Greg Abbott, in His Official Capacity as Governor of Texas v. Clay Jenkins, in His Official Capacity as Dallas County Judge

Supreme Court of Texas
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No. 21-1080
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Greg Abbott, in His Official Capacity as Governor of Texas, et al.,
Petitioners,

v.

Clay Jenkins, in His Official Capacity as Dallas County Judge,
Respondent

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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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Argued February 22, 2023

JUSTICE BLACKLOCK delivered the opinion of the Court.

This case and its companion cases—Abbott v. City of San Antonio,
21-1079, and Abbott v. Harris County, 22-0124—concern the division of
power between the Governor and local officials during the response to
the coronavirus pandemic. In each case, we are asked about the scope
and constitutionality of the Governor’s authority under the Disaster Act
to prohibit local governments from imposing mask requirements.
Beginning in April 2020, Dallas County Judge Clay Jenkins
issued various orders requiring masks in certain circumstances. In July
2021, the Governor issued executive order GA-38, which prohibited local
officials from requiring masks.
This lawsuit originated as a dispute between Judge Jenkins and
then-Dallas County Commissioner J.J. Koch, who sued Jenkins over a
mask requirement at meetings of the Dallas County Commissioners
Court. The dispute between Koch and Jenkins, like the current appeal,
focused on the scope and constitutionality of the Governor’s authority to
issue GA-38. Jenkins later brought the Governor into the suit, seeking
an injunction against the enforcement of GA-38.
The district court issued a temporary restraining order
prohibiting enforcement of GA-38, which this Court stayed. In re Abbott,
No. 21-0686 (Tex. Aug. 15, 2021) (order). The district court then
temporarily enjoined the Governor and others from enforcing GA-38 to
the extent that such enforcement would interfere with Judge Jenkins’
authority to require masks in Dallas County. Jenkins v. Abbott, No.
DC-21-10101 (Aug. 25, 2021) (order granting temporary injunction).
That injunction, which bound the Governor and others who would
enforce GA-38, was automatically superseded by the State’s appeal.
TEX. R. APP. P. 29.1(b). The court of appeals affirmed the temporary
injunction, concluding that GA-38 could not lawfully override the local
orders. 665 S.W.3d 675, 695 (Tex. App.—Dallas 2021). None of the
injunctions issued by the lower courts has been enforceable during the
pendency of this appeal.
We granted the State’s petition for review and consolidated this
case for oral argument with Abbott v. City of San Antonio, 21-1079, and
Abbott v. Harris County, 22-0124. After the case was argued, the

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Governor allowed GA-38 to expire in response to the enactment of
Senate Bill 29, which generally prohibits governmental mask
requirements in response to the pandemic. Act of May 28, 2023, 88th
Leg., R.S., ch. 336, § 1, sec. 81B.002(a), 2023 Tex. Sess. Law Serv. ch.
336 (to be codified at TEX. HEALTH & SAFETY CODE § 81B.002(a)).
In light of our decision today in Abbott v. Harris County, 22-0124,
the judgment of the court of appeals is vacated, the temporary injunction
is dissolved, and the case is remanded for further proceedings consistent
with our opinion in Abbott v. Harris County.

James D. Blacklock
Justice

OPINION DELIVERED: June 30, 2023

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