The coronavirus pandemic has had and continues to have an extraordinary impact upon all of our lives. Beyond the suffering and death of too many of our fellow Texas citizens, we have been subject to numerous orders of the governor that have dramatically impacted our lives. Whether we can go to work, go out to eat, work out at our gym, go to a retail store, or even go out for a walk or a ride has been prohibited or severely restricted by the governor. In essence, we have lost the general right to go or not go to any lawful place in Texas that is ordinarily left to our own discretion.
Whether one agrees or not if the governor should have this power, the Texas Legislature granted him or her this power in 1975 by adopting a statute, Tex. Gov’t. Code, Section 418.01 et.seq. This is the key to understanding the governor’s power. He or she only has such power that is granted by the statute. There is a constitutional aspect to it for Article V, Section 10, Texas Constitution, provides the governor has the inherent power “to faithfully execute the law,” but the key is the extent of that power is simply an issue of statutory construction.
Obviously, the governor must interpret the statute in order to execute it, but no one disagrees that if a controversy arises as to the meaning of the words in the statute, it is conclusively and finally determined by the Article V Judiciary under their grant of judicial power pursuant to Article V, Texas Constitution.
A critical controversy has arisen twice. It focuses solely on Executive Order 13 (EO 13) issued by Gov. Greg Abbott. That order does not apply to the general public, but focuses on incarcerated persons and changes the law applicable to a Judge’s decision regarding trial bail. It suspends certain criminal statutes authorizing trial judges to release jail inmates with violent histories during the current state of disaster.
The immediate question that arises is what does that have to do with the coronavirus pandemic? In fact, the net result of that order is compelling one to remain in a physical enclosure with hundreds or more others who have been reported by this paper and others to have the coronavirus. It forcibly ensures they will be exposed when the existing criminal law will not be applied to them to be free in order to shelter in place like all other citizens. It must be understood these individuals have not been found guilty but are awaiting their trials. Without a pandemic, these individuals have a legal right to walk free until they are or are not found guilty. However, the governor says that is not so.
Yet, Tex. Gov’t Code, Section 418 simply does not give the governor this power. The clear and unambiguous language of the statute does not in any manner refer to the judiciary nor give the governor power to suspend criminal laws. The Supreme Court justices have long held that they believe every word excluded from a statute was so excluded for a purpose. The statute only allows suspension of civil, regulatory laws and rules of executive agencies. The Legislature provided that only these “certain” laws could be suspended and the governor was to be the commander-in-chief of state agencies, boards and commissions that have emergency responsibilities. There is again, no mention of any power over the judiciary. Finally, the Supreme Court has long held that “legislatures legislate by legislating, not by doing nothing, not by keeping silent.” There is simply no dispute nor any reasonable construction of these words in the statute that justifies the governor having the power to suspend criminal laws or order judges as to what they can do or not do.
So, two controversies occurred. Sixteen judges sued the governor to have the Supreme Court declare EO 13 invalid, Cause No. 20-0291. Then, an incarcerated individual appealed to the Court of Criminal Appeals when he was found eligible for release, but was denied that right by a judge who held she was bound by EO 13, In re Donnie Reed Davis, Cause No. WR-91, 259-01. What did our two highest courts do? Nothing.
The Texas Supreme Court went to great pains to set forth this was the most serious type of case when there is a constitutional crisis between two branches of government. However, it was not but a mere issue of statutory construction. The court then held they could not hear such a grave case since the judges lacked standing. That is, the judges must have a “personal, legally cognizable injury,” and even though they have sworn to uphold the Constitution and laws of the state and they have the constitutional power to interpret and apply the law, when the governor orders them to stand down and thereby paralyzes their authority, there simply is no injury. The court exclaimed they had never heard of such a case where standing was found to exist. Do not extreme times raise novel issues and is this court incapable of dealing with them or must they just throw down the pick, and say I am sorry??? They did.
The Court of Criminal Appeals was even more blatant. Even though an individual Texas citizen had a right to be released pursuant to existing criminal law but was denied that right by a district court judge citing EO 13, the court simply denied the request for a writ of mandamus without opinion. This “run of the mill” case of, in essence, all district court judges in the State of Texas fighting the governor during a pandemic, which was also occurring in the jails and prisons, was not even worth a comment? Amazing.
Why did these two courts take the path of refusing to hear the merits of the case? Is it not the proper time during the pandemic where it could be seen that the court was “tying the hands” of the governor? Is it a high degree of respect or allegiance to the governor? It is unfathomable as to why they would avoid such a critical issue. Being subject to the rule of law applies at all times, not just normal times.
The irony is if the district judges were allowed to let them walk free under the existing criminal law, then those who were incarcerated would now be subject to all the other orders of the governor. Instead, these individuals are denied what literally thousands of cases have held — the right to be free from bodily restraint is one of the most fundamental rights. To be denied that right and thereby be subject to “housing” that creates a high risk of contracting the coronavirus, is a real and legal tragedy.
So, the simple query is, let us forget these high courts that cannot muster the power to speak, where is that one lone district judge in Texas who will simply refuse to obey EO 13 for the district judge has the power to interpret statutes, and he/she can clearly see under Chapter 418, Abbott had no power to issue it? Therefore, EO 13 is simply invalid, it does not apply to the judge’s decision and the incarcerated person may go free.
Maybe then, our two highest courts will do their job. The rule of law must be construed and applied at all times.
Ron Beal is a Professor of Law at Baylor University.