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Law360 (May 5, 2020, 1:44 PM EDT ) The Texas Supreme Court on Tuesday declined to review a challenge brought by 11 businesses and residents fighting what they called "unsupportable" edicts and executive orders that city and county officials made to limit businesses during the coronavirus pandemic, finding the issue should be addressed at the trial court level first.
The businesses — which include vape shops, an ax-throwing business, hair salons and gyms — petitioned the state's high court April 28, arguing government restrictions during the pandemic violate their constitutional rights. Their emergency mandamus petition was aimed at county judges and the mayors of Dallas, San Antonio and four other cities who have issued executive orders "archetypical" of orders around the state.
The high court, which didn't issue a majority opinion, included a one-sentence notation with its denial that told the businesses to present their issues to an appropriate district court first.
In their petition, the businesses said they skipped the lower courts because the issues raised were time-sensitive and had a broad reach.
Justice Jimmy Blacklock, who penned a three-page concurring opinion, said that now it is more important than ever to hold public officials accountable and ensure every action they take is constitutional.
"When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns," Justice Blacklock wrote. "As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny."
Justices Eva Guzman, Jeffrey S. Boyd and John Phillip Devine joined Justice Blacklock in his concurrence.
Texas businesses were forced to shutter in mid-March when Gov. Greg Abbott issued an executive order that urged Texans to stay at home except when absolutely necessary and to avoid groups of more than 10 people. Abbott recently loosened some of those restrictions, allowing retail services, dine-in restaurants, movie theaters, shopping malls, museums, libraries and golf courses to operate in limited capacity as of May 1.
Salons will be able to operate in limited capacities starting May 8, Abbott announced Tuesday. Gyms will be able to operate in limited capacities starting May 18, according to the governor's plan.
The businesses, led by Dallas hair salon Salon a la Mode, argue the local orders that defined essential versus nonessential businesses did so arbitrarily and without legal basis. The orders further stripped business owners and employees of their livelihood without relieving debts or providing financial assistance, according to the petition.
The executive orders have also unlawfully criminalized the act of nonessential businesses remaining open without the Texas Legislature's input by threatening owners with fines or up to 180 days in jail for violations, the businesses said. Salon a la Mode was served with a cease-and-desist and a citation in late April for continuing to operate, violating Dallas County Judge Clay Jenkins' rules for reopened businesses, according to the petition.
"When these events first began, relators were willing to suffer along with what they believed was the rest of the commercial world," the businesses said. "When authorities differentiated between 'essential' businesses which could remain in operation, and 'non-essential' businesses which were required to close or deliver their goods only by mail order or direct delivery, inequities began to arise that defy rationality."
Justice Blacklock said courts must identify a legal standard of review to test the constitutionality of the government's anti-virus actions and that any government should welcome "the opportunity to demonstrate that its chosen measures are absolutely necessary to combat a threat of overwhelming severity."
"If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most," he said.
Counsel for the businesses didn't immediately respond to requests for comment Tuesday.
The businesses are represented by Warren V. Norred and C. Chad Lampe of Norred Law PLLC and Briscoe Cain of Fulton Strahan Law Group PLLC.
The case is In re: Salon a la Mode et al., case number 20-0340, in the Supreme Court of Texas.
--Editing by Orlando Lorenzo.
Update: This article has been updated with additional information about the opinion and Texas' reopening plan.
For a reprint of this article, please contact reprints@law360.com.
