Part I: Texas businesses suing state, county and city governments

The coronavirus pandemic has unmistakably forced many changes in American lives, including a new type of litigation: companies suing Texas city, county and state governments over shutdown orders or contesting the definitions of “essential” and “nonessential” businesses.

Several groups of bar owners have filed at least three lawsuits against Gov. Greg Abbott over his executive order shutting down their establishments again in response to the rising number of COVID-19 cases.

Research by a legal profession publication shows more than a dozen similar lawsuits across the Lone Star State since early March. Researchers said it’s likely that additional, less publicized cases filed against small or mid-sized Texas cities.

Defining the limits of authority

Attorney Jared Woodfill has filed eight lawsuits challenging coronavirus orders issued under the Texas Disaster Act. He said that he wants his litigation to force courts to decide if the governor, county supervisors, city mayors and other government officials have the authority under the Disaster Act to issue lockdown orders.

Among the complaints in his lawsuits: government orders have not been applied equally to businesses and that no process has been created to challenge shutdown decrees.

Said Woodfill, “Government, in this case, seems to be always looking for—they want to protect the health. It’s not their job to protect your health. They have to protect our constitutional rights.”

Suits against cities of all sizes

Christy Drake-Adams, assistant general counsel of the Texas City Attorneys Association and the Texas Municipal League said there have been at least eight similar suits against small and mid-sized cities, contesting definitions of essential and nonessential businesses.

Said Drake-Adams, “it’s pretty clear that the government has broad authority to act to protect the public health and to regulate in times of emergency, and that authority is expressly provided in law.”

We’ll have more on this emerging subset of litigation in a coming post. Please check back.