David W. Howell v. Greg Abbott, in His Official Capacity as Governor of the State of Texas

          Supreme Court of Texas
                           ══════════
                            No. 22-0311
                           ══════════

                          David W. Howell,
                              Petitioner,

                                   v.

       Greg Abbott, in his Official Capacity as Governor of
                       the State of Texas,
                             Respondent

   ═══════════════════════════════════════
               On Petition for Review from the
       Court of Appeals for the Fourth District of Texas
   ═══════════════════════════════════════

      JUSTICE BLACKLOCK, joined by JUSTICE DEVINE, concurring in the
denial of the petition for review.

      I concur in the denial of the petition, which challenges
gubernatorial emergency orders no longer in effect. This case is moot
because the relief Mr. Howell sought—removal of allegedly unlawful
coronavirus measures such as gathering restrictions, business closures,
and mask mandates—has already been achieved.           It was achieved
through the political process by a decision of the Governor, not through
the judicial process by a decision of judges, but it was achieved
nonetheless. Indeed, it may be that constitutional arguments like those
Howell urges played a role in the Governor’s decision to withdraw the
restrictions. As I have previously observed, constitutional objections to
the government’s extraordinary response to the virus require careful
consideration by all branches of government, not just by the courts. In
re Salon a la Mode, 

, 860 (Tex. 2020) (Blacklock, J.,
concurring).
       When challenged government action has ceased and no credible
threat of its reinstatement exists, courts lack jurisdiction to determine
its legality because doing so remedies no concrete injury. See Heckman
v. Williamson Cnty., 

 (Tex. 2012). Under that rule,
this case is moot.1
       Although this petition should be denied, the court of appeals’
misapplication of the law of standing should not go without comment.
The court of appeals held that Howell lacked standing to challenge
pandemic emergency orders because Howell’s “interest in the [matter]
is not distinct from that of the general public.” Howell v. Abbott, No. 04-
21-00119-CV, 

, at *3 (Tex. App.—San Antonio March
30, 2022). Of course, the oft-cited rule on which the court of appeals


       1 Howell concedes that his claims for injunctive relief were mooted by
the withdrawal of the challenged orders, but he argues that his pursuit of
nominal damages saves this case from mootness. He relies on the U.S.
Supreme Court’s recent decision to that effect in Uzuegbunam v. Preczewski.

, 801–02 (2021). We are not obligated to follow the U.S. Supreme
Court’s decisions when determining the jurisdiction of Texas courts under our
state constitution. Davenport v. Garcia, 

 (Tex. 1992). This
Court has never held that a claim for nominal damages forestalls the mootness
of a challenge to rescinded government action. This pro se appeal, which the
State contends is beyond the Court’s jurisdiction for additional reasons other
than mootness or standing, does not present a suitable opportunity to consider
the effect of a nominal-damages claim on mootness under Texas law.




                                      2
relied—that plaintiffs challenging government action must show injury
“distinct from that of the general public”—contains an unspoken
assumption. It assumes that government action operates on distinct
classes of people, not directly on every person all at once. In most cases,
this assumption is valid. Typically, a government action will directly
affect only a discrete subset of the public, and only those directly affected
have a concrete, particularized stake in a judicial determination of the
action’s legality. By contrast, citizens against whom the government’s
action does not directly operate—citizens with only a “generalized”
interest in seeing the laws followed—lack the concrete injury required
to challenge the action in court. Andrade v. NAACP of Austin, 

, 17–18 (Tex. 2011).
       What happens, however, when the assumptions underlying these
traditional rules of standing no longer hold? Specifically, what happens
when the government’s action operates not against categories of people
but directly against everyone at the same time? It should come as no
surprise that many common formulations of the law of standing do not
account for government action so all-encompassing that nearly everyone
is personally and concretely injured by it and therefore has standing to
challenge it.
       Throughout our country, the government’s response to the
coronavirus shattered traditional assumptions about the limited scope
of government action.       Governments commandeered the personal,
private decisions of daily life for every citizen in a way many of us would
not have imagined possible before it suddenly happened. Texas was no
exception, although the duration and severity of the impositions were




                                     3
more limited here than in many other places.           Surely the usual
requirement that a plaintiff show injury “distinct from that of the
general public” cannot be applied mechanically when its foundational
assumptions about the limited nature of government action are no
longer valid.
      As the court of appeals acknowledged, the orders Mr. Howell
challenges “meaningfully changed Texans’ day-to-day activities.”
Howell, 

, at *1. Nobody denies that Howell, like nearly
all Texans, saw his daily life altered dramatically by the challenged
orders. A person whose “day-to-day activities” have been “meaningfully
changed” by a government order quite obviously has standing to
challenge the order. Imagine if such an order operated only against a
particular class of persons. No colorable argument could be made that
those in the targeted class lack standing to challenge the order. In this
case, the targeted class included nearly everyone. But the court of
appeals held—and the State now contends—that when a government
order operates directly against everybody, then nobody has standing to
challenge it. The opposite is true. When a government order operates
directly against everyone at the same time, then everyone has standing
to challenge it. That the existing judicial precedent rarely accounts for
such a circumstance further illuminates the striking peculiarity of the
year 2020 in the history of American law.
      The court of appeals further faulted Howell for failing to
“explain[] how he suffered a concrete injury not suffered by the public at
large.” Id. at *2. This statement takes two valid concepts and combines
them into an invalid rule. It is true that plaintiffs must show “concrete




                                    4
injury.” DaimlerChrysler Corp. v. Inman, 

 (Tex.
2008). It is likewise true that an injury is not concrete if it is merely a
“generalized grievance” shared by the public at large. Andrade, 345
S.W.3d at 17–18. It is not true that a plaintiff must both show a concrete
injury and distinguish his injury from that suffered by others. Concrete
injury is the requirement. Asking whether a plaintiff alleges only a
“generalized grievance” is just one way of asking whether there is
concrete injury at all.       When a plaintiff like Howell has alleged a
personal, concrete injury, there is no need to also ask whether the injury
is shared by the public at large. If everybody has suffered the same
concrete injury, then nobody has suffered a mere generalized grievance.2
       With these observations noted, I respectfully concur in the denial
of the petition for review.




                                            James D. Blacklock
                                            Justice

OPINION FILED: December 9, 2022


       2 See Spokeo, Inc. v. Robins, 

, 339 n.7 (2016) (“The fact that
an injury may be suffered by a large number of people does not of itself make
that injury a nonjusticiable generalized grievance.”); FEC v. Akins, 

 (1998) (“[W]here a harm is concrete, though widely shared, the Court
has found injury in fact.”) (internal quotation marks omitted); Data Foundry,
Inc. v. City of Austin, 

, 697 (Tex. 2021) (“Data Foundry has
suffered an injury peculiar to itself, in that it alleges the rates it must pay to
Austin Energy are discriminatory and otherwise illegal. In the context of
lawsuits filed by ratepayers to challenge utility rates charged by a
municipality, we have not required an individual plaintiff to allege its injury
is distinct from injuries other ratepayers may suffer.”).




                                        5