Firm News

Texas Supreme Court Orders Stay of Temporary Restraining Order Prohibiting Cy-Fair ISD from Requiring On-Campus Attendance for Professional Development; Opinion on Mandamus Pending

The recent litigation over whether Cy-Fair ISD can require its staff to attend in-person professional development on campus prior to the start of the school year provides an opportunity for a refresher on satisfying the requirements for injunctive relief, mandamus relief, standing, and the waiver of governmental immunity.  This litigation also presents an early look at what may surely be multiple lawsuits in the coming months (and potentially years), on interpreting Governor Abbot’s executive orders governing the state response to the COVID-19 pandemic as school districts and parents across the state navigate uncharted territory.

The litigation began when the Cy-Fair American Federation of Teachers (AFT) filed suit in Harris County District Court seeking a temporary restraining order and an injunction against Cy-Fair ISD superintendent Mark Henry (Cy-Fair).  Mr. Henry was allegedly requiring staff and teachers to attend on-campus professional development in person, prior to the start of the 2020­–21 school year.  See Cy-Fair American Federation of Teachers v. Henry, Cause No. 2020-48768, 334th District Court, Harris County.  The petition alleged that Cy-Fair was requiring teachers and staff to return to campus for three weeks beginning on August 14, 2020, and engage in various activities, including breakout sessions, assembling in common areas, and even a scavenger hunt.  The petition asked for the district court to enjoin the requirement of in-person attendance and allow teachers and staff to attend remotely. 

The district court granted the temporary restraining order the day the lawsuit was filed on August 14, 2020.  Over the weekend, Cy-Fair quickly filed its petition for writ of mandamus in the Texas Supreme Court.  See In re Henry, Cause No. 20-0631.  On Sunday, August 16, the Court issued a stay of the order pending resolution of the petition.

Cy-Fair argued that a compelling reason for bypassing the intermediate appellate courts exists when the issue presented is one of state-wide importance.  See In re State Bar of Tex., 113 S.W.3d 730 (Tex. 2003); see also Tex. R. App. P. 52.3(e).  Cy-Fair also argued that quick attention was required because the injunction hearing would not occur until August 28, 2020, and the TRO would effectively cover nearly the entire period of professional development, making the petition moot if not quickly addressed.  See Davis v. Taylor, 930 S.W.2d 581, 582 (Tex. 1996) (compelling circumstances present where party notified he would not be on ballot two days before ballots were to be printed).

Cy-Fair’s petition rested its argument on the conflict between Governor Greg Abbott’s Executive Order GA-28 (June 26, 2020), which exempted school districts from capacity restrictions, and the Harris County Public Health and Houston Health Department’s Joint Control Order of Local Health Authorities for Harris County (Joint Control Order), which purported to impose control measures on local school systems.  The Joint Control Order provided that school sponsored events and activities “must not take place in-person, on or off campus, until school systems resume on-campus instruction.”  Cy-Fair argues that the Joint Control Order was predicated on Subchapter E of Chapter 81 of the Texas Health and Safety Code, which the Governor suspended with Executive Order GA-28, and that the Joint Control Order has no legal basis.  Cy-Fair relied on GA-28’s provision that it supersedes “any conflicting order issued by local officials . . . to the extent that such local order restricts services allowed by this executive order.”  “Stated simply, any local control order that places restrictions on school operations allowed by GA-28 conflicts with GA-28.”  Cy-Fair Petition at 8-9 (citing Attorney General Opinion KP  July 28, 2020). 

Cy-Fair’s petition also argued that the district court lacked subject matter jurisdiction to issue the order due to there being no waiver of Dr. Henry’s governmental immunity when acting in his official capacity.  See DART v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).  Cy-Fair argued that Henry would only waive his immunity if he acted without legal authority or failed to perform a purely ministerial act.  This argument would of course depend on Cy-Fair successfully arguing that the Joint Control Order conflicts with GA-28 and is therefore void.  

Cy-Fair also attacked AFT’s standing as a labor organization, alleging there is no private right of action available to a member of the public to enforce Subchapter E of Chapter 81 of the Texas Health and Safety Code, which can only be brought by the governmental entity issuing the order.  See Tex. Health & Safety Code § 81.084(e).  Cy-Fair’s last argument was that even if the Joint Control Order did not conflict with GA-28 and AFT could enforce it, the order still exceeded the authority granted to local health authorities by statute.  

Cy-Fair contemporaneously filed a motion for expedited consideration and temporary relief, asking in part that the Texas Supreme Court stay the enforcement of the district court’s temporary restraining order, prompting the order on Sunday from the Court doing just that.

On Monday morning, the Texas Attorney General’s office filed its amicus brief in support of Cy-Fair’s petition, essentially reiterating Cy-Fair’s arguments.  Later that day, Humble ISD, Clear Creek ISD, and Katy ISD filed their amicus brief in support of Cy-Fair. 

There is no request for a response or deadline for a response on the Court’s website, but it is likely that AFT will file one soon.  The Court’s consideration of the Governor’s ability to override local health authorities and the rights of labor organizations to assert claims in the interest of public health should provide for an interesting opinion and may set the stage for more to come. 

The briefing and orders for this matter are available on the Texas Supreme Court’s website at: