Appeals court rules against El Paso's shutdown order amid Covid surge

There can only be "one captain of the ship," judge says in ruling in favor of the state.

A state appeals court Friday night rejected El Paso County's stay-at-home order, even as the West Texas community requires mobile morgues for its growing number of coronavirus victims.

The Eighth District Court of Appeals ruled in favor of the state and local restaurant owners in their case against El Paso County Judge Ricardo Samaniego, telling him there's only "one captain of the ship" in terms of Covid-19 response — and it's Texas Gov. Greg Abbott.

Samaniego's local directives cannot be allowed to trump Abbott's statewide orders, according to Jeff Alley, chief justice of the Eighth Court of Appeals.

"Because there must be a final decision-maker, the Legislature inserted a tie breaker and gave it to the governor in that his or her declarations ... have the force of law," Alley wrote. "El Paso County can point to no similar power accorded to county judges."

Alley, appointed to his post by Abbott last year, added: "And while it is not for us to judge the wisdom of the Legislature’s choice, the idea of one captain of the ship has intuitive appeal. Did the Legislature really intend for the chaos of a system that allows for 254 different county responses to a statewide disaster?"

Samaniego, the chief county administrator, ordered the shutdown of non-essential businesses on Oct. 29 in an effort to slow the latest spike of Covid-19. The order was set to expire Wednesday before Samaniego extended it to Dec. 1.

At least 741 people have died from Covid-19 in El Paso County, according to a health department report on Friday, up from 725 just a day earlier. There are now 1,132 coronavirus patients in the hospital with 317 of them in intensive care, according to the county.

The steep rise in cases forced the county to order 10 mobile morgues to handle the overflow of bodies.

But local restaurants and Texas Attorney General Ken Paxton insisted that Samaniego's decree went far beyond Abbott's executive order that outlines what limits can be placed on private businesses.

Paxton hailed the appeals court ruling and called Samaniego a "tyrant."

Samaniego blasted Paxton for gloating "instead of coming to El Paso to walk alongside me by the mobile morgues with 144 El Pasoans; or send his condolences to the families of his 741 constituents who died of Covid-19."

Even with the appeals court ruling, most businesses are limited to 50 percent capacity and restaurants must close at 9 p.m.

The appeals court called for both sides to "identify some stand-alone restrictions in (county orders) that would not be inconsistent with (state guidelines)."