The Texas Supreme Court determined it can't hear a case challenging Gov. Greg Abbott's shutdown of nonessential businesses in COVID-19 emergency orders.

But that didn't stop one justice from giving a piece of his mind about what Abbott has been doing during the pandemic.

Without comment, the court dismissed a petition, filed by conservative activist Dr. Steven Hotze, seeking mandamus relief against Abbott. Justice John Devine wrote a concurring opinion that called out the governor's suspension of state laws as a violation of the Texas Constitution, which says that only the Texas Legislature has power to suspend Texas statutes.

Plaintiffs lawyer Jared Woodfill of Houston, who represents Hotze, said that the concurring opinion is a huge win for Texans even though it does not carry the weight of precedent. Woodfill said he'd use Devine's opinion as a persuasive authority in eight lawsuits he has filed across the state that are challenging Abbott's COVID orders.

"The Supreme Court, in a concurring opinion, has completely agreed with the argument we made: The governor is acting unconstitutionally. The disaster act is unconstitutional, and the governor is clearly usurping his power and authority and suppressing the constitutional rights of all Texans," Woodfill said. "Only the legislature can suspend laws, and the governor continues to unilaterally suspend laws in violation of our constitutional rights."

Devine's opinion stated that Texas law specifically says the high court doesn't have the power to grant mandamus relief against the Texas governor, which is why the justices found they don't have jurisdiction over Hotze's appeal.

Read the concurring opinion

That is why when Hotze filed a petition for writ of mandamus naming the governor, it was not the right vehicle to challenge the governor's emergency orders, explained Devine.

Justice John Devine

"This is not to say that a governor's emergency-related actions are categorically immune from judicial review," he added. "There are of course other ways in which we may—and indeed must—weigh in on questions of constitutional magnitude."

He said the constitutional rights of Texans have taken a back seat under the governor's orders over the coronavirus. Now, businesses are impoverished and people are unemployed. The opinion said that trusting officials to care for public health and safety should not come at the "expense of basic constitutional architecture."

The justice explained that he shared the Hotze relators' concerns that the Texas Disaster Act has granted authority to the executive branch is really a legislative power.

The state constitution prohibits one branch of government from using the powers that belong to another, he explained. In fact, the constitution specifically says that no one can suspend Texas laws except for the legislature.

Devine said it would be difficult for him to square the part of the Texas Disaster Act that allows the governor to suspend laws, with the Texas Constitution.

The opinion said that Abbott argued in the litigation that when the legislature passed the disaster act, it had delegated its authority to suspend laws to the governor. Devine noted that in a past ruling, the Supreme Court found the legislature is not allowed to delegate that authority to anyone else.

"The Texas Constitution doesn't have a 'pause' button for trying times," Devine wrote. "As bulwarks of liberty, courts have a duty to opine on those issues that involve the most rudimentary conception of liberty—to move about freely and sustain one's way of life."

No one from Abbott's press office immediately responded to an email seeking comment.

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Texas Supreme Court Reminds Cities There Is No Pandemic Exception to the Constitution