8/10/2020 6:14 PM Velva L. Price District Clerk D-1-GN-20-004109 Travis County CAUSE NO. ______D-1-GN-20-004109 Victoria Benavides BMB DINING SERVICES (FUQUA), § IN THE DISTRICT COURT OF INC. d/b/a BOMBSHELLS HOUSTON- § SOUTH, § § Plaintiff, § § v. § § THE TEXAS ALCOHOLIC § TRAVIS COUNTY, TEXAS BEVERAGE COMMISSION; A. § BENTLEY NETTLES, in his official § § capacity as Executive Director of the § Texas Alcoholic Beverage Commission; § and GOVERNOR GREG ABBOTT, in § his official capacity, §
§ 353RD Defendants. § ___ JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTIVE RELIEF
Plaintiff BMB Dining Services (Fuqua), Inc. d/b/a Bombshells Houston-South
(“Bombshells”) files this Original Petition and Application for Temporary and Permanent
Injunctive Relief against Defendants, Texas Alcoholic Beverage Commission, A. Bentley Nettles,
in his official capacity as Executive Director of the Texas Alcoholic Beverage Commission, and
Governor Greg Abbott, in his official capacity as Governor of the State of Texas.
REQUEST FOR EXPEDITED HEARING ON APPLICATION FOR TEMPORARY INJUNCTION
1. Given the important issues raised in this matter, Plaintiff requests an expedited
setting on its Application for Temporary Injunction. Defendants are not opposed.
THE ISSUE
2. This case involves a simple question with broad ramifications: does a Texas
governor have unlimited authority to manage every aspect of a disaster through executive orders?
1
Copy from re:SearchTX Since we do not live in an autocracy, the answer to that question should be ‘no.’ The question
becomes what, exactly, are the limits of a governor’s authority in a time of pandemic?
3. The issue arises here because the Texas Alcoholic Beverage Commission
(“TABC”), under the auspices of enforcing Governor Greg Abbott’s Executive Order GA-28,
suspended Bombshells’ mixed beverage permit and shut the business down on an ‘emergency’
basis. The reason for the enforcement action was that because Bombshells derived more than 51
percent of its gross receipts from the sale of alcoholic beverages in April 2020, it was classified as
a “bar” under GA-28, which states that “[p]eople shall not visit bars or similar establishments that
hold a permit from the Texas Alcoholic Beverage Commission (TABC) and are not
restaurants….”1
4. The issue of the scope of the Governor’s authority to rule by executive fiat is not
unique to only this case or even bars in general. Texans have seen an array of executive orders
affecting matters that span political and economic spectrums. GA-09 postponed non-essential
surgeries and procedures, raising concerns about access to reproductive services. In re Abbott, 956
F.3d 696 (5th Cir. 2020). GA-13 suspended statutes applicable to judges’ decisions regarding pre-
trial bail. In re Abbott, 601 S.W.3d 802 (Tex. 2020). It is well-known that the Governor stripped
local authorities of their ability to implement and enforce their own public measures that ‘conflict’
with executive orders. The ability of local officials to decide for their communities whether it
would be wise to reopen schools has likewise been impaired.2 All of these executive actions (and
more) have been undertaken in the name of rapidly responding to and managing the pandemic.
1 EXHIBIT A, Texas Executive Order No. GA-28 (June 26, 2020), https://gov.texas.gov/uploads/ files/press/EO-GA-28_targeted_response_to_reopening_COVID-19.pdf, (last accessed August 10, 2020). 2 EXHIBIT B, Letter from Attorney General Ken Paxton to Doug Svien, Mayor, City of Stephenville, (July 28, 2020), https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/Disaster%20 Counsel%20Letter%20to%20Stephenville%20re%20Local%20Health%20Orders_07282020.pdf, (last accessed August 10, 2020).
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Copy from re:SearchTX THE ANSWER
5. Simply put, the Governor has issued and crafted executive orders, including GA-
28, in excess of his statutory and constitutional authority. Texas governors have a constitutional,
inherent power to “faithfully execute the laws,” TEX. CONST. art. IV, § 10, but that power only
extends insofar as his or her statutory grant of authority permits.
6. The applicable law here is the Texas Disaster Act, Chapter 418 of the Texas
Government Code. The executive order in this case (and the orders in the examples cited above)
were all issued under Subchapter B, relating to the “Powers and Duties of Governor” during a
disaster. TEX. GOV’T CODE §§ 418.011-.026.
7. At a broad level, Chapter 418 empowers a governor to declare a state of disaster,
summon advisors, suspend certain laws, marshal and direct resources, and implement disaster
recovery subsidies. To achieve these ends, a governor may also issue executive orders that have
the “force and effect of law.” TEX. GOV’T CODE § 418.012. According to the Attorney General, a
governor’s executive orders “constitute general laws of the State” under the Disaster Act.3
8. Just as Chapter 418 does not vest a governor with power to enforce his orders, see
In re Abbott, 956 F.3d at 709, nothing in the statute or the Texas Constitution authorizes a governor
to make any law he or she desires during a disaster. Indeed, nothing in Chapter 418 expressly
authorizes a governor or a state agency to impose disease control measures the likes of which have
been seen in recent months.
9. This does not mean that the Legislature failed to recognize the need for a legal
framework that empowers officials to address a pandemic. Lawmakers chose to delegate carefully
3 Letter from Attorney General Ken Paxton to All Elected and Appointed State Officials, et al. (March 25, 2020) https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/letter03252020_AG.pdf, (last accessed August 10, 2020).
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Copy from re:SearchTX crafted disease control powers to the Department of State Health Services (“DSHS”) and local
authorities under Chapter 81, Subchapter E of the Texas Health and Safety Code. TEX. HEALTH &
SAFETY CODE §§ 81.081-.0955. That body of law contemplates the very sort of containment
measures that the Governor’s executive orders purport to implement and that the TABC enforces.
Of course, the Governor has suspended that separate statutory scheme in favor of wielding those
powers himself—without having to comply with any of Chapter 81’s procedural safeguards.
10. The Governor has had four months to respond to the COVID-19 crisis, issuing
executive orders to set the course—and now reverse course—along the way. The need to issue
executive orders has become less about exigency and more about indefinite consolidation of power
in the state’s top elected official. The judiciary has a responsibility to review the official actions
of all state officers and agencies and must do so here.
RELIEF
11. Although Bombshells’ permit suspension will soon be lifted, GA-28 and its
restrictions will remain in effect and applicable to business for the foreseeable future. On August
7, 2020, the TABC’s Executive Director sent an open letter to the alcoholic beverage industry
explaining that “the governor’s executive order is the current law of the state, and TABC will
enforce it, as will other state and local government entities. When a business tells TABC it doesn’t
intend to follow these orders, you leave the agency with no option but to revoke your license and
shut you down.”4
12. As set forth herein, Plaintiff asks the Court to declare certain aspects of GA-28 ultra
vires actions in excess of the Governor’s statutory and constitutional authority. Plaintiff further
4 EXHIBIT I, Letter from TABC Exec. Dir. A. Bentley Nettles to Alcoholic Beverage Industry, Open Letter to the Texas Alcoholic Beverage Industry, Aug. 7, 2020, https://www.tabc.state.tx.us/coronavirus/files/TABCExecutive DirectorLetterToIndustry.pdf, (last accessed August 10, 2020).
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Copy from re:SearchTX seeks declaratory and injunctive relief against the TABC to prevent it from enforcing ultra vires
requirements imposed via the Governor’s executive orders.
13. Notice of the relief sought has been provided to the Office of the Attorney General
of Texas in compliance with Local Rule 10.4.
JURISDICTION & VENUE
14. The Court has jurisdiction over this matter because the Texas Constitution grants
district courts the power to issue writs of injunction and “all writs necessary to enforce their
jurisdiction.” TEX. CONST. art. V, § 8; TEX. GOV’T CODE § 24.007(a). This case presents a
justiciable controversy regarding whether a state agency and officer have acted beyond their
statutory and constitutional authority, which provides a jurisdictional basis for an action under the
Declaratory Judgment Act and Administrative Procedure Act. See TEX. CIV. PRAC. & REM. CODE
§ 37.001, et seq.; TEX. GOV’T CODE § 2001.038. Additionally, this Court has jurisdiction over the
subject matter of this case because Plaintiff seeks injunctive relief. TEX. CIV. PRAC. & REM. CODE
§ 65.021(a).
15. Venue is proper in this Court because all or a substantial part of the events or
omissions giving rise to the claims occurred in Travis County and because Defendants are
headquartered in Travis County. TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1), (3). Furthermore,
in suits against the TABC, venue is proper in Travis County. TEX. ALCO. BEV. CODE § 5.17.5
5 On August 5, 2020, Bombshells filed suit against Defendants in Harris County District Court, raising substantially similar claims raised herein. BMB Dining Services (Fuqua), Inc. d/b/a Bombshells Houston-South v. Texas Alcoholic Beverage Commission, et al., Cause No. 2020-46705, 215th Judicial District Court, Harris County, Texas. The TABC Defendants filed a Motion to Transfer Venue along with a Plea to the Jurisdiction. In the interest of judicial economy, Plaintiff agreed to non-suit the Harris County case without prejudice and re-file suit in Travis County.
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Copy from re:SearchTX EXPEDITED ACTION
16. Plaintiff brings this cause pursuant to Texas Rule of Civil Procedure 169. Plaintiff
seeks monetary relief aggregating $100,000 or less, including damages of any kind, penalties,
costs, expenses, pre-judgment interest, and attorney fees. TEX. R. CIV. P. 69; TEX. R. CIV. P. 47.
Discovery is governed by Rule 190.2. Damages sought are within the Court’s jurisdictional limit.
PARTIES
17. Plaintiff BMB Dining Services (Fuqua), Inc. d/b/a Bombshells Houston-South is a
Texas corporation doing business at 12810 Gulf Freeway, Suite A, Houston, Texas 77034.
18. Defendant Governor Greg Abbott is the Governor of the State of Texas. He is sued
in his official capacity. The Governor may be served by delivering service to Ken Paxton, Attorney
General for the State of Texas, Price Daniels, Sr. Building, 209 West 14th Street, 8th Floor, Austin,
Texas 78701.
19. Defendant Texas Alcoholic Beverage Commission (“TABC”) is the state agency
authorized to administer and enforce the Texas Alcoholic Beverage Code. Defendant A. Bentley
Nettles is the TABC’s Executive Director. He is sued in his official capacity. The TABC and its
Executive Director may be served at the TABC’s headquarters, 5806 Mesa Drive, Austin, Texas
78731.
STATUTORY BACKGROUND
20. It is first crucial to understand the framework of laws that the Texas Legislature
enacted for the State to cope with and respond to disasters in general, and health crises specifically.
I. THE TEXAS DISASTER ACT
21. The purpose of the Disaster Act is to vest state officials with sufficient power to
prevent, prepare for, respond to, and recover from disasters ranging from hurricanes to drought.
6
Copy from re:SearchTX See TEX. GOV’T CODE § 418.002(1), (4). The Legislature declared that the governor is “responsible
for meeting … the dangers to the state and people presented by disasters.” Id. at § 418.011(1).
22. The Disaster Act allows a governor to declare a state of disaster by executive order
or proclamation. TEX. GOV’T CODE § 418.014(a). A state of disaster continues until the governor
finds that “the threat of danger has passed,” but “may not continue for more than 30 days unless
renewed by the governor,” or until the Legislature decides, “at any time,” to “terminate a state of
disaster[.]” Id. at § 418.014(b)-(c). Of course, when the Legislature may terminate a state of
disaster depends on a governor’s decision to convene a special session of the Legislature for that
express purpose.6
A. Activating the “Emergency Management Plan”
23. A declared state of disaster “activates the disaster recovery and rehabilitation
aspects of the state emergency management plan applicable to the area subject to the declaration.”
TEX. GOV’T CODE § 418.015(a)(1). Subchapter C of Chapter 418 relates to the responsibilities of
the Texas Division of Emergency Management (“TDEM”). The TDEM is a state agency
responsible for preparing and updating the “comprehensive state emergency management plan,”
id. at § 418.042(a), “adopt[ing] standards and requirements for local and interjurisdictional
emergency management plans,” and “prepar[ing], for issuance by the governor, executive orders
and regulations necessary or appropriate in coping with disasters.” Id. at § 418.043(3), (12).
24. The Disaster Act states that emergency management plans “may provide that failure
to comply with the plan or with a rule, order, or ordinance adopted under the plan is an offense.”
TEX. GOV’T CODE § 418.173(a). The Legislature also provided that “[t]he plan may prescribe a
6 See TEX. CONST. art. III, § 40 (“When the Legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the Governor calling such session…”); art. IV, § 8(a) (“The Governor may, on extraordinary occasions, convene the Legislature at the seat of Government…”).
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Copy from re:SearchTX punishment for the offense but may not prescribe a fine that exceeds $1,000 or confinement in jail
for a term that exceeds 180 days.” Id. at § 418.173(b).
B. Activating the Governor’s Powers
25. Subchapter B of Chapter 418 sets forth the “Powers and Duties of Governor” during
a disaster. The governor becomes “the commander in chief of state agencies, boards, and
commissions having emergency responsibilities,” but, “[t]o the greatest extent possible, the
governor shall delegate or assign command authority by prior arrangement embodied in
appropriate executive orders or plans….” TEX. GOV’T CODE § 418.015(c).
26. As mentioned, a governor may “issue executive orders, proclamations, and
regulations and amend or rescind them” which “have the force and effect of law.” TEX. GOV’T
CODE § 418.012. Subchapter B expressly contemplates a governor’s use of executive orders in
three contexts: (1) declaring or terminating a state of disaster, id., at § 418.014(a); (2) activating
the state’s emergency management plan, id., at § 418.015(a); and (3) “establish[ing] an emergency
management council7 to advise and assist … in all matters relating to disaster mitigation,
preparedness, response, and recovery.” Id. at § 418.013(a).
27. The Disaster Act does provide a governor with other specified powers. For instance,
a governor may “suspend or limit the sale, dispensing, or transportation of alcoholic beverages,
firearms, explosives, and combustibles,” TEX. GOV’T CODE § 418.019, “control ingress and egress
to and from a disaster area and the movement of persons and the occupancy of premises in the
area,” id. at § 418.018(c), and “suspend the provisions of any regulatory statute prescribing the
procedures for conduct of state business or the orders or rules of a state agency if strict compliance
7 The Governor established his “emergency management council” in December 2018. See Texas Executive Order No. GA-05 (Dec. 13, 20018) https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2018/GA- 05.pdf, (last accessed August 10, 2020).
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Copy from re:SearchTX … would in any way prevent, hinder, or delay necessary action coping with a disaster.” Id. at §
418.016(a). The remaining powers under Subchapter B of the Disaster Act address a governor’s
power to obtain, use, and direct public and private resources to cope with a disaster.8
II. TEXAS COMMUNICABLE DISEASE PREVENTION AND CONTROL ACT
28. Chapter 81 of the Texas Health and Safety Code is the “Communicable Disease
Prevention and Control Act” (“CDPCA”). General statewide administration of the CDPCA is the
responsibility of the Commissioner of the Department of State Health Services (“DSHS”). See
TEX. HEALTH & SAFETY CODE §§ 11.001(1), 81.004.
29. Subchapter E of the CDPCA provides authority to implement measures for
controlling communicable diseases and procedures for enforcement. TEX. HEALTH & SAFETY
CODE §§ 81.081-.0955. The Legislature granted the DSHS—not a governor or the TABC—
statutory powers to “impose control measures to prevent the spread of disease in the exercise of
its power to protect the public health.” Id. at § 81.081. Local health authorities have “supervisory
authority and control over the administration of communicable disease control measures in the
health authority’s jurisdiction unless specifically preempted by [DSHS].” Id. at § 81.082(a).
“Control measures” may range from “isolation” to “quarantine.” Id. at § 81.082(f).
A. Control Measures Over People, Property & Areas
30. The DSHS or a local health authority may apply control measures to specific
individuals if there exists “reasonable cause to believe that an individual is ill with, has been
exposed to, or is a carrier of a communicable disease” and may order such person “to implement
8 The governor may use “use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster,” TEX. GOV’T CODE § 418.017, disconnect state computer networks in the event of a cyber-attack, id. at § 418.0195, provide the public temporary housing and shelter, id. at § 418.020, obtain aid from the federal government and distribute aid to individuals and non-profits, id. at § 418.021-.022,.026, order clearance of debris, id. at § 418.023, create rules, procedures, and standards for applying for benefits, id. at §418.024, and issue a “limited purpose declaration,” id. at § 418.025.
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Copy from re:SearchTX control measures that are reasonable and necessary to prevent … transmission, and spread of the
disease in this state.” TEX. HEALTH & SAFETY CODE § 81.083(b). An individual “may be subject
to court orders” if he or she “is reasonably suspected of being infected with a communicable
disease that presents an immediate threat to the public health….” Id. at § 81.073(e).
31. The DSHS or a local health authority may apply quarantine measures to selected
properties if it “has reasonable cause” to believe that property “is or may be infected or
contaminated with a communicable disease.” TEX. HEALTH & SAFETY CODE § 81.084(a). During
a declared “public health disaster,”9 the DSHS, may, “by written order” require a person “who
owns or controls property to impose control measures that are technically feasible to disinfect or
decontaminate the property.” Id. at § 81.084(d-1)(1)-(3). If such measures are not feasible, the
property owner may be ordered to destroy the property, fence it off, or “securely seal off an
infected or contaminated structure or other property on land to prevent entry into the infected or
contaminated area until the department or health authority authorizes entry into the structure or
property.” Id. If an order is refused, the DSHS “may petition the county or district court of the
county in which the property is located for orders necessary for public health” including injunctive
relief. Id. at § 81.084(e), (f).
32. The Legislature also accounted for widespread outbreaks of disease and the
potential need for area quarantines. For instance, “if the commissioner has reasonable cause to
believe that individuals or property in the area may be infected or contaminated with a
communicable disease,” the DSHS has the power to “impose an area quarantine coextensive with
9 A “public health disaster” means either a “state of disaster” declared by the governor, or, upon determination by the DSHS Commissioner that “there exists an immediate threat from a communicable disease that … poses a high risk of death … to a large number of people; and creates a substantial risk of public exposure because of the disease’s high level of contagion or the method by which the disease is transmitted.” TEX. HEALTH & SAFETY CODE § 81.003(7).
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Copy from re:SearchTX the area affected,” but only “for the period necessary to determine whether an outbreak of
communicable disease has occurred.” TEX. HEALTH & SAFETY CODE § 81.085(a). If an area
quarantine is required, the DSHS “may impose additional disease control measures in a quarantine
area that the department considers necessary and most appropriate to arrest, control, and eradicate
the threat to the public health.” Id. at § 81.085(c).
FACTUAL BACKGROUND
33. Against this statutory landscape, on March 13, 2020, Governor Abbott issued a
proclamation stating that “COVID-19 poses an imminent threat of disaster, and declar[ed] a state
of disaster for all counties in Texas.”10 At the time, there were only “30 confirmed cases of
COVID-19 located in multiple Texas counties.” Over the next four months, Texans would see
numerous executive orders that have affected almost every aspect of ordinary life.
I. THE GOVERNOR’S SUCCESSION OF EXECUTIVE ORDERS
A. The Early Stages: GA-08 through GA-14
34. The Governor issued his first broadly applicable executive order relating to the
pandemic—Executive Order GA-08—on March 19, 2020. GA-08 provided that while Texans
were not “prohibit[ed] from visiting a variety of places” such as grocery stores or required to
shelter-in-place, certain kinds of businesses were classified as those that “people shall avoid,”
including bars and restaurants.11
35. On March 29, 2020, the Governor issued GA-13, which attempted to curb the
lawful authority of judges and local officials to follow the advice of health experts by reducing
10 Governor Greg Abbott, Proclamation by the Governor of the State of Texas (Mar. 13, 2020), https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_proclamation_IMAGE_03-13- 2020.pdf, (last accessed August 10, 2020). 11 Texas Executive Order No. GA-08 (Mar. 19, 2020), https://gov.texas.gov/uploads/files/press/EO- GA_08_COVID-19_preparedness_and_mitigation_FINAL_03-19-2020_1.pdf, (last accessed August 10, 2020).
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Copy from re:SearchTX their jail populations.12 The Governor not only suspended multiple provisions of the Texas Code
of Criminal Procedure, he explicitly suspended “any conflicting order issued by local officials.”
36. On March 31, 2020, the Governor issued GA-14, the original ‘stay-at-home’
order.13 Effective April 2, 2020, “every person in Texas shall … minimize social gatherings and
minimize in-person contact with people who are not in the same household” except where
necessary to provide or obtain “Essential Services,” a new classification of businesses.
37. In addition to expanding the existing roster of businesses that “people shall avoid,”
GA-14 commenced the suspension of Subchapter E of the CDPCA.
B. ‘Phase I to Open Texas’
38. On April 17, 2020, the Governor announced the formation of the “Strike Force to
Open Texas,” with 39 powerful corporate executives and billionaires on the “Special Advisory
Council,” four “Chief Medical Advisors,” and a few others in the mix.14 Ten days later, on the
advice of the “Strike Force,” the Governor announced the first phase of the plan to “safely and
strategically open Texas while minimizing the spread of COVID-19” and issued GA-18.15
39. Effective May 1, 2020, “Reopened Services”—a new classification of businesses—
would be allowed to operate even if they were not otherwise “Essential Services.” “Reopened
Services” included the following:
12 Texas Executive Order No. GA-13 (Mar. 29, 2020), https://gov.texas.gov/uploads/files/press/EO-GA- 13_jails_and_bail_for_COVID-19_IMAGE_03-29-2020.pdf, (last accessed August 10, 2020). 13 Texas Executive Order No. GA-14 (Mar. 31, 2020), https://gov.texas.gov/uploads/files/press/EO-GA- 14_Statewide_Essential_Service_and_Activity_COVID-19_IMAGE_03-31-2020.pdf, (last accessed August 10, 2020). 14 Office of the Texas Governor, The Governor’s Report to Open Texas, Apr. 27, 2020, https://open.texas. gov/uploads/files/organization/opentexas/OpenTexas-Report.pdf, (last accessed August 10, 2020). 15 Texas Executive Order No. GA-18 (Apr. 27, 2020), https://gov.texas.gov/uploads/files/press/EO-GA- 18_expanded_reopening_of_services_COVID-19.pdf, (last accessed August 10, 2020).
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40. The “51 percent sign” refers to TEX. ALCO. BEV. CODE § 104.06(c) and TEX. GOV’T
CODE § 411.204. A business that has a TABC license or permit and derives 51 percent or more of
its income from the sale of alcoholic beverages for on-premises consumption must display a “Red
Sign.” Id. Those that derive 50 percent or less of their income from the sale of alcoholic beverages
must post a “Blue Sign.”
41. Unlike restaurants, bars with a majority of their revenue generated from the sale of
alcohol were not a “Reopened Service,” so they remained classified as establishments that “people
shall avoid visiting:”
42. On May 5, 2020, the Governor issued GA-21, expanding the list of establishments
and businesses that “people shall avoid.” Two days later (in the wake of the ‘salon lady’ outcry)
the Governor issued GA-22, which purported to amend “all existing executive orders … to
eliminate confinement in jail as an available penalty for any violation of the executive orders.”16
16 Texas Executive Order No. GA-21 (May 7, 2020), https://lrl.texas.gov/scanned/govdocs/ Greg%20Abbott/2020/GA-22.pdf, (last accessed August 10, 2020).
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43. On May 18, 2020, the Governor “announced the second phase of the State of Texas’
ongoing plan to safely and strategically open Texas while minimizing the spread of COVID-19”17
and issued GA-23.18 In addition to substituting confinement as an available penalty with
“regulatory enforcement,” GA-23 converted the “Essential Services” classification into “Covered
Services.”
44. “Covered Services”—including bars and restaurants—could resume business
subject to various occupancy limitations. However, “[b]ars and similar establishments that are not
restaurants … that hold a permit from the Texas Alcoholic Beverage Commission” were only
allowed to operate at 25 percent of their listed occupancy.
45. The ‘reopening’ continued apace. “As with previous phases, the Phase III plan
[was] based on the advice and support of the four doctors on the Strike Force to Open Texas
medical team”19 and brought with it the Governor’s issuance of GA-26 on June 3, 2020.20
46. The executive order abandoned the “Covered Services” classification altogether in
favor of a generally applicable occupancy rule that “[e]very business establishment in Texas shall
operate at no more than 50 percent of the total listed occupancy of the establishment.” This general
rule was subject to multiple exceptions keyed to specified industries and business-functions. As
for bars and restaurants—
17 Office of the Texas Governor, Governor Abbott Announces Phase Two to Open Texas, Press Release, May 18, 2020, https://gov.texas.gov/news/post/governor-abbott-announces-phase-two-to-open-texas, (last accessed August 10, 2020). 18 Texas Executive Order No. GA-23 (May 18, 2020), https://gov.texas.gov/uploads/files/press/EO-GA- 23_phase_two_expanding_opening_COVID-19.pdf, (last accessed August 10, 2020). 19 Office of the Texas Governor, Governor Abbott Announces Phase III to Open Texas, Press Release June 3, 2020, https://gov.texas.gov/news/post/governor-abbott-announces-phase-iii-to-open-texas, (last accessed August 10, 2020). 20 Texas Executive Order No. GA-26 (June 3, 2020), https://gov.texas.gov/uploads/files/press/EO-GA- 26_expanded_opening_COVID-19.pdf, (last accessed August 10, 2020).
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47. Coronavirus cases began to surge in and around mid-June 2020. At a news
conference during that timeframe, Governor Abbott explained that “[t]here are certain counties
where a majority of the people who are tested positive in that county are under the age of 30, and
this typically results from people going to bars.”21 Of course, “[Governor] Abbott said that it’s
unclear why more young people are contracting the virus, but he speculated that it could be from
increased activity over Memorial Day weekend, visits to bars or other types of social gatherings.”22
D. Texas Continues Opening—Except for Bars
48. On June 26, 2020, the Governor issued GA-28, which still remains in effect.23 In
the recitals, the Governor explains that “due to recent substantial … increases in the COVID-19
positivity rate and hospitalizations resulting from COVID 19, targeted and temporary adjustments
to the reopening plan are needed to achieve the least restrictive means for reducing the growing
spread of COVID- 19 and the resulting imminent threat to public health, and to avoid a need for
more extreme measures.”
49. The order maintains the generally applicable 50 percent occupancy limitation and
reduces the occupancy exception for “dine-in services by restaurants.” The “targeted adjustment”
was to return “bars or similar establishments” to the “people shall not visit” classification:
21 Sarah Champagne, Surge in coronavirus cases linked to more Texans in their 20s getting sick, officials say, TEXAS TRIBUNE, June 16, 2020, https://www.texastribune.org/2020/06/16/texas-coronavirus-spike- young-adults/ (last accessed August 10, 2020). 22 Id. 23 EXHIBIT A, Executive Order GA-28.
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50. GA-28—as with predecessor executive orders—maintained both the suspension of
Subchapter E of the CDPCA and the proviso that “failure to comply with any executive order
issued during the COVID-19 disaster is an offense punishable under Section 418.173 by a fine not
to exceed $1,000, and may be subject to regulatory enforcement.”
51. The ‘facemask order,’ GA-29, was issued on July 2, 2020. A week later, the
Governor renewed the disaster proclamation.24 By that point, statewide cases were in the hundreds
of thousands, with thousands of positive cases being reported on a daily basis.25
52. As the Attorney General recently opined, GA-28 remains in effect vis-à-vis Chapter
81’s suspension. “Local officials lack authority to impose restrictions, including control measures
under chapter 81 of the Health and Safety Code, insofar as they are inconsistent with GA-28.”26
II. THE TABC ENFORCES GA-28 AGAINST PLAINTIFF
53. Bombshells is military-themed restaurant that serves alcohol and offers an
extensive food menu ranging from “MacArthur’s Supreme Commander Nachos” to “Bombshells
24 Governor Greg Abbott, Proclamation by the Governor of the State of Texas (July 10, 2020), https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/proc07102020.pdf, (last accessed August 10, 2020). 25 Julian Gill, Daily coronavirus numbers for Houston, rest of Texas: July 9, HOUSTON CHRONICLE, July 9, 2020, https://www.houstonchronicle.com/news/houston-texas/houston/article/Daily-coronavirus- numbers-for-Houston-rest-of-15398385.php, (last accessed August 10, 2020). 26 EXHIBIT B, at p. 7.
16
Copy from re:SearchTX Spicy Cajun Shrimp.” Because it also serves beer and mixed drinks alongside food, Bombshells
holds a TABC permit.
54. Bombshells closed in the wake of GA-18, reopened with reduced occupancy limits
under GA-23, and limited its service of alcohol to only those customers who were seated under
GA-26. Since the outbreak of the virus, Bombshells implemented the same types of social
distancing procedures that appear to run-of-the-mill restaurants such as Applebee’s or Red Lobster.
55. After GA-28 was issued, Bombshells remained open, but severely decreased its
sales of alcohol to stay below the 51 percent limit. This has caused Bombshells significant financial
loss. Historically, Bombshells sustains itself chiefly from the sale of alcoholic beverages. Its
customer base has withered because of restrictions on its sale of alcohol. Bombshells cannot recoup
the difference because it cannot force customers to buy enough food to replace revenues lost from
its limited sales of alcoholic beverages.
56. On July 10, 2020, TABC agents “conducted an inspection at Bombshells…. Said
location is required to post a red, 51% weapon sign, designating said location as a bar, and is not
a restaurant, in the State of Texas.”27 The agents “observed the location to be conducting on-
premise sales and consumption of alcoholic beverages, allowing customers to congregate in
violation of the Governor’s order cited above.” According to the TABC, “[t]his violation of the
Governor’s order jeopardizes the welfare, health, and safety of the general public as the virus that
causes COVID-19 can be spread to others by infected persons who have few or no symptoms.”28
57. On July 12, 2020, TABC officers returned to Bombshells and delivered an
Emergency Order of Suspension (“Suspension Order”) executed by A. Bentley Nettles, the
Executive Director of the TABC.
27 EXHIBIT C, Inter-Office Communication dated July 10, 2020. 28 Id. at p. 1.
17
Copy from re:SearchTX 58. The Suspension Order alleged that Bombshells “failed to operate its business in
accordance with GA-28 by allowing people to visit its premises. [Bombshells] derives 51% or
more of its gross receipts from the sale of alcoholic beverages and qualifies as a bar. Therefore,
[Bombshells] was prohibited from allowing people to visit its premises after 12:00PM on June 26,
2020.”
59. Thus, “[i]n light of the foregoing, [Mr. Nettles] determined that the continued
operation of [Bombshells] business would constitute a continuing threat to the public welfare and
ordered, pursuant to Alcoholic Beverage Code § 11.614, that [Bombshells’] Permits are suspended
for thirty (30) days effective immediately.”29 As a result of the Suspension Order, the TABC
informed Bombshells that not only were its permits suspended, the business as a whole would need
to remain closed.
60. Bombshells challenged the Suspension Order in the State Office of Administrative
Hearings (“SOAH”). During the hearing held on July 22, 2020, the TABC’s witnesses testified
that they relied exclusively on the existence of Bombshells’ ‘Red Sign’ for classification purposes
because “it was the position of the TABC that Red Weapon Sign establishments were bars and had
to close even if they stopped serving alcohol.”30 They conceded that they “had not reviewed
Bombshell’s sales information [on July 10, 2020] but relied on its Red Weapon Sign status to
determine that it was a bar and subject to closure under GA-28.”31
61. In the resulting Decision and Order, the administrative law judge (“ALJ”) affirmed
the Suspension Order, reasoning that “there was reasonable cause for TABC to issue the
Emergency Order because Respondent qualified as a bar or a similar establishment under
29 EXHIBIT D, Emergency Order of Suspension dated July 12, 2020. 30 EXHIBIT E, Decision and Order dated July 28, 2020 (emphasis added). 31 Id.
18
Copy from re:SearchTX Paragraph 7 of GA-28.” The ALJ further declared that “[t]he TABC need not prove an actual
violation of an order or requirement, only that reasonable cause existed for the TABC to issue the
Emergency Order.” The ALJ affirmed the Suspension Order, which remains in effect until August
11, 2020.
62. In sum, Bombshells was closed because it operated a lawful business that had a
permit to sell alcohol before the pandemic gripped Texas. Otherwise, there was no ‘reasonable
cause’ to believe that its patrons were more or less likely to spread the disease than customers at
any other restaurant or similar establishment permitted to be open. Bombshells was not found to
have violated any specific provision of the Texas Penal Code, Alcoholic Beverage Code, or any
other regulatory, criminal, or civil statute. No part of Chapter 81 of the CDPCA was invoked to
impose a property-specific control measures or restrictions on Bombshells.
63. TABC’s only basis for taking these actions was that the Governor issued an
executive order requiring ‘bars’ that make a certain amount of money from the sale of alcohol to
remain closed for an indefinite period of time.
III. THE TABC PROMISES FUTURE ENFORCEMENT OF GA-28
64. Meanwhile, on July 30, 2020, the TABC promulgated an “Industry Notice” that
purported to allow a “bar” like Bombshells to update its “gross receipts in order to establish that
your business derives less that 51% from the sale alcoholic beverages” by submitting an affidavit
and applying for a food and beverage certificate.32
65. On August 7, 2020, Executive Director Nettles issued an open letter to the alcoholic
beverage industry, making it clear that the TABC will continue to enforce the Governor’s
executive order:
32 EXHIBIT G, TABC Industry Notice dated July 30, 2020.
19
Copy from re:SearchTX Furthermore, the governor’s executive order is the current law of the state, and TABC will enforce it, as will other state and local government entities. When a business tells TABC it doesn’t intend to follow these orders, you leave the agency with no option but to revoke your license and shut you down. As a license holder, it is your responsibility to follow the Alcoholic Beverage Code, TABC’s Administrative Rules and all other state laws — including executive orders. ***** TABC agents will be out in communities across Texas this weekend, just like every other weekend, enforcing the law. Ensure your patrons are complying with social distancing and face mask requirements. While TABC is here to help, we have no tolerance for licensees who are in violation.33
66. The TABC promulgated another “Industry Notice” on August 7, 2020, which
contains substantially similar terms as its predecessor.34 It provides “that holding an FB [food and
beverage certificate] does not guarantee that your business may operate as a restaurant under GA-
28. You are still limited to less than 51% on-premise alcohol sales as detailed above.” Moreover,
even if Bombshells were to qualify as a restaurant under GA-28, the TABC takes the view that it
must “still comply with all social distancing, capacity, and other health and safety protocols as
required by local, state, and federal law and Executive Order GA-28, including any subsequent
orders.”35
67. On August 8, 2020, the Governor renewed the disaster proclamation.36 GA-28,
which has no set expiration date, will continue to be effective for at least another 30 days. With
the foregoing in mind, there exists a credible threat of enforcement of GA-28 against Bombshells.
33 EXHIBIT I, Letter from TABC Exec. Dir. A. Bentley Nettles to Alcoholic Beverage Industry, Open Letter to the Texas Alcoholic Beverage Industry, Aug. 7, 2020, https://www.tabc.state.tx.us/coronavirus/files/TABCExecutive DirectorLetterToIndustry.pdf, (last accessed August 10, 2020). 34 EXHIBIT H, TABC Industry Notice dated August 7, 2020, https://www.tabc.state.tx.us/coronavirus/files /qualifying-as-a-restaurant-under-ga-28.pdf, (last accessed August 10, 2020). 35 Id. at p. 3. 36 Governor Greg Abbott, Proclamation by the Governor of the State of Texas (Aug. 8, 2020), https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/proc08082020.pdf, (last accessed August 10, 2020).
20
Copy from re:SearchTX CLAIMS FOR RELIEF
68. Plaintiff is entitled to judicial review of the TABC’s actions. “[T]rial courts may
review an administrative action only if … the action adversely affects a vested property right or
otherwise violates a constitutional right.” In re Office of the Attorney Gen. of Tex., 456 S.W.3d
153, 157 (Tex. 2015) (per curiam). Moreover, “[i]f a state agency acts without authority and
contrary to express statutes, the aggrieved party may appeal directly to the courts.” MAG-T, L.P.
v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 625 (Tex. App.—Austin 2005, pet. denied).
69. As for the Governor, “suits to require state officials to comply with statutory or
constitutional provisions are not prohibited by sovereign immunity….” City of El Paso v. Heinrich,
284 S.W.3d 366, 372 (Tex. 2009). In an ultra vires action, a plaintiff must “allege, and ultimately
prove, that the officer acted without legal authority….” Id. “Thus, ultra vires suits do not attempt
to exert control over the state—they attempt to reassert the control of the state.” Id.; Luttrell v. El
Paso County, 555 S.W.3d 812, 836–37 (Tex. App.—El Paso 2018, no pet.); Texas Dep’t of Transp.
v. Sefzik, 355 S.W.3d 618, 622 (Tex.2011) (recognizing that UDJA waives sovereign immunity in
suit challenging validity of statute).
70. Pursuant to the Declaratory Judgments Act and the Administrative Procedure Act,37
as appropriate, Plaintiff requests declaratory relief against Defendants as follows:
(a) Texas Government Code § 418.012 and/or GA-28 contravene the Separation of Powers Clause under the Texas Constitution and/or the non- delegation doctrine;
(b) The issuance of GA-28 is an ultra vires act because the Governor has exceeded the scope of his statutory power under the Texas Disaster Act by suspending Chapter 81, Subchapter E of the Texas Health and Safety Code;
37 TEX. CIV. PRAC. & REM. CODE § 37.001 et seq.; TEX. GOV’T CODE § 2001.038
21
Copy from re:SearchTX (c) The issuance of GA-28 is an ultra vires act because the Governor has exceeded the scope of his statutory power under the Texas Disaster Act by purporting to make the order self-executing or otherwise unilaterally declaring it enforceable under Texas Government Code § 418.173;
(d) The issuance of GA-28 is an ultra vires act because the Governor has exceeded the scope of his authority under the Texas Constitution and the Texas Disaster Act by making it subject to “regulatory enforcement;”
(e) The issuance of GA-28 is an ultra vires act because the Governor has exceeded the scope of his statutory authority under the Texas Disaster Act and constitutional authority because it is “special law” that classifies bars as businesses that people shall not visit;
(f) The Governor has exceeded the scope of his statutory power under the Texas Disaster Act by directly or indirectly purporting to expand or modify the TABC’s statutorily prescribed authority via GA-28;
(g) The TABC lacks statutory authority to enforce GA-28; and
(h) The Executive Director’s Open Letter and the TABC’s Industry Notice are facially and procedurally invalid rules under the APA.
71. Plaintiff also seeks injunctive relief against the TABC’s Executive Director, in his
official capacity, for his acts in enforcing GA-28 and promulgating invalid rules. TEX. CIV. PRAC.
& REM. CODE §§ 37.011, 65.011; see Tex. Dep’t of State Health Services v. Balquinta, 429 S.W.3d
726, 748 (Tex. App.—Austin 2014, pet. dism’d).
I. SECTION 418.012 VIOLATES THE SEPARATION OF POWERS CLAUSE
72. The Governor, on the advice of the Attorney General, takes the position that the
Legislature gave him the power to issue executive orders that “constitute general laws of the State”
under Texas Government Code § 418.012. Moreover, the TABC Executive Director considers the
Governor’s executive order to be “the current law of the state.”
22
Copy from re:SearchTX 73. Article II, § 1 of the Texas Constitution forbids such an impermissible delegation
of lawmaking power:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
TEX. CONST. art. II, § 1. The Separation of Powers Clause “reflects a belief on the part of those
who drafted and adopted our state constitution that one of the greatest threats to liberty is the
accumulation of excessive power in a single branch of government.” Ex parte Lo, 424 S.W.3d 10,
28 (Tex.Crim.App.2014) (citation and quotation marks omitted). It is violated “when one branch
of government assumes or is delegated a power ‘more properly attached’ to another branch[.]” Id.
74. The legislative power is “the power to make, alter and repeal laws—not expressly
or impliedly forbidden by other provisions of the State and Federal Constitutions.” Walker v.
Baker, 196 S.W.2d 324, 328 (Tex. 1946); TEX. CONST. art. III, § 1. This power “rests with the
Legislature, and that power cannot be delegated to some commission or other tribunal” or branch
of government. Brown v. Humble Oil & Refining Co., 83 S.W.2d 935, 941 (Tex.1935).
75. To the extent that Section 418.012 delegates unlimited or unfettered power to a
governor to make laws via executive order for any purpose during a declared state of disaster, this
statutory provision is unconstitutional because it violates the Separation of Powers Clause.
76. Section 418.012 does not pass constitutional muster even if the Legislature
delegated a ‘lesser’ power to the Governor to issue executive orders with the “force and effect of
law,” TEX. GOV’T CODE § 418.012, thereby making his executive orders akin to “rules and
regulations promulgated by an administrative agency [that] have the force and effect of
legislation[.]” Bower v. Edwards County Appraisal Dist., 752 S.W.2d 629, 633 (Tex. App.—San
23
Copy from re:SearchTX Antonio 1988, writ denied). Permissible delegation of legislative authority is only valid if it
establishes “reasonable standards to guide the entity to which the powers are delegated.” Railroad
Comm’n v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex.1992), quoting State v. Texas Mun.
Power Agency, 565 S.W.2d 258, 273 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ dism’d).
77. Under this ‘governor as a disaster agency’ theory, Section 418.012 constitutes an
unconstitutional delegation of legislative power to rule by executive fiat. Chapter 418 of the
Disaster Act provides no meaningful limitations on the scope of executive orders that a governor
may issue.
78. The Disaster Act provides no standards for the scope of communicable disease
control measures that a governor may want to declare. Nothing in the Disaster Act provides
standards for the duration or scope of a governor’s disease containment orders, let alone the
circumstances in which a governor may promulgate prophylactic quarantine impositions for
individuals, properties, or classes of properties. The Disaster Act does not specify whether a
governor must have a reasonable belief, reasonable cause, or any basis to find that a certain class
of individuals, buildings, businesses, or places, are or may actually be infected or prone to
spreading a pathogen. Nor does the Disaster Act provide or require any due process requirements
related to the enforcement of executive orders.
79. In contrast, these very sorts of “reasonable standards” are found in Chapter 81,
Subchapter E, of the CDPCA. The Governor has attempted to shoehorn the more precise and apt
legal tools found in Chapter 81 into his authority under the Disaster Act, but without adhering to
any of the procedural requirements and safeguards that the Legislature intended be applied when
the state is confronted with a pandemic.
24
Copy from re:SearchTX II. ULTRA VIRES ACTS OF THE GOVERNOR
80. Even if the Legislature properly delegated lawmaking authority to the Governor
under the Disaster Act, multiple aspects of his current executive order exceed statutory and
constitutional limitations.
81. A government official acts “‘without legal authority,’ and thus ultra vires, if he
exceeds the bounds of his granted authority or if his acts conflict with the law itself.” Houston Belt
& Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016). This legal concept did
not vanish with the pandemic’s arrival. As the Attorney General recently explained to local
authorities in relation to Chapter 81 of the CDPCA—
[L]ocal health authorities have issued orders purporting to delay in-person instruction at … schools for the upcoming school year. These orders generally rely on state law allowing a health authority to control communicable diseases. But nothing in the law gives [them] the power to indiscriminately close schools … as these local orders claim to do. Although the plain language of the law provides some authority to local health authorities to quarantine property in certain instances, that authority is limited. It does not allow health authorities to issue blanket quarantine orders that are inconsistent with the law. 38
82. The same logic applies to the Governor vis-à-vis orders issued under Chapter 418.
83. An ultra vires claim based on actions taken “without legal authority” has two
fundamental components: (1) authority giving the official some (but not absolute) discretion to act
and (2) conduct outside of that authority. Hall v. McRaven, 508 S.W.3d 232, 239 (Tex. 2017),
citing Houston Belt, 487 S.W.3d at 158.
A. GA-28’s Suspension of CDPCA Subchapter E Violates the Texas Constitution.
84. Article I, § 28 of the Texas Constitution states that “[n]o power of suspending laws
in this State shall be exercised except by the Legislature.” TEX. CONST. art. I, § 28. Nonetheless,
the Legislature has decided that “[t]he governor may suspend the provisions of any regulatory
38 EXHIBIT B, p. 1.
25
Copy from re:SearchTX statute prescribing the procedures for conduct of state business or the orders or rules of a state
agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder,
or delay necessary action in coping with a disaster.” TEX. GOV’T CODE § 418.016.
85. First, the Governor’s suspension of Chapter 81, Subchapter E of the CDPCA and
co-opting of the legal tools available thereunder is an ultra vires act in excess of both statutory and
constitutional limits. The Governor is without power to suspend laws unless they prevent, hinder,
or delay necessary action in coping with a disaster. The CDPCA’s communicable disease control
provisions do not, in any way, prevent, hinder, or delay necessary action to cope with a disaster,
see TEX. GOV’T CODE § 418.016. Rather, Chapter 81 allows, facilitates, and expedites the state’s
ability to take necessary action and cope with a disaster caused by an ongoing pandemic.
86. Second, Article I, § 19 provides that “[n]o citizen of this State shall be deprived of
life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due
course of the law of the land.” TEX. CONST. art. I, § 19. The Governor’s suspension of Subchapter
E is ultra vires and in excess of constitutional limits because it impermissibly suspends the Texas
Constitution’s due process requirements, which are embodied in and effectuated through the
CDPCA’s requirements for imposing disease control restrictions on people, places, and businesses.
87. For instance, the CDPCA provides that there must be “reasonable cause” to believe
that individuals, property, or an area may be infected with a communicable disease before a control
measure may be applied. TEX. HEALTH & SAFETY CODE §§ 81.084(a)-.085(a). Unlike a governor’s
executive orders, a control measure may not last indefinitely, but only “for the period necessary”
to conduct analysis or determine whether an outbreak has occurred. See id. Subchapter E requires
notice be sent “by registered or certified mail or by personal delivery to the person who owns or
26
Copy from re:SearchTX controls the property” and requires that an opportunity to be heard be given to a person who refuses
to comply with an order. Id. at §§ 81.085(e), (h)-.084(e)-(f).
88. GA-28 ignores all such requirements. Its vague provision that it may be enforced
via unbounded “regulatory enforcement” suspends and disregards any due process procedural
safeguards necessary for deprivation of property.
B. The Disaster Act Does Not Authorize the Governor to Make Executive Orders Self- Executing.
89. Neither the Texas Constitution nor the Disaster Act empower the Governor to make
his executive orders self-executing, nor may he specify that alleged failures to comply with his
executive orders are subject to “regulatory enforcement.”
90. First, the Governor has exceeded his statutory authority by purporting to make
failure to comply with GA-28 punishable as an offense under Section 418.173. This provision—
titled “Penalty for Violation of Emergency Management Plan”—states that “[a] state, local, or
interjurisdictional emergency management plan may provide that failure to comply with the plan
or with a rule, order, or ordinance adopted under the plan is an offense.” TEX. GOV’T CODE §
418.173(a) (emphasis added).
91. The plain language of Section 418.173 does not make the Governor’s executive
orders self-executing, nor does it empower him to attach free-standing penalties and enforcement
mechanisms to executive orders issued under Section 418.012. Section 418.173’s utility is cabined
to orders adopted under emergency management plans. No part of the State’s existing emergency
management plans39 expressly adopts GA-28 or makes failure to comply with the order an offense
under Section 418.173.
39 The TDEM promulgated the “State of Texas Emergency Management Plan—Basic Plan” in or around February 2020. A copy is attached as EXHIBIT F. The applicable annex to the Basic Plan, the “Public
27
Copy from re:SearchTX 92. Second, the Governor has exceeded his statutory power by specifying “regulatory
enforcement” as a potential penalty for an alleged violation of GA-28. Nowhere in the TDEM’s
emergency management plan, the plain language of Section 418.173, or elsewhere in Chapter 418,
is a governor granted unbounded power to unilaterally decide that violations of his executive
orders are subject to “regulatory enforcement.” Even if the Governor could rely on section 418.173
in his executive orders, it is a narrowly defined penal law providing that an “offense” is punishable
by a “fine that exceeds $1,000 or confinement in jail for a term that exceeds 180 days.” TEX. GOV’T
CODE § 418.173(b); see Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972)
(distinguishing criminal laws from “regulatory statutes governing business activities”). Nothing in
section 418.173 authorizes the Governor (or any other state actor) to impose “regulatory
enforcement” as a penalty.
93. Third, to the extent that the Governor relies on some other source of ‘inherent’
power to make failure to comply with his executive orders punishable by citation, such action
violates the Separation of Powers Clause. “The legislature has the exclusive authority to define
crimes and to designate the punishments for those crimes.” Neil v. State, 12-16-00236-CR, 2017
WL 4161691, at *1 (Tex. App.—Tyler Sept. 20, 2017, pet. ref’d) (citation omitted; emphasis
added). A Texas governor has no freestanding authority to specify crimes or decide the
punishments, let alone specify unbounded “regulatory enforcement.”
Health and Medical Annex (EDF 8),” was issued in March 2020. These plans are accessible at https:// tdem.texas.gov/state-of-texas-emergency-management-plan/ (last accessed August 10, 2020).
28
Copy from re:SearchTX C. The Disaster Act Does Not Grant the Governor Power to Make Special Quarantine Laws and Classifications.
94. In classifying “bars or similar establishments that hold a permit from the [TABC]”
as businesses that “people shall avoid,” the Governor has acted beyond the statutory grant of
authority under Chapter 418 of the Disaster Act.
95. First, nothing in Chapter 418 vests the Governor with the power to issue an
executive order with the force and effect of a special law. “[A] special law is limited to a particular
class of persons distinguished by some characteristic other than geography.” Tex. Boll Weevil
Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 465 (Tex. 1997), citing TEX. CONST. art.
III, § 56. GA-28 is limited to a particular class of persons distinguished by some characteristic
other than geography—those that hold a TABC permit. As explained below, there is no rational
basis for this classification.
96. Second, the Texas Legislature forbade discrimination against TABC license or
permit holders. The Alcoholic Beverage Code states that “[i]t is the intent of the legislature that
this code shall exclusively govern the regulation of alcoholic beverages in this state, and that except
as permitted by this code, a governmental entity of this state may not discriminate against a
business holding a license or permit under this code.” TEX. ALCO. BEV. CODE § 109.57(b). GA-28
(and the TABC’s enforcement thereof) contravenes this express statutory limitation.
97. Third, the Governor has exceeded his statutory power by purporting to issue what
amounts to quarantine control measures provided for under the CDPCA, not the Disaster Act.
Chapter 418 of the Disaster Act provides the Governor with power to “recommend the evacuation
of all or part of the population from a stricken or threatened area….” TEX. GOV’T CODE §
418.018(a) (emphasis added). The Governor “may control ingress and egress to and from a disaster
area and the movement of persons and the occupancy of premises in the area.” Id. at § 418.018(c)
29
Copy from re:SearchTX (emphasis added). These statutory powers have to do with controlling the movement of the
populace within a geographic area—not shuttering a certain class of businesses because they
happen to hold a TABC permit or license.
98. Indeed, the Governor’s power to “suspend or limit the sale, dispensing, or
transportation of alcoholic beverages…,” TEX. GOV’T CODE § 418.019, is limited by its plain
language. This power does not countenance ordering that a business or class of businesses be
closed down because they hold a license or permit, only that their ability to sell, dispense, or
transport alcoholic beverages may be limited.
99. Moreover, nothing in the Disaster Act permits the Governor to prophylactically
issue executive orders implementing disease control measures. Assuming arguendo that the
Governor purports to both suspend and/or usurp the DSHS’s powers under Subchapter E of the
CDPCA, he would still lack a statutory basis to issue GA-28. Again, as the Attorney General so
aptly noted in recent correspondence to local authorities—
Because nothing in chapter 81 allows a health authority to issue quarantine or control orders for property without any evidence or reasonable belief that actual infection exists, we therefore believe that a court would conclude that such prophylactic orders are prohibited ***** Like a property quarantine under section 81.084, an area quarantine requires at least “reasonable cause” to believe that “individuals or property in the area may be infected or contaminated with a communicable disease.” Therefore, like a property quarantine, an area quarantine may not be imposed for purely prophylactic reasons.40
100. It follows that if Chapter 81 of the CDPCA—with all of its specific requirements—
does not allow for imposition of an area or property quarantine or control measures purely for
prophylactic reasons, it could not be the case that the Legislature granted such power to a governor
under Chapter 418 to do the same; that power was vested with the DSHS and local authorities.
40 EXHIBIT B, at pp. 3-4.
30
Copy from re:SearchTX D. The Disaster Act Does Not Authorize the Governor to Expand the TABC’s Regulatory Powers.
101. The Governor, in directing or purporting to direct the TABC to enforce his
executive orders through “regulatory enforcement,” has acted beyond the scope of his statutory
authority and violates the Texas Constitution’s separation of powers.
102. First, the Legislature did not imbue the Governor with the power to act as
“commander in chief” of all agencies, boards, and commissions. The Disaster Act provides that
during a state of disaster, “the governor is the commander in chief of state agencies, boards, and
commissions having emergency responsibilities.” TEX. GOV’T CODE § 418.015(c) (emphasis
added). The statute also provides that “[t]he governor may temporarily reassign resources,
personnel, or functions of state executive departments and agencies … for the purpose of
performing or facilitating emergency services.” Id. at § 418.017(b) (emphasis added).
103. Nowhere in Texas law is the TABC considered an agency with “emergency
responsibilities” in the context of a declared state of disaster. Indeed, with GA-05, the Governor
created the Emergency Management Council and omitted the TABC from the state agencies,
boards, and commissions having emergency responsibilities.
104. Second, the Governor does not have the statutory power to enlarge the scope of the
TABC’s statutory powers via executive order. The Governor may ostensibly suspend “regulatory
statute[s] … or the orders of rules of a state agency,” TEX. GOV’T CODE § 418.016(a), and
“temporarily reassign resources … or functions of state executive departments and agencies … for
the purpose of … emergency services.” Id. at § 418.017(b). However, nothing in Chapter 418
empowers the Governor to expand the powers of a state agency, create new rules or powers for
them to enforce his executive orders. See Ex parte Leslie, 87 Tex. Crim. 476, 481, 223 S.W. 227,
31
Copy from re:SearchTX 229 (1920) (“The authority to make rules is given by the Legislature to this commission, but it is
not given authority to transfer the power to its inspectors”).
105. Nor does the Texas Constitution permit the Governor to decide what new powers
an agency ought to have in order to enforce his executive decrees. See TEX. CONST. art. II, § 1. A
state agency cannot, by itself, “erect and exercise what really amounts to a new or additional power
for the purpose of administrative expediency,” nor may a governor. Tex. Nat. Res. Conservation
Comm’n v. Lakeshore Util. Co., Inc., 164 S.W.3d 368, 377 (Tex. 2005). That power rests solely
with the Legislature and was not delegated away to a governor or the TABC with Chapter 418.
106. Last, the Texas Alcoholic Beverage Code provides that “[e]xcept as is expressly
authorized by this code, a regulation, charter, or ordinance promulgated by a governmental entity
of this state may not impose stricter standards on premises or businesses required to have a license
or permit under this code than are imposed on similar premises or businesses that are not required
to have such a license or permit.” TEX. ALCO. BEV. CODE § 109.57(a)
107. The Office of the Governor is a governmental entity. See Ex parte Perry, 483
S.W.3d 884, 906, n. 135 (Tex. Crim. App. 2016) (citing statutory references). GA-28 purports to
directly (or indirectly through the TABC) impose stricter standards on premises or businesses
required to have a license under the Alcoholic Beverage Code, i.e., it commands that “people shall
not visit them,” a restriction not imposed on similar premises or businesses that are not required to
have such a license or permit.
III. ULTRA VIRES ACTS OF THE TABC
108. The TABC’s enforcement of GA-28 via the issuance of ex parte emergency
suspension orders, and its threatened enforcement of GA-28 (i.e., its position that violation of the
Governor’s executive order “leave[s] the agency with no option but to revoke your license and
shut you down”) exceed the scope of the TABC’s statutory powers.
32
Copy from re:SearchTX 109. The TABC is state agency, TEX. ALCO. BEV. CODE § 5.01, that “is a creature of the
Legislature with no inherent authority of its own.” Tex. Nat. Res. Conservation Comm’n v.
Lakeshore Utility, 164 S.W.3d at 377. Thus, it “may exercise only those powers that the Legislature
confers upon it in clear and express language….” Id.
110. The Legislature described the TABC’s general powers and duties in the Texas
Alcoholic Beverage Code; the commission “may exercise all powers, duties, and functions
conferred by this code, and all powers incidental, necessary, or convenient to the administration
of this code.” TEX. ALCO. BEV. CODE § 5.31(a) (emphasis added).
A. The TABC Lacks Power to Suspend Laws.
111. The TABC has exceeded the limitations of the Texas Constitution, which provides
that “[n]o power of suspending laws in this State shall be exercised except by the Legislature.”
TEX. CONST. art. I, § 28. Along those same lines, the Legislature has not granted the TABC power
to suspend any statutes or rules that govern its objectives during a state of disaster under Chapter
418.
112. First, the TABC, under auspices of enforcing GA-28, has effectively suspended
Section 1.06 of the Texas Alcoholic Beverage Code (“Unless otherwise specifically provided by
the terms of this code, the manufacture, sale, distribution, transportation, and possession of
alcoholic beverages shall be governed exclusively by the provisions of this code”) and Section
6.01 (providing that “[a] license or permit issued under this code is a purely personal privilege and
is subject to revocation or suspension if the holder is found to have violated a provision of this
code or a rule of the commission”). TEX. ALCO. BEV. CODE § 1.06; 6.01(b) (emphasis added).
113. GA-28 is not part of “this code.” Nevertheless, the TABC, in order to deem any
and all violations thereof a sufficient basis to exercise its statutory enforcement powers against a
license or permit holder, has decided that these statutory limitations are suspended under GA-28.
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Copy from re:SearchTX B. GA-28 Does Not Supply a Basis for the TABC to Create New Powers or Modify Laws.
114. The corollary is that a state agency cannot, by itself, “erect and exercise what really
amounts to a new or additional power for the purpose of administrative expediency.” Lakeshore
Utility, 164 S.W.3d at 377.
115. First, even if GA-28 falls within the scope of the TABC’s regulatory authority, the
executive order is without effect because the executive order is invalid as set forth above, e.g., the
Governor has no statutory power to declare that his executive orders are subject to unbounded
“regulatory enforcement.” Accordingly, the TABC’s enforcement and threats to enforce GA-28
constitute ultra vires acts because the basis for such actions is invalid.
116. Second, because the Alcoholic Beverage Code nowhere envisions the TABC’s
enforcement of a governor’s executive order or controlling the spread of disease, the TABC
impermissibly attempts to shoehorn enforcement of GA-28 into the code and its statutory grant of
power by assuming the order creates de facto presumption that a business who merely holds a
permit or license from the TABC and remains open to the public “constitute[s] a continuing threat
to the public welfare….” TEX. ALCO. BEV. CODE § 11.614(a).
117. This amounts to the TABC crafting a new or additional power for itself, e.g., that
it may serve in the capacity of an infection control officer charged with determining whether a
permitted establishment presents a real or imminent danger of spreading the disease—solely
because of its license or permit status.41
118. In so doing, the TABC further contravenes “the intent of the legislature that this
code shall exclusively govern the regulation of alcoholic beverages in this state, and that except as
41 The same language is found under Occupations Code: “‘Continuing threat to the public welfare’ means a real danger to the health of a physician's patients or to the public from the acts or omissions of the physician caused through the physician's lack of competence, impaired status, or failure to care adequately for the physician's patients….” TEX. OCC. CODE § 151.002(a)(2).
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Copy from re:SearchTX permitted by this code, a governmental entity of this state may not discriminate against a business
holding a license or permit under this code.” TEX. ALCO. BEV. CODE § 109.57(b). It follows that
the TABC, a governmental entity, holds no power to discriminate against an otherwise lawful
business merely because it holds a license or permit that the TABC itself authorized.
119. Third, the TABC has exceeded its statutory authority under Section 11.614 because
nothing therein permits the TABC to unilaterally “shut you down” merely for remaining open
while possessing a permit, terminate an establishment’s ability to conduct all business or
productive use of its property, let alone impose or enforce the sorts of control measures seen in
Subchapter E of the CDPCA. TEX. ALCO. BEV. CODE § 11.614; Cf. TEX. HEALTH & SAFETY CODE
§ 81.084(a) (“If the department or a health authority has reasonable cause to believe that property
in its jurisdiction is or may be infected or contaminated with a communicable disease, the
department or health authority may place the property in quarantine for the period necessary … to
determine if the property is infected or contaminated”).
120. Fourth, the TABC’s proclamation of power to close down a business is an excess
of Section 11.68 of the Alcoholic Beverage Code, which states that “[n]o permittee may sell, offer
for sale, distribute, or deliver any alcoholic beverage while his permit is suspended.” TEX. ALCO.
BEV. CODE § 11.68. Nothing in the plain language of the statute authorizes the wholesale closure
of a business during a period of licensure or permit suspension, even if otherwise allowed.
IV. THE TABC HAS PROMULGATED INVALID RULES
121. Section 2001.038 of the APA allows a party to bring a declaratory judgment action
against an agency to challenge the validity or applicability of an agency rule if it is alleged that the
rule or its threatened application interferes with or impairs a legal right or privilege of the plaintiff.
122. The APA defines a “rule” as a “state agency statement of general applicability” that
“implements, interprets, or prescribes law or policy.” TEX. GOV’T CODE § 2001.003(6). The
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Copy from re:SearchTX Executive Director’s Open Letter and the TABC’s “Industry Notice” issued on August 7, 2020 are
statements of “general applicability” under the APA. Combs v. Entm’t Publications, Inc., 292
S.W.3d 712, 721 (Tex. App.—Austin 2009, no pet.) (“There is no question in this case that the
March and April 2008 letters are statements implementing, interpreting, or prescribing law or
policy”). They are pronouncements from the TABC that “affect[s] the interest of the public at large
such that [it] cannot be given the effect of law without public input.” El Paso Hosp. Dist. v. Texas
Health & Human Servs. Comm’n., 247 S.W.3d 709, 714 (Tex.2008). The Open Letter and Industry
Rule’s threatened application of GA-28 interferes with or impairs a legal right or privilege of the
Plaintiff, i.e., its ability to enjoy the use and benefits of its TABC permits and its property.
A. Procedural Invalidity
123. The APA provides basic procedures for promulgating a rule, including notice,
publication, and public comment on the proposed rule. TEX. GOV’T CODE §§ 2001.023–.030. A
rule that is not properly promulgated under mandatory APA procedures is invalid. See El Paso
Hospital District, 247 S.W.3d at 714.
124. Neither the Open Letter nor the Industry Notice are procedurally valid rules; they
were not adopted in accordance with the APA’s formal rulemaking procedures. For example, they
lack “a summary of comments received from parties interested in the rule that shows the names of
interested groups or associations offering comment on the rule and whether they were for or against
its adoption.” TEX. GOV’T CODE § 2001.033(a)(1)(A). There is no “summary of the factual basis
for the rule as adopted which demonstrates a rational connection between the factual basis for the
rule and the rule as adopted.” Id. at § 2001.033(a)(1)(B).
125. The Open Letter and the Industry Notice are procedurally invalid even if considered
emergency rules, which may be adopted “without prior notice or hearing….” TEX. GOV’T CODE §
36
Copy from re:SearchTX 2001.034. However, in order for an emergency rule to be valid, the agency must “(1) find[] that an
imminent peril to the public health, safety, or welfare, or a requirement of state or federal law,
requires adoption of a rule on fewer than 30 days’ notice; and (2) state[] in writing the reasons for
its finding under Subdivision (1).” Id. The TABC has not stated, in writing, its findings or the
reason for any findings in the Open Letter or Industry Notice. Nor has any “imminent threat”
requiring their issuance on an emergency basis been cited.42 The TABC has had sufficient time to
promulgate rules in aid of enforcing GA-28, which now been in effect since June 26, 2020.
B. Facial Invalidity
126. For the foregoing reasons, the Open Letter and Industry Notice are facially invalid
rules because they (1) contravene specific statutory language; (2) run counter to the general
objectives of the statute or (3) imposes additional burdens, conditions, or restrictions in excess of
or inconsistent with the relevant statutory provisions.
127. For instance, the Open Letter’s explanation that the TABC holds the power to “shut
you down” contravenes specific statutory language that is limited to permit or license suspension.
See, e.g., TEX. ALCO. BEV. CODE § 11.614 (“the commission or administrator may issue an
emergency order, without a hearing, suspending the permit or license”); id. at § 11.68 (“No
permittee may sell, offer for sale, distribute, or deliver any alcoholic beverage while his permit is
suspended”). The confluence of GA-28, the Open Letter, and the Industry Notice, have the effect
of turning permit status into a business liability, which is not what the Legislature intended.
128. Indeed, the Open Letter and Industry Notice run contrary to the objectives of the
Alcoholic Beverage Code. Their effect is to discourage businesses from obtaining or renewing
42Cf. 22 TEX. ADMIN. CODE § 187.57 (In March 2020, the Texas Medical Board amended its interpretation of a “continuing threat to the public welfare” to include actions prohibited under GA-09).
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Copy from re:SearchTX requisite licenses and permits in order to avoid enforcement under GA-28 lest they be deemed
“bars” that “people shall not visit.”
129. The Open Letter and Industry Notice impose additional burdens, conditions, or
restrictions in excess of relevant statutory provisions. For example, the Industry Notice requires
those who hold a Mixed Beverage Permit to further obtain a Food and Beverage Certificate. TEX.
ALCO. BEV. CODE § 28.18. The Industry Notice further requires that “[y]ou must still comply with
all social distancing, capacity, and other health and safety protocols as required by local, state, and
federal law and Executive Order GA-28, including any subsequent orders,” which are not
obligations contemplated under the Alcoholic Beverage Code.
V. VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE TEXAS CONSTITUTION
130. Article I, § 19 provides that “[n]o citizen of this State shall be deprived of life,
liberty, property, privileges or immunities, or in any manner disfranchised, except by the due
course of the law of the land.” TEX. CONST. art. I, § 19.
131. Plaintiff has a protected interest in using its property for productive economic
purposes. Further, “the very existence of [Plaintiff’s] business depends on the subject permits.”
Tex. Alcoholic Beverage Comm'n v. Macha, 780 S.W.2d 939, 943 (Tex. App.—Amarillo 1989,
writ denied). It “has assumed continuing legal and financial obligations in reliance upon their
continued possession; in short, [it] has an investment in them. An interest of this nature is worthy
of the protection of due process when it is imperiled by” the Governor’s restrictions on the sale of
alcoholic beverages and the TABC’s enforcement thereof. Id.
132. Before depriving a business of these interests, “[i]t is well settled that notice and a
hearing are essential and such procedures must precede [a] final administrative order.” House of
Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 657–58 (Tex. 1965). GA-28, on its face, does not
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Copy from re:SearchTX provide for notice and a hearing of the pending revocation or suspension of a TABC permit or
license, only vague “regulatory enforcement.”
133. The issue is compounded because the TABC’s reliance on what appears to be the
only readily available tool at its disposal, Section 11.614, which provides that the TABC may issue
an ex parte order summarily suspending a license or permit. TEX. ALCO. BEV. CODE § 11.614. Of
course, an ex parte suspension order may be submitted to SOAH for an ALJ to affirm, deny, or
modify the order, but there is no process to appeal such an order to district court. Cf. Macha, 780
S.W.2d at 944 (“Judicial review by trial de novo is clearly adequate to assure against the risk of
mistaken deprivation”).
VI. VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE TEXAS CONSTITUTION
134. The Texas Constitution provides that “[a]ll free men, when they form a social
compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public
emoluments, or privileges, but in consideration of public services.” TEX. CONST. art. I, § 3. The
“federal analytical approach applies to equal protection challenges under the Texas Constitution.”
Bell v. Low Income Women of Tex., 95 S.W.3d 253, 266 (Tex.2002).
A. Bars and Restaurants are Similarly Situated.
135. With respect to GA-28’s provisions and restrictions, bars are similarly situated to
restaurants in all relevant respects. Restaurants sell food and may also serve alcohol. Bars sell
alcohol and may also serve food. Both types of establishments employ people to make food and
beverages for service to customers. Bars and restaurants permit their patrons to dine, drink, and
loiter within their business premises.
B. GA-28 Imposes Differential Treatment.
136. Status as a bar or restaurant does not inherently dictate the size or demographics of
groups that congregate or their proximity to each other. A popular restaurant that serves no alcohol
39
Copy from re:SearchTX whatsoever may see throngs of people congregate to enjoy a meal, whereas a ‘dive-bar’ may see
few customers each day, and vice-versa.
137. For present purposes, the only difference between bars and restaurants is GA-28’s
arbitrary definitional dividing line. An establishment that has “dine-in services” is a restaurant if
it makes less than 50 percent of its gross sales from alcoholic beverage. An establishment that has
“dine-in services” becomes a “bar” that “people shall not visit” if it crosses the 51 percent alcohol
sales threshold and holds a permit from TABC.
138. This distinction has caused Bombshells to be treated differently from similarly
situated establishments such as well-known chains like Applebee’s, Chili’s Grill & Bar, and Olive
Garden, all of which serve alcohol alongside food to people who patronize their businesses.
C. GA-28’s Classification Lacks a Rational Basis.
139. A law that creates a classification without impacting a fundamental right or suspect
class must survive rational basis review, i.e., the law must bear a rational relationship to some
legitimate end. The distinction between bars and restaurants in this circumstance does not flow
logically from the intended disease containment purpose of GA-28.
140. Though much remains to be discovered about COVID-19’s pathogenesis, its
primary mode of transmission is the inhalation or ingestion of virus-laden respiratory droplets
discharged into the air and onto surfaces when an infected person coughs, sneezes, or talks.43 The
growing scientific consensus is that COVID-19 is in fact an airborne virus44 capable of being
43 Centers for Disease Control and Prevention (“CDC”), How COVID-19 Spreads, https://www.cdc.gov /coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last accessed Aug. 4, 2020). 44 See Lidia Morawska, et al., It is Time to Address Airborne Transmission of COVID-19, CLINICAL INFECTIOUS DISEASES, ciaa939, July 6, 2020, https://doi.org/10.1093/cid/ciaa939, (last accessed August 10, 2020).
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Copy from re:SearchTX spread by both asymptomatic and symptomatic individuals.45 The virus does not care if a business
holds a TABC license or permit; it may spread wherever people congregate, regardless of their
purpose in gathering, whether it be a family gathering setting or to attend religious services.46
141. Drawing disease containment lines between establishments that “people shall not
visit” because they have made 51 percent of their sales from alcohol (at some point in the past)
and hold TABC permits—while simultaneously allowing establishments that makes less than 50
percent of their money from such sales to remain open—is not rationally related to that objective.
This is evidenced in the fact that even if GA-28 authorized the TABC to temporarily (or
permanently) suspend a bar’s liquor permit, that bar could hypothetically continue to operate as a
restaurant that the dining-public may continue visiting. The added side-effect is to channel
members of the public to restaurants where they may drink alcohol in a social atmosphere, which
does not further, but contravenes, the purported disease containment purposes at issue.
142. The notion that GA-28’s classification of bars as establishments that “people shall
not visit” is merely a “targeted and temporary adjustment[]” intended to apply the “least restrictive
means for reducing the growing spread of COVID-19 … to avoid a need for more extreme
measures” does not provide the logical bridge for implementation of the differential classification.
If the “targeted” lockdown of bars was predicated on reducing the number of establishments where
people congregate and spread the virus, restaurants, churches, youth camps, museums,
cosmetology salons, amusement parks, and meatpacking plants should also be “targeted” for
lockdown.
45 See Furukawa NW, et al., Evidence supporting transmission of severe acute respiratory syndrome coronavirus while presymptomatic or asymptomatic, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://doi.org/10.3201/eid2607.201595, (last accessed August 10, 2020). 46 See, e.g., Russell Flacon, Family gatherings linked to COVID-19 spikes nationwide, numbers show, KXAN, Aug. 2, 2020, https://www.kxan.com/news/coronavirus/family-gatherings-linked-to-covid-19- spikes-nationwide-numbers-show/, (last accessed August 10, 2020).
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Copy from re:SearchTX 143. They are not so ordered because GA-28’s classification of bars as establishments
that “people shall not visit” is not rationally to the objective of disease containment. At best, its
only objective is to place a differential burden on bars. See U. S. Dep’t of Agric. v. Moreno, 413
U.S. 528, 534 (1973) (finding that classifying households containing one or more unrelated
persons as ineligible for food stamps was not rationally related to the purpose of the program).
144. In sum, the classification’s relationship to the laudable goal of stalling the spread
of the virus is so attenuated as to render the distinction arbitrary and irrational. GA-28’s
classification of “bars” as business that “people shall not visit” should be declared invalid.
APPLICATION FOR INJUNCTIVE RELIEF
145. Plaintiff requests temporary and permanent injunctions against the TABC related
to its enforcement of GA-28 and associated rulemaking thereunder. TEX. CIV. PRAC. & REM. CODE
§ 37.001 et seq., TEX. CIV. PRAC. & REM. CODE § 65.001 et seq.; TEX. GOV’T CODE § 2001.038.
I. TEMPORARY INJUNCTION
146. “The purpose of a temporary injunction is to preserve the status quo of the subject
matter of a suit pending final disposition of the case on its merits.… Because of this limited
purpose, the trial court has broad discretion to determine whether to issue a temporary injunction.”
Combs, 292 S.W.3d at 724–25.
147. Plaintiff asks the Court to set its application for temporary injunction for a hearing,
permit the submission of evidence, and after the hearing, issue a temporary injunction against the
TABC as follows:
(a) Enjoin the TABC, its officers, agents, or employees, from enforcing GA-28 against Plaintiff, or instituting or continuing any enforcement against Plaintiff related to GA-28, during the pendency of this suit;
42
Copy from re:SearchTX 148. For the reasons detailed above, there is a substantial likelihood that Plaintiff will
prevail after a trial on the merits because GA-28 is ultra vires of the Governor’s statutory and
constitutional authority, as is the TABC’s application and enforcement thereof, and because the
rules promulgated by the TABC to enforce GA-28 is invalid under the APA.
149. If Plaintiff’s application is not granted, “it would likely suffer ‘imminent and
irreparable injury’ because implementation of [GA-28, the Open Letter, and/or Industry Notice]
would disrupt its business[.]” Combs, 292 S.W.3d at 724. GA-28 suspends Plaintiff’s privilege to
serve alcoholic beverages under its TABC licenses and permits, thereby depriving Plaintiff of a
significant portion of its revenue necessary to sustain its business, subjecting it to extreme financial
hardship in the process. Likewise, it is the TABC’s position that once Plaintiff resumes operations
and sells no alcohol, it is subject to closure under GA-28 unless it revamps its business model.
150. However, even if Plaintiff converted itself into a “restaurant” pursuant to the
Industry Notice, the injury remains. The very existence of Plaintiff’s business depends on selling
alcoholic beverages under its TABC licenses and permits. Selling alcoholic beverages is essential
to Bombshells’ business model and maintenance of its customer-base, which has historically
patronized the establishment primarily to purchase alcoholic beverages. Without an injunction,
Bombshells’ business will be significantly disrupted, which can be an irreparable harm. Frequent
Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 228 (Tex. App.—Fort Worth 2009, pet.
denied). There should be little question that the Governor will continue to issue executive orders
affecting the operations of bars into the foreseeable future.
151. Plaintiff lacks an adequate remedy at law. The harm Plaintiff will suffer between
now and trial if not allowed to operate will result in the loss of business, clientele, goodwill, which
nearly impossible to calculate. Without an injunction, Plaintiff’s customers will continue to visit
43
Copy from re:SearchTX “restaurants” that are allowed to remain open in order to imbibe alcoholic beverages regardless of
whether they also order food.
152. Greater injury will be inflicted on Plaintiff by denial of injunctive relief than would
be inflicted on the Defendants if the relief is granted. Without a temporary injunction, Plaintiff will
continue to indefinitely suffer the loss of income, clientele, business goodwill, and the use and
enjoyment of its property and permits. Defendants, on the other hand, will not suffer any harm if
a temporary injunction is granted. At worst, they would be required to reassess GA-28’s issuance,
the TABC’s enforcement thereof, and the TABC’s adoption of rules that comply with the
procedure requirements of the APA. Combs, 292 S.W.3d at 725. Alternatively, an injunction would
spur the reexamination of the Governor’s decision to suspend Subchapter E of the CDPCA.
153. The issuance of injunctive relief will not disserve the public interest. Plaintiff
operates Bombshells in accordance with all required social distancing protocols and has limited its
occupancy to align itself with restaurants, who remain open. If a temporary injunction is granted,
Plaintiff intends on maintaining those requirements and limitations. Defendants cannot claim that
an injunction will impair the public interest as they have allowed numerous equivalent
establishments, namely restaurants, to remain open, despite their ostensible concern over the
spread of the virus.
154. Balancing the equities and other factors, the significant potential of irreparable
harm to Plaintiff without injunctive relief, and the lack of harm due to entry of the injunctive relief
demonstrate that an injunction is warranted.
155. Plaintiff does not believe that a bond is necessary. However, Plaintiff is ready and
willing to post an appropriate bond in support of the temporary injunction.
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Copy from re:SearchTX II. PERMANENT INJUNCTION
156. Plaintiff asks the Court to set its request for a permanent injunction for a trial on
the merits, and after the trial, issue a permanent injunction as set forth above.
REQUEST FOR DISCLOSURE
157. Pursuant to the Texas Rules of Civil Procedure, Defendants are requested to
disclose the information and material described in TEX. R. CIV. P. 194.2.
ATTORNEYS’ FEES
158. Plaintiff is entitled to recover reasonable and necessary attorneys’ fees that are
equitable and just. TEX. CIV. PRAC. & REM. CODE § 37.009.
CONCLUSION
As certain United States Supreme Court justices recently observed:
At the dawn of an emergency—and the opening days of the COVID–19 outbreak plainly qualify—public officials may not be able to craft precisely tailored rules. Time, information, and expertise may be in short supply, and those responsible for enforcement may lack the resources needed to administer rules that draw fine distinctions. Thus, at the outset of an emergency, it may be appropriate for courts to tolerate very blunt rules. In general, that is what has happened thus far during the COVID–19 pandemic.
Calvary Chapel Dayton Valley v. Sisolak, 19A1070, 2020 WL 4251360, at *2 (U.S. July 24, 2020)
(Alito, J., dissenting). We are no longer at the dawn of the emergency; the pandemic is a problem
of indefinite duration that is now woven into the fabric of our daily lives. The norms of a
democratic form of government impel the Governor to call a special session of the Legislature to
make laws for the purpose of combatting the spread of the virus through the ordinary lawmaking
process.
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Copy from re:SearchTX WHEREFORE, Plaintiff BMB Dining Services (Fuqua), Inc. d/b/a Bombshells Houston-
South, respectfully requests that judgment be entered in its favor and that it be awarded the
following forms of relief:
a. Injunctive and declaratory relief as set forth above; b. Attorneys’ fees; c. Expert fees; d. Costs of suit; and e. All other relief, in law and in equity, to which Plaintiff may be justly entitled.
Respectfully submitted,
WALLACE & ALLEN, LLP
/s/ Casey T. Wallace Casey T. Wallace State Bar No. 00795827 Benjamin W. Allen State Bar No. 24069288 William X. King State Bar No. 24072496 440 Louisiana, Suite 1500 Houston, Texas 77002 Tel: (713) 227-1744 Fax: (713) 227-0104 [email protected] [email protected] [email protected] ATTORNEYS FOR PLAINTIFF
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