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Law360 (March 31, 2020, 8:46 PM EDT ) Texas Gov. Greg Abbott on Tuesday issued an executive order that classifies churches as "essential services" just a day after a group of pastors challenged local government orders that prohibited in-person services in light of the spread of COVID-19.
The executive order — which also extends school closures statewide through May 4 — comes one day after Fox News guest commentator Dr. Steven Hotze and three Houston pastors asked the Texas Supreme Court to declare unconstitutional a March 24 order from Harris County Judge Lina Hidalgo barring in-person religious services.
"The circumstances presented by coronavirus do not excuse unlawful government infringements upon freedom," Hotze argued in the emergency petition for writ of mandamus filed with the state's high court on Monday. "Urgent First and Second Amendment issues of immense statewide significance, arising from the largest county in Texas and affecting residents throughout the Lonestar State, are presented here."
Abbott explained that his order "shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster."
"If religious services cannot be conducted from home or through remote services, they should be conducted consistent with the guidelines from the president and the [Centers for Disease Control] by practicing good hygiene, environmental cleanliness, and sanitation, and by implementing social distancing to prevent the spread of COVID-19," the order reads.
The order extends social distancing guidelines through April 30, and adopts the U.S. Department of Homeland Security's guidance on what should be considered part of the essential critical infrastructure workforce, with the exception of the governor's carveout for churches.
Jared Woodfill of Woodfill Law Firm PC, who represents Hotze and the pastors, told Law360 on Tuesday that now the ball is in Judge Hidalgo's court.
"The big question now is what does Judge Hidalgo do?" he said. "Is she going to ignore the governor and his comments or abide by them and amend her order?"
Woodfill said because this lawsuit presents a matter of statewide importance, he took it straight to the Texas Supreme Court, but should the court decline to take it, he's already preparing several state court lawsuits to challenge the order in Harris County, as well as the orders in Dallas, Montgomery and Fort Bend counties.
The pastors who joined in the plea to the state's high court are Juan Bustamante of City on a Hill Church, George Garcia of Power of Love Church, and David Valdez of World Faith Center of Houston Church.
Bustamante alleges he was threatened by a Houston police officer with jail and a $1,000 fine on March 29 "if he did not stop preaching the gospel to his congregation," according to the petition.
Hotze and the pastors told the court that the Harris County order "picks winners and losers" by ordering most private businesses, including gun shops, to close but allowing liquor stores, "big box stores" and others to remain open.
"Because her hand-picked losers have been shuttered, her self-identified winners are allowed to thrive while other private businesses are closed indefinitely," the pastors argued.
Hotze and the pastors are represented by Jared Woodfill of Woodfill Law Firm PC.
Counsel information for the county was not available Tuesday and a message was not immediately returned.
The case is In re Steven Hotze et al., case number 20-0249, in the Texas Supreme Court.
--Editing by Bruce Goldman.
For a reprint of this article, please contact reprints@law360.com.
