The COVID-19 pandemic, and the subsequent smorgasbord of state and local orders in response has certainly set the stage for a battlefield of political philosophy and governance. Within that backdrop, today, April 9, 2021 the Texas Supreme Court issued its opinion in No. 20-0363; In re Shelley Luther, Relator, concerning a city’s effort to enforce COVID-19 limitations on the operation of a business.  The well-publicized case involved a writ of habeas corpus sought by Shelley Luther, a cosmetology salon owner that was fined and jailed for violating a temporary restraining order barring the in-person operation of the salon during certain COVID-19 related emergency regulations implemented by State and local governments. The City of Dallas sued Luther and her salon on April 28, 2020 alleging she was operating in-person salon services in violation of COVID-19 regulations. The trial court entered a temporary restraining order the same day with the following restrictive injunction:

On May 5, 2020, following another hearing, the trial court held Luther and her salon in criminal and civil contempt for allegedly continuing to conduct in-person services such as haircuts and manicures after she was served with the temporary restraining order. The next day, Luther filed a writ of habeas corpus and motion for emergency relief to the Texas Supreme Court. On May 7, the Texas Supreme Court ordered Luther be released from jail on her personal bond. The opinion of today was a review by the Texas Supreme Court of whether the temporary restraining order was void for failure to set forth specific, unambiguous, and in reasonably detailed terms, the acts to be restrained and the reasons for its issuance, as required by Texas Rule of Civil Procedure (“TRCP”) 683.

The Supreme Court held today that the language of the injunction did not meet the standards of TRCP 683 because the restraining order did not cite the specific state, county, or city regulation Luther allegedly violated. Instead, the restraining order said “…in violation of State of Texas, Dallas County, and/or City of Dallas emergency regulation related to the COVID-19 pandemic…” Hence, the restraining order appeared to rely on one or more of the many, many regulations published by multiple agencies, but did not say precisely which one(s). The Court reasoned that this would require Luther to navigate the complex abundance of emergency orders and regulations that had been passed (some of which contradicted orders by other authorities) to determine what conduct was prohibited at any given time the temporary restraining order was in effect. The Court also noted that the use of “and/or” “inherently leads to ambiguity and confusion.” Further, the Court held that restraining order also did not specify the acts to be restrained without reference to other documents, and was thus too uncertain to enforce by contempt.  Thus, the Court held the injunction itself was void, and therefore the contempt order relying on the injunction was also void.

The result is certainly interesting in that the Court appears to require a cite to specific statutes or regulations violated, from which it can be inferred that if there is a violation of multiple regulations or statutes, those should each be listed specifically, and simply referring to them all generally is insufficient. Without question, the sheer volume of executive orders and regulations that flowed from the pandemic and attempts to mitigate its effects on sometimes conflicting human interests is difficult to follow. The lesson from this case is that an attorney seeking to enjoin someone from violating one or more of these regulations (or perhaps multiple laws and regulations in another context) will need to specifically point to the law or regulation in her proposed order. Another lesson, it appears, though the Court was not as thorough in this portion of the analysis, is that the use of general behaviors such as “in-person services” may not be adequate to specify the acts prevented. Interestingly, “all in-person services” seems specific enough to cover any services performed by the salon whatsoever, but apparently the Court expects each activity to be specifically enumerated in the order. One must wonder if the order had to say, “no haircuts, no manicures, no pedicures,” specifically, and if so, what pathways around such a restraining order would that create?  Similarly, would the broad reference to unspecified “regulations” have been sufficient if the restraining order had more specifically described prohibited behaviors?

“May you live in interesting times,” says the ancient proverb, and we are now learning that the origin of that phrase was not actually blessing, but was always meant as a curse.