8/12/2021 1:58 PM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-21-_________003896 D-1-GN-21-003896 Daniel Smith HARRIS COUNTY, TEXAS, § § IN THE DISTRICT COURT Plaintiff § § v. § § TRAVIS COUNTY, TEXAS GREG ABBOTT, in his Official Capacity § as Governor of Texas, and KEN § PAXTON, in his Official Capacity as § Texas Attorney General § Defendants § 345th_____ JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION, APPLICATION FOR A TEMPORARY AND PERMANENT INJUNCTION, AND APPLICATION FOR A TEMPORARY RESTRAINING ORDER TO THE HONORABLE JUDGE OF THE DISTRICT COURT: This is a case about harmful overreach by the Governor of Texas during a global pandemic. At the start of the COVID-19 crisis, Governor Gregg Abbott issued a disaster declaration triggering his authority under the Texas Disaster Act, which places on him a duty to meet “the dangers to the state and people presented by disasters,” and authorizes him to issue certain executive orders to meet that duty. Tex. Gov’t Code § 418.011. Early on in the crisis, Governor Abbott and County Judges and Mayors across the state issued emergency orders to contain the spread of the virus, including limiting building occupancy, mandating masks, and mandating testing at certain facilities. In the months following the initial stages of the pandemic, as the country became increasingly polarized about governmental mandates during the pandemic, the Governor changed course. He began misusing his Disaster Act authority to issue executive orders designed not to prevent the spread of COVID-19, but instead to tie local officials’ hands. He prohibited local officials from enacting protective measures. He declared that his orders superseded local orders. PLAINTIFF’S ORIGINAL PETITION PAGE 1 OF 23 Copy from re:SearchTX He decreed that he has the authority to unilaterally suspend laws that were in place long before he was elected. Local government officials and entities across the state were threatened with penalties and fines if they enacted protective measures inconsistent with the Governor’s orders. The Governor touted his prohibitions as a victory for individuals against government overreach, vowing that no governmental entity or official in Texas will mandate masks or vaccines. The Governor’s race away from COVID-19 protectionary measures brings us to GA-38, his latest executive order, in which he purports to prohibit local officials from mandating masks, vaccines, occupancy limits, and just about any other meaningful measure to stop the spread of COVID-19. He declares that local officials who fail to comply with the order commit an “offense” and will be subject to monetary fines. Despite Governor Abbott’s dangerous rhetoric and actions that are preventing our local officials from protecting our citizens, the pandemic is not over. COVID-19 is ravaging our community. To date, there are 441,301 confirmed COVID-19 cases, 29,453 active COVID-19 cases, and 5,111 COVID-19 deaths in Harris County. For the period of July 25, 2021 to August 8, 2021, Harris County Public Health identified 18,549 new COVID-19 cases, which is a 332% increase in case since July 2021. Harris County has over 4,000,000 residents and 15,000 employees, and it’s the job of the Harris County Commissioners Court and Harris County Public Health to keep their residents and employees safe. Despite GA-38, Harris County has kept in place its policy requiring employees to wear masks in County buildings. Harris County and other local governments and officials across the state have worked as best as they can to navigate the Governor’s prohibitions. But as the Delta variant spreads, hospitalizations are up, ICU capacity is critically low, and schools are reopening. In the midst of this, the Governor and the Attorney General of Texas have made clear that they do not intend to PLAINTIFF’S ORIGINAL PETITION PAGE 2 OF 23 Copy from re:SearchTX use proven measures to reduce the spread of COVID-19 in our community, even as students head to classrooms to start off the school year. Instead, they intend to enforce GA-38, stating that “any local government official that defies [GA-38] will be taken to court.”1 Harris County runs the risk of enforcement against its officials and employees as a result of its efforts to safeguard its employees and residents during this crisis. And the County seeks adjudication of its and the Governor’s rights under the Disaster Act and GA-38 so that the County can issue more substantial mandates to stop the spread of COVID-19. The time has come for court intervention. Texas is not, and has never been, a dictatorship. The Governor serves under the authority granted to him by the Texas Constitution and the statutes of the legislature, and nothing more. The Governor is acting ultra vires, as the Texas Disaster Act does not permit him to suspend laws, cast aside local officials’ mandates, and tie local officials’ hands as he purports to in GA-38. And, in the alternative, if the Disaster Act does grant the Governor the ability to make law that supersedes all other laws, and cast aside any Texas statute, the Act violates the Texas Constitution’s Separation of Powers and Suspension clauses and is unconstitutionally vague and overbroad. The Legislature wrote the Disaster Act to give the Governor powers to effectively mitigate a disaster, but was careful to ensure a Governor could not slyly use a disaster to usurp and consolidate power in his office. The Governor is actively disregarding it and daring the Legislature and the Courts to allow him to convert the cherished limited government of Texas into a dictatorship. Fortunately, for the millions of Texans facing the COVID-19 pandemic and hoping their local leaders respond to the disaster the Governor has chosen to ignore, Texas still operates under the rule of law, not under the whims of a single person. 1 Joint Press Release; “Governor Abbott, Attorney General Paxton Aligned in Defense of Executive Order Prohibiting Mask Mandates”, August 11, 2021. PLAINTIFF’S ORIGINAL PETITION PAGE 3 OF 23 Copy from re:SearchTX Harris County, Texas files this lawsuit, by and through Harris County Attorney Christian D. Menefee, against Greg Abbott, in his official capacity as Governor of Texas, and Ken Paxton, in his official capacity as Attorney General for the State of Texas, asserting that the Governor is acting ultra vires, and seeking an injunction against enforcement of GA-38. Harris County seeks a temporary restraining order and temporary injunction, and would respectfully show the following: I. DISCOVERY CONTROL PLAN 1. Plaintiff intends to conduct discovery under Level 3, pursuant to Rule 190.4 of the Texas Rules of Civil Procedure. II. PARTIES 2. Harris County, Texas is the largest county in Texas and operates through the Harris County Commissioners Court, the County’s principal governing body. Commissioners Court authorized Harris County Attorney Christian D. Menefee to file this suit on behalf of the County. 3. Defendant Greg Abbott (“the Governor” or “Governor Abbott”) is the Governor of Texas and is sued in his official capacity. Harris County alleges he committed the ultra vires act of issuing certain prohibitions in GA-38 that are outside of his legal authority. He may be served at 1100 San Jacinto Blvd., Austin, Texas 78701. 4. Defendant Ken Paxton (the “Attorney General” or “Attorney General Paxton”) is the Attorney General of Texas and is sued in his official capacity. He may be served at 300 West 15th Street, Austin, Texas, 78701. III. JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction over the matter pursuant to Art. V, §8 of the Texas Constitution and Tex. Civ. Prac. & Rem. Code § 37.003. 6. This Court has personal jurisdiction over each Defendant because the Defendants PLAINTIFF’S ORIGINAL PETITION PAGE 4 OF 23 Copy from re:SearchTX reside in Texas. Venue is proper in Travis County pursuant to Tex. Civ. Prac. & Rem. Code §§ 15.002 and 65.023 because Defendants’ residence and principal place of business is in Travis County, Texas. IV. FACTS 7. For over a year, Texas and the world have faced the disastrous pandemic of COVID-19. The highly contagious and lethal virus has infected millions of Texans and killed over 51,000 Texans as of this date – the second most of any state in the country. The COVID-19 pandemic is unlike anything modern society has experienced. The virus and its variants differ from other viruses because of the lack of individual human immunity, its transmissibility, and its ability to cause severe illness and death. See Ex. 1. at ¶ 3. 8. On August 5, 2021, County Judge Lina Hidalgo changed Harris County’s COVID- 19 Threat Level to 1 – Severe. This decision was made to mitigate the effects of the Delta variant that is now estimated to be the prominent variant across the County. Id. at ¶ 4. 9. Studies indicate that individuals infected with the Delta variant have viral loads estimated to be around 1,000 times higher than those in people infected with the original COVID- 19 strain. The Delta variant is highly transmissible, meaning it is easily spread from person to person compared to other strains of the virus, and the higher viral loads likely contributes to the higher infection rate of this variant. Vaccinated individuals are less likely to be infected with the Delta variant, but if they become infected, they are contagious and infect others. Id. at ¶ 5. 10. Based on data from Harris County Public Health, Houston Health Department, and the South East Texas Regional Advisory Council, August 10, 2021: For the period of July 25 - August 8, 2021, Harris County had 1,456 patients hospitalized.