By Katie Buehler

Law360 (November 12, 2020, 7:59 PM EST ) A split appellate panel on Thursday night prohibited El Paso County's top executive from enforcing a curfew and shutting down nonessential businesses to stem a recent spike in the county's COVID-19 cases, finding the county must instead enforce Texas Gov. Greg Abbott's less restrictive statewide order.

In a 2-1 decision, the Eighth Court of Appeals in El Paso hit pause on County Judge Ricardo Samaniego's order, which was put in place Oct. 29 and on Wednesday extended through the end of November. The order included a 10 p.m. to 5 a.m. curfew and required all businesses described in the order as nonessential to close.

Along with the curfew and nonessential business closures, the Eighth Court's decision prohibits Samaniego from enforcing a stay-at-home mandate, a public and private gatherings ban and a limitation on nonessential travel.

Some parts of the executive orders were left in place, though, including a 50% occupancy cap on nonessential businesses, a limit of 10 people per gathering and a 9 p.m. mandatory closing of dine-in services at restaurants. Restaurants will be able to serve take out and drive-thru after 9 p.m.

Chief Justice Jeff Alley wrote that a trial is needed to resolve "important and difficult" issues, including how the Texas Disaster Act plays into conflicting state and county orders and how the two governmental entities can work to respond to the public's needs.

Texas Attorney General Ken Paxton, who is leading the challenge against Samaniego's orders, tweeted Thursday night that he commends the appellate court's decision.

"It is important that we do not shutdown the economy ever again, [and] this decision allows small businesses to continue to operate [and] pay employees," Paxton wrote.

Samaniego said in a statement Thursday night that he was "extremely disappointed" in the appellate court's decision.

"Our family members, our friends, and our neighbors are dying, and our hospitals, funeral homes, and morgues are at capacity," he said.

Samaniego first issued his shutdown order Oct. 29, after the county experienced a 183% increase in its positivity rate and a 365.2% increase in hospitalizations in the past month. As of Wednesday, El Paso County's seven-day average was 168.6 cases per 100,000 people, according to Samaniego's new order.

Justice Yvonne T. Rodriguez dissented, writing that the majority wrongly prohibited enforcement of both the Oct. 29 order, Executive Order 13, and Wednesday's order, Executive Order 14, when only the original order was on appeal.

The court majority said it agreed with argument that the conflicting state and local orders could come up again and that because the issue is "capable of repetition but evading review during the ongoing pandemic," it was appropriate for the court to address both of the county's executive orders.

Earlier on Thursday, El Paso Mayor Dee Margo said at a news conference that he had heard from several business owners worried about staying afloat as they're ordered to shut down, but that he would abide by Samaniego's orders. The mayor said the city of El Paso has seen a decline in its new daily cases, with the new case numbers staying below 1,000 for the past two days.

"We might be able to see a reduction in hospitalizations in seven to 10 days if this continues," he said.

Paxton and 10 El Paso businesses alleged in an Oct. 30 state court lawsuit that Samaniego was improperly imposing tighter restrictions than those outlined by Gov. Greg Abbott's most recent statewide order.

After an El Paso County district judge found Samaniego's order wasn't "patently unlawful," as Paxton had suggested in a motion, Paxton and the businesses appealed Nov. 6.

While waiting for the Eighth Court to make a decision in the case, Paxton and the businesses asked the Texas Supreme Court to step in and prohibit enforcement of the county orders, but the court declined to do so.

In a special order issued Tuesday, the state's highest court declined to intervene in the legal battle, deferring to the Eighth Court, which it found wasn't abusing its discretion by setting a "highly expedited briefing schedule" and committing to issuing a ruling on temporary relief by Thursday. Four justices, including Chief Justice Nathan L. Hecht, dissented from that decision.

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 orders had only allowed health care operations, such as hospitals, clinics and pharmacies, to operate, along with essential retail, the mail service, schools and other essential operations.

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 08-20-00226-CV, in the Texas Court of Appeals for the Eighth District.

--Editing by Bruce Goldman.

Update: This story has been updated throughout with information about and reaction to the Eighth Court of Appeals order.

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