in Re the State of Texas ( 2021 )

Supreme Court of Texas
══════════
No. 21-0873
══════════
In re State,
Relator
═══════════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════════
PER CURIAM
Today we stay enforcement of San Antonio Independent School
District’s policy requiring that all its employees be vaccinated for
COVID-19 by October 15. We grant this relief on our own authority
under Rule 52.10(b) of the Texas Rules of Appellate Procedure while we
consider the State’s petition for writ of mandamus. We express no view
on the merits of the State’s claims.
This case, like those regarding local governmental entities’
authority to mandate the wearing of masks, challenges the legality of
the Governor’s orders under the Texas Disaster Act. We have not yet
had the opportunity to consider the merits of these challenges. Our role
has been to issue orders preserving the status quo. In the case of local
governmental entities seeking to impose new mask mandates, we stayed
temporary-relief orders permitting those mandates. In re Greg Abbott,
No. 21-0686; In re Greg Abbott, No. 21-0687. When a court of appeals
exercised its authority under Rule 29.3 to reinstate a temporary
injunction permitting mask mandates, we stayed its order. In re Greg
Abbott, No. 21-0720.
Regarding vaccine mandates, the Governor first sought to ensure
that “no governmental entity can compel any individual to receive a
COVID-19 vaccine administered under an emergency use authorization”
in Executive Order GA-35, issued April 5, 2021. The School District
issued its vaccine mandate on August 16, and the State promptly filed
suit. On August 20, the School District clarified that it would only
mandate vaccines that receive full FDA approval. The FDA granted full
approval to the Pfizer COVID-19 vaccine on August 23, and the State
nonsuited its claims against the School District. Two days later, the
Governor issued Executive Order GA-39, barring governmental entities
from compelling “any individual to receive a COVID-19 vaccine.” The
underlying suit followed on September 9.
The School District argues that its vaccine mandate is the status
quo because it predates the Governor’s order banning all COVID-19
vaccine mandates by a matter of days. It claims that the last actual,
peaceable, non-contested status preceding the pending controversy was
the five days between its clarification and GA-39’s issuance. However,
the Governor asserted his authority to control vaccine mandates at the
state level in April, months before the School District implemented its
mandate. The status quo between the parties is not local control over
vaccine mandates.
2
Our exercise of authority under Rule 52.10 to preserve the status
quo is not a comment on the decision of the district court to deny the
State’s request for a temporary injunction. To obtain a temporary
injunction, a party must plead and prove (1) a cause of action against
the defendant, (2) probable right to the relief sought, and (3) a probable,
imminent, and irreparable injury in the interim. Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 204 (Tex. 2004). We are confident that the court of
appeals will expeditiously consider the State’s appeal.
The petition for writ of mandamus remains pending before the
Court.
OPINION DELIVERED: October 14, 2021
3