SCOTx demurs

Very interesting:

This was for the Harris County litigation, which included Austin and several South Texas school districts. As such, Harris County’s mask mandate is still in effect. This is a procedural ruling, just telling Ken Paxton he needs to follow the law and go through the appellate courts first, and as such it buys some time. Given how accommodating SCOTx has generally been, it’s nice that they’re not fast-tracking any of this. I doubt it makes much difference in the end, but it matters now.

By the way, if you heard that Greg Abbott was dropping enforcement of school mask mandate bans, that simply isn’t so. Abbott and Paxton can go via the appellate courts as before and as they should have here, and the case will eventually make its way back to SCOTx, where they will likely give the state what it wants. Everything is temporary and in a state of flux right now.

Speaking of the appellate courts:

After Gov. Greg Abbott appealed a temporary order that allowed for mask mandates in schools and city- and county-owned buildings, the 4th Court of Appeals ruled Thursday that the order still stands.

On Monday, Judge Antonia “Toni” Arteaga of the 57th Civil District Court granted San Antonio and Bexar County a temporary injunction, allowing the mask mandates in city- and county-owned buildings and in schools to continue until a trial is held. The city and county sued the governor earlier this month over the ability to issue mask mandates.

Texas Attorney General Ken Paxton appealed the district court’s ruling on behalf of Abbott, arguing that his appeal automatically blocked the San Antonio and Bexar County mask mandate. While city attorneys disagreed, they still asked the 4th Court of Appeals on Tuesday to officially uphold the temporary injunction.

In an order issued Thursday, the 4th Court of Appeals reasoned that allowing local governments to have policies to protect public health maintained the status quo, while Abbott actually changed it with his July executive order prohibiting governmental entities from mandating masks.

The court also cited testimony given during the Monday hearing from Dr. Junda Woo, the medical director of the San Antonio Metropolitan Health District, and San Antonio City Manager Erik Walsh. Both said that requiring masks will help slow the spread of the delta variant, which is much more transmissible than previous coronavirus strains. They also pointed to the vulnerability of schoolchildren under the age of 12 who are not yet eligible for the coronavirus vaccine.

“Based on the temporary injunction order and the evidence attached to the emergency motion, the City and County have demonstrated that reinstating the trial court’s temporary injunction is necessary to prevent irreparable harm and preserve their rights during the pendency of this accelerated appeal,” the appellate judges wrote. “The circumstances of this case are unique and, quite frankly, unprecedented.”

See here for the background. This ruling means that the Bexar County mandate can remain in place until the hearing for the temporary injunction, which will be December 13. Except, of course, that Abbott and Paxton can appeal this ruling to SCOTx, and having gone through the proper channels this time, the same reason to reject the other TRO will not be in effect. Expect this to get a ruling from SCOTx in the next couple of days.

In the meantime:

A Fort Bend County district judge on Thursday granted the county’s application for a temporary injunction, siding with local officials in their fight against Gov. Greg Abbott’s ban on mask mandates.

Judge J. Christian Becerra of the 434th District Court approved the county’s application for the temporary injunction following a day’s worth of testimony in his courtroom.

The Fort Bend County public health director and a local hospital administrator testified to the healthcare emergency currently facing the Southeast Texas region. Both said they believe mask mandates would help mitigate the spread.

Fort Bend ISD had not gone along with implementing a mask mandate initially. This may change that, we’ll see. This was a late-breaking story, there will be more details to come.

And finally, just to show that you can’t keep Ken Paxton down:

Texas Attorney General Ken Paxton sued the San Antonio Independent School District Thursday after its superintendent said he’ll require all staff to get vaccinated against COVID-19 before an October 15 deadline.

The suit, filed in Bexar County District Court and shared by Courthouse News Service, argues that a July 29 order by Gov. Greg Abbott bars any public entity in the state from mandating that people take the vaccine. That order supersedes SAISD’s ability to require inoculations of its staff, the state claims.

“Defendants challenge the policy choices made by the state’s commander in chief during times of disaster,” according to the petition.

SAISD is believed to be the first large Texas school district to make vaccines mandatory. Superintendent Pedro Martinez’s demand comes during a statewide surge of COVID-19 cases as children too young to be vaccinated head back for a new school year.

“For us, it is about safety and stability in our classrooms,” Martinez told the Express-News this week. “We cannot afford to have threats to those two goals.”

Martinez also told the daily that the legal implications of his order weren’t a consideration.

A mask mandate is one thing, a vaccine mandate is another, at least in terms of waving a red flag in front of Abbott and Paxton. I expect Paxton to prevail, though we’ll see if he gets his restraining order from the district court judge or if he has to go up the ladder.

UPDATE: Here’s the Trib story about that SCOTx refusal to put a stay on the Travis County judge’s rulings, and here’s the Chron story. There’s so much damn news these days I just go with what’s in front of me when I’m ready to start writing, and circle back as needed.

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6 Responses to SCOTx demurs

  1. David Fagan says:

    29 days and counting……..

  2. SocraticGadfly says:

    Actually, contra one early graf, for schools, right now, even before the Supremes announcement, TEA said it WAS dropping enforcement.

  3. Kibitzer Curiae says:

    Hold the Champagne! Scorn for the Scapegoat!

    The docket having been updated, we – the public — can now see that the Supremes disposed of the triple mandamus No. 21-0701 with a postcard.

    No opinion;
    No letter ruling to the attorneys as in a prior cases;
    Just a postcard.

    – That’s it.

    With another reference to TEX. R. APP. P. 52.3(e), which also appears on the docket as the case-event descriptor for the notice of denial, and previously appeared with the announcement of the decision posted on the Court’s OPINION/ORDER page.

    BOTTOM LINE: Nothing has been resolved with respect to the legality of Abbott’s GA-38. – Not by the Supremes that is.


    (e) Statement of Jurisdiction. The petition must
    state, without argument, the basis of the
    court’s jurisdiction. If the Supreme Court and
    the court of appeals have concurrent
    jurisdiction, the petition must be presented
    first to the court of appeals unless there is a
    compelling reason not to do so. If the petition
    is filed in the Supreme Court without first
    being presented to the court of appeals, the
    petition must state the compelling reason
    why the petition was not first presented to the
    court of appeals.

    Tex. R. App. P. 52.3(e)

    This paragraph appears in a section of the rules that sets out the required components of a petition for mandamus (“Form and Contents of Petition”). But get this: The AG’s petition *did* actually contain the required statement of jurisdiction, and it *did* give a reason for skipping the court of appeals.

    Here it is:


    This Court has jurisdiction under Texas Government Code section 22.002(a).

    In accordance with Texas Rule of Appellate Procedure 52.3(e), this petition is being filed in this Court without first being presented to the Third Court of Appeals. The urgency and significance of the matters addressed in the petition constitute compelling reasons for the petition to be filed directly in this Court. Only this Court can provide the statewide answer that is needed.

    Petition for Writ of Mandamus filed Aug. 17, 2021, at Roman numeral page vii.

    The Statement of Jurisdiction item was merely omitted by way of clerical oversight from the TABLE OF CONTENTS. And as for the “compelling reason” criterion, everybody on both sides agrees that only the state Supreme Court can end the current legal chaos.

    Looks like the Supremes relish the choas and made the Solicitor General the fall guy.

    Someone’s gotta be blamed and it can’t be the Commander in Chief of the State of Disaster.

  4. Pingback: Back to SCOTx for the mask mandate ban – Off the Kuff

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