Recently, I found another example of another state government assuming the tyrannical authority of rulership over the citizens of the state they were hired to serve. This governmental overreach comes out of the great State of Texas
All this started when I heard about a letter from the Executive Director of the Texas Alcoholic Beverage Commission, A. Bentley Nettles, to the Alcoholic Beverage Industry. This type of letter, and the “directives” they include, are fairly common across the United States in this day and age. As I began investigating this letter though, I found a worldview and governing philosophy that is antithetical to a constitutional republic and destructive to rights and liberty. And as with so many things in 2020, it all started with COVID-19.
The COVID Effect
Then COVID-19 hit and our worlds were turned upside down. Businesses were forced to change their operations, and many had to shut down. Since then, Texas has gone through various phases of reopenings and closures.
TABC Executive Director’s Letter to Alcoholic Beverage Industry
It was not COVID-19 that turned our world upside down. Governments, both state and local, have turned our worlds, our very lives, upside down. From executive orders to regulatory strangleholds, we have seen government after government use the excuse of “keeping the people safe” to turn us into cattle they can corral, brand, and use as they see fit. Legislatures that We the People formed to write laws have turned over their lawmaking powers to the executive, and in many cases have failed to hold them accountable when they exceed their authority. All this because the “experts” warned us of what would happen if we didn’t hand over our rights to government?
The predictions of millions dead, hospitals overflowing, and a general collapse of society that our government officials and media pundits promoted turned out to not happen. As more and more evidence comes to light showing that COVID-19 was never as deadly nor as dangerous, as the “experts” were telling us, do we see these officials loosening the restrictions they put in place? In some cases, yes. In many cases, no. And in more cases, what we see are these restrictions being extended and expanded, resulting in the further destruction of the American system. As the evidence mounts of the ineffectiveness of masks (including reports from the very agencies promoting mask mandates), we see everyone from governments, to businesses, to everyday people, infringing on the rights of others based on flawed science, fictitious statistics, and the general fear being promoted by so many. Texas is not alone in this, but it’s the focus of today’s article.
Governor’s Executive Order GA-28
Under the governor’s Executive Order GA-28, which currently determines how businesses may operate, restaurants are open for limited-capacity seating and bars, which derive 51% or more of their revenue from the sale of alcohol for on-premise consumption, are closed.
TABC Executive Director’s Letter to Alcoholic Beverage Industry
Like so many of the “emergency orders”, TX GA-28 violates not only the Constitution of the State of Texas, but that of the United States as well. Let’s take a look at just a few of the violations.
All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.
Texas Constitution – Article I, Section 3
All free people in Texas have equal rights. Yet under Governor Abbott’s order, some business owners have more rights than others. For example, religious services, local governments, child-care services, and even youth camps and recreational programs, are exempt from occupancy limits. Further, outdoor areas and events are also exempt, unless they happen to be a sporting event, swimming pool, water park, museum, library, etc., etc. Barber shops, hair and nail salons, massage establishments, and other personal or beauty services are exempt. Where does Governor Abbott get the authority to treat business owners differently? Are they not free citizens of the State of Texas? Do they not have the equal right to enjoy their business and the benefit of their labor?
Even if these were recommendation rather than fake laws promulgated by the executive branch, look at how stupid they are: Does anyone really think the virus won’t infect you if you’re in a government office? What makes the virus more dangerous at an outdoor event just because it’s a sporting event, water park, or zoo? Does the governor really believe you are less likely to get infected at at piercing studio than a doctor’s office with the same six foot social distancing? And please explain why the virus cares how much of a business’ sales comes from alcohol, or from the clock on the wall, to determine if it will infect people. Does anyone really think that your local bar, grill, or restaurant, suddenly becomes infectious if more than 51% of their gross receipts come from selling alcoholic beverages? And does the virus suddenly become more infectious at 12:01AM?
No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:
Texas Constitution – Article I, Section 17
(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:
(A) the State, a political subdivision of the State, or the public at large; or (B) an entity granted the power of eminent domain under law; or (2) the elimination of urban blight on a particular parcel of property.
The state is not allowed to take, damage, or destroy a person’s property unless it’s for public use or the elimination of urban blight. Yet Governor Abbott’s order takes away, and in many cases destroys, the businesses of millions of Texans without even the pretext of public use.
No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.
Texas Constitution – Article I, Section 19
The state cannot legally deprive you of life, liberty, property, privileges, or immunities, without due course of law. You may be more familiar with the term “due process”, but “due course” is almost synonymous:
Stated and orderly method of proceeding; usual manner. He obtained redress in due course of law.
Course – Webster’s 1828 Dictionary
This executive order, along with dozens like it across the country, deprive citizens of so much without course or due process that protects their rights. Your liberty to go about freely without being forced to wear a mask, to operate your business, or even be immune from unreasonable searches and seizures, are all being deprived without even the pretext that you are an actual danger to someone else. Unless you force someone else to come in contact with you, or act in a way that endangers others, there is no legal reason to restrict your movements, much less take away a property like your business. You may not think of your business as property, but as James Madison wrote:
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights….
That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.
James Madison, For the National Gazette, 27 March 1792
Governor Abbott’s order also prohibits outdoor gatherings of more than 100 people, unless they are privileged enough to have been given an exception in the order, or get permission from their mayor or county judge. Imagine having to get permission from a government official to exercise a constitutionally protected right.
The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.
Texas Constitution – Article I, Section 17
I’m sure by now someone has pointed out that under the Texas Emergency Powers Act the governor has the authority to suspend laws when an emergency is declared. While the Texas Emergency Powers Act does include language about suspending provisions of regulatory statues, it does not give him the authority to suspend all laws and neither does it supersede the Texas Constitution which states:
No power of suspending laws in this State shall be exercised except by the Legislature.
Texas Constitution – Article I, Section 28
In fact, Texas went so far in its Constitution to make sure there wasn’t any question about the ability of government to regulate or infringe on the rights of their citizens, they added section 29 to their Bill of Rights:
To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
Texas Constitution – Article I, Section 29
So all of the laws and actions of the executive branch under those laws, that are contrary to anything in the Bill of Rights of the Texas Constitution, are void. Yet here we have a letter from a part of the executive branch attempting to enforce these illegal and void laws.
Rights vs Privileges
The biggest challenge I see lies with industry members who choose to operate in violation of the governor’s executive order. Recently we have spoken with business owners who tell us they don’t intend to follow the orders.
TABC Executive Director’s Letter to Alcoholic Beverage Industry
So if the parts of this executive order are acting under laws that the Texas Constitution declares are void, how can an officer who has sworn or affirmed an oath to support the Texas Constitution enforce a law that is not valid? How can an executive branch of a state do not only what is not allowed, but what is forbidden by their commission as officers under the Texas Constitution? Put another way, how can someone be punished for violating a law that is void? The answer is simple: The people of Texas, and of all the states, have let it happen. We have not only allowed our public servants to act as our rulers, we’ve begun to believe it ourselves. And now those who claim the authority to rule over us are treating our rights as if they were privileges. Mr. Nettles went so far in his letter to say that the ability to own and run a business is a privilege if it happens to serve alcohol.
On that note, I want to remind every member of this industry that it is a privilege to be in the alcoholic beverage business in Texas. Not everyone who wants to be in this industry qualifies to do so under the strict requirements imposed by the Alcoholic Beverage Code. Once in business, the Texas Legislature has chosen to regulate this industry to protect the health and safety of our fellow Texans.
TABC Executive Director’s Letter to Alcoholic Beverage Industry
No, Mr. Nettles, the ability to run a business in Texas in NOT a privilege, regardless of whether they serve alcohol or not. The very idea that someone would have to get permission from government to do business is not only anathema to our constitutional republic, it was one of the laws that led our Founding Fathers to declare independence from another tyrannical government. It’s the Texas laws that are used to deprive people of the property of their business and the liberty to do business that are wrong. And according to the Texas Constitution, they are void.
Supremacy of Laws
Furthermore, the governor’s executive order is the current law of the state, and TABC will enforce it, as will other state and local government entities. As a license holder, it is your responsibility to follow the Alcoholic Beverage Code, TABC’s Administrative Rules and all other state laws — including executive orders.
TABC Executive Director’s Letter to Alcoholic Beverage Industry
As I’ve already shown, not only is the governor’s order not the current law of the state, by the words of the Texas Constitution, it is void, empty, of no value.
I believe the vast majority of TABC’s license and permit holders are acting in good faith, trying to run honest businesses, and are valued members of their communities. I call on all businesses to act in this manner. TABC will gladly work with you if you are working toward voluntary compliance. If you have questions about whether you can reopen safely, please contact us.
TABC Executive Director’s Letter to Alcoholic Beverage Industry
I believe the vast majority of TABC’s license and permit holders are acting under duress. They are unaware of the invalid state of such laws and regulations. They have been taught to be subjects of those who they have hired to be their servants. If anyone should be encouraged to act in good faith, it should be Governor Abbott and Director Nettles. Both of them should uphold their oaths to support the Constitutions of both Texas and the United States.
TABC agents will be out in communities across Texas this weekend, just like every other weekend, enforcing the law. Ensure your patrons are complying with social distancing and face mask requirements. While TABC is here to help, we have no tolerance for licensees who are in violation.
TABC Executive Director’s Letter to Alcoholic Beverage Industry
Should TABC agents arrive at your business, I would remind them of two things. First, that the executive order is a violation of both the Texas and United States Constitution.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV
And since depriving someone of their liberty or property without due process of law is a depravation of a right protected by the Constitution of the United States, doing so under color of law is a federal crime.
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,… shall be fined under this title or imprisoned not more than one year,
18 U.S.C. 242
Conclusion
What can the citizens of Texas do? The answer to this also comes from the Texas Constitution.
All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.
Texas Constitution – Article I, Section 2
The power does not legitimately belong to those in government, it belongs to the free people of Texas. As long as you maintain a constitutional republican form of government, you have an inalienable right to alter, reform, or abolish your government. I would recommend the people of Texas take a long, hard look at reforming how their government works before the only option to protect their rights is to abolish it. Better to reform your government at the ballot box than to try to abolish it on the battlefield.
