The Texas Supreme Court has dismissed a lawsuit challenging the constitutionality of Harris County’s stay-at-home order, though the legal fight is set to continue in state district court.

The Wednesday ruling came at the request of the suit’s plaintiffs, including longtime conservative activist Steve Hotze and the pastors of three Houston-area churches.

Earlier this week, Jared Woodfill, the group’s attorney, filed a new case in Harris County that similarly claims County Judge Lina Hidalgo’s stay-at-home order violates the plaintiffs’ First Amendment rights because it allegedly continues to restrict church services even after Hidalgo revised it to align with Gov. Greg Abbott’s executive order deeming churches “essential businesses.”

The governor’s March 31 directive, akin to the stay-at-home orders issued by counties across Texas, came one day after anti-LGBTQ Republican activist Hotze and pastors Juan Bustamante, George Garcia and David Valdez filed a petition arguing that Harris County’s order violates the Constitution by ordering the closure of churches and failing to define gun shops as “essential” businesses.

The four original plaintiffs remain on the new lawsuit, and they are joined by Tom DeLay, the former House Majority Leader who represented a district in the Houston area until 2006. The plaintiffs also have challenged Montgomery County’s stay-at-home order in a different state district court.

Under Abbott’s executive order, which supersedes local stay-at-home orders, houses of worship may remain open, though they must conduct their activities online or through remote audio or video services when possible. Abbott later issued more detailed guidance in a joint statement with Attorney General Ken Paxton, adding that churches should cancel in-person gatherings or limit the number of congregants, depending on how “substantial” community spread of COVID-19 has been in their area.

Paxton also issued a separate opinion saying local governments cannot shut down gun stores or otherwise restrict sales or transfers.

The Texas Supreme Court on Wednesday granted Hotze and the pastors’ motion for a voluntary dismissal of their petition. The court previously had asked both parties to weigh in on whether Abbott’s executive order rendered the lawsuit moot.

Last Friday, Hidalgo revised her order to “permit in-person religious services that comply with the CDC’s guidelines,” according to a court filing by the county attorney’s office. The plaintiffs are continuing to challenge Hidalgo’s order in state district court, Woodfill said, in part because it imposes penalties — up to 180 days in jail and a $1,000 fine — that Abbott’s does not.

Hidalgo’s amended order says: “Per the Texas Attorney General’s guidance on this topic, if religious services cannot be conducted from home or through remote services, then religious services may be conducted in churches, congregations and houses of worship.”

Woodfill said he interprets that language to bar most churches from meeting in person, because most are capable of holding services remotely.

“Just about every church has the ability to do that,” Woodfill said. “Maybe there are some small churches that don’t. That doesn’t mean your parishioners have internet or the ability to access the service. We think that’s clearly government coming in to the church and issuing edicts and mandates that are an infringement on religious liberties.”

DeLay, who represented a district in the south Houston-area suburbs from 1985 to 2006, lists a homestead exemption in Sugar Land, in Fort Bend County. Woodfill said DeLay has standing to sue the neighboring county because the order “infringes upon his right to go to church in Harris County. He can’t attend his church if it is closed due to the order and if it is opened and he attends, he will be fined $1,000 and is looking at 180 days in jail.”

City and county officials have said they do not intend to fully enforce the penalties and are first seeking voluntary compliance, before resorting to a criminal charge. Most businesses will first receive warnings if they are out of compliance, then could be hit with fines or arrests if their refusal to comply becomes egregious, a spokesman for the Harris County Sheriff’s Office said last month.

jasper.scherer@chron.com

robert.downen@chron.com

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