By Katie Buehler

Law360 (July 13, 2020, 6:13 PM EDT ) The Texas Supreme Court said Monday that the Texas Republican Party can't "simply commandeer" Houston's convention center to host its biennial convention, which the city canceled due to the rise of COVID-19 cases.

In a per curiam order released the morning of the convention's planned start date, the court held 7-1 that it can't compel the city of Houston and convention center operator Houston First Corp. to hold the in-person convention because Houston's duty to hold the conference was one under contract, not law.

"The party argues it has constitutional rights to hold a convention and engage in electoral activities, and that is unquestionably true," the court said. "But those rights do not allow it to simply commandeer use of the center. Houston First's only duty to allow the party use of the center for its convention is under the terms of the parties' agreement, not a constitution."

The majority's three-page opinion explained that while the party had the constitutional right to hold its convention, in which it planned to pick presidential electors, it didn't have a constitutional right to use the convention center.

Justice John Phillip Devine, the lone dissenter, called the majority's decision a "misguided jurisdictional punt" and said the party should've been granted its requested relief. He cited Black's Law Dictionary's definition of "legal duty" as one "arising by contract or by operation of law" to argue that the Supreme Court did in fact have jurisdiction over the party's contract with Houston.

"Lawyers and laypeople alike would be surprised to learn that their contractual duties are not 'imposed by law,'" Justice Devine wrote. "Contracts are, after all, legal documents. A party injured, or facing imminent injury, by a contract breach can of course go to a court of law to compel performance of contractual duties. It would be strange, then, to characterize such duties as ones not imposed by law."

Houston Mayor Sylvester Turner thanked the high court in a daily briefing Monday afternoon. He added that fighting COVID-19 will require sacrifices from everyone. 

"It's painful for everyone," he said. "Everyone is having to change course and pivot, so it's important that we all take this virus serious."

Kevin Fulton of Fulton Strahan Law Group PLLC, representing the Texas Republican Party, condemned the ruling in a statement to Law360 on Monday. 

"My firm strongly disagrees with the narrow view taken by the Texas Supreme Court in their decision today. We appreciate the well thought out dissent issued by Justice Devine, who understood the harm associated with this decision. Thousands of delegates have now been disenfranchised by the actions of the mayor of Houston."

Houston First Chairman David Mincberg said in a statement released Monday that the Supreme Court's ruling favors the health and safety of all the individuals who were scheduled to work or attend the conference and that it looks forward to holding conferences in the future when health officials deem it safe to do so.

"We understand the critical importance of conducting in-person business, and Houston First Corporation looks forward to producing meetings and conventions in Houston when the city leadership and local health authorities determine it is safe to hold large indoor gatherings," Mincberg said. "In this specific case, the responsible course of action was taken based on guidance of medical professionals including the city of Houston's Health Authority, Dr. David Persse."

Houston First notified the party Wednesday that it was terminating the convention agreement by invoking its force majeure clause, citing "the unprecedented scope and severity of the COVID-19 epidemic in Houston," according to the per curiam opinion.

On Thursday, the party filed suit in Harris County District Court against Houston, Houston First, Turner and Houston First CEO Brenda Bazan for breach of contract, seeking an injunction that would allow the convention to continue as planned. But later that day, the district court denied the party's injunction application, according to the opinion.

The party then sought help from the high court on Friday when it petitioned the court for a mandamus directing the city of Houston and Houston First to perform their obligations in connection with the convention. The city and the state's solicitor general submitted briefs on the issue over the weekend, according to the opinion.

The party said in its initial brief that the move to cancel the convention was "calculated" and "aimed at depriving the Republican Party of Texas, and its members, of the ability to conduct vital party business, and infringing on their ability to assemble, speak and associate."

The court's majority didn't address the politics of the case, but Justice Boyd echoed the party's arguments that Turner's calls for the convention to be canceled stood "in stark contrast to his previous personal participation in large in-person protests just weeks before," referring to the Black Lives Matter protests sparked by the police killing of George Floyd on May 25 in Minneapolis.

The Texas Freedom Caucus submitted an amicus brief in support of the party that called the convention "the main event for political participation" in Texas and said it must be held to "preserve our republican form of government in Texas." The caucus argued that holding a virtual convention would turn the event on its head and make it "a staged show of the party 'going through the motions'" instead of encouraging face-to-face conversations that create change.

The convention was originally scheduled for May, but was pushed back to July 13 to 18 due to the coronavirus pandemic.

Justice Jeffrey S. Boyd didn't participate in the decision.

The party is represented by Tyler B. Talbert and Benjamin C. Yelverton of Scanes & Routh LLP, Warren Norred and C. Chad Lampe of Norred Law PLLC, Kevin Fulton and Briscoe Cain of Fulton Strahan Law Group PLLC and in-house by Wade Emmert.

Houston First is represented by Gregory Holloway and Leah Homan of Taylor Book Allen & Morris LLP.

Turner and the city of Houston are represented in-house by Suzanne R. Chauvin, Brian Amis, Collyn Peddie and Pierre Grosdidier.

The case is In re Republican Party of Texas, case number 20-0525, in the Supreme Court of Texas.

--Editing by Haylee Pearl.

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