                              Fourth Court of Appeals
                                    San Antonio, Texas
                                   DISSENTING OPINION
                                        No. 04-20-00004-CV

 CITY OF SAN ANTONIO, Texas, Ron Nirenberg, Mayor of the City of San Antonio, Erik
 Walsh, City Manager of the City of San Antonio, Jennifer Herriot, Interim Director of the San
  Antonio Metropolitan Health District, Marilyn Washington, and Texas Organizing Project
                                      Education Fund,
                                         Appellants

                                                 v.

ASSOCIATED BUILDERS AND CONTRACTORS OF SOUTH TEXAS, INC., American
    Staffing Association, BBM Online, LLC d/b/a BBM Staffing, The Burnett Companies
 Consolidated, Inc. d/b/a Burnett Specialists, Cardinal Senior Care, LLC d/b/a Cardinal Med
 Staffing, Choice Staffing, LLC, eEmployers Solutions, Inc., Hawkins Associates, Inc. d/b/a
 Hawkins Personnel Group, LeadingEdge Personnel, Ltd., Staff Force, Inc. d/b/a Staff-Force
    Personnel Services, San Antonio Manufacturers Association, San Antonio Restaurant
 Association, Texas Retailers Association, Association of Convenience Store Retailers, South
                    Texas Merchants Association, and The State of Texas,
                                          Appellees

                     From the 408th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2019CI13921
                               Honorable Peter Sakai, Judge Presiding

                  DISSENT TO GRANT OF OPPOSED MOTION TO ABATE

Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: March 4, 2020

           This appeal concerns the City of San Antonio’s Sick & Safe Leave Ordinance, which the

trial court ordered temporarily suspended for all purposes on December 12, 2019. See San
Dissenting Opinion                                                                                   04-20-00004-CV


Antonio, Tex., Ordinance No. 2019-10-03-0795 (codified at San Antonio City Code, ch.15, art.

XI, §§ 15-269–281 (2019)). Several businesses and business associations that are parties to this

appeal 1 filed a motion to abate the appeal “on the ground that the Supreme Court of Texas is

currently considering the same dispositive legal issues with a substantively identical ordinance to

that at the center of the dispute underlying this appeal.” These movants also express concern that

“this court may unnecessarily expend its judicial resources to proceed on an appeal that would

address issues that a pending Supreme Court case could soon moot by a dispositive determination.”

To their credit, the movants express no concern for their own expenditure of time and resources to

develop the issues in the instant appeal—an appeal which concerns the health and pocketbooks of

workers and employers citywide and the public health writ large—and we should not consider

same. I dissent because the movants have not established their premise that the Texas Supreme

Court is considering the same dispositive legal issues and because we have the resources and, I

believe, the responsibility to weigh the matter of abatement after the parties have fully briefed the

merits of this appeal. I would carry the opposed motion to abate with the case.

         Pending before the Texas Supreme Court is City of Austin, Texas v. Texas Ass’n of

Business, No. 19-0025. Unknown to anyone outside the supreme court are the issues, if any, the

supreme court is considering. To date, the supreme court has not granted a petition for review in

that case; it has only requested briefing. 2 The briefing publicly available, 3 shows that the parties


1
  These parties are: Associated Builders & Contractors of South Texas, Inc., American Staffing Association, The
Burnett Companies Consolidated, Inc. d/b/a Burnett Specialists, Cardinal Senior Care, LLC d/b/a Cardinal Med
Staffing, Choice Staffing, LLC, eEmployers Solutions, Inc., Hawkins Associates, Inc. d/b/a Hawkins Personnel
Group, LeadingEdge Personnel, Ltd., Staff Force, Inc. d/b/a Staff-Force Personnel Services, San Antonio
Manufacturers Association, and San Antonio Restaurant Association. Appellees Texas Retailers Association,
Association of Convenience Store Retailers, South Texas Merchants Association, and The State of Texas do not
oppose the motion. Appellee BBM Online, LLC d/b/a BBM Staffing has not provided its position on the motion.
2
  The reply brief of the City of Austin and related parties remains outstanding and is due on March 9, 2020. See Letter
of Notice Granting Extension of Time, No. 19-0025 (Tex. Jan. 31, 2020).
3
  Available at: Case information for Case: 19-0025, TEX. JUD. BRANCH: SUPREME CT.,
http://www.search.txcourts.gov/Case.aspx?cn=19-0025&coa=cossup (last visited Mar. 3, 2020).


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Dissenting Opinion                                                                               04-20-00004-CV


have asserted issues regarding (1) the standard of review applied by the intermediate appellate

court, (2) the elements for a temporary injunction, and (3) whether necessary elements as to harm

and the probable right to relief have been meet. Based on this limited information, it is purely

speculative to assume that the supreme court will grant a petition for review in the appeal, let alone

to assume that the supreme court will decide the case on any one of the numerous issues briefed

in that appeal. Only some of those issues may be dispositive to the instant appeal. Compounding

the uncertainty as to whether there exists any overlap between the issues in the instant appeal and

the issues in the appeal before the Texas Supreme Court is our ignorance of the issues in the instant

appeal. The only issues we know of are those asserted by Marilyn Washington and the Texas

Organizing Project Education Fund (collectively “TOP”) for the simple reason that only TOP has

filed a brief. 4 In light of this uncertainty, I would carry the motion to abate with the case, so that

the parties could brief their issues. The submission panel, with the benefit of full briefing, would

be in a better position to review whether there is, in fact, overlap that could warrant abatement.

        An appropriate rational for deciding the matter of abatement now, rather than after briefing,

is efficiency. If we were to postpone our decision, as I would do, we would review a full set of

briefs in a few weeks’ time. 5 The parties would have to produce these briefs were we ultimately

to abate the case after submission. Weighing against efficiency is the cost to abate, which is an

indefinite delay to the appeal that may not be warranted.

        The better course is to postpone our decision on abatement because of these costs.

Efficiency must be tempered by our goal to avoid the injustice that can result from a delay in




4
  The other appellants, which are the City of San Antonio and its representatives (collectively the “City”), have
requested an extension of time to file their brief, which remains pending. The City and TOP oppose the motion to
abate.
5
  This is an accelerated case, which requires expedited briefing and precedence on our docket. See TEX. R. APP. P.
38.6; 40.1(b).


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Dissenting Opinion                                                                     04-20-00004-CV


handing down a decision. See TEX. R. APP. P. STANDARDS (“The court will endeavor to avoid the

injustice that can result from delay after submission of a case.”); TEX. R. APP. P. 43.1 (“The court

of appeals should render its judgment promptly after submission of a case.”); cf. TEX. R. CIV. P. 1

(“The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial

adjudication of the rights of litigants under established principles of substantive law . . . with as

great expedition and dispatch and at the least expense both to the litigants and to the state as may

be practicable.”).

        TOP contends that 340,000 workers are harmed hourly when they are prevented by the trial

court’s injunction from accruing or using the benefits required by the San Antonio ordinance. TOP

also argues that unchallenged provisions in the ordinance can be severed to provide workers with

(1) “unpaid” sick leave, (2) protection from employer retaliation, and (3) the ability to use leave

for such purposes as reporting domestic violence. TOP and the City of San Antonio assert that

there exists a severance provision in the San Antonio ordinance that has no analogue in the Austin

ordinance before the Texas Supreme Court. If these contentions prove true, our indefinite delay

in deciding the instant appeal may be unjust to hundreds of thousands of workers and injurious to

the public health.

        I dissent because the potential for injustice is too great and the benefit of abatement is too

speculative.

                                                   Rebeca C. Martinez, Justice




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