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Solicitor General Letter

The Principal Deputy Solicitor General notified the Court of Appeals about a recent Texas Supreme Court order in a similar case involving local mask mandates. The Supreme Court stayed a lower court order that had reinstated a temporary injunction against GA-38 pending appeal. The Supreme Court explained this maintained the status quo of gubernatorial oversight over COVID decisions and allowed further review of the legal authorities at issue. Given this, the Solicitor General argued the Court of Appeals should grant the Governor's request for emergency relief and mandamus petition in this similar case challenging GA-38.

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Fallon Fischer
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Solicitor General Letter

The Principal Deputy Solicitor General notified the Court of Appeals about a recent Texas Supreme Court order in a similar case involving local mask mandates. The Supreme Court stayed a lower court order that had reinstated a temporary injunction against GA-38 pending appeal. The Supreme Court explained this maintained the status quo of gubernatorial oversight over COVID decisions and allowed further review of the legal authorities at issue. Given this, the Solicitor General argued the Court of Appeals should grant the Governor's request for emergency relief and mandamus petition in this similar case challenging GA-38.

Uploaded by

Fallon Fischer
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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Lanora C.

Pettit (512) 463-2127


Principal Deputy Solicitor General [email protected]

August 26, 2021


Via e-file

Elizabeth G. Flores, Clerk


Court of Appeals for the Eighth Judicial District

Re: No. 08-21-00140-CV, In re Abbott

Dear Ms. Flores:

I write to notify the Court about a recent order of the Texas Supreme Court in In
re Abbott, No. 21-0720, a case that raises nearly identical issues to those before this
Court in the above-captioned original proceeding.

Like this proceeding, In re Abbott involved local government actors who sought to
enjoin certain provisions of Executive Order GA-38 that limit the ability of local
authorities to impose mask mandates. And like the trial court here, the trial court in
that case issued a temporary restraining order forbidding enforcement of GA-38.
The Texas Supreme Court stayed the effect of that temporary restraining order
following the Fourth Court’s refusal to do so in response to a mandamus petition
very similar to the one currently before this Court. MR.39.

The trial court subsequently issued a temporary injunction, which the Governor
superseded under Texas Rule of Appellate Procedure 24.1(f). The In re Abbott
plaintiffs filed, and the Fourth Court granted, a motion to reinstitute the injunction
pending resolution of the appeal under Rule 29.3. The Governor again sought
mandamus relief, and emergency temporary relief, from the Texas Supreme Court.

This morning, the Texas Supreme Court issued an order, attached hereto as
Exhibit 1, staying the Fourth Court’s order granting the plaintiffs’ Rule 29.3 motion.
The Supreme Court explained that declining to stay the Fourth Court’s order would
“alter[] the status quo preceding this controversy.” Ex. 1, ¶ 2. The Court further
explained that In re Abbott “and other[] [cases] like it”—such as this case—“ask
courts to determine which government officials have the legal authority to decide

P os t Of fic e Box 12548 , Aust in, Texa s 7 8 7 1 1 - 2 5 4 8 • ( 5 1 2 ) 4 6 3 - 2 1 0 0 • www. texa satto r neyg eneral .gov
Page 2

what the government’s position will be” on the question “whether people should
wear masks or whether the government should make them do it.” Id. But “[t]he
status quo, for many months, has been gubernatorial oversight over such decisions
at both the state and local levels,” and “[t]hat status quo should remain in place
while the court of appeals, and potentially this Court, examine the parties’ merits
arguments.” Id.

This morning’s order leaves little doubt that this Court should grant the
Governor’s emergency motion for temporary relief and his mandamus petition. The
trial court’s ex parte temporary restraining order “alters the status quo,” id., by
wresting control over the State’s response to the COVID-19 pandemic from the
Governor and giving it to local government authorities. But because “the status quo,
for many months, has been gubernatorial oversight over such decisions at both the
state and local levels,” id., the trial court clearly abused its discretion in issuing its
temporary restraining order.

Respectfully submitted.

/s/ Lanora C. Pettit

Lanora C. Pettit
Principal Deputy Solicitor General
Page 3

Certificate of Service
On August 26, 2021, this letter was served electronically on Kyle Lasley, lead
counsel for the City, via [email protected].

s/ Lanora C. Pettit
Lanora C. Pettit
Certificate of Compliance
Microsoft Word reports that this document contains 429 words, excluding
exempted text.

s/ Lanora C. Pettit
Lanora C. Pettit
Exhibit 1
FILE COPY

IN THE SUPREME COURT OF TEXAS


NO. 21-0720

IN RE GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE


STATE OF TEXAS

ON PETITION FOR WRIT OF MANDAMUS

ORDERED:

1. Relator’s emergency motion for temporary relief, filed August 23, 2021, is
granted. The order on Appellees’ Rule 29.3 Emergency Motion for Temporary Order to
Maintain Temporary Injunction in Effect Pending Disposition of Interlocutory Appeal,
filed August 17, 2021, in Cause No. 04-21-00342-CV, styled Greg Abbott, in his official
capacity as Governor of Texas v. City of San Antonio and County of Bexar, in the Court
of Appeals for the Fourth Judicial District, dated August 19, 2021, is stayed pending
further order of this Court.
2. As we previously held in staying the trial court’s temporary restraining
order in the underlying case, the court of appeals’ order alters the status quo preceding
this controversy, and its effect is therefore stayed pending that court’s decision on the
merits of the appeal. See In re Newton, 146 S.W.3d 648, 651 (Tex. 2004). This case, and
others like it, are not about whether people should wear masks or whether the
government should make them do it. Rather, these cases ask courts to determine which
government officials have the legal authority to decide what the government’s position on
such questions will be. The status quo, for many months, has been gubernatorial
oversight of such decisions at both the state and local levels. That status quo should
remain in place while the court of appeals, and potentially this Court, examine the
parties’ merits arguments to determine whether plaintiffs have demonstrated a probable
right to the relief sought.
3. The petition for writ of mandamus remains pending before this Court.
FILE COPY

Done at the City of Austin, this Thursday, August 26, 2021.

BLAKE A. HAWTHORNE, CLERK


SUPREME COURT OF TEXAS

BY CLAUDIA JENKS, CHIEF DEPUTY CLERK

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