A Dallas state court has denied Gov. Greg Abbott’s request to dismiss a lawsuit brought earlier this month by eight Texas bar owners who claim Abbott violated their constitutional rights with an executive order that shuttered bars across Texas in an effort to slow the spread of COVID-19.
During a Tuesday afternoon Zoom hearing, Dallas County District Judge Martin Hoffman also ordered the depositions of Texas billionaires Tilman Fertitta and Robert Rowling, who both serve on Abbott’s Texas COVID-19 Task Force, so that the plaintiffs can seek answers on Abbott’s reasoning behind singling out standalone bars in his June 26 order.
Larry Friedman, one of the plaintiffs’ lawyers, had originally asked Judge Hoffman to order the deposition of the governor himself, but that request did not gain much footing.
The July 8 lawsuit alleges Abbott’s Executive Order-28 violates the equal protection clause of the Texas Constitution by banning guests from patronizing establishments that generate 51% or more of their revenues from alcohol sales. The plaintiffs allege their rights were violated because they were denied due process and because they are being treated differently from “affiliated bars” — bars within hotels, restaurants and other businesses — which did not have to close as a result of the order. The plaintiffs also say they were only given three hours’ notice before Abbott’s order took effect.
The plaintiffs claim affiliated bars are receiving special treatment from Abbott because of the heavy political influence of Fertitta, Rowling and others on the governor’s task force. Fertitta is the owner of the Landry’s restaurants and Rowling owns the Omni Hotels. The lawsuit points out that no standalone bar owners serve on the task force.
Tuesday’s hearing resulted from a plea of jurisdiction brought last week by the state’s lawyer, Assistant Attorney General Benjamin Dower, who said the suit should be dismissed because Abbott is not the appropriate defendant and because the plaintiffs’ claims are barred by sovereign immunity. He explained that it would be the TABC or law enforcement — not Abbott — who would enforce the governor’s executive orders.
When Judge Hoffman ruled that he was denying the plea of jurisdiction, Dower announced his notice of appeal “to invoke a stay on the proceedings,” despite the fact that the judge had not signed a physical order yet.
“The governor appealed it before there was a ruling. It’s become personal from the governor’s standpoint when it shouldn’t be,” Friedman told The Texas Lawbook after the hearing. “It means they expected to lose it, so they had an appeal in their pocket and filed it.”
The Office of the Attorney General did not respond to a request for comment.
The upcoming testimony of Fertitta and Rowling will serve as evidence to help Judge Hoffman determine whether he should issue a temporary injunction banning the enforcement of Abbott’s order against the bars until a resolution in the case is reached.
A hearing on the matter is currently scheduled for Monday. That and the depositions will likely be delayed while the parties sort out the state’s interlocutory appeal on the plea of jurisdiction issue.
Depending on what Fertitta and Rowling say, they could help the plaintiffs establish their legal argument that there was no rational basis for Abbott to conclude the 51% alcohol sales revenue threshold that closed standalone bars and the fact that bars are less likely to abide by social distancing.
Judge Hoffman ended up ordering the depositions of Fertitta and Rowling after Dower failed to bring the government’s own list of names for who could be deposed on the topic — despite the judge requesting them to do so during a hearing last week. Judge Hoffman settled on Fertitta and Rowling because the plaintiffs suggested them at last week’s hearing as the next best options besides the governor himself.
However, Dower offered his own rationale during Tuesday’s hearing for why the governor singled out standalone bars: Bar patrons are more likely to get inebriated — and thus not abide by social distancing guidelines — than patrons of bowling alleys or other establishments that happen to also sell alcohol.
“I think it’s pretty easy to say that a bowling alley is easier to engage in social distancing,” Dower said. “People generally don’t go to a bowling alley in order to become inebriated … I’ve never heard the phrase to go ‘bowling alley hopping,’” Dower said.
“I’ve been to a few bowling alleys and [seen] quite a few people who are inebriated there,” Judge Hoffman chuckled.
While he thinks the suit is making progress, Friedman expressed some frustration with the “roadblocks” he said the governor has thrown up “to a very important but simple matter.
“The governor can solve this problem on its own by amending his executive order so that it’s equally applied to all [service industry] business owners,” Friedman told The Lawbook. “Remember, everybody wants to fight COVID-19. This is not a fight back against the governor’s effort to contain the coronavirus. This is just about equal protection. Treat us fairly.”