Attorney Blog, Human Resources

Bar Owners Argue Shutdowns are Unconstitutional

Attorney Harrison Oldham

On Monday, a group of Texas bar owners filed a lawsuit arguing that Governor Greg Abbott’s shutdown of bars is unconstitutional. The suit, filed in Travis County, names Governor Abbott, the Texas Alcoholic Beverage Commission (“TABC”) (the agency that oversees liquor licenses) and TABC Executive Director Bentley Nettles as defendants, the lawsuit seeks a temporary and permanent injunction to prevent bar owners’ businesses from being closed. You may find a copy of the filing here: https://static.texastribune.org/media/files/f41dc59d4db4b32e902f5aa68b938ddc/Plaintiffs%20Original%20Petition.pdf?_ga=2.91017754.1494218229.1593601601-1891804590.1593601601

Last week, Governor Abbott used an executive order to attempt to slow the recent rise in COVID-19 cases and ordered bars to close — although they could remain open for to-go and delivery. Bars were previously permitted to operate at 50% capacity.

The lawsuit now alleges that this order violates the Plaintiff’s rights under the Texas Constitution, stating:

The rights Plaintiffs enjoy under the Texas Constitution are being trampled on by Defendants, while millions of individuals have lost their jobs and thousands of businesses are on the brink of bankruptcy. If Defendants’ conduct is not restrained and declared unconstitutional, once this virus passes, the rights enjoyed by Plaintiffs under the Texas Constitution will be forever damaged.

More specifically, the lawsuit states that Governor Abbott’s actions have singled out bars in a manner that violates Texas Government Code Section 418 and articles of the Texas Constitution.

First, in Gov. Abbott’s executive order, Abbott expressly “suspends” laws. Specifically, the order states, “I hereby suspend Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local official do not impose restrictions inconsistent with this executive order….”

The lawsuit now alleges that Governor Abbott’s action of “suspending” certain laws violates the terms of Texas Government Code Section 418, the “Disaster Act.” The suit states that the Disaster Act “does not allow Defendants to force businesses to effectively shut down. Specifically, the Disaster Act limits Defendants’ power to those provisions expressly described in the statute.”

The Disaster Act certainly allows Governor Abbott to suspend certain laws; Section 418.016 of the Disaster Act reads, “The governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.”  However, I do not see a provision under the Disaster Act that clearly allows Abbott mandate bars and other facilities to close.

Second, the suit avers that that Gov. Abbott’s actions violate the Texas Constitution.  Article XI, § 5 of the Texas Constitution provides that: “No charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”

In Texas, the legislature has the exclusive authority to define crimes and to designate the punishments for those crimes. But here, the lawsuit argues, Gov. Abbott has made it a punishable offense (a crime) for bar owners to allow people into their business. The suit argues that this action, of making it a crime for bar owners to permit patrons into their business, takes the power away from the Legislature and is therefore unconstitutional.

Next, the suit states that by requiring Plaintiffs to close down their businesses, Defendants violate Article I, § 19 of the Texas Constitution, which states: “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land.” Here, they are arguing that Gov. Abbott’s action to force bars to close is depriving the Plaintiffs of their liberty or freedom to operate their businesses.

In my opinion, one of the strongest arguments in the suit is that basically that bar owners are being treated differently – and that’s not fair. The filing states:

Governor Abbott has opened up cosmetology salons, hair salons, barber shops, nail salons, tattoo studios, piercing studios, hair removal services, hair loss treatment and growth services, and other establishments where licensed cosmetologist or barbers practice their trade or other cosmetology services. (Exhibit “A”). Clearly, bar owners have less interaction, proximity, or frequency with patrons than beauticians, or cosmetologists, or tattoo artists.

The petition argues that this action violates the Equal Protection Clause of the Texas Constitution.

The Plaintiffs are seeking an injunction, a declaration that the Defendant’s conduct violated the provisions above, and damages to compensate them for their losses. This should be an interested case to watch over the next couple of weeks!

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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