Photo: Diego M. Radzinschi/ALM

In two recent cases, federal judges in Texas have called into question the constitutionality of Gov. Greg Abbott's COVID-19 orders, saying the orders lacked specifics about important processes, and were sowing confusion among businesses.

Houston Judges Lynn Hughes and Vanessa Gilmore did not rule the governor's regulations unconstitutional, but the judges did make a point in their orders—issued in two lawsuits by businesses suing the city of Houston over its enforcement of Abbott's virus orders—to express their thoughts about the constitutional infirmities of Abbott's decrees.

"The court feels compelled to point out the constitutional problems raised by the governor's various orders," Gilmore wrote in a May 8 order in Trump Inc. v. City of Houston. "The orders of the governor raise serious First Amendment and equal-protection issues."

Houston litigator Will King represents the plaintiffs in both cases. Both companies—one is a strip club, the other a sports complex—tried to reopen under Abbott's Executive Order GA 18, which was the phased plan to reopen the Texas economy. But Houston law enforcement shut them down. Now they're suing the city. One client won a preliminary injunction, while the other lost its motion.

Texas businesses are having a hard time figuring out how the orders apply to them, King said.

"These decrees are coming down pretty fast. They are not always terribly clear. A lot of the governor's orders are written in very permissive language, as opposed to mandatory language. That causes problems on the enforcement side," said King, senior attorney in Wallace & Allen. "The question for local authorities are to what extent, and how zealous, should your enforcement be?"

It's difficult for him to advise his clients or devise a litigation strategy going forward.

"The governor's orders are shifting—almost week-to-week," he explained. "It's difficult to assess what claims should be brought and whether they are going to be mooted and taken out of controversy."

Nirja S. Aiyer, a senior assistant city attorney who represents the defendants in the strip club case, declined to comment.

No Lap Dances

It seems that reopening Texas may spur more litigation than closing it down.

In one case, Onyx Houston, a restaurant and strip club, reopened May 1 with staff in masks, hand sanitizer stations, guests doing social distancing and limits to occupancy. Dancers provided entertainment from a safe distance—no lap dances, said the complaint in the case. Houston police and firemen raided the business, and eventually shut down operations, and threatened to arrest and charge the owner with a Class B misdemeanor, it said.

In the other case, Sportsplex of Houston Inc. reopened May 1 for softball and volleyball games. It put out hand sanitizer, had players stay six feet apart on the sidelines, banned physical contact for tagging players, required people to wear face masks, and more.

The complaint in the case alleged that fire department staff and a group of police officers threatened to arrest and charge Sportsplex's general manager with a Class B misdemeanor. They shut down the business by telling customers to leave or get a citation, the complaint said.

Sportsplex, which argues that outdoor sports were allowed under GA-18, is suing for a violation of its civil rights, the Fifth and 14th amendments.

'State of Confusion'

Hughes, who is presiding over Sportsplex's case, wrote in a preliminary injunction that GA 18 "offended the constitutional restrictions requiring crime specification and a process to contest an arrest. No warrants were involved."

The city and its lawyers knew of the constitutional defects and had a duty to evaluate the order. Hughes noted that Abbott corrected the defect by eliminating jail time as a punishment.

In the strip club case, the court denied Onyx a preliminary injunction. Gilmore noted that GA 18 allowed restaurants to open at 25% capacity. However, in later orders, Abbott said people shall avoid sexually oriented businesses and said if they're also a restaurant, they could reopen only as an eatery. Another order by Abbott said no one can get arrested for violating COVID-19 orders, Gilmore explained.

That series of orders "has caused a state of confusion that rests clearly on the governor's doorstep," Gilmore wrote.

"The orders of the governor raise serious First Amendment and equal protection issues, however, the plaintiff has chosen in this action to raise only First Amendment, Fourth Amendment, and due process claims related to the city of Houston's enforcement of those various orders," she wrote.

Gilmore found that Onyx's First Amendment claim was misplaced because it should have been aimed at the governor.

"The fact that the governor has now apparently decided that jail time is too harsh a penalty for a violation of his orders is little comfort, as even that action seems to have been motivated by the impact of his order on a single violator, Dallas salon owner Shelley Luther, leaving many business owners unsure, even now, if the orders would be equally applied to them," the order said.

Related story: Texas Attorney Swept Up in Political Storm Over His Representation of a Jailed Dallas Salon Owner

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Read Gilmore's order: