May 13, 2020
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The power that Governor Greg Abbott has wielded during the coronavirus crisis could be in serious jeopardy based on findings by federal judges in separate cases challenging the executive orders that he's issued in the past two months.
The jurists from the U.S. Southern District Court in Houston both indicated that the Republican governor's intervention in the criminal case of Dallas beauty shop owner Shelley Luther last week had exacerbated questions on the constitutionality of the restrictions that he's imposed by fueling an atmosphere of uncertainty around the state.
U.S. District Judge Vanessa Gilmore found that Lieutenant Governor Dan Patrick had contributed to the confusion when he offered to pay a fine that a state district judge had assessed when he sentenced her to seven days in jail for refusing to comply with an emergency decree that Abbott had issued.
U.S. District Judge Lynn Hughes determined that Abbott had effectively admitted that the edict at the heart of the Luther case had been constitutionally flawed when he revised it abruptly to eliminate the threat of punishment for offenders when the Texas Supreme Court had been poised to order her release as a result of the order's ambiguity.
The critical reviews will give substantial ammunition to conservative activists who'd already taken Abbott to court on the grounds that he'd overstepped his constitutional authority with emergency directives that temporarily shut down businesses that he deemed as nonessential while ordering individuals to stay at home unless they had good reasons to be out in public.
The legal challenge that Houston insurance firm owner Norman Adams and former Harris County GOP chairman Jared Woodfill have been spearheading revolves on the assertion that the governor does not have the right to suspend laws that the Legislature had enacted. Abbott has based his authority during the pandemic on a state law that was approved in 1975 and had been reserved until now for hurricanes and other weather-related disasters.
A University of Houston law school graduate who'd been appointed to the federal bench by Democrat Bill Clinton in 1994, raised the specter of possible violations of the constitutional rights of free speech and due process in a six-page response to a request for a temporary injunction from a Houston gentlemen's club called Onyx.
"The series of orders issued by the Governor, together with the fact that his top law enforcement officer unethically rebuked some of those orders, has caused a state of confusion that rests clearly on the Governor’s doorstep," Gilmore wrote.
Gilmore noted that the company that owns the adult entertainment establishment hadn't listed the state as a defendant when it challenged the city of Houston's ability to shutter it as a sexual oriented business.
"Nonetheless, the Court feels compelled to point out the constitutional problems raised by the
Governor’s various orders," Gilmore wrote. "The fact that the Governor has now apparently decided that jail time is too harsh a penalty for a violation of his orders is little comfort, as even that action seems to have been motivated by the impact of his order on a single violator, Dallas salon owner Shelley Luther, leaving many business owners unsure, even now, if the orders would be equally applied
to them," the jurist added.
"This uncertainty is exacerbated by the fact that Texas Lt. Governor Dan Patrick has now
chosen to pay the fine owed by Shelley Luther."
Gilmore denied the nightclub's request for an exemption from an Abbott order that had prohibited lap dancers and other forms of entertainment services that the business typically provides. Onyx had promised that its dancers who would be nude under normal circumstances would be performing with their chests and lower regions covered and abiding by social distancing requirements as well. But Gilmore appeared to strike a middle ground when she ruled that the business could operate as a restaurant at a maximum capacity of 25 percent during the initial phase of the Abbott reopening that's set to end of May 18 when occupancy limits will be relaxed.
Hughes - a Ronald Reagan appointee who's served on the court since 1985 - granted a request for a preliminary restraining order that the private firm Sportsplex had sought in connection with a Houston police raid on May 1 at the 37-acre complex on the southwest side of the Houston area where it hosts softball games and other amateur sports events.
Hughes said that Sportsplex had been complying with "comprehensive safety and precautionary measures" when 40 police officers showed up with a handful of fire department inspectors with a warning about the potential for jail time or fine if it didn't clear the premises and shut down without delay. Hughes cited statements from people who witnessed the confrontation and said that some of the police officers weren't wearing masks or practicing proper distancing.
The Abbott order that the law enforcement officials had cited "offended Constitutional restrictions requiring crime specification and a process to contest an arrest," Hughes said in a three-page ruling.
"These defects were casually recognizable by the City and its lawyers," Hughes wrote. "Governor Abbott did and was quick to correct it by eliminating time in jail as a punishment."
Hughes ruled that the city had failed to independently evaluate the Abbott order and made no effort to tell the officers about its flaws and that it didn't give them the option to threaten to jail the owners of the sports complex or the people who'd come to participate in sports contests.
The judge ordered the parties in the legal challenge to appear in his court on June 26 when he will consider a permanent injunction.
Abbott had insinuated that he'd modified the order that had landed Luther behind bars because he was shocked that Dallas County officials would actually attempt to enforce it. The governor had made violations punishable by up to 180 days before he declared that no one could be incarcerated for refusing to abide by the emergency laws.
While the governor gave the impression that he'd erased the possibility of jail time for offenses as a consequence of the way he thought it had been abused, Hughes raised the specter that Abbott could have watered the directive down because he'd realized that it had been unconstitutional.