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And it’s off to SCOTx for the mandate stuff

It’s where it was always headed.

Texas Attorney General Ken Paxton is taking the mask mandate battle to the state Supreme Court after the state was defeated in its attempts to overturn such mandates in San Antonio and other municipalities.

Paxton made the announcement late Friday night in a tweet that read, “We have taken this mask mandate to the Texas Supreme Court. The Rule of Law will decide. — AGPaxton.”

On Friday, a three-judge panel of the 4th Court of Appeals denied Paxton and Gov. Greg Abbott’s request to overturn a temporary restraining order granted Tuesday that blocked Abbott’s ban on mask mandates and allowed the city to order masks in schools and government buildings.

“After considering the petition and the motion, this court concludes (the state) is not entitled to the relief sought,” Justices Luz Elena Chapa, Irene Rios and Beth Watkins wrote in their Friday ruling.

That same day, the 5th Court of Appeals in Dallas also denied the state’s bid to overturn a mask order by Dallas County Judge Clay Jenkins. And in Travis County, a judge granted similar restraining orders against Abbott to Harris County and the South Texas school districts of Brownsville, La Joya and Edinburg, allowing them to keep mask mandates in place.

See here for some background, and here for a story about the Dallas appellate verdict. As far as I can tell, this hearing will review both of those rulings, and thus will obviously affect the other litigation going on. To that end, Harris County Attorney Christian Menefee has submitted an amicus brief in support of Dallas and Bexar. I have no particular reason to believe that the Supreme Court will do anything other than offer the usual room service to the state, but I have to hope, because what else is there to do? I assume we will know shortly what they think. KXAN and the Trib have more.

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6 Comments

  1. Kibitzer Curiae says:

    UPDATE ON ABBOTT’S BID’S FOR ABSOLUTISM UNDER THE DISASTER ACT

    The SCOTX docket for the case from Dallas is here:

    https://search.txcourts.gov/Case.aspx?cn=21-0686&coa=cossup

    For the cases from San Antonio, substitute 21-0687 for 21-0686 in the URL, or run a query by case number with that number. In Tex. 21-0687, the documents are not yet available, but that will presumably change by Monday at the latest.

    They are both styled IN RE GREG ABBOTT because they are both mandamus proceedings, not appeals. The Dallas case is actually a mandamus against the Dallas Court of Appeals, not against the trial court judge (Tonya Parker).

    Presumably that is because the Dallas court of appeals panel created a conflicting precedent with the 8th COA case from El Paso, a case on which the AG-Abbott Alliance heavily relies, and Paxton wants that short Dallas COA opinion squashed and invalidated by the Supremes. The San Antonio court of appeals didn’t provide a reason for denying relief.

    TITANIC REASONING

    The El Paso case is the one in which Abbott appointee Jeff Alley expressed his loyalty to his appointer by proclaiming — without reference to any legal doctrine in in denigration of the separation of powers principle — that the people can have only one master. For Alley, this conclusion was compelled by envisioning the Governor as the captain of the ship, rather than a fleet commander with each ship under the operational control of its own captain.

    ABBOTT’S JOURNEY: FROM CAPTAIN OF THE SHIP TO PRINCIPAL 

    The Dallas COA panel went with dissenting justice in the El Paso case, who delivered a thorough statutory construction analysis that is highly relevant to the present litigation over the scope of Abbott’s extraordinary emergency powers under the Disaster Act. In Abbott’s and Paxton’s view, not only is Dallas Judge Tonya Parker an abuser, and an enabler for a rogue county judge, the three members on the Dallas appeals court are guilty of abuse of discretion likewise. That’s because they didn’t apply the master-serf law correctly either. (Abuse of discretion is the applicable standard when challenging a TRO).

    The AG is currently litigating the topdog-underling dynamic under the rubric of principal and agent, contending that the Governor is not only the “Commander in Chief” under the Lone Star once he has proclaimed a statewide disaster, but also the Principal. But the County-judge-as-agent designation is here prescribed by statute (the Diaster Act), not by the common law as it governs principal-agent relationships in the private sector; nor has Judge Jenkins ever consented to become an all-purpose operative for Abbott and agreed to surrender his own authority to him.

    An agent in the private sector would have to agree to become an instrument of the hiring or appointing principal, and would likewise have to agree to the terms and scope of the representation. Think of an attorney. You can pick one, but he or she has to agree to take your case. You can also fire your attorney and hire a new one that is willing to you as a client, but Abbott cannot fire a County Judge, who is elected by the voters in his jurisdiction and accountable to them, not the Governor.

    There are numerous other problems with the Abbott-AG Alliance’s bid to give the Governor absolute power through a free-wheeling and self-serving interpretation of the Texas Disaster Act that would actually turn is purpose of dealing with disaster on its head: Use of emergency powers — i.e. rule by decree — to prevent local leaders from mitigating the declared disaster and to punish them if they dare to take proactive measures to save lives.

    LOCAL OFFICE HOLDER VS. LOCAL GOVERNMENTAL ENTITY

    In an amicus brief, Harris County usefully points out that the City of San Antonio and Bexar County (and Harris County itself) are suing Abbott as governmental entities, so the use of the term “agent” in the Disaster Act in reference to the County Judge and Mayor as emergency management director at the local level, doesn’t even apply to the governmental entities qua entities.

    The other major difference among the mask-mandate cases is that the cities and counties do not just rely on the Texas Disaster Act as legal authority for imposing their face-covering mandates and other mitigation measures, not notably the Health and Safety Code. To have his no-mask ways, however, Abbott purports to have suspended those laws too.

    AUTO-GOLPE IN SLOW MOTION

    Abbott has not expressly asserted that he is above the law. Instead, he takes the position that he can suspend any law that stands in the way of imposing his will as he sees fit, because he is the “Commander in Chief.” And that he doesn’t even have to specify which laws, though he has specifically enumerated some. 

    Any law here involves not only the parts of the Disaster Act that provide for extraordinary emergency powers by local leaders in a local disaster (which he claims to have expressly rendered inoperative by suspension), but anything else that gives the local official and governmental entities authority to look out for the health and safety of their constituents and take appropriate preventative and remedial action.

    When the chief executive arrogates to himself the power to suspend any law – including any law passed by the Legislature — and rules by decree on that premise after declaring a disaster, how does that differ from the definition of an autocrat?

    A third-world strongman if you will.

    FRENETIC FRENEMIES OF THE COURT

    Numerous amici curiae letters and briefs have been submitted in both cases, including dozens of letters from educators and parents. They are not yet all showing up on the docket as of Sunday, 9AM. The other docket curiosity is that all the Saturday filings are time-stamped for Monday because the weekend days are not court business days, so it cannot be determined from the time-stamp when they were actually e-filed, and in what sequence. The Court might nevertheless issue a stay order or deciding opinion before then. 

  2. Jason Hochman says:

    “When the chief executive arrogates to himself the power to suspend any law – including any law passed by the Legislature — and rules by decree on that premise after declaring a disaster, how does that differ from the definition of an autocrat?

    A third-world strongman if you will.”

    Of course, we, the people, cowed by fear mongering, and blame the Orange Race for problems, want the government to make diktats, and rule by decree. We want to be forced to wear a mask, when we can do that anyway, should we choose, and we can send kids to school with a mask, if we choose.

    All that a dictator must do is say is “I’mma follwin’ da science,” and as such, will not be questioned. There is nothing in The Science that shows that mask mandates save lives.

    Certainly, they are not going to help the problems that I have been reading about, such as “we are not going to have a hospital bed for your kid.” First of all, RSV cases are through the roof, likely as a result of not having in person school for a year, and not allowing kids to build immunity. Second, the health care industrial complex has had a year to solve this problem. Remember flatten the curve? This was to let the hospitals prepare for higher than normal populations. Instead, they did nothing.

    In fact, the for profit medical industrial complex has been profiting. While people like Marc Boom should be stripped of their wealth, their homes, cars, and money nationalized and used to increase hospital capacity, this Dr Boom has been boomin’ and he was hailed as a hero for causing the resignation and firing en masse of skilled professionals who have dealt with this pandemic on the front line. All hospital executives should, by decree, be immediately put on a wage of $32.00 per hour, and all hospitals should be taken over by the federal government and run by the military, and at no cost to patients.

    However, as we demand that the government take more control over our bodies, forcing people to wear certain things, I am worried that the Democrats will slowly move us back to slavery. The Democrats are the party of hate, and were created to preserve Jim Crow, Jim Eagle, and the Q. Klan. They have ever since Reconstruction, been searching for backdoor ways to bring back the plantation. Soon, they will have us wear masks. Then they will decide that people of certain colors can wear a drop logo, to show that have one drop or more of the wicked blood. In time, they will issue a statement along the lines of “Science shows that the Knee Grows have a savagery gene, and we must, for their own good, and safety, out of love and concern for them, force them to work on our farms.” This is, in some ways, the case already, in that I see the wealthy having migrant workers nanny their kids, and cut their grass. This workers, while legally free, are forced to take manual jobs for low pay. The Democrats put Joe Biden as a figurehead because he is a grandfatherly dotard, who doesn’t seem threatening, but the fact is, behind the scenes billionaires are probably in total control of the party. Biden, due to his mental state, has sort of revealed this agenda, by making unapproved statements that could get him into trouble, such as when he says “I’m gonna put you back in chains,” and when he refers to Blacks as “Roaches.” (They scatter when you turn on the lights.)

  3. Kibitzer Curiae says:

    There you have it … Abbott’s Court is rather Predictable

    THE SUPREME COURT OF TEXAS

    Orders Pronounced August 15, 2021

    MISCELLANEOUS
    STAY ORDERS ARE ISSUED IN THE FOLLOWING PETITIONS FOR WRIT OF MANDAMUS:
    21-0686
    IN RE GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF TEXAS; from Dallas County; 5th Court of Appeals District (05-21-00687-CV, ___ SW3d ___, 08-13-21)

    relator’s emergency motion for temporary relief granted
    stay order issued

    [Note: The petition for writ of mandamus remains pending before this Court.]

    21-0687
    IN RE GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF TEXAS; from Bexar County; 4th Court of Appeals District (04-21-00336-CV, ___ SW3d ___, 08-13-21)

    relator’s emergency motion for temporary relief granted
    stay order issued

    [Note: The petition for writ of mandamus remains pending before this Court.]

  4. Kibitzer Curiae says:

    BREAKING NEWS – OUCH !

    Dallas Morning News: Texas Supreme Court affirms Abbott’s ban on mask mandates. What are Jenkins’ options?

    Comment: They are overstating it. The SCOTX issued stays of the lower court orders. Nothing is affirmed. These are temporary orders while the mandamus cases remain pending in the SCOTX. We will have to see what the actual stay orders say specifically, and who the they are directed to.

    These SCOTX orders do not stay the trial court cases and the scheduled hearings on the temporary injunctions (as distinguished from the temporary restraining orders that are no longer legally in effect) remain on the docket. The trial court litigation may thus proceed.

    It would also appear that the local face-covering orders have not been invalidated.

    TEXAS SUPREME COURT ADVISORY VERBATIM:

    AUGUST 15 ORDERS

    The Texas Supreme Court on Sunday granted stay orders against temporary retraining orders by courts of appeals in San Antonio and Dallas that allowed mask mandates despite the governor’s executive order prohibiting them.

    The courts granted the orders against Gov. Greg Abbott to bar enforcement of the executive order. A hearing on a temporary injunction in the Bexar County case, scheduled Monday, is not affected, nor is a hearing on a temporary injunction in the Dallas County case set August 24.

    Briefs in 21-0686 (Dallas County)
    Briefs in 21-0687 (Bexar County)

    Meanwhile, the Fort Bend TRO is under review in the First Court of Appeals in Houston, along with an emergency motion for temporary relief in that court.
    See here:
    https://search.txcourts.gov/Case.aspx?cn=01-21-00440-CV&coa=coa01

  5. policywonqueria says:

    HOLY COW – APPELLATE RETRAINING ORDERS [SIC]

    Osler says: “The Texas Supreme Court on Sunday granted stay orders against temporary retraining orders by courts of appeals in San Antonio and Dallas that allowed mask mandates despite the governor’s executive order prohibiting them.”

    This actually does not make sense.

    The TROs were issued and signed by *trial* court judges in those appellate districts; the respective appellate courts let them stand by denying mandamus relief against these trial court judges. The San Antonio COA did not even offer a reason and just denied relief summarily.

    There are no temporary restraining orders by courts of appeals for the SCOTX to stay, not to mention retraining [sic] orders.

    The SCOTX has done a fine job in sowing confusion. So much for the overtime effort on the weekend. Without the Osler press release, it wouldn’t even be clear that the cases in the trial courts may proceed.

    And the website staff may need some re-training or their own — or some re-straining perhaps.

  6. […] here and here for the background. Abbott’s tweet is pathetic in its misrepresentation of the issue. Masking […]