Welcome back to school, kids.
Positive COVID-19 cases among Texas public school students rose by more than 9,000 last week, the highest number ever recorded in a seven-day period, state data shows.
As of Aug. 22, there were 14,033 reports of positive COVID cases in students across the state, according to data released by Texas Health and Human Services on Friday. The number represents a 182 percent increase from the 4,976 student cases reported through Aug. 15.
There were another 3,425 positive cases reported in school staff across the state, an increase of 712 from the previous week.
In some districts, more than half the new infections are among elementary school students, who are not eligible for any of the available vaccines.
“This school year is gonna look a whole lot different than last year,” said Dr. Katelyn Jetelina, an assistant professor of epidemiology at UTHealth School of Public Health in Dallas. “We have a whole lot more transmission now in the community and we have the delta variant.”
The cumulative number of cases in students since the 2021-2022 school year began is 20,256. The total staff cases so far this school year is 7,488.
In case you were wondering why so many parents are pissed about the fight against mask mandates. Now that all schools are open I would hope we won’t see any more big jumps like that, but we are going to see the case levels rise for now. I hope that at some point, when there’s enough data to be reasonably confident in the results, we can get a comparison of COVID rates in districts that have mandated masks versus those that have not.
On a related note:
People under 50 are being admitted to hospitals with COVID-19 in larger numbers than at any point during the pandemic as the latest surge of the coronavirus continues to tighten its grip on Texas.
According to data released by the Texas Department of State Health Services, as of Aug. 22, adults 30 to 49 now account for roughly 29% of all COVID-19 hospital admissions in Texas, up from 15% on Jan. 11 during the height of the winter surge.
The data shows that people in the 18-29 age group increased their share of admissions during that period from 5% to 7%, while the percentage of children under 18 admitted to hospitals with COVID-19 increased by 1 percentage point — an average of 46 children each day were hospitalized during the week ending Aug 22.
Meanwhile, fewer people over 70 are landing in hospitals with COVID-19. During the winter peak, about 41% of hospitalized COVID patients were over 70. As of Aug. 22, that dropped by almost half, to 23%.
The data confirmed what many doctors have been saying in recent weeks about the delta variant sending younger people into hospitals at a higher rate than earlier in the pandemic.
“We are seeing certainly younger patients hospitalized and younger patients on ventilators where we haven’t seen that before,” said Dr. Ron Cook, chief health officer at the Texas Tech University Health Sciences Center.
This variant has spread faster among unvaccinated Texans of all ages. As of last week, between 93% and 98% of hospitalizations have been unvaccinated people, depending on the area of Texas, officials said.
More than 70% of Texans over the age of 50 are fully vaccinated, compared to only about half of Texans between the ages of 16 and 49 and one-third of those ages 12-15. Children under age 12 are not eligible for vaccination.
And as the hospitals fill up with COVID patients, people who have other serious but treatable conditions are put in jeopardy. No amount of horse de-wormer is gonna fix that.
PAXTON’S LEGAL RAMPAGE … AGAINST SCHOOL DISTRICTS, ETC.
While we are at it on the other disaster thread (intensification of hurricane threat), here an update on another salvo in the legal fight over masks in schools for infection control.
Emeritus Law Prof. Ron Beal today submitted another frenemy-of-the-court letter brief, calling out the Supremes for their vacuous “status-quo” rationale for deferring to Abbott and putting on ice the lower court injunctions against the mask mandate prohibition of GA-38.
It takes some guts to challenge the High Honors, even if it involves the equivalent of telling them that the law provides no cover when the emperor wears no clothes.
Excerpt follows below. The letter should be on the docket for Tex. No. 21-0720 by tomorrow at the latest. URL here: https://search.txcourts.gov/Case.aspx?cn=21-0720&coa=cossup
“STATUS QUO” DEFERENCE TO GOVERNOR AND SUPREME “LACK OF LOGIC”
By Ron Beal
This Court’s guidance on the multiple stay orders was that the status quo must
be maintained throughout this appellate process and that time was obviously
after the issuance of GA-38.
This is clearly fundamentally wrong and the statistics I cited clearly establish
this Court’s lack of logic. The Public Schools built their “wellness schools” to
prevent children from becoming ill simply because they wanted to learn and it
worked because they required masks of their students. That was the status quo
all summer and it was successful. The Public Schools intended it to be the status
quo for the new school year particularly because of the massive growth of the
new covid variant.
ABBOTT ORDERED DE-MASKING AND THUS CHANGED THE STATUS QUO FOR SCHOOLS
Governor Abbott tore down the “wellness schools” as if he had cut off one’s
head with a sword. That destruction subjects each and every child, staff and
teachers on a day-to-day basis to a likely possibility of sickness, extreme pain and
suffering and possibly death. And like a cut-off head, it is pretty hard to make one
whole again after being subjected to the covid variant.
IRREPARABLE HARM
Those who have so suffered this last week and continue to suffer can never
be made whole and if it is correct the Governor is without power, they have
needlessly suffered or died because this Court so allowed such conditions to
exist. Could that under any circumstances by legally tolerable?
Even if the Governor is correct, what is his loss if he must wait a month or two
or even three? His only “loss” will be more healthy and alive Texas citizens to go
to school!!
To say it more concretely, the schools want to avoid student sickness,
subsequent major illness or death and this Court allows all three to occur by its
stay order pending the ultimate decision in all of these cases.
How can that possibly be the status quo?
If this Court ultimately determines that the Public Schools are correct, please
tell us all now how this Court will explain to the ill, the very ill and the dead that
they were not harmed by maintaining the status quo?
If this order maintains the status quo, then I assume the world really is flat.
Second, this Court stated in its stay order the issue was not masks, but who
could issue such an order. Really? I assert the answer to that question is so clear
and unambiguous that this Court needs absolutely no aid and advice of the lower
courts.
STATUTORY CONSTRUCTION 101
Of course, Chapter 418 expressly provides that Governor Abbott may issue
such orders, which, if valid, have the force and effect of law, Chapter 418.012.
Further, he is expressly given the title and possibly power by being named the
“Commander and Chief,” Chapter 418.015(c). But over whom? This section does
not include public schools, cities and counties. What is one of this Court’s most
utilized canons of statutory construction?: “Every word of a statute must be
presumed to have been used for a purpose. Likewise, we believe every word
excluded from a statute must also be presumed to have been excluded for a
purpose, In re Bell, 91 S.w.3d 784, 790 (Tex. 2002) (emphasis added). Not only did the Legislature not include local governmental agencies within this provision, they were clearly thinking about them for Chapter 418 includes them within the
definition of a “local governmental entity,” Chapter 418.004(10).
Thus, the Legislature could have so easily named each entity or used the
collective definition, but they did not. Thus, the Public Schools are not subject to
the control and every whim of the commander in chief. In fact, he has no
administrative or substantive power over them at all.
COMMANDER IN CHIEF TO FIGHT THE EPIDEMIC, NOT THE LOCAL GOVERNMENT
The Governor, however, does have power to adopt orders with the force and
effect of law to combat the disaster and obviously, since they have the force and
effect of law, the Public Schools would be bound to follow them. But, the
Governor is only acting within his statutory power if such order reduces the
vulnerability of people to injury or loss of life, Chapter 418.002(1). He is
responsible to meet the dangers to the people presented by the disaster, Chapter
418.011(1). He has met the danger, but He has hugged it and invited it in to our
schools and ultimately, our entire community which will probably, once again,
shut down our economy!!!!!
ALL THE FACTS WE NEED ARE BEFORE YOU AND US
The facts are wholly undisputed and of public knowledge that the second most
effective means of controlling the spread of the corona virus is wearing masks
when persons are in close quarters in an enclosed building for a long period of
time. Thus, it is factually unquestioned that Governor Abbott’s GA-38
substantially enhances and causes to a far greater degree the transmission of the
covid virus than if all were wearing a mask.
It can be nothing but undisputed by any court that believes it is bound by the
actual language of the statute that GA-38 is blatantly invalid.
LEGAL DISASTER ATOP A HEALTH DISASTER
With such a devastating and killing disease working its maximum spreading
effect each school day, when we all already know GA-38 is a grossly invalid act,
just how can this Court wait for appeals particularly when Attorney General
Paxton has been screaming, “throw out all the rules and prevent this legal
disaster at once.” He is correct, but he has the wrong disaster. It is the people of
the State of Texas who have the disaster. Governor Abbott should abide by the
law. This Court has the full power, knowledge, and ability to stop “this disaster
upon a disaster” so we can all get back to really fighting the disaster. Texas
citizens are counting on it, some currently with the loss of their life.
Sincerely,
/s/ Ron Beal
Professor Emeritus & Attorney at Law,
Waco, TX
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POSTER’S NOTE: Title and section headers in CAPS are not in the original, but were added by this Kitbitzer to aid busy readers.
END-OF-MONTH STATUS OF MASK-MANDATE LITIGATION
Q: What was the effect of the SCOTX stay order in Tex. 21-0720 issued last Thursday, August 26, 2021?
Short A: Several courts of appeals have spoken since, and more temporary injunctions have been granted.
DALLAS
In the Dallas case, the legal team for County Judge Clay Jenkins withdrew their pending rule 29.3 motion to reinstate the trial court injunction in Jenkins’ favor, and instead requested an accelerated briefing and disposition schedule from the Fifth Court of Appeals. The court granted the motion, which was not opposed. The opening brief on the mertis is due 9/7/2021. No. 05-21-00733-CV
FORT BEND AND HOUSTON
In the Fort Bend County case pending in the First Court of Appeals in Houston, Justice Sarah B. Landau, acting individually, denied the County’s rule 29.3 motion with reference to the Supremes’ stay of the Fourth Court of Appeals’ order granting such a motion in favor of City of San Antonio and Bexar County. The two interlocutory appeals are very similar except that in the Fort Bend County case the AG appeals not only the temporary injunction against the Governor, but a separate trial court order denying a plea to the jurisdiction. No. 01-21-00453-CV.
TRAVIS COUNTY CASES (HISD et al ISDs, HARRIS COUNTY AS PLAINTIFF)
Houston ISD aka HISD, along with other school districts, last Friday (8/27/2021) obtained a temporary injunction against the Governor in Travis County District Court in a case in which a different judge (Jan Soifer) had previously granted a TRO, which the AG unsuccessfully challenged in the Texas Supreme Court (Tex. No. 21-0701). In her opinion in the El Paso case (see below), Justice Palafox points out that “the Supreme Court’s order in No. 21-0701 permitted three temporary restraining orders to remain in effect which enjoined the Governor from enforcing GA-38 to the extent that it prohibited Harris County officials, certain named school districts, or any school district in Texas from requiring face masks or coverings.”
According to press reports, the AG has appealed the temporary injunction order that replaced the Travis County TRO in favor of numerous school districts, but the appeal had not yet shown up on the Third Court of Appeals’ docketing system as of Monday 8/30. It should be on the docket by tomorrow under No. 03-21-00428-CV. An amended notice of appeal was filed today, August 31, 2021. In addition to complaining about the temporary injunction against Abbott, the appeal challenges the denial of jurisdictional pleas not only by Abbott, but also by AG Ken Paxton, and the State of Texas. The notice of appeal lists STATE OF TEXAS, OFFICE OF THE TEXAS GOVERNOR, OFFICE OF THE ATTORNEY GENERAL, and KEN PAXTON, in his Official Capacity as the Attorney General of Texas apart from GOVERNOR ABBOTT, and labels these additional parties Intervenor Defendants.
Harris County obtained a temporary injunction from the same trial court judge in a separate case. The petition filed by Harris County in that case names AG Ken Paxton as an official-capacity defendant in addition to Governor Abbott. No appeal could be found on the Third Court of Appeals website.
EL PASO: TRO CHALLENGED BY MANDAMUS
In El Paso, the three-member appellate court split three ways and issued a per curiam opinion denying and granting in part the Governor’s mandamus challenge to a restraining order issued by a county court judge in a suit brought against him by the City of El Paso. 08-21-00140-CV. Area school districts were within the scope of the TRO, but did not appear as co-plaintiffs.
The Eighth Court of Appeals provided the most extensive analysis yet of the legal limbo created by the conflicting rulings of trial and appellate courts, and the supreme court’s own inconsistent decisions (in granting and denying stays in four separate mandamus cases). See Chief Justice Rodriguez’ separate opinion in particular. Her dissenting opinion in State v. El Paso last year has since been adopted by the Dallas Court of Appeals as its own precedent in In re Greg Abbott (Dallas County), No. 05-21-00687-CV, 2021 WL 3610314 (Tex.App.—Dallas Aug. 13, 2021, orig. proceeding)(mem. op.). That’s the mandamus case in which the Dallas Court of Appeals denied the Governor relief against the initial TRO in favor of Clay Jenkins, County Judge [Chief Executive, for non-Texans] of Dallas County.
“[A]pplying the plain language of the Texas Disaster Act, we conclude Judge Jenkins demonstrated a probable right to relief that the Governor’s power to suspend certain laws and rules under section 418.016(a) does not include the power to suspend the Act’s grant of authority to mayors and county judges to declare and manage local disasters under section 418.108. See TEX. GOV’T CODE §§ 418.001-.261. Accordingly, we deny the petition for writ of mandamus. Having denied the petition, we also deny relator’s emergency motion for temporary relief as moot.”
https://scholar.google.com/scholar_case?case=8257590998971637778&hl=en&as_sdt=6,44 [Google Scholar version contains hotlink to the lengthy majority and dissenting opinions in State v. El Paso County, 618 S.W.3d 812 (Tex. App.-El Paso 2020, no pet.]
CORPUS CHRISTI: TRO FOR ALL SCHOOL DISTRICTS ALLOWED TO LET STAND
The Thirteenth Court of Appeals (which sits in Corpus and Edinburg) also entertained a mandamus challenge of a TRO, which had been granted in favor of Point Isabel ISD by a trial court in Cameron County. 13-21-00274-CV. The court denied the AG’s motion for emergency relief on Monday 8/30/2021 (with one dissent) and requested responsive briefing on the merits. In a short order, the court indicates that the trial court issued a temporary restraining order enjoining enforcement of GA-38 not only against Point Isabel ISD (the plaintiff in the underlying case) but “all Texas Independent School Districts.”
Unlike their colleagues in El Paso, the appellate panel here made no reference to the SCOTX stay order in 21-0720 and invited other school districts to weigh in on the merits:
“[W]e deny the relators’ emergency motion for temporary relief. The Court requests that the real party in interest, Point Isabel ISD, or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ of mandamus on or before the expiration of ten days from the date of this order. See id. R. 52.2, 52.4, 52.8.”
In the Port Isabel case, AG Ken Paxton is a named party, which is why they are referring to the relief seekers in the plural (“relators”). More likely than not the TRO will become moot before the briefing in the appellate court is completed, but large part of it can be recycled in Round 2 if a temporary injunction is granted by the trial court to replace the TRO.
SAN ANTONIO
In the wake of the Supreme Court’s stay order of August 26, the Fourth Court of Appeals has accelerated the briefing and disposition schedule for the Governor’s pending interlocutory appeal of the temporary injunction in favor of the City of San Antonio and Bexar County. The Governor’s brief on the merits of his appeal is due September 7, the same date as the appeal in Dallas. In the interim, the temporary injunction that is the subject matter of the appeal is presumably “superseded” by operation of law and has no legal effect.No. 04-21-00342-CV.
SUPREME COURT OF TEXAS: POST-STAY ACTIVITY
In Tex. 21-0720, the mandamus against the San Antonio Court of Appeals, Emeritus Law Professor Ron Beal has submitted a second friend-of-the-court letter brief.
In it, he harshly criticises the Supremes for their failure to act promptly to protect school children, their families, and all other Texans, and takes them to task for not striking down Abbott’s GA-38 as patently unsustainable under the Texas Disaster Act.
Professor Beal, an expert in administrative law, argues forcefully that there is no factual dispute here, that the law governing the matter is crystal clear so that the Supreme Court has no need for further assistance with the jurisprudential analysis from the lower courts, and that the high court should settle the matter-of-law issue immediately. He also faults the Supremes for their status-quo rationale for the stay in the San Antonio case and for declining to decide the challenges against Abbott’s GA-38 on the merits, thereby allowing a crisis situation to continue with further disease spread, illness, and death. He wants to know what is the alleged harm to the Governor that would warrant emergency relief, compared to Texans getting sick and dying while the stay is in effect.
Case cite: In re Greg Abbott, In His Official Capacity as Governor of The State of Texas, No. 21-0720 (Tex. Aug. 26, 2021)(orig. proc.)(stay order against Fourth Court of Appeals) .
STATUS OF APPELLATE LITIGATION ON MASK MANDATE AS OF SEP. 1, 2021
New Developments: 2 More Temporary Injunction Appeals in Austin
The two interlocutory appeals from Travis County — temporary injunctions granted by Judge Mauzy last Friday in favor of Harris County and a number of school districts in two separate cases, are now docketed in the Third Court of Appeals (Austin). The appellate case numbers are 03-21-00429-CV and 03-21-00428-CV, respectively. In both appeals, the case style includes Attorney General Paxton as a party in addition to the Governor. La Joya Independent School District is the lead plaintiff/appellee in the school district case. The other governmental parties lined up against the Abbott-AG Alliance are as follows:
Houston Independent School District, Dallas Independent School District, Northside Independent School District, Austin Independent School District, Aldine Independent School District, Spring Independent School District, and Austin Community College District.
Note that the Abbott-AG Alliance is appealing not only the temporary injunctions, but also the denial of their jurisdictional challenges (pleas of the jurisdiction). This second type of interlocutory (i.e., immediate) appeal puts an automatic stop to all further litigation activity in the trial court independent of the purported automatic “supersedeas” stay of the trial court’s order that some courts have apparently accepted as controlling procedural law even when there is nothing for the beneficiaries of the TI to enforce because it only grants them temporary protection against enforcement of Abbott’s executive order against them. A supersedeas normally keeps the judgment creditor at bay while the a debtor’s appeal is pending, but let’s leave that complicated topic for another day.
Supplementation: City of Laredo v. Abbott
The Fourth Court of Appeals in San Antonio issued a procedural order on Monday that was -alas- omitted from Kibitzer’s end-of-the-month status report (see above).
This case involves a TRO granted in favor of the CITY OF LAREDO that was extended by the trial court. In their 8/30/2021 order, the three justices on the panel state that “[t]his court believes a serious question concerning the mandamus relief sought requires further consideration” and has requested a response by noon today. Since the temporary injunction (TI) hearing in the Webb County trial court is set for tomorrow, we can expect the appellate panel (Patricia O. Alvarez, Irene Rios, and Lori I. Valenzuela) to either issue a decision this afternoon or dispose of the mandamus petition as moot later.
Unlike the El Paso COA, the Fourth Court of Appeals in San Antonio has more than three members, and therefore sits in panels of three. The panel on this case is a different one from the one in Abbott v. City of San Antonio and Bexar County, in which the SCOTX has imposed a stay. If the panel promptly issues a reasoned order in the CITY OF LAREDO case today, it might have the effect of guiding the trial court with respect to the temporary injunction tomorrow.
LEGAL CITE: In re Abbott, No. 04-21-00349-CV (Tex.App.- San Antonio, Aug. 30, 2021)(order requesting response by real parties in interest).
Both appellate and trial courts will also have the benefit of the divergent jurisprudential analyses of the procedural quagmire contributed by the three justices on the El Paso Court of Appeals, who had a previous opportunity to delve in the matter of gubernatorial Disaster Act powers last year. You can read their current three-way (would-be) jurisprudence here: https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=02369ab4-ee3e-4f6a-953b-a31cdbb754f7&coa=coa08&DT=Order&MediaID=60d739ff-d9ee-4c07-b9fe-9ce3f1142fe4
In State v. El Paso of last year, AG Paxton litigated as “The State of Texas” rather than providing legal representation for Gov. Abbott as an official-capacity defendant, as he does in the multitudinous current cases over his mask-mandate ban. The dispositive issue then involved the interpretation and application of the Texas Disaster Act only. See State v. El Paso County, No. 08-20-00226-CV, 618 S.W.3d 812 (Nov. 13, 2020)(Panel majority opinion backing Governor Abbott by Jeff Alley, elaborate dissent by Justice Yvonne Rodriguez). In the present litigation over GA-38, more is at issue, including the City’s ability to do what cities regularly do pursuant to other statutes and their own charters, and the constitutionality of the Governor’s use of powers to issue emergency executive orders that contravene the legislative intent of the Disaster Act, and his assertion of the purported power to suspend any law that conflicts with his executive orders as he sees fit.
A MORE POLISHED ARGUMENT ABOUT INVERTING THE DISASTER ACT
The Texas Disaster Act was initially authorized by the Texas Legislature in
1987. It was adopted in response to and in anticipation of various occurrences
constituting a disaster. Its purposes include to “(1) reduce vulnerability of people
and communities of this state to damage, injury, and loss of life and property
resulting from natural or man-made catastrophes … (2) prepare for prompt and
efficient rescue, care, and treatment of persons victimized or threatened by
disaster; (3) provide a setting conducive to the rapid and orderly restoration
and rehabilitation of persons and property affected by disasters. …” Tex. Gov’t
Code 418.002.
GA-38’s prohibition against mask mandates in public schools contravenes this
purpose. Because the State Legislature has not provided for virtual learning options, school children are compelled to attend school in person, potentially exposing them to a contagious disease for which there is no vaccine for those under 12 years of age.
The Texas Disaster Act should not be construed in a way that allows the Governor
to further the effect of the COVID-19 disaster on Texas school children. By
depriving school officials of the right to require masks when deemed necessary by
school officials, he deprives them of the essential safety tool proven necessary to
curtail spread.
The Governor urges that he is statutorily authorized to ban mask mandates
under the guise of authority to control people’s movement in a disaster. This
argument lacks acknowledgement of the context of the statute itself. Texas
Government Code Section 418.018 is entitled “Movement of People.” Both
subsections (a) and (b) relate to the Governor’s authority to recommend and
orchestrate evacuations. The final subsection (c), under which the Governor claims his power to block mask mandates, says that the governor may control ingress and egress to and from a disaster area and movement of persons and occupancy of premises in the area.
These statutes plainly authorize the Governor to direct Texans away from danger. These statutes do not authorize the Governor to deny school officials to right to protect Texans in the midst of danger.
Pushing this point further, Section 418.018(c) authorizes the Governor to
curtail the movement of Texans in and out of premises in areas besieged with
disaster. In fact, the Governor exercised this authority properly earlier in pandemic when ordering schools to be closed and prohibiting visitors into nursing homes. Instead of similarly circumscribing the movement of Texans to avoid the disaster, GA-38 compels public students to be open to disaster. Without authority to compel a mask mandate, public schools must permit unmasked students, employees, and visitors to parade the school premises (i.e., parade the disaster area) and potentially cause harm to themselves or others. Section 418.018 (c) must not be interpreted to authorize the Governor to push Texans into danger. Such action is not within his power to “control egress and ingress” of a disaster area. The Governor’s authority under the Texas Disaster Act must at all times be interpreted to mitigate rather than exacerbate disaster.
For the reasons stated above, and for reasons asserted by the Plaintiffs, we
urge this Court to deny the Writ of Mandamus and in so doing to affirm the legal
authority of local officials, including especially public school officials, to require
masks in school buildings where precautions may be absolutely necessary to prevent the spread of COVID-19 and to keep schools safely open for in-person learning.
SOURCE: Excerpt from an Amicus Letter Brief filed today (9/1/2021) by a law firm that represents over 150 Texas public school systems.
See the entire piece here:
https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=5cc1e8b7-9703-4f20-a7f9-3c4043d1c34d&coa=cossup&DT=BRIEFS&MediaID=e67a7f09-eb0d-41c7-85d4-54bfe87b55a1
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Even the legal pros have (or at least are liable to commit) some — shall we say — textual humor:
The “RE:” line on the friendly court letter here would have the Guv take this talents elsewhere:
RE: 21-0720; In re Greg Abbott, Realtor [SIC]
Perhaps it was just a Freudian slip, what with all the ingress and egress, zones, and occupancy of buildings, not to mention the slippery slope that Governor has been on with his serial executive orders.