EL PASO, Texas -- A divided Texas appeals court on Thursday evening issued a temporary emergency order effectively halting El Paso County Judge Ricardo Samaniego's mandated shutdown to stem the surge of Covid-19.
The Eighth Court of Appeals granted a request sought by Texas' attorney general and local restaurant owners by striking down portions of the order.
The court, in a 2-1 ruling, temporarily voided requirements for both non-essential business closures and a nightly curfew.
Thursday's decision came a day ahead of the appellate court making its determination on the full merits of the case, which remains unclear.
Samaniego, in a statement, said he was "extremely disappointed in the ruling," but noted that the court left intact prior restrictions which would remain in place. El Paso Mayor Dee Margo concurred that the following items would still be enforced...
- Business occupancy limits are set at 50%
- All restaurants must cease all dine-in services by 9 p.m.
- Gatherings remain limited to no more than 10 people
- Bars must remain closed
- Masks remain mandatory in public
Thursday evening's appellate order was not a unanimous decision, with one member of the three-judge panel dissenting by indicating Friday's upcoming full decision had the potential of reversing course yet again.
Attorney General Ken Paxton and a group of restaurant owners had brought the lawsuit contending Samaniego's order was invalid because it conflicts with statewide measures put in place by the governor.
"I commend the Eighth Court of Appeals for stopping El Paso County Judge Samaniego’s shutdown order - pending the final decision on the merits. It is important that we do not shutdown the economy ever again," Paxton said in a tweet shortly after the ruling was issued.
But that ruling brought swift condemnation from El Paso members of National Nurses United, which had filed a court brief in support of Samaniego.
"NNU strongly agrees with the dissent by Justice Yvonne Rodriguez who warned of the consequences at a time when "bodies continue to stack up in refrigerated trucks here in El Paso because our morgues are full and the Medical Examiner has a backlog of corpses" and "every other patient in our hospitals is a Covid-19 patient."'
The El Paso County Attorney's Office said it was reviewing the court's decision. It had successfully argued in a lower court that state law allows county judges to restrict the movement of people and occupancy of premises during a disaster.
District Court Judge Bill Moody, in upholding Samaniego's order last week, cited historic precedent in which local officials issued orders based on the needs of their own communities during the last pandemic in Texas, namely the Spanish Flu of 1918.
Below you can see a copy of the appeals court decision followed by the AG's tweet.
I commend the 8th Court of Appeals for stopping El Paso Co. Judge Samaniego’s shutdown order - pending the final decision on the merits. It is important that we do not shutdown the economy ever again, & this decision allows small businesses to continue to operate & pay employees.— Texas Attorney General (@TXAG) November 13, 2020