering requirements

undisputedly violate GA-38’s ban on face-covering mandates.

In the suit, the School District Plaintiffs and Intervenors seek temporary and

permanent injunctive relief to enjoin the State Defendants from enforcing GA-38 “to prevent any

Texas school district from adopting a local mask mandate for its public schools or retaliating

1
We will refer to the plaintiff and intervenor independent school districts and the
intervenor community college district, collectively, as “the school districts.”

4
against any Texas school district that adopts a local mask mandate.”2 They also seek

declarations that (1) the Governor exceeded his authority under the Act and, consequently,

acted ultra vires in issuing GA-38 and, more specifically, the portion of GA-38 prohibiting

governmental entities and officials, such as school districts, from adopting face-covering

requirements, and (2) “[t]he Governor has no authority [under Section 418.016 of the Act] to

suspend the statutes that give local school boards the authority to govern and oversee the

management of public schools.” Alternatively, the School District Plaintiffs and Intervenors

seek a declaration that Section 418.016 of the Act violates the Texas Constitution.

In response, the State Defendants filed a plea to the jurisdiction asserting that the

School District Plaintiffs and Intervenors lack standing to challenge GA-38 and that the suit is

barred by sovereign immunity. The trial court conducted an evidentiary hearing on the School

District Plaintiffs’ and Intervenors’ request for temporary injunctive relief. On August 27, 2021,

the trial court signed orders denying the State Defendants’ plea to the jurisdiction and granting

temporary injunctive relief. This appeal followed.3

2
The intervenor parents and intervenor community college district assert claims identical
to those asserted by the eight original school district plaintiffs. The intervenor school districts
assert claims identical to those pleaded by the original school district plaintiffs, but also bring
additional claims. The trial court permitted the intervenor school districts to participate in the
temporary-injunction hearing only to the extent that their claims were the same as those that had
been asserted by the other parties.
3
Because it implicates subject-matter jurisdiction, we usually review a trial court’s
ruling on a plea to the jurisdiction before reviewing a trial court’s ruling on the merits. In this
case, however, the State Defendants first present their arguments as to the trial court’s
temporary-injunction ruling, many of which overlap with their jurisdictional arguments. For the
reasons set out later in this opinion, we will ultimately affirm the trial court’s jurisdictional
ruling; consequently, we begin our discussion by considering the State Defendants’ challenge to
the trial court’s decision to grant temporary injunctive relief.
5
TEMPORARY INJUNCTIVE RELIEF

“A temporary injunction is an extraordinary remedy and does not issue as a

matter of right.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v.

Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993)). The purpose of a temporary injunction is to preserve

the status quo of the litigation’s subject matter pending trial on the merits. Id. To obtain relief,

the party applying for a temporary injunction “must plead and prove three specific 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.” Abbott v. Anti-Defamation League

Austin, Sw. & Texoma Regions, 610 S.W.3d 911, 916 (Tex. 2020) (quoting Butnaru, 84 S.W.3d

at 204).

The decision to grant a temporary injunction lies in the sound discretion of the

trial court and is subject to reversal only for a clear abuse of that discretion. Butnaru, 84 S.W.3d

at 204. In resolving evidentiary matters, a trial court does not abuse its discretion “if

some evidence reasonably supports the court’s ruling.” Anti-Defamation League Austin, Sw. &

Texoma Regions, 610 S.W.3d at 916 (quoting Henry v. Cox, 520 S.W.3d 28, 34 (Tex. 2017)).

But the trial court has no discretion to incorrectly analyze or apply the law. Id. (citing Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)).

Probable Right to Recovery

On appeal, the State Defendants argue that the trial court abused its discretion in

granting temporary injunctive relief because the School District Plaintiffs and Intervenors failed

to prove that they are likely to prevail on the merits of their ultra vires claim, the substantive

claim underlying their requests for declaratory and injunctive relief. See Butnaru, 84 S.W.3d

6
at 204. 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.” Creedmoor-

Maha Water Supply Corp. v. Texas Comm’n on Env’tl Quality, 307 S.W.3d 505, 515 (Tex.

App.—2010, no pet.) (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)).

“[A] government officer with some discretion to interpret and apply a law may nonetheless act

‘without legal authority,’ and thus ultra vires, if he exceeds the bounds of his granted authority or

if his acts conflict with the law itself.” Houston Belt & Terminal Ry. Co. v. City of Houston,

487 S.W.3d 154, 158 (Tex. 2016).

The State Defendants contend that the School District Plaintiffs and Intervenors

failed to establish a probable right to relief on their ultra vires claims because, in their view, the

Governor validly exercised his authority under the Texas Disaster Act when he issued GA-38,

including the portion of GA-38 that prohibits local governmental entities and officials from

“requir[ing] any person to wear a face covering or . . . mandat[ing] that another person wear a

face covering.” According to the State Defendants, the Governor’s authority to preempt face-

covering requirements imposed by local governmental entities derives from broad language in

the Act, namely: (1) Section 418.011, which charges the Governor with meeting the “dangers to

the state and people presented by disasters”; (2) Section 418.015(c), which designates the

Governor as “commander in chief” in addressing statewide disasters; (3) Section 418.018(c),

which provides that “[t]he governor may control ingress and egress to and from a disaster area”;

and (4) Section 418.012, which states that executive orders issued by the Governor under the Act

have “the force and effect of law.”

While this appeal was pending, we considered the scope of the Governor’s

authority under the Act in an analogous case, Harris County, 2022 Tex. App. LEXIS 64, at

7
*16-26. In that case, Harris County and several Harris County officials challenged GA-38’s ban

on face-covering requirements as constituting ultra vires conduct. As in the case now before us,

we were tasked in Harris County with deciding whether the Governor’s authority under the Act

includes the authority to prohibit local governmental entities and officials from implementing

COVID mitigation measures that the Governor views as more restrictive than necessary, such

as face-covering requirements. Id. at *19-20. Applying well-established rules of statutory

construction, we rejected the Governor’s assertion that certain provisions of the Act—the same

provisions now relied on to defeat the claims brought in this case—demonstrate that

the legislature intended to give the Governor absolute authority to limit the ability of local

governmental entities and officials to respond to disasters. Id. at *20, 24. We determined that,

instead, whether GA-38’s prohibition of face-covering mandates constituted ultra vires conduct

turned on whether the prohibition fell within the scope of suspension allowed under Section

418.016(a)—a provision in the Act providing the Governor with a limited power to suspend

“provisions of any regulatory statute prescribing the procedures for conduct of state business.” 4

Id. at *24; see Tex. Gov’t Code § 418.016(a). Applying the plain language of the Act, we

concluded that the Governor’s authority to suspend certain statutes under Section 418.016(a) did

not include the authority to suspend the statutes relied on by the Harris County parties in issuing

their respective face-covering requirements. Harris County, 2022 Tex. App. LEXIS 64, at *26.

4
Section 418.016(a) states:

The Governor may 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.

Tex. Gov’t Code § 418.016(a).
8
As a result, the trial court reasonably concluded that Harris County and the county officials

established a probable right of recovery on their ultra vires claim. Id.

For the reasons previously set forth in our opinion in Harris County, we again

conclude that the Governor does not possess absolute authority under the Texas Disaster Act to

preempt orders issued by governmental entities and officials. See id. at *20-24; see Abbott v.

Jenkins, No. 05-21-00733-CV, 2021 Tex. App. LEXIS 9460, at *29 (Tex. App.—Dallas

Nov. 22, 2021, pet. filed) (mem. op.) (construing Act and concluding that governor’s executive

orders do not trump county judge’s order). Consequently, as in Harris County, whether the

Governor’s ban on face-covering requirements constitutes ultra vires conduct as it relates to the

face-coverings requirements adopted by the school districts turns on whether the ban falls within

the scope of suspension allowed under Section 418.016(a). See 2022 Tex. App. LEXIS 64, at *24.

The State argues that, pursuant to the Governor’s authority under Section

418.016(a), GA-38 validly suspends “[a]ny statute invoked by any local governmental entity or

official in support of a face-covering requirement,” including any provisions in the Education

Code that the school districts relied on in issuing their face-covering requirements.5 In response,

5
For example, the school districts relied on Section 11.151(b), which states that with
certain exceptions, the trustees of an independent school district

have the exclusive power and duty to govern and oversee the management of
public schools of the district. All powers and duties not specifically delegated by
statute to the [Texas Education Agency] or to the State Board of Education are
reserved for the trustees, and the agency may not substitute its judgment for the
lawful exercise of those powers and duties by the trustees.

Tex. Educ. Code § 11.151(b). In addition, under Section 37.102, “the board of trustees of a
school district may adopt rules for the safety and welfare of students, employees, and property.”
Id. § 37.102. Finally, under Section 37.105, “a school administrator, school resource officer, or
peace officer of a school district may refuse to allow a person to enter on or may eject a person
9
the School District Plaintiffs and Intervenors contend that the Governor’s suspension power

under Section 418.016(a), reasonably construed, does not include the power to suspend

statutes that give school districts their local authority because these statutes are not “regulatory

statutes” and do not “prescribe the procedures for conduct of state business.” Tex. Gov’t Code

§ 418.016(a) (“The Governor may suspend the provisions of any regulatory statute prescribing

the procedures for conduct of state business . . . .”). For the reasons set out in Harris County, we

agree with School District Plaintiffs and Intervenors.

As we explained in Harris County, the Governor’s suspension power under

Section 418.016 is limited to certain “regulatory statutes,” and the term “regulate” ordinarily

means “to govern or direct according to rule.” Harris County, 2022 Tex. App. LEXIS 64, at *25

(citing Regulate, Webster’s Third New Int’l Dictionary 1913 (2002); Regulate, Black’s Law

Dictionary (10th ed.)). Applying this definition, we concluded that the term “regulatory statute”

does not include statutes that are “grant-of-authority statute[s], giving local authorities the

leeway to act in their best independent judgment within the confines of their own jurisdictions.”

Id. Like the public-health statutes relied on by the local officials in Harris County, the

provisions of the Texas Education Code relied on by the school districts in this case are “grant-

of-authority” statutes, meaning they empower school districts and district officials to take actions

to protect the safety and health of students, staff, and visitors but do not direct or require them to

take any particular action, and thus are not “regulatory” statutes. See id. at *26.

In addition, Section 418.016(a) only allows the Governor to suspend the

provisions of regulatory statutes “prescribing the procedures for conduct of state business.” See

from property under the district’s control if the person refuses to leave peaceably on request and
[] the person poses a substantial risk of harm to any person.” Id. § 37.105.

10
Tex. Gov’t Code § 418.016(a). Although the Act does not define this phrase, or even the phrase

“state business,” we disagree with the State’s suggestion that a statute is “prescribing the

procedures for conduct of state business” anytime it is invoked by a local governmental entity or

local official to deviate from a state-related activity, such as a state-disaster response. Under that

proposed construction, any statute that in any way would “prevent, hinder, or delay necessary

action in coping with a disaster” would be subject to suspension, and the qualifying language

“regulatory” and “prescribing the procedure for conduct of state business” would be

meaningless. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.

2008) (“The Court must not interpret the statute in a manner that renders any part of the statute

meaningless or superfluous.”). As we recognized in Harris County, “[i]f the Legislature had

intended Section 418.016(a) to reach ordinances and businesses of local governments, Section

418.016(a) would have stated an application to ‘political subdivisions’ or ‘local governmental

entities,’ which are terms defined in the Act.” Harris County, 2022 Tex. App. LEXIS 64, at *26

(quoting Abbott v. City of San Antonio, __S.W.3d__, No. 04-21-00342-CV, 2021 Tex. App.

LEXIS 9129, at *15-16 (Tex. App.—San Antonio Nov. 10, 2021, pet. filed)). We conclude that

the Education Code provisions granting broad authority to local school districts and community

college districts to govern and oversee public schools within their districts do not prescribe “the

procedures for conduct of state business.”

In sum, the Texas Disaster Act does not grant the Governor absolute authority

to preempt orders issued by local governmental entities, such as school districts, and the

provisions of the Education Code relied on by the school districts in issuing their respective face-

covering requirements are not subject to suspension under Section 418.016(a) of the Act. See

Harris County, 2022 Tex. App. LEXIS 64, at *26; City of San Antonio, 2021 Tex. App. LEXIS

11
9129, at * 17 (concluding that governor’s power 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 public-health statutes authorizing local

governments to act for the benefit of public health”). As a result, the trial court reasonably

concluded that the Plaintiffs and Inventors have a probable right of recovery on their claim that

the Governor engaged in ultra vires conduct by issuing an executive order, GA-38, “supersed[ing]

any face-covering requirement imposed by any local governmental entity or official.”6

Irreparable Harm

The State Defendants also argue that the School District Plaintiffs and Intervenors

failed to present sufficient evidence to demonstrate that, absent an injunction, they would suffer a

“probable, imminent, and irreparable injury in the interim.” Butnaru, 84 S.W.3d at 204. “An

injury is irreparable if the injured party cannot be adequately compensated in damages or if the

damages cannot be measured by any certain pecuniary interest.” Id. Based on the record before

us, we conclude that the School District Plaintiffs and Intervenors met their burden of

demonstrating irreparable harm. See Anti-Defamation League Austin, Sw. & Texoma Regions,

610 S.W.3d at 916 (“In resolving evidentiary matters, a trial court does not abuse its discretion

‘if some evidence reasonably supports the court’s ruling.’”).

At the temporary-injunction hearing, the School District Plaintiffs and Intervenors

presented numerous witnesses, including doctors, school board members, superintendents, and

6
Because we conclude that the School District Plaintiffs and Intervenors met their
burden to establish a probable right to relief on their claim that the Governor exceeded his
authority under the Disaster Act, we need not consider whether they established a probable right
to relief on their alternative claim that the Act is unconstitutional because it grants such
authority. See Tex. R. App. P. 47.1.
12
parents, who testified about the need for face-covering requirements in schools. From the

undisputed evidence, the trial court could have reasonably determined that (1) COVID-19

represents a threat to the health of school staff, students, and visitors, as well as the community

at large; (2) the Delta variant is highly contagious and has caused an increase in COVID-19

infections; (3) when COVID-19 spreads in schools and is uncontrolled, schools must either close

or revert to virtual instruction, which results in learning loss to some students; (4) when teachers

are absent from school due to contracting COVID-19, the school district pays for substitute

teachers; (5) when students are unable to attend in-person school due to contracting COVID-19,

the district’s state funding is negatively impacted; (6) the use of face coverings is an effective

tool in mitigating the spread of COVID-19; and (7) the ability to require face-coverings is vital to

containing the spread of COVID-19 in the school setting.7 Because GA-38 prohibits schools

from requiring the use of face covering as a means of controlling the spread of COVID-19

within their jurisdictions, it inflicts an irreparable injury on school districts and community

college districts. See Harris County, 2022 Tex. App. LEXIS 64, at *30 (concluding that GA-38

inflicted irreparable harm on county and county officials because it prevented them from

enforcing local orders requiring use of face coverings, citing Texas Ass’n of Bus. v. City of

Austin, 565 S.W.3d 425, 441 (Tex. App.—Austin 2018 pet. denied)).

7
The State Defendants argue that because GA-38 does not prohibit individuals from
wearing face-coverings, the Plaintiffs and Intervenors were required to present evidence
demonstrating that voluntary face-covering compliance would not be as effective as a face-
covering mandate. However, the trial court heard evidence from one medical professional (the
medical director for Austin Public Health and Health Authority Board of Travis County) that,
due to the manner in which COVID-19 spreads, masks are most effective in mitigating the virus
when everyone is wearing them. Based on this, the trial court could have reasonably inferred
that requiring face coverings is more effective in mitigating the spread of COVID-19 than
allowing individuals to choose whether or not to wear face coverings.
13
The State Defendants assert that the trial court abused its discretion in

determining that the School District Plaintiffs and Intervenors will suffer “irreparable harm”

because it failed to “weigh the countervailing interest” against injunctive relief. See NMTC

Corp. v. Conarroe, 99 S.W.3d 865, 868 (Tex. App.—Beaumont 2003, no pet.). Specifically,

according to the State Defendants, the trial court failed to consider the State’s interest in allowing

the Governor to carry out his duties under the Act as commander-in-chief and in enforcing state

law. However, as discussed above, the Texas Disaster Act does not grant the Governor absolute

authority to prevent governmental entities and officials from requiring the use of face coverings

to combat a pandemic. In addition, the State Defendants did not present any evidence to show

how the State would be adversely impacted by the requested temporary injunction. The record

before us does not establish that the trial court failed to balance equities or that the evidence is

insufficient to support the trial court’s implied finding that the equities weigh in favor of granting

injunctive relief.

Status Quo

Finally, we consider the State Defendants’ argument that the trial court abused its

discretion because the School District Plaintiffs and Intervenors failed to establish that the

temporary injunction was necessary to preserve the status quo. In this context, “status quo”

means “the last peaceable, non-contested status which preceded the pending controversy.” Clint

Ind. Sch. Distr. v. Marquez, 487 S.W.3d 538, 556 (Tex. 2016).

As previously discussed, the School District Plaintiffs and Intervenors

demonstrated a probable right to relief on their claim that the Governor exceeded his authority in

banning school districts from issuing face-covering requirements in response to COVID-19. The

14
temporary injunction, as granted by the trial court, prevents the Governor from enforcing that

unlawful ban. Nevertheless, the State Defendants contend that that the injunction does not

preserve the status quo because the “the status quo existed at least since May [2021] when

the Governor issued GA-36, which as a general matter prohibited localities from imposing

any manner of face-covering requirements.” However, as we pointed out in Harris County,

“[c]ontinuation of illegal conduct cannot be justified as preservation of the status quo.”

2022 Tex. App. LEXIS 64, at *31 (citing In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig.

proceeding)). “If GA-38 is determined to be ultra vires and invalid, GA-36 would be ultra vires

and invalid for the same reason.” Id. Consequently, GA-36 cannot constitute the status quo as a

matter of law, and the trial court’s temporary injunction returns the parties to the position they

were in prior to the allegedly ultra vires conduct.

The trial court did not abuse its discretion in granting the temporary injunction.

PLEA TO THE JURISDICTION

A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction

without regard to whether the asserted claims have merit. Texas Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Because whether a trial court has subject-matter

jurisdiction is a question of law, we review a trial court’s ruling on a plea to the jurisdiction

de novo. Id.

The burden is on the plaintiff to affirmatively demonstrate the trial court’s

jurisdiction. Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). In reviewing a

plea to the jurisdiction, we begin with the plaintiff’s live pleadings and determine if the plaintiff

has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.

15
Miranda, 133 S.W.3d at 226. In assessing whether the plaintiff has met this burden, we construe

the plaintiff’s pleadings liberally, taking all assertions as true, and look to the plaintiff’s intent.

Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider

relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues

raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009); Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 554, 555 (Tex. 2000). “Our ultimate inquiry is whether the plaintiff’s pleaded and

un-negated facts, taken as true and liberally construed with an eye to the pleader’s intent, would

affirmatively demonstrate a claim or claims within the trial court’s subject-matter jurisdiction.”

Brantley v. Texas Youth Comm’n, 365 S.W3d 89, 94 (Tex. App.—Austin 2011, no pet.).

Sovereign Immunity

In this case, the State Defendants argue that the trial court lacks subject-matter

jurisdiction over this case for three reasons. First, the State Defendants assert that the claims

brought by the School District Plaintiffs and Intervenors implicate sovereign immunity and that

the allegations fail to demonstrate that the suit falls within the ultra vires exception. Sovereign

immunity implicates a court’s subject-matter jurisdiction, generally barring suit against the State

and its subdivisions. University of Tex. at Austin v. Hayes, 327 S.W.3d 113, 115 (Tex. 2010).

However, a claim may proceed against a government official in his official capacity if the

plaintiff successfully alleges that the official is engaging in ultra vires conduct. Chambers-

Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 344 (Tex. 2019).

Whether the School District Plaintiffs and Intervenors have sufficiently alleged

that Governor Abbott engaged in ultra vires conduct for the purpose of establishing subject-

matter jurisdiction turns on the issue of whether the Governor’s authority under the Texas

16
Disaster Act includes the authority to preclude governmental entities, like school districts, from

requiring face coverings.8 We have already decided this question of law in concluding that the

School District Plaintiffs and Intervenors met their burden to establish a probable right to relief

on their ultra vires claim for the purpose of obtaining temporary injunctive relief. For the

reasons set forth in that portion of our opinion upholding the trial court’s grant of temporary

injunctive relief, we conclude the Act does not grant the Governor authority to prohibit school

districts from implementing face-covering requirements and that, consequently, the School

District Plaintiffs and Intervenors met their burden of pleading facts sufficient to demonstrate a

valid ultra vires claim.

Standing

Second, the State Defendants argue that the trial court lacks subject-matter

jurisdiction because the School District Plaintiffs and Intervenors failed to establish that they have

standing to bring their claims. 9 See Farmers Tex. Cnty. Mut. Ins. v. Beasley, 598 S.W.3d 237,

240 (Tex. 2020) (“Standing is a threshold requirement to maintaining a lawsuit.”); Heckman,

369 S.W.3d at 150 (“A court has no jurisdiction over a claim made by a plaintiff who lacks

standing to assert it.”). Specifically, the State Defendants contend that the School District

Plaintiffs and Intervenors have not demonstrated that their alleged injury “is likely to be

redressed by the requested relief,” a requirement for establishing standing. See Heckman,

8
In their plea to the jurisdiction, the State Defendants did not challenge the existence of
any of the underlying facts alleged in the School District Plaintiffs’ and Intervenors’ pleadings.
9
The State Defendants also separately asserted that the three parents lack standing
because their “alleged injuries are more remote and speculative than the [school districts’]” and
that their injury is “a quintessential generalized grievance.” On appeal, the State Defendants
have not challenged the trial court’s jurisdictional ruling as to the three parents.
17
369 S.W.3d at 154-55 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The

State Defendants assert that neither the Governor nor the Attorney General has any power to

enforce GA-38 or to seek penalties under GA-38 and that, even if successful on their claims, the

school districts would still be subject to prosecution by local district attorneys. In short, the State

Defendants contend that they are the wrong defendants to this suit and that “an injunction

prohibiting [them] from enforcing GA-38—something they cannot do—would not redress any of

the harms that the Plaintiffs and Intervenors allege.”

As we explained in Harris County, publicly available records reveal that the State

Defendants have filed numerous lawsuits seeking to prevent local governments and school

districts from enforcing orders that, in the view of the State Defendants, are invalid and

unenforceable because they conflict with emergency orders issued by the Governor, including

GA-38. See Harris County, 2022 Tex. App. LEXIS 64, at *11-12 (collecting cases) By seeking

a declaration that the Governor’s actions are ultra vires, the School District Plaintiffs and

Intervenors are complaining about the validity of the executive order itself, as opposed to the

threat of enforcement for non-compliance. Id. at *12. If successful on their ultra vires claim,

the declaratory and injunctive relief sought would allow the school districts to exercise their

authority to require the wearing of face coverings and would prevent the State from interfering

with that authority. Id.; see Jenkins, 2021 Tex. App. LEXIS 9460, at *17 (concluding that

county judge challenging GA-38 met redressability element of standing because requested

relief, if granted, would allow him “to once again exercise his statutory authority, including

his authority to impose mask mandates within his jurisdiction”). We conclude that the School

District Plaintiffs and Intervenors have sufficiently demonstrated that there is a live controversy

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between the parties concerning the validity of GA-38 and that the declaratory and injunctive

relief sought, if successful, would resolve this controversy.

Texas Government Code, Section 22.002(c)

Finally, the State Defendants assert that the trial court lacks jurisdiction to issue

injunctive relief in this case because, in their view, only the Texas Supreme Court can enjoin

executive officers, including the Governor and Attorney General. In support of their argument,

the State Defendants rely on Section 22.002(c) of the Government Code, which 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 § 22.002(c).

We disagree with the State Defendants assertion that only the Texas Supreme

Court has jurisdiction to grant the relief requested by the School District Plaintiffs. By its terms,

Section 22.002(c) vests the supreme court with exclusive jurisdiction “to compel [] performance.”

Id. A suit seeking to restrain an unlawful act, even by an officer of the executive, is not a suit to

compel the performance of an act or duty. Canales v Paxton, No. 03-19-00259-CV, 2020 Tex.

App. LEXIS 7941, at *5 (Tex. App.—Austin Sept. 30, 2020, pet. denied) (mem. op.).

Here, the School District Plaintiffs and Intervenors do not seek to compel the

Governor or Attorney General to perform an act or duty that they are authorized by state law to

perform. To the contrary, the School District Plaintiffs seek to prohibit the Governor and

Attorney General from enforcing what they contend is an unlawful order. A district court has

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original jurisdiction to issue an injunction prohibiting unlawful executive action. See id.;

see also Whitt v. Whitehead, 900 S.W.2d 374, 375-76 (Tex. App.—Austin 1995, writ denied)

(holding that district court has jurisdiction to enjoin enforcement of unlawful delegation). We

conclude that Section 22.002(c) does not deprive the trial court of subject-matter jurisdiction

over this dispute. See Jenkins, 2021 Tex. App. LEXIS 9460, at *18-19 (concluding that claim to

enjoin governor from enforcing GA-38 was not claim “to order or compel action” and was not

precluded by Section 22.002(c)).

Having rejected the State Defendants’ jurisdictional arguments, we conclude that

the trial court did not err in denying their plea to the jurisdiction.

CONCLUSION

We affirm the trial court’s orders denying the State Defendants’ plea to the

jurisdiction and granting the School District Plaintiffs’ and Intervenors’ requested temporary

injunctive relief.

__________________________________________
Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Triana and Kelly

Affirmed

Filed: March 17, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6325369. Public record. Not legal advice.