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Texas Supreme Court lets coronavirus orders stand, despite outcry by conservatives This article has
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Houston activist Dr. Steve Hotze so far has whiffed in five attempts to overturn COVID-19 orders by Gov. Greg Abbott, Harris County Judge Lina Hidalgo.

AUSTIN — The Texas Supreme Court has refused to hear several challenges by a Houston conservative power broker to emergency orders on coronavirus issued by Gov. Greg Abbott and Harris County Judge Lina Hidalgo.

Without comment, the nine Republican justices on Friday denied a request that they review a trial court that upheld Hidalgo’s April 22 mask order.

The order required residents to wash hands before leaving home and wear masks, stay 6 feet away from each other and avoid touching their faces in public. For a time, Abbott, a Republican, prevented Hidalgo, a Democrat elected in 2018, from enforcing it. The governor later reversed course and issued his own mask order.

Experts said Friday they weren’t surprised that in five recent lawsuits, the state’s highest civil court has declined Dr. Steve Hotze’s demands that it step in and overturn Abbott and Hidalgo’s COVID-19 orders. Each time, the court ruled on procedural grounds.

Hotze, a staunch conservative who for decades has wielded influence with his “slate cards” telling Harris County voters whom to back in Republican primaries, said his bid to protect Texans’ state and federal constitutional rights will continue.

“We fight on,” he said. “It’s obvious to me some members of the Supreme Court just don’t want this case to come up. They don’t want to go against Abbott. Six of them were appointed by Abbott.”

Before he was attorney general, Abbott served as a Supreme Court justice. Chief Justice Nathan Hecht is the only remaining member of the court from the days Abbott served on it. As governor, Abbott has filled vacancies on the court.

Still, a concurring opinion in the court’s July 17 dismissal of a challenge to Abbott’s executive orders by Hotze and several conservative lawmakers mirrored growing unease in the state GOP over letting the governor enjoy a completely free hand to restrict Texans’ personal lives.

Justice John Devine, the court’s most socially conservative justice, noted that Abbott has relied heavily on the Texas Disaster Act of 1975, which gives him broad authority to suspend state regulations during an emergency.

“I find it difficult to square this statute, and the orders made under it, with the Texas Constitution,” wrote Devine, who agreed with his colleagues that Hotze lacked jurisdiction.

But Devine, like Hotze, quoted a section of the Texas Constitution that says, “No power of suspending laws in this State shall be exercised except by the Legislature.”

Despite the outcome, Devine said “this is not to say that a governor’s emergency-related actions are categorically immune from judicial review.”

Sanford Levinson, a constitutional law expert who teaches at the University of Texas Law School, sees an emerging split between Texas Republicans who distrust the federal government but have confidence in state government, and those who increasingly view both state and federal government with suspicion – if not outright hostility.

“We are an epicenter” of COVID-19, Levinson said, referring to Texas. “To his credit, Abbott recognizes that. This is not the moment to bring a suit on how being forced to wear a mask is the equivalent to the Gestapo.”

In a video before he was recently elected chairman of the Texas GOP, former Florida congressman Allen West stood at the San Jacinto battlefield.

“Today there’s a new battleground, … and it’s really not too much different from what they faced,” West said of the early Texans fighting Mexico – “the despotism, the tyranny that we see in the great state of Texas, where we have executive orders and mandates, people telling us what we can and cannot do, who is essential, who is not essential.”

The Texas Freedom Caucus, comprised of the most conservative members of the Texas House, has objected to Abbott’s orders. It’s calling for changes that would require the Legislature to be called into special session and approve such edicts.

Rice University political scientist Mark Jones said if it were 2012 or 2014, when Republicans had complete sway in statewide elections, Abbott “might have been more willing to listen” to tea party activists, Hotze and the Freedom Caucus.

“But it’s 2020 and Donald Trump could lose Texas,” Jones said. “Abbott realizes that voters in many ways are going to judge Texas Republicans based on their handling of the pandemic. Republicans need to be pragmatic and being pragmatic means infringing on some constitutional rights because of the unique situation we’re in with COVID.”

Robert T. Garrett, Austin Bureau Chief. Bob has covered state government and politics for The Dallas Morning News since 2002. Earlier, he was a statehouse reporter for three newspapers, including the Dallas Times Herald. A fifth-generation Texan, Bob earned a bachelor’s degree from Harvard University. He covers Gov. Greg Abbott, the state budget, school textbooks and child welfare.

rtgarrett@dallasnews.com /bob.garrett.39 @RobertTGarrett

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