Image: Employees of Backwoods Saloon on Lexington Court in Conroe have filed suit against Montgomery County law enforcement officials to prevent the enforcement of Texas Governor Greg Abbott’s business closure mandate in the Governor’s Executive Order GA-28.
The Golden Hammer Staff Reports
Conroe, July 16 – Backwoods Saloon, a bar on Lexington Court in Conroe, filed a lawsuit on Tuesday, July 14, 2020, against several Montgomery County law enforcement officials to obtain an injunction against the enforcement of Texas Governor Greg Abbott’s Executive Order GA-28, dated June 26, which shuts down business which establishments which receive more than 51% of their revenue from alcohol sales. Backwoods Saloon and its owner Mark Beatty, who hold a license with the Texas Alcoholic Beverage Commission (TABC), have filed suit against Montgomery County District Attorney Brett Ligon, Sheriff Rand Henderson, and Precinct 3 Constable Ryan Gable, in the 284th District Court over which District Judge Kristin Bays presides.
Houston attorney Brent Webster represents Backwoods Saloon and Beatty in the lawsuit and told The Golden Hammer in an exclusive interview, “Governor Abbott’s Executive Order criminalizes any assembly of persons (even just 1), and any economic use of a business’s real estate, purely based on past alcohol sales by that business! This clearly violates the due course of law clause of the Texas Constitution, the freedom of assembly clause, and the equal protection clause. Local law enforcement is responsible for enforcing this order. To prevent that enforcement, my economically-struggling client, Backwoods Saloon LLC, has sued county law enforcement and asked them to agree to a temporary injunction, preventing criminal enforcement of the Governor’s Order.”
The primary official who runs the Montgomery County government, Jason Millsaps, who is the Chief of Staff to the County Judge, told this newspaper that “Montgomery County law enforcement has no intention of shutting down businesses, including that bar. But we’re not the enforcers for bars; TABC is. They’re suing the wrong people.” Millsaps further explained, “Ever since the Governor allowed businesses to begin reopening, we haven’t enforced the business closure orders, even though we were enforcing them back in March at the beginning of the pandemic.”
In the lawsuit, Backwoods Saloon alleges that law enforcement officials would violate the Texas Constitution by enforcing the business closure orders under:
- Article I, Section 27, of the Texas Constitution which protects Texans’ fundamental right to assemble together for the common good;
- Article I, Section 19, the Texas Constitution’s “due course of law” provision;
- the constitutional right to freedom of movement;
- Article I, Section 3, of the Texas Constitution which provides equal protection of the law.
In the lawsuit, Backwoods Saloon argues “There is no rational basis for the disparity of treatment and there is no legitimate governmental purpose for closure solely based on alcohol licensing…the 51% license businesses present nothing uniquely different than the less than 50% licensees in the nature, manner and extent of the business they conduct, or the purported COVID risks they present, yet the 51% licensees are completely shut down…[while] less than 51% license businesses are allowed to operate with limited restrictions.”
The lawsuit, for which Judge Bays has not set any hearings or trials yet, seeks injunctive relief to prevent enforcement of the Governor’s executive order, attorney fees, and damages of up to $1 million.
Many law enforcement officials, including Precinct 2 Constable Gene DeForest, have noted that Abbott’s Executive Orders are all unconstitutional, because they violate the Separation of Powers Doctrine which requires that the Legislature must write laws before they become enforceable. DeForest said last week, ““The Constable’s Office must consider the intent of the Texas Constitution in regards to how laws of the land are passed and enforced in this state. Normal legislative precedents demand that law enforcement only enforce laws and statutes that are the product of the legislative process or the product of regulatory authorities authorized by the legislature. The further removed we become from this process, the more liability and responsibility we incur as an agency.”
For that reason, Constable DeForest and Sheriff Henderson have indicated they will not enforce the Governor’s mandatory face mask order in Montgomery County.
Ligon, who is a Defendant in the Backwoods Saloon lawsuit, nevertheless responded to an inquiry from this newspaper about whether the District Attorney’s Office in Montgomery County will enforce the Governor’s Executive Order and said, “As a practical matter the Montgomery County District Attorneys office doesn’t comment on pending civil litigation. More specifically, however, is the community concern regarding GA-28 and its enforcement. While I agree with Governor Abbott that all Texans should comply with CDC guidelines, the drafting language of GA-28 undermines any legitimate effort at enforcement. For example, there is no database to record anyone who receives a warning from law enforcement making that provision entirely meaningless. Secondly, the mere act of detaining someone to give them a warning is prohibited in the express language of the order. There are several other substantive defects in GA-28 that make it more of a political declaration than a practical document to enforce. I hope all Montgomery County folks continue to use the good sense that God gave them and take appropriate steps to safeguard themselves.”
Sheriff Henderson did not respond to telephone calls seeking comment.