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Law360 (November 3, 2020, 8:24 PM EST ) Texas Attorney General Ken Paxton is asking a state court to toss an order imposing a curfew on El Paso County residents and shutting down nonessential businesses to stem a recent spike in the county's COVID-19 cases, arguing the county executive overstepped his authority and undermined the governor.
Texas and 10 El Paso businesses are suing Judge Ricardo Samaniego, the El Paso County executive, for his order urging residents to stay home, imposing a 10 p.m. to 5 a.m. curfew and closing all nonessential businesses. The Thursday order, issued in reaction to a spike in the county's COVID-19 cases, improperly imposes tighter restrictions than those outlined in Gov. Greg Abbott's most recent statewide order, they said.
In a Sunday motion for injunctive relief, Texas called the order "patently unlawful" and claimed it reflects a clear abuse of power. A hearing on the motion has been set for Wednesday morning, according to court documents.
"Judge Samaniego has no authority to flout Gov. Abbott's executive orders by shutting down businesses in El Paso County," Paxton said in a statement Tuesday. "I am optimistic the district court will recognize the unlawfulness of his action and quickly stop these orders from further oppressing the El Paso community."
The order is set to expire Nov. 11, unless it's extended. The county has experienced a 183% increase in its positivity rate and a 365.2% increase in hospitalizations over the past month, according to the order.
Paxton argued in his Sunday motion that two sections of Texas' government code that Samaniego says give him authority to issue the order are temporarily suspended under the Texas Disaster Act. The suspension ensures Abbott that no local official will impose restrictions inconsistent with his most recent order, according to the motion.
"To find for defendants here, this court would also need to believe that the Legislature intentionally made the governor the leader of the state's emergency response, while simultaneously creating a loophole leaving mayors and county judges free to undermine the state's emergency response at their whim," Paxton argued in his motion.
Abbott's latest COVID-19-related order, issued Oct. 7, allows businesses in the state to operate at up to 75% capacity, and waives the occupancy limit for religious services, local government operations, child-care services and youth camps, recreational sports programs, schools, drive-in and outdoor events, and personal beauty services.
Samaniego's order only allows health care operations, such as hospitals, clinics and pharmacies, to operate, along with essential retail, the mail service, schools and other essential operations. It also prohibits public gatherings of any number of people for nonessential purposes.
El Paso County and Samaniego responded to the lawsuit Monday, arguing they are protected by government immunity in this case, according to court documents.
A representative for the county didn't immediately respond to requests for comment Tuesday.
The businesses are represented by Mark N. Osborn and Shelly W. Rivas of Kemp Smith LLP.
Texas is represented by Todd Dickerson of the Texas Attorney General's Office.
El Paso County and Samaniego are represented by John E. Untereker and Ruben Duarte of the El Paso County Attorney's Office.
The case is Pizza Properties Inc. et al. v. El Paso County, Texas, et al., case number 2020-DCV-3515, in the 34th District Court in El Paso County, Texas.
--Editing by Breda Lund.
For a reprint of this article, please contact reprints@law360.com.
