Abbott v. City of El Paso (Per Curiam)

Annotate this Case

In this case involving mandates requiring people to wear face masks or other coverings to prevent the spread of COVID-19 the Supreme Court vacated the judgment and opinion of the court of appeals and dismissed this interlocutory appeal, holding that the appeal was moot.

In 2021, the City of El Paso obtained a temporary injunction against the enforcement of GA-38, a gubernatorial executive order that prohibited local mask-wearing requirements. The court of appeals affirmed. In 2023, Senate Bill 29, codified as Tex. Health & Safety Code 81.B.001-.004, which provided that a governmental entity may not impose mask-wearing requirement to prevent the spread of COVID-19, went into effect. Further, GA-38 expired. The Supreme Court vacated the court of appeals and dismissed this appeal, holding that no live controversy remained between the parties.

Download PDF

Supreme Court of Texas No. 23-0288 Greg Abbott, in his official capacity as Governor of Texas, Petitioner, v. City of El Paso, Respondent On Petition for Review from the Court of Appeals for the Eighth District of Texas PER CURIAM In September 2021, the City of El Paso obtained a temporary injunction against enforcement of a gubernatorial executive order, GA-38, that prohibited local mask-wearing requirements. The court of appeals affirmed the temporary injunction, and the State petitioned for review. In June 2023, we held in Abbott v. Harris County that GA-38’s prohibition on local mask requirements was “a valid exercise of the Governor’s authority under the Disaster Act.” 672 S.W.3d 1, 21 (Tex. 2023). On September 1, 2023, Senate Bill 29 went into effect. Act of May 28, 2023, 88th Leg., R.S., ch. 336, codified as TEX. HEALTH & SAFETY CODE §§ 81.B.001–.004. This statute, with exceptions not relevant here, provides that “a governmental entity may not implement, order, or otherwise impose a mandate requiring a person to wear a face mask or other face covering to prevent the spread of COVID-19.” Id. § 81B.002(a). Also in June 2023, GA-38 expired. See Abbott, 672 S.W.3d at 9 n.23 (explaining why the expiration of GA-38 did not render that appeal moot). In light of these events, we asked the parties to advise the Court as to whether further proceedings remain necessary. The parties submitted a joint status report advising that no justiciable controversy remains and that the appeal is therefore moot. We agree the appeal is moot. Neither the enforceability of city mask mandates, which the parties agree are barred by Senate Bill 29, nor the enforceability of executive order GA-38, which has expired, remains a live controversy between the parties. This interlocutory appeal should therefore be dismissed as moot and the judgment of the court of appeals vacated. See TEX. R. APP. P. 56.2; 60.2(e). The State further requests that we vacate the opinion of the court of appeals in addition to vacating its judgment. See Morath v. Lewis, 601 S.W.3d 785 (Tex. 2020). The City does not agree to this relief but offers no argument against it. We agree with the State that the public interest is best served by vacatur of the court of appeals’ opinion, which conflicts in many respects with this Court’s opinion in Abbott v. Harris County, 672 S.W.3d 1, and which the State has been prevented from challenging on the merits due to mootness. Morath, 601 S.W.3d at 791. 2 The petition for review is granted, the judgment and the opinion of the court of appeals are vacated, and the appeal is dismissed. See TEX. R. APP. P. 59.1; 56.2; 60.2(e). OPINION DELIVERED: October 27, 2023 3

Primary Holding

Disclaimer: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. Justia makes no guarantees or warranties that the annotations are accurate or reflect the current state of law, and no annotation is intended to be, nor should it be construed as, legal advice. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.