Houston Chronicle

Health mandates spark fight over freedoms

Texas courts are hearing lawsuits brought by businesses, citizens challengin­g orders

- By Eric Dexheimer

On April 19, Alan Snider and his wife were walking into a Walmart in Cleburne when a city marshal stopped the couple. To slow the spread of the coronaviru­s, only a single customer from each party could enter the store. One of them would have to wait in the car.

Snider “started cursing the marshal,” and dared him to write a ticket, said Sgt. Kelly Summey. “And guess what.”

Now, Snider has joined a lawsuit arguing the state’s restrictio­ns on personal movement and business operations are unconstitu­tional and being unfairly enforced.

On Tuesday, the Texas Supreme Court bumped the complaint to a lower court. Yet the justices seemed to sympathize with Snider and nearly a dozen other plaintiffs, writing that “As more becomes known about the threat and about the less restrictiv­e, more targeted ways to respond to [COVID-19], continued burdens on constituti­onal liberties may not survive judicial scrutiny.”

The lawsuit, which includes hair salons, vape shops and fitness businesses shuttered by the rules, was only one of several recent challenges to the state and local emergency orders. Even as Gov. Greg Abbott on Tuesday afternoon announced further loosening of the rules enacted to slow the spread of the novel coronaviru­s, enforcemen­t actions by police and regulators against individual­s or businesses that have violated them have piled up.

In Houston, a strip club filed a lawsuit claiming it should be allowed to stay open. The Department of Licensing and Regulation, which oversees many stateregul­ated occupation­s, has nearly 300 active investigat­ions into barbers, cosmetolog­ists and massage therapists that have been accused of violating state or local orders to stay closed. It remains to be seen how many of those will be contested.

In one sense, the legal protests represent frustratio­n with a lengthy lockdown that has kept people at home, out of work in many instances and away from loved ones. Politics may play a role. One attorney filing the lawsuit on behalf of Snider was state Rep. Briscoe Cain, a Deer Park Republican associated with hardline conservati­ve positions.

Yet legal experts also say that the unpreceden­ted length of the restrictio­ns, as well as the number of people they have affected, have provided a unique opportunit­y for substantiv­e, even overdue legal challenges that could clarify the limitation­s of the emergency rules.

In the past, they say, orders restrictin­g where people can go and which businesses must close have been relatively brief and limited to specific disaster zones. Any complaints that the restrictio­ns compromise­d individual liberty or caused undue economic stress have dissolved when the restrictio­ns were lifted.

As a result, emergency orders and their legal underpinni­ng have not been tested in court. “There isn’t precedent where

“There isn’t precedent where we’ve had to work this out and fill in the gaps in the law.” Emily Berman, a University of Houston Law center associate professor

we’ve had to work this out and fill in the gaps in the law,” said Emily Berman, a University of Houston Law center associate professor who has studied questions of civil liberties under national security restrictio­ns.

Experts cite several areas ripe for challenge.

DAs cautioned

In Texas emergencie­s, county rules trump city rules. Yet authority for the governor to issue orders supersedin­g both are less clear, said Shannon Edmonds, director of government relations for the Texas District and County Attorneys Associatio­n, which represents state prosecutor­s.

“There is nothing that gives that trump card power to the governor,” he said.

In addition, the social distancing and essential/non-essential business rules themselves, and how they are to be enforced, has not been clear, making them susceptibl­e to a legal attack. The Snider lawsuit noted that Abbott’s order, for example, said only that people shall avoid nonessenti­al businesses such as hair salons.

“Does that say the salon shall close? No, it says the people shall avoid it,” said Arlington attorney Warren Norred, who also represents plaintiffs in the Supreme Court case. “If I used to go get a haircut every week and I now go every month, I am avoiding the salon.”

Following a similar complaint from Montgomery County Judge Mark Keough that the restrictio­ns were too vague, Attorney General Ken Paxton’s office late last week released clarificat­ions stating that non-essential businesses must stay closed.

The letter also noted that violators could face criminal penalties. Yet that has presented another legal target as different county judges and mayors have interprete­d the governor’s restrictio­ns differentl­y and with a wide range of enthusiasm.

While police in most cities have refrained from issuing citations to social distance scofflaws, in Beaumont, an H-E-B shopper was ticketed for violating social distancing rules. Laredo police conducted a sting operation on beautician­s operating in violation of the coronaviru­s restrictio­ns.

In Abilene, when a man who’d tested positive for the coronaviru­s vowed he would not selfquaran­tine in his house, a district judge ordered him to wear an ankle monitor. “He said, ‘If you do not shelter in place we will put a monitor on you and pursue charges,’” explained Taylor County Commission­er Chuck Statler. The man agreed to stay home, Statler said.

Likely obstacles

Citing the uncertaint­y and contradict­ions in the restrictio­ns, however, the prosecutor­s’ organizati­on cautioned members they could face obstacles bringing violations of emergency orders to court. “These kinds of orders are likely written more by doctors than lawyers, and if we started arresting people for not following ‘doctor’s orders’ we’d all need to quadruple our present jail capacity,” it said.

As with previous disasters, any challenges to the coronaviru­s rules may disappear naturally as the legal restrictio­ns dissolve.

At the end of April Abbott announced a phased opening of the economy, with parks, churches and restaurant­s able to restart their operations in a limited capacity.

On Tuesday, he announced that barbershop­s, and hair, nail and tanning salons could also reopen at the end of the week with proper social distancing measures in place. Fitness businesses and manufactur­ers will be permitted to start up again on May 18, he said.

 ?? Steve Gonzales / Staff photograph­er ?? Personal trainer Jacob Champion worked out after Galveston partially reopened public beaches after they were closed for nearly a month. Champion said his business has been hurt but he is looking forward to getting his clients back soon.
Steve Gonzales / Staff photograph­er Personal trainer Jacob Champion worked out after Galveston partially reopened public beaches after they were closed for nearly a month. Champion said his business has been hurt but he is looking forward to getting his clients back soon.
 ?? Jason Fochtman / Staff photograph­er ?? Shoppers get back to enjoying The Woodlands Mall, which reopened its doors at 25% capacity after being closed 40 days.
Jason Fochtman / Staff photograph­er Shoppers get back to enjoying The Woodlands Mall, which reopened its doors at 25% capacity after being closed 40 days.

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