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Just a reminder, no one is enforcing Abbott’s mask mandate ban

In case you had forgotten.

While Republican Gov. Greg Abbott is speaking out against mask mandates in schools and suing to stop some Texas school districts from enacting them, in reality his order banning such mandates has gone largely unenforced — so much so that the federal government doesn’t consider it active.

Abbott threatened $1,000 fines for officials who try to impose mask mandates, although no such fines have been handed down. And if he wanted to, Abbott could send state troopers or deputize the Texas National Guard to enforce his order, as he has done on the border, but he hasn’t. Texas Attorney General Ken Paxton, meanwhile, has a published list of 71 non complying cities, counties and school districts; is fighting in court with at least six of them and sent letters threatening more legal action to others.

But in the court filings from the lawsuits, Paxton has acknowledged that neither he nor Abbott will directly enforce the ban on mask mandates, instead leaving it to local district attorneys, some of whom are already on-record saying that they don’t intend to prosecute.

Abbott’s own Texas Education Agency on Aug. 19 said that the ban on mask mandates would not be enforced until the courts have resolved legal challenges to his authority to do it. And the federal Department of Education chose Monday not to open an investigation into the matter in Texas, even as it launched probes of five other states with active bans.


The five largest counties in the state are Harris, Dallas, Tarrant, Bexar and Travis. The district attorneys for Harris and Bexar counties have already announced they don’t intend to prosecute school districts over mask rules, and a prosecutor with Travis County said the office would remain focused on violent crime, although they would evaluate the situation on a case-by-case basis.

Tarrant County did not respond to a request for comment, and a spokeswoman for Dallas County said: “This issue is working its way through the civil courts. At this point in time — until that’s concluded and depending on how that’s concluded — there’s no reason to consider a position on that.”

On Monday at a House Public Education Committee hearing, Rep. Steve Allison, a San Antonio-area Republican, acknowledged there’s “an appearance of dysfunction” in government right now over the mask orders and Abbott’s ban.

See here and here for the background. I’m not sure why the Travis and Dallas DAs are being so equivocal, but it doesn’t really matter. There’s no way they’ll prosecute anyone over this, not if they want to avoid having their asses handed to them in the next primary election. We all know this is about Greg Abbott trying to look macho for the Republican primary voters. There’s no need to help him with that in any way.

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  1. Kibitzer Curiae says:


    Below is a status report on the GA-38 challenges as promised (appellate only). For an explainer of the distinction between Temporary Restraining Order (TRO) and Temporary Injunction (TI) and the corresponding distinction between mandamus and interlocutory appeal, see Kibitzer Curiae comment yesterday on the SB 8 abortion litigation story.


    There is an additional wrinkle in Stage II litigation involving TIs rather than TROs: In some cases, the AG is appealing the separate denial of a jurisdictional plea (“Can’t sue the Governor”), while in others they are claiming that the grant of the TI constitutes an implied denial of a jurisdictional challenge (when there is no separate order, as in the San Antonio case). More specifically, the argument is that the TI cannot be valid (irrespective of what it says) if the trial court had no jurisdiction over the dispute/case as filed in the first instance.

    Regardless of how that gets resolved, there is an immediate effect that benefits the Governor. While the appeal of the TI does not stop the trial court case (even if it suspends the order being appealed), the appeal of the immunity denial stops all activity in the trial court, foreclosing for example the amendment of the pleadings or the modification of the initial TI (which might moot the pending appeal or part of it) or the joinder of additional parties, which could in the interim apply for a TRO against the Governor for their own benefit in a case in which one had previously been granted to the original plaintiff(s).

    A similar procedural quirk besets the federal SB 8 litigation, in which the AG appealed the State Defendants’ motions to dismiss for lack of jurisdiction (Can’t sue us in federal court, especially not any Texas state judges), thereby divesting the federal district court of jurisdiction to hear the request for a temporary injunction under the federal rules governing appeals of ancillary orders. Because the district court never certified Texas judges as a class of defendants, only one of them ended up in the SCOTUS: Austin Reeve Jackson, Judge of the 114th District Court, Smith County, Texas. Therefore, the argument goes, even if the SCOTUS had granted the requested emergency relief as to enforcement of SB 6 through private lawsuits by Texas state courts, it would only have applied to one judge of one court in only one of 254 counties.

    The SB 8 challenge remains pending in the Fifth Circuit, but the appeal involves jurisdictional arguments rather than the propriety of a preliminary injunction, whereas in the mask-mandate cases both jurisdictional and non-jurisdictional (i.e. merits) arguments are being litigated in the intermediate courts of appeals because the thrust of each such appeal is whether the trial court abused its discretion in granting the temporary restraining order. If the appellate court affirms, the temporary injunction stands.

    Because in Whole Woman’s Health v. Jackson the trial court proceedings are on hold (awaiting further Fifth Circuit action in the pending appeal), it is likely that state court cases involving SB 8 will proceed faster. As has been reported, TROs have already been entered, soon to be followed by hearings on applications for temporary injunctions and (possibly) jurisdictional pleas and/or motions to dismiss (perhaps TCPA) by named defendants. Although they involve numerous novel issues of law, the SB 8 cases are subject to the same procedural rules as the mask-mandate challenges. Under those rules, however, state defendants get preferntial treatment in some respects, and are typically represented by the Attorney General, rather than private attorneys.



    Abbott v. City of El Paso, No. 08-21-00149-CV (Temporary injunction granted by county court in El Paso County Sep. 2, 2021 and same-day denial of Abbott’s plea to the jurisdiction)
    Abbott and Paxton v. Point Isabel ISD, No. 13-21-00283-CV (Denial of Defendant’s plea to the jurisdiction on Sep. 1, 2021)
    Abbott v. La Joya ISD et al, No. 03-21-00428-CV, Third Court of Appeals, Austin (Temp. Inj. in favor of numerous school districts, including HISD, granted August 27, 2021)
    Abbott and Paxton v. Harris County, Texas, No. 03-21-00429-CV, Third Court of Appeals, Austin (Temp. Inj. in favor of Harris County granted Aug 27, 2021)
    Abbott v. City of San Antonio and County of Bexar, No. 04-21-00342-CV, Fourth
    Court of Appeals, San Antonio (Temp. Inj. in favor of City of SA and Bexary County, stayed by SCOTX in 21-0720)
    Abbott v. County of Fort Bend, No. 01-21-00453-CV, First Court of Appeals, Houston (Temp. Inj. in favor of Fort Bend County signed Aug 23, 2021, rule 29.3 motion for reistatement denied by COA)
    Governor Greg Abbott, Attorney General Ken Paxton, and The State of Texas
    v. Clay Jenkins, In His Official Capacity, No. 05-21-00733-CV, Fifth Court of Appeals, Dallas (Temp. Inj. in favor of County Judge of Dallas County Clay Jenkins signed Aug. 25, 2021; rule 29.3 motion for reinstatement withdrawn in light of SCOTX stay against 4thCOA by SCOTX in 21-0720)


    In re Abbott, No. 04-21-00349-CV, Fourth Court of Appeals, San Antonio (City of Laredo)(pending)


    In re Abbott and Ken Paxton, No. 13-21-00274-CV, Thirteenth Court of Appeals, Corpus Christi & Edinburg (Point Isabel Independent School District)(AG request for emergency relief denied, case remains pending)


    In re Abbott, No. 08-21-00140-CV, Eight Court of Appeals, El Paso (City of El Paso)(AG request granted in part and denied in part, per curiam order with multiple separate opinions accompanying the decision)
    In re Abbott, No. 05-21-00687-CV, Fifth Court of Appeals, Dallas (Dallas Cty Judge Jenkins)(denied with legal rationale)
    In re Abbott, No. 04-21-00336-CV, Fourth Court of Appeals, San Antonio (SA, Bexar Cty)(denied summarily)
    In re Abbott, No. 01-21-00440-CV, First Court of Appeals, Houston (Fort Bend Cty)(stay granted with referece to SCOTX stays)


    In re Abbott, No. 21-0720, Supreme Court of Texas (Rule 29.3 Order from 4th COA reviving Ti from Bexar County in favor of City of San Antonio and Bexar County stayed on 8/26/2021)(stay order issued)
    In re Abbott, No. 21-0701, Supreme Court of Texas (Mandamus relief against 3 TROs from Travis County in favor of Harris County, Southern Center, and several school districts)(denied on procedural grounds without regard to merits)
    In re Abbott, No. 21-0687, Supreme Court of Texas (TRO in favor of San Antonio and Bexar County from Bexar County)(stay order issued)
    In re Abbott, No. 21-0686, Supreme Court of Texas (TRO in favor of County Judge Clay Jenkins from Dallas County) (stay order issued)

    Note that the mandamus petitions in Tex. Nos. 21-0686 and 21-0687 named the respective courts of appeals as respondents, rather than the trial courts/judges, but the SCOTX stayed the TROs, rather than any order by the appellate court (as in 21-0720 more recently). These SCOTX cases should be deemed moot because the TROs would have expired by their own terms and temporary injunction orders have since been entered, which have already been appealed and docketed by the respective appellate court clerks of the Dallas and San Antonio Courts of Appeals. As of 9/3/2021 however, these SCOTX cases had not been dismissed. Nor has any party requested dismissal. No. 21-0720, by contrast, remains active, as does the case in the San Antonio Court of Appeals to which the stay order pertains (04-21-00342-CV).

  2. Jason Hochman says:

    They aren’t able to enforce their mask mandate, either. If they are going to fine you for not following their dictatorial decree, they can’t force you to pay. But, you can always take your mask off to eat or drink, so the obese need not wear a mask, since they need to eat more often.

  3. […] neither Ken Paxton nor Greg Abbott has the power to enforce mask mandate bans. Even if Paxton gets a judge to rule in his favor – the score so far is tilted pretty heavily […]