Opinion
04-21-00119-CV
03-30-2022
David W. HOWELL, Appellant v. The Honorable Texas Governor Gregory Wayne ABBOTT, Appellee
From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 20-593 Honorable Kirsten Cohoon, Judge Presiding
Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
AFFIRMED
Appellant David W. Howell appeals the trial court's order granting appellee Texas Governor Greg Abbott's plea to the jurisdiction. We affirm the trial court's order.
Background
On March 13, 2020, Governor Abbott issued a proclamation certifying under the Texas Disaster Act of 1975 "that the novel coronavirus COVID-19 poses an imminent threat of disaster in all Texas counties." In re Hotze, 627 S.W.3d 642, 643 (Tex. 2020) (orig. proceeding) (internal citations omitted). The Governor thereafter "issued a flurry of lengthy and detailed executive orders designed to mitigate COVID-19's spread." In re Luther, 620 S.W.3d 715, 718 (Tex. 2021) (orig. proceeding) (per curiam). "The first of these, Executive Order GA-08, meaningfully changed Texans' day-to-day activities." Id. at 719 (internal citation omitted). "While 'critical infrastructure' and 'essential services' remained fully operational, many businesses that did not qualify as 'essential services' did not." Id. "GA-08 also discouraged in-person patronage of restaurants, bars, and gyms, temporarily closed schools, and directed Texans to 'avoid social gatherings in groups of more than 10 people.'" Id. "Executive Order 29 required every Texan (with specific exceptions) to wear a face covering when inside a commercial entity or other building or space open to the public." Abbott v. Jenkins, No. 05-21-00733-CV, 2021 WL 5445813, at *13 (Tex. App.-Dallas Nov. 22, 2021, pet. filed) (mem. op.). Executive Order GA-32 established physical occupancy limits on business establishments depending on the nature of the business and hospitalization rates. The Governor of the State of Tex., Exec. Order GA-32, 45 Tex. Reg. 7347 (2020).
Howell filed the underlying suit seeking injunctive relief against the Governor to prevent him from carrying out Executive Orders GA-08 to GA-32 and seeking damages for alleged violations of his constitutional rights. The Governor filed a plea to the jurisdiction arguing that the trial court lacked subject matter jurisdiction for several reasons. On March 2, 2021, the Governor issued Executive Order GA-34, lifting many of the restrictions behind Howell's complaints. The Governor of the State of Tex., Exec. Order GA-34, 46 Tex. Reg. 1567 (2021). At a hearing on the plea to the jurisdiction, Howell acknowledged GA-34 mooted his claim for injunctive relief. But he argued that under Uzuegbunam v. Preczewski, 141 S.Ct. 792 (2021), his nominal damages claim kept alive his claims predicated on completed violations of his constitutional rights. The Governor responded that Howell lacked standing to pursue any of his claims. The trial court granted Howell's motion to withdraw his request for injunctive relief and granted the Governor's plea to the jurisdiction.
Analysis
Plea to the Jurisdiction
Standard of Review
An appellate court reviews questions of standing de novo. Farmers Tex. Cty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020). "This is because standing is a component of subject matter jurisdiction." Id. "Because a plea to the jurisdiction raises a question of standing, we also review a plea to the jurisdiction de novo." Id. "In applying a de novo standard of review to a standing determination, reviewing courts 'construe the pleadings in the plaintiff's favor, but we also consider relevant evidence offered by the parties.'" Id. (quoting In re H.S., 550 S.W.3d 151, 155 (Tex. 2018)).
Application
To establish standing, Howell "must show: (1) an injury in fact that is both concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the [Governor's] challenged action; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692, 696 (Tex. 2021). To determine whether Howell alleged a concrete injury sufficient to meet the standing requirement, we look to his pleadings. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings in favor of Howell and look to his intent. Id. Howell challenges the lawfulness of governmental acts, so unless standing is conferred by statute, he must show that he has suffered a particularized injury distinct from the general public. Andrade v. Venable, 372 S.W.3d 134, 137 (Tex. 2012).
In his original pleading, Howell asserted the executive orders: (1) violated his constitutional rights to due process, freedom of religion, and freedom of assembly and association; (2) constituted a criminal violation of federal civil rights statutes; and (3) caused him personal injury by requiring him to wear a face mask. He sought injunctive relief and damages for pain and suffering. In his first amended petition, Howell repeated his constitutional claims and added as-applied constitutional challenges to Texas Health and Safety Code Chapter 418. In his second amended petition, which he intended as a supplement to his original and first amended petitions, he added six "causes of action" including:
• The shutdowns are illegal because no power is granted to the Governor or county or city officials to close businesses under the Texas Disaster Act of 1975;
• There is no pandemic "by any standard";
• The Governor has no legal authority to control which businesses are essential and which are not;
• The Governor has no legal authority to close businesses, revoke the right to gather, mandate masks or force patrons outside a restaurant to eat;
• The Governor cannot revoke liquor licenses due to non-conformance with illegal orders;
• No one except a medical doctor can dispense medical advice.
Howell's pleadings, construed in his favor, do not establish standing. First, he has not identified any statute that confers standing on him. Howell asserts the Governor violated U.S. Code Title 18, Sections 241 (which criminalizes conspiracy against the free exercise of a constitutional right), and 242 (which criminalizes willful acts under color of law that deprive a person of rights protected by the Constitution or laws of the United States). 18 U.S.C. §§ 241, 242. But these criminal statutes provide no civil remedies. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994); Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960).
Second, Howell's claims of injury do not satisfy the particularization standard required to establish his standing. Nothing in Howell's pleadings or his brief to this court explains how he suffered a concrete injury not suffered by the public at large. Williams v. Guadalupe-Blanco River Auth., No. 04-20-00445-CV, 2021 WL 2814902, at *3 (Tex. App.-San Antonio July 7, 2021, pet. filed) (mem. op.). And Texas's "standing jurisprudence ensures that the executive and judicial branches resolve matters of public importance through the adversary system of justice in particular cases involving parties who are genuinely, personally affected." In re Abbott, 601 S.W.3d 802, 809 (Tex. 2020) (orig. proceeding) (per curiam); City of W. Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722, 727 (Tex. 1971); San Antonio Conservation Soc'y v. City of San Antonio, 250 S.W.2d 259, 263 (Tex. App.-Austin 1952, writ ref'd). In his second amended petition, Howell clearly alleges he "is representative of many Texans in what should be characterized as Texas government martial law-like civil rights violations." He complains that the orders:
• "severely handicapped middle American business owners";
• denied himself and "all Texans the right to choose where they shop and where they eat at a time and place of their own choosing";
• forced "patrons outside a restaurant to eat";
• prevented Texans from gathering at houses of worship and bars;
• perpetuated a "hoax" on all Texans, hyping "fear into unsuspected Texans" through testing and quarantining;
• violated Texans constitutional rights; and
• forced ineffective masking on Texans.
He asks that the Disaster Act be amended and subject to legislative oversight to put an end to the "executive orders restricting, suspending, and fining Texans." (all emphasis added).
Howell's pleadings demonstrate that he seeks access to the courts to air generalized grievances about the conduct of government. United States v. Richardson, 418 U.S. 166, 175 (1974); City of San Antonio v. Stumburg, 7 S.W. 754, 755-56 (Tex. 1888). "Only lawfully constituted guardians of the public interest may maintain actions for the redress of such character of injuries." San Antonio Conservation Soc'y, 250 S.W.2d at 263; see also Abbott v. City of San Antonio, ___ S.W.3d, No___. 04-21-00342-CV, 2021 WL 5217636, at *8-9 (Tex. App.-San Antonio Nov. 10, 2021, pet. filed) (City of San Antonio and Bexar County's allegations that GA-38 inflicted a concrete and particular injury on them by suspending their statutory authority to implement mask mandates met the first element of standing); Abbott v. Harris County, ___ S.W.3d___, No. 03-21-00429-CV, 2022 WL 92027, at *1, *3-4 (Tex. App.-Austin Jan. 6, 2022, pet. filed) (same, for Harris County); Jenkins, 2021 WL 5445813, at *6-7 (same, for Dallas County).
Howell lacks standing. Standing is not conferred by statute, and Howell's interest in the conflict is not distinct from that of the general public. Howell's pleadings, taken as true, do not establish the first element of standing. See Williams v. Davis, 628 S.W.3d 946, 954-55 (Tex. App.-Houston [14th Dist.] 2021, no pet.). We therefore affirm the trial court's order granting the plea to the jurisdiction without considering the traceability and redressability elements of standing or other aspects of subject matter jurisdiction. Tex.R.App.P. 47.1.
Conclusion
We affirm the trial court's order granting the Governor's plea to the jurisdiction.