Case: 22-50212 Document: 00516947006 Page: 1 Date Filed: 10/27/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED October 27, 2023 No. 22-50212 Lyle W. Cayce ____________ Clerk United States of America, Plaintiff—Appellee, versus Greg Abbott, in his official capacity as Governor of the State of Texas, Defendant—Appellant, ______________________________ Annunciation House; Angry Tias And Abuelas of the Rio Grande Valley; Jennifer Harbury; FIEL Houston, Plaintiffs—Appellees, versus Greg Abbott, in his official capacity as Governor of the State of Texas, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC Nos. 3:21-CV-173, 3:21-CV-178 ______________________________ Before Stewart, Willett, and Oldham, Circuit Judges. Case: 22-50212 Document: 00516947006 Page: 2 Date Filed: 10/27/2023 No. 22-50212 Andrew S. Oldham, Circuit Judge: In July 2021, Texas Governor Greg Abbott issued an executive order that prohibited private individuals from providing ground transportation to migrants who were previously detained or subject to expulsion. The United States brought a lawsuit against Governor Abbott and the State of Texas, arguing that the executive order was preempted by federal law. Three nonprofit organizations and a retired lawyer also brought a § 1983 suit against the Governor and the Director of the Texas Department of Public Safety (“DPS”). The defendants moved to dismiss the suit brought by the private plaintiffs, arguing in part that the plaintiffs lacked standing and the suit against the Governor was barred by sovereign immunity. The district court rejected these arguments, and Governor Abbott appealed. We agree with the Governor that sovereign immunity bars the lawsuit brought by the private plaintiffs. We reverse and remand with instructions to dismiss the suit against the Governor. I. On July 28, 2021, Texas Governor Greg Abbott issued Executive Order GA-37 pursuant to his authority under the Texas Disaster Act of 1975. The Disaster Act empowers the Governor to declare a state of disaster and gives him certain attendant powers. For example, the Governor has the authority to “meet[] . . . the dangers to the state and people presented by disasters,” Tex. Gov’t Code § 418.011(1), to “issue executive orders,” id. § 418.012, and to “control ingress and egress to and from a disaster area and the movement of persons . . . in the area,” id. § 418.018(c). The Governor issued GA-37 pursuant to two disaster declarations. The first was the COVID-19 disaster declaration issued in March 2020. The second was the border-security disaster declaration issued in May 2021 in 2 Case: 22-50212 Document: 00516947006 Page: 3 Date Filed: 10/27/2023 No. 22-50212 response to the influx of people illegally crossing the Texas-Mexico border.1 Paragraph 1 of the Executive Order prohibits private citizens from transporting migrants “who have been detained by [U.S. Customs and Border Protection] for crossing the border illegally or who would have been subject to expulsion under [federal law].” Tex. Exec. Order GA-37, at 2. Paragraphs 2 and 3 charge DPS with enforcement power “to stop any vehicle upon reasonable suspicion of a …
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