Greg Abbott, in His Official Capacity as Governor of Texas v. City of El Paso

Supreme Court of Texas
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No. 23-0288
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Greg Abbott, in his official capacity as Governor of Texas,
Petitioner,

v.

City of El Paso,
Respondent

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On Petition for Review from the
Court of Appeals for the Eighth District of Texas
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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.

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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

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