Council’s Decision Was Unconstitutional

To the Editor:

The La Grange city council on July 13, 2020 was given an educated opportunity to base their decision of whether to enact an emergency ordinance for the city requiring the wearing of face masks, from several members of the community that attended the council meeting. The council chose to follow in the foot steps of the unconstitutional executive order by way of enacting the emergency ordinance.

The Texas Constitution is the supreme law of the state of which nothing may supersede. The Governor has based his authority to supersede the supreme law on the “Texas Disaster Act of 1975” section 418.001 of the Texas Government Code.

16 Am Jur 2d, Sec 26 “ The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment and not merely from the date of the decision so branding it. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. No repeal of an enactment is necessary, since an unconstitutional law is void. The general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.”

The Texas Constitution vests law making power in the legislative branch, that is, the power to impose enforceable requirements or prohibitions exclusively in the legislature.

Article 3, section 1 reads, “SENATE AND HOUSE OF REPRESENTATIVES. The Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled “The Legislature of the State of Texas.”

Article 2, section 1 reads, “SEPARATION OF POWERS OF GOVERNMENT AMONG THREE DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

A single express permission for the Governor to exercise a power attached to the Legislature which is found in Article 3, Section 62(c) and only regards “periods of emergency resulting form disaster caused by enemy attack” which is specified in Article 3, Section 62(a), which reads as follows, ““The Legislature, in order to insure continuity of state and local governmental operations in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices. Provided, however, that Article I of the Constitution of Texas, known as the “Bill of Rights” shall not be in any manner affected, amended, impaired, suspended, repealed or suspended hereby.”

Article 3, Section 62(c) provides for only the following exercise of power by the Governor, it reads as follows, “When such a period of emergency or the immediate threat of enemy attack exists, the Governor, after consulting with the Lieutenant Governor and the Speaker of the House of Representatives, may suspend the constitutional requirement that the Legislature hold its sessions in Austin, the seat of government. When this requirement has been suspended, the Governor shall determine a place other than Austin at which the Legislature will hold its sessions during such period of emergency or immediate threat of enemy attack. The Governor shall notify the Lieutenant Governor and the Speaker of the House of Representatives of the place and time at which the Legislature will meet. The Governor may take security precautions, consistent with the state of emergency, in determining the extent to which that information may be released.”

As seen in the above article, the only exception of an executive emergency is the result from a disaster caused by enemy attack. The State supreme law is clear, yet the city council chose to usurp the constitution based on the belief that the Governor knew what he was doing and that they would follow the Governor’s unconstitutional directives.

Katie Hamborsky West Point