Texas Appeals Court Pauses El Paso’s Non-Essential Business Shutdown

November 13, 2020 Updated: November 13, 2020

A Texas appeals court on Nov. 12 issued a temporary emergency order effectively halting El Paso County’s shutdown of non-essential businesses that was scheduled to last until Dec. 1 in an effort to slow the spread of CCP virus, also known as coronavirus.

The request to the Eighth Court of Appeals was filed by state Attorney General Ken Paxton and a group of ten El Paso restaurant companies, who sought to strike down portions of El Paso County Judge Ricardo Samaniego’s lockdown orders issued on Oct. 29.

They argue that Samaniego’s order conflicted with statewide measures put in place in Texas Gov. Greg Abbott’s Oct. 7 tied to reopening Texas businesses.

On Thursday, the court in a 2-1 decision (pdf) ruled that several sections of Samaniego’s order cannot be enforced, including shutting down nonessential businesses and a nightly curfew, until the court makes its final judgment expected Friday.

“We exercise our discretion to preserve the status quo as it existed just prior to the issuance of the county’s later, more restrictive Stay-at-Home Order,” until the court makes its final judgment, the court ruled.

Texas Attorney General Ken Paxton on Thursday applauded the appeals court for its ruling on Twitter.

“I commend the 8th Court of Appeals for stopping El Paso Co. Judge Samaniego’s shutdown order—pending the final decision on the merits,” Paxton posted. “It is important that we do not shutdown the economy ever again, [and] this decision allows small businesses to continue to operate & pay employees.”

El Paso County recorded 29 deaths, 976 new coronavirus cases, and 344 delayed test results on Thursday, bringing the county total to 68,804 cases, 29,743 active cases, and 725 deaths since the pandemic began.

About 1,150 people are hospitalized, including 287 in intensive care, according to city statistics.

“While I am extremely disappointed in the ruling, I will honor the Court’s decision. Our family members, our friends, and our neighbors are dying, and our hospitals, funeral homes, and morgues are at capacity,” Samaniego said in a statement.

He noted that parts of his order remain in place under the court ruling, including 50 percent capacity limits at non-essential businesses; and the closing of restaurant dining rooms between 9 p.m to 6 a.m. Takeout is permitted after 9 p.m while bars will remain closed entirely. He added that gatherings remain limited to no more than 10 people and face masks are still mandatory.

“For tonight, I strongly urge citizens to stay home, wear masks and socially distance themselves from others,” he said. “I will be exploring legal permissible options to stop the spread of the virus.”

He said that while he sympathizes with “hurting” businesses, he didn’t believe the county should “repeat our mistakes in re-opening without thoughtful restrictions.”

El Paso Police Department will return to enforcing the city’s prior health order that was issued prior to the county’s lockdown order.

This means that the City of El Paso will need to restore enforcement of the Local Emergency Directive issued on Oct. 15 and GA-32, according to City Attorney Karla Nieman.

Mayor Dee Margo said, “Today’s ruling from the 8th Court of Appeals restores our previous directive; and as I have stated, the City must follow the law. We must balance the lives and the livelihoods of our community, and this requires all of us to change our social behaviour.”