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Harris County

Commissioners Court avoids quorum break

Good.

Harris County Commissioners Court this week unanimously agreed on a proposal to cut the overall property tax rate for the coming year, a compromise that avoids a potential quorum break by Republicans that would have forced an even deeper cut.

The rate of 58.1 cents per $100 of assessed value is 3 percent less than the current levy. This means the owner of a home valued at $300,000, with the standard 20 percent homestead exemption already factored in, could save up to $54 in the first year. However, as Harris County Appraisal District valuations continue to rise, homeowners could see slightly higher tax bills, despite the lower rate.

The overall rate is the sum of the rates Commissioners Court sets for four entities: the county as a whole, the flood control district, the hospital district and the Port of Houston. Compared to the current levies, the flood control district rate will increase slightly, while the other three entities would see a rate cut.

Democratic Precinct 2 Commissioner Adrian Garcia last week proposed a rate of 58.6 cents per $100 of assessed value, a 2.2 percent cut from the current rate of 59.9 cents.

The two Republican members wanted more significant savings for taxpayers, noting economic hardships wrought by the COVID-19 pandemic. Precinct 3 Commissioner Tom Ramsey proposed a rate of 57.9 cents.

County Judge Lina Hidalgo warned against cutting the tax rate, and thus revenues, too much because it will make raising more revenue in the future more difficult. That is because of a revenue cap the Legislature placed on cities and counties last year which limits year-over-year growth to 3.5 percent without voter approval.

“We should be negotiating on what the county needs,” Hidalgo said. “It does not benefit me, politically, to want to cut taxes less. I simply know we’re headed down a dangerous path.”

After hours of haggling at a hearing Tuesday afternoon, the panel agreed on the 58.1 cent rate, which Garcia offered as a compromise. The court at one point was mulling a half dozen options and County Administrator David Berry confessed he was struggling to keep track of who had proposed which.

See here for the background. They say in baseball that you gain more by avoiding dumb decisions than you do by making brilliant ones. I’m just glad we were able to avoid the dumb outcome here.

First new SBOE map proposed

That’s two down, two to go.

The Texas Senate on Monday released its first draft of a new map for the State Board of Education, which attempts to reinforce the GOP majority within the 15-member, Republican-dominated entity that determines what millions of public school students in the state are taught in classrooms.

The map is likely to change as it makes its way through the legislative process, which began formally Monday as the Legislature kicked off its third special session of the year. Lawmakers have been tasked with redrawing district maps for the board, the state House and Senate as well as the state’s congressional seats. They will craft those maps using the latest census data, which showed that people of color fueled 95% of the state’s population growth over the past decade. The proposals will have to be approved by both chambers and signed by Gov. Greg Abbott.

Nine Republicans and six Democrats currently make up the State Board of Education. During the 2020 general election, seven of those 15 districts went to President Joe Biden — though, under the Senate’s proposed map, only five would favor Biden and one would be considered a toss-up seat.

Districts 6, held by Republican Will Hickan of Houston, and District 12, held by Republican Pam Little of Fairview, both went to Biden narrowly in the 2020 election. Those two districts would be retooled under the Senate’s draft to include more Donald Trump voters and give Republicans a more comfortable majority. District 2, which favored the Republican former president in 2020 by a few percentage points, would be evenly split among Biden and Trump voters. That district is currently held by Ruben Cortez Jr., a Brownsville Democrat.

The special session, which can last up to 30 days, is expected to focus largely on redrawing the state’s political maps, along with a host of other issues set by Abbott. Since the GOP holds majorities in both chambers, the redistricting process will be in the hands of Republicans, who will work to best position their party for the next decade.

You can see an image of the proposed map in the story, and in this Twitter thread, or you can get all fancy and look in the District Viewer, which lets you zoom as far in as a Google map would. You can see the current map here for comparison, and my 2020 precinct analysis is here. This person projects that the split would remain 9-6 based on 2020 data, though SBOE2 is close, with the Dems having about a four or five point advantage. SBOE5, the district we picked up in 2020, becomes more solid blue, while districts 6, 10, and 12 become redder.

The strategy, based on the shrinking rural areas plus the booming – and blueing – suburbs, is combining rural districts with pieces of suburban, and in some cases urban, counties. Look at SBOEs 9 and 14, for example, both of which now include pieces of Dallas County, with SBOE14 picking up much of Denton as well. Dallas County wins the “prize” of having the most districts in it with five – Harris only has three. On the other end is SBOE6, which is following the SD07 plan of carving out a piece of Montgomery County to fend off the blue tide in Harris. SBOE8 cedes most of Montgomery to SBOE6 and picks up a piece of Fort Bend in return. SBOE12 went from being all of Collin County and about a fifth of Dallas and nothing else to being all of Collin, a much smaller piece of Dallas, and a bunch of mostly Red River counties that had previously been in SBOE 9 and 15. I have think that SBOE9 incumbent Keven Ellis, who hails from Lufkin, is not too pleased to see so much of his district now in the Metroplex.

Anyway, this is the first map. The House will surely have its own maps on offer, and there will be revisions. I don’t see any other files on the Texas Redistricting site right now, but I’m sure they will appear soon enough. In the meantime, at least at first glance, this is more of a status quo map than anything else, in that the most likely scenario is the same 9-6 mix we have now. But SBOE2 could fall in a bad year or if the 2020 trends continue, and SBOE3 is more Republican at 43% than any of the currently red districts are Democratic (they all top out at 40 or 41), so the short-term potential for flips favors the GOP. We’ll see what happens from here.

The electoral dress code lawsuit

Still interesting.

A U.S. magistrate judge this week recommended striking down parts of Texas law that prohibit wearing political apparel within 100 feet of a polling place as unconstitutionally vague — but upholding a narrower provision that specifies that clothing bearing messages related to what’s on the ballot can be banned.

The issue first arose in 2018 when Harris County resident Jillian Ostrewich wore a Houston firefighters T-shirt to a polling place and election workers told her to turn it inside out because it related to Prop B, a pay parity measure for firefighters on that ballot that year. Claiming she was unconstitutionally censored and her right to free speech infringed upon, she sued Harris County and state officials.

The case puts to the test a U.S. Supreme Court ruling from June of that year in which the justices struck down a Minnesota law that banned voters from displaying “issue-oriented” apparel at the polls for being overbroad. The Texas suit was brought by Pacific Legal Foundation, the same California-based libertarian public interest law firm that won the Minnesota case.

[…]

U.S. Magistrate Judge Andrew M. Edison in his report on Tuesday said the election judge had a constitutional basis for rejecting Ostrewich’s shirt because it had a clear relationship to the ballot measure, even if it did not explicitly say to vote for that measure. Under that law, Edison said, Ostrewich had not been harmed and therefore was not entitled to damages.

Other parts of the law, however, which define “electioneering” as advocating “for or against any candidate, measure, or political party” through “posting, use, or distribution of political signs or literature” leaves room for misunderstanding, he said. Ostrewich would have no way of knowing whether wearing that same shirt in a future election, even if the measure weren’t on the ballot then, could also be considered illegal electioneering.

Those parts of the law “do not give Texas voters notice of what is expected of them in the polling place, and they do not provide election judges with objective, workable standards to rein in their discretion,” Edison wrote. “This is impermissible under the First Amendment and these statutory provisions should be struck down as unconstitutional.”

See here for the background. Seems reasonable to me to say that you can be barred from the restricted area for wearing a shirt that directly addresses the current election, but barring a shirt that’s not about that election may be too broad. The plaintiffs are claiming a victory, even though their main actor was denied any relief; I think the defendants can be reasonably satisfied with this as well. This was a recommendation and not a ruling – the parties have two weeks to hammer out an agreement of some kind, which will then need to be approved by the judge. I’ll be honest, I had no idea that was a thing, but here we are. The lawyers out there, what do you think about this?

Republican County Commissioners ponder another quorum break

It’s a thing they can do, and have done in recent times. They shouldn’t, not for this, but they can.

The three Democrats on Harris County Commissioners Court on Tuesday proposed cutting the overall property tax rate for the third year in a row, though the two Republican members left open the possibility they may force the adoption of a lower rate by skipping the vote in two weeks.

County Administrator David Berry warned that option would leave the county scrambling to pay for essential services, including debt service for the $2.5 billion flood bond program. Republican commissioners Tom Ramsey and Jack Cagle, however, see an opportunity to compel the Democratic majority to cut what they view as wasteful spending.

“We are having a budget challenge because of wasteful spending, not because of tax rates,” Ramsey said, citing the creation of new county departments and hiring outside consultants for various studies. “So, when we adopt a tax rate, it should be in that context.”

Each year, Harris County sets the tax rate for the county government, flood control district, hospital district and Port of Houston; the first three together comprise an overall rate that is used to calculate each property owner’s annual tax bill.

Berry proposed an overall rate of 58.6 cents per $100 of assessed property value. This would save the owner of a home valued at $200,000 with the standard 20 percent homestead exemption $27 since their last tax bill.

The three Democrats on Commissioners Court have expressed support for that rate.

Cagle’s pitch of 57.5 cents per $100 of assessed value, which included lower county and hospital district rates, would save this same homeowner $48.

The Precinct 4 commissioner said residents who still are struggling through the COVID-19 pandemic deserve more property tax relief.

“When we do the tax rate hearings, we need to be very careful that we make sure we don’t keep just the tax-spender mindset,” Cagle said. “The taxpayers, right now, are going through a rough season in their lives.”

[…]

The pair of Republicans have rare power over the tax issue because while they frequently are out-voted 3-2 by the Democratic majority on the court, Texas law requires a quorum of four members to set tax rates.

That means they simply can skip the Sept. 28 meeting when the vote is scheduled and thwart the Democrats’ plan; Cagle and then-commissioner Steve Radack did this in 2019 to block a tax hike the majority had proposed.

If the court does not approve new tax rates before Oct. 15, by law they revert to what is called the no new revenue rate, a steeper cut than even Cagle had proposed.

Berry said that would leave the county unable to fully fund the budget Commissioners Court unanimously approved in February. It also would constrain the county budget in coming years under a Texas Legislature-imposed revenue cap, which limits annual growth to 3.5 percent unless approved by voters.

“Over time, going to no new revenue rates are going to be very, very difficult for the county, given what we see in terms of rising health care and pension expenses,” Berry said.

He cautioned that reverting to the bottom rates would leave the county flood control district without enough to pay debt service on the bond program voters approved in 2018. That also could spook creditors and threaten the county’s robust AAA bond rating.

All five court members agree falling behind on debt payments would be foolish.

See here and here for more on the previous quorum break. If everyone agrees that a Cagle and Ramsey walkout would lead to a bad fiscal outcome for the county, then the very simple and logical solution is for them to not do that. They’re getting some of what they want, which is not a bad outcome for a political minority, and they have the option of campaigning for their alternate vision in an attempt to win back a majority position on the Court for next year. Done and dusted, let’s move on.

But if they choose to break quorum to force an even lower tax rate, in the name of “cutting spending”, then it is incumbent on the Democratic majority to respond. They can’t change the quorum requirement, which is a quirk of the state constitution, but like the Republican majority in the Legislature there are things they can do to make the price of breaking quorum higher. I would endorse two things to do in response: One, rewrite the budget so that the full cuts that would have to occur come entirely from Cagle and Ramsey’s apportionment. Do whatever it takes to make them feel the pain, since they were the ones who wanted the pain in the first place. And two, absolutely go for a maximalist redistricting map, to eject one of them from their current positions. Don’t play nice, don’t let bygones be bygones, just respond in kind and let them absorb the lesson that their actions have consequences. It’s basic stuff.

Now again, none of this has to happen. Commissioners Cagle and Ramsey can show up and vote how they see fit, and still get a lower tax rate even if it’s not as low as they would like. You can’t always get what you want, especially when you’re outvoted. Or they can go their own way and force their will onto the county, and see if the Dems have it in them to do payback. We’ll know on September 28 what they choose.

It could have been worse

Just something to ponder, from Space City Weather.

First of all, if you can remember all the way back to Saturday, I presented three different scenarios for Nicholas’ track and eventual flooding in Houston. The first of these was the “Coast Hugger,” in which the storm remained close to the Gulf, brought 2 to 4 inches of rain to Houston and higher amounts along the coast, while keeping the heaviest rains offshore. This is largely what happened, with Nicholas remaining very close to the coast even after moving inland. If we look at satellite-derived precipitation totals for the last three days, the heaviest swath of 10-20 inches of rainfall came offshore.

A track even 40 or 50 miles further inland would have set up those heaviest rains directly across the Houston metro area, and created a much more serious flood situation. Hopefully this offers you some insight into the challenge of predicting these kinds of rain events. It was a very close call, a matter of miles, between significant inland rainfall flooding in Houston, and relatively clean bayous this morning.

The second factor is wind. Nicholas turned out to be a fairly nasty storm in terms of wind gusts, and pushed a larger storm surge—as high as 6.1 feet into Clear Lake—than predicted. This is a reminder of the power of a hurricane, even one that was “only” a minimal Category 1 storm. The truth is that the track of the storm was very nearly a worst-case one for Houston in terms of winds and putting a maximum storm surge across Galveston Island and into Galveston Bay.

It is September 14, the absolute peak of hurricane season in the Atlantic, and a time when sea surface temperatures in the Gulf of Mexico are at their warmest of the year. So this morning I’m thinking about what would have happened if we had not had some wind shear over the western Gulf of Mexico yesterday, or if Nicholas had been able to consolidate a more well defined and consistent center of circulation. It would have been much, much worse for all of us had a significantly stronger hurricane made landfall last night. So while we pick up the pieces this morning, realize Nicholas could have been much more of a terror.

Not the first time this year that we averted a disaster by dumb luck. We’re four years out from Harvey, 13 years out from Ike, and we’ve had plenty of non-hurricane catastrophic floods in between, so it’s not like we’ve been living a charmed life here in Houston. Lots of people here have been hit very hard, and there’s a whole lot of talk about the trauma and stress that so many folks have experienced and still experience. This is life under climate change. There are things we can do to keep it from getting worse, and there are things we can do to make it better for those who have had the hardest time. But we can’t wish it away or ignore it, and we absolutely can’t deny it. It’s up to all of us.

The final Ike Dike plan

It’s taken a long time to get to this point.

The U.S. Army Corps of Engineers has released the final version of its Coastal Texas Study, which examines a proposed coastal barrier to protect the Houston region against storm surge. The report’s completion marks a significant step for a concept that has taken years to develop. It began with the early imaginings of a Texas A&M professor, who designed a so-called “Ike Dike” to protect against devastating surge such as that seen on Bolivar Peninsula from Hurricane Ike in 2008.

Environmental advocates, regional planners and concerned residents are among those who have offered feedback on various project drafts. The details and big picture have been argued every which way. Now begins a years-long process before it can be built, leaving the region and the Houston Ship Channel still vulnerable to hurricanes as the design is sorted out and funding secured.

Here’s what you need to know now:

You can click over to read the report itself and the Chron summary. A few things have changed along the way, but the basics are still all there. The study also includes a final environmental impact statement, if you want to know more about that. The Army Corps of Engineers will sign off on the plan and send it on to Congress on or before October 12, at which point the question of funding this project, which has a $29 billion price tag, can begin in earnest. I have no idea at this point if Ike Dike funding will be part of the budget reconciliation process – I don’t think it was in the Senate’s infrastructure bill, but I could be wrong about that. I can’t wait to hear what excuse Ted Cruz will come up with to vote against this.

First Court denies en banc hearing for Paxton trial move

We’re at a point in the Ken Paxton criminal case where it’s hard to adequately summarize the most recent development in a headline-sized bite.

Best mugshot ever

Attorney General Ken Paxton’s securities fraud case can be tried in his home county in North Texas, an appeals court affirmed Thursday when it denied the prosecution’s plea to reconsider the decision.

The 1st Court of Appeals in Houston denied a motion by prosecutors to hold a hearing of the full nine-justice court to review the decision made by a three-justice panel of the court in May to move the case from Harris County back to Collin County, where Paxton lives. The order could have avoided further delays in the six-year-old criminal case against the sitting attorney general and returned the case to what is seen as a friendlier venue to the two-term Republican incumbent. But on Thursday, the prosecution said it would continue its appeals.

“Because we agree with the dissenting justices that there are critical errors in the majority’s decision, we will seek further review of it in the Court of Criminal Appeals,” special prosecutor Brian Wice said in a statement.

Justices Gordon Goodman and Amparo Guerra dissented to the court’s majority opinion and Justice April Farris did not participate. Goodman, who was part of the three-justice panel that sent the case back to Collin, had dissented in part to the original decision.

[…]

In May, the panel of three Democratic justices allowed the case to return to Collin County on a vote of 2-1, ruling that the presiding judge who moved the case out of Collin County in March 2017 had no longer been assigned to the judicial region handling Paxton’s case. The ruling was a major victory for Paxton, who had asked the courts to be tried in his home county, a staunchly Republican area of the state where he and his wife, state Sen. Angela Paxton, R-McKinney, are well-known political figures.

But prosecutors had accused Paxton’s legal team of “sandbagging” the courts, by withholding information about the judge’s expired assignment so they could later raise the issue in an attempt to move the case back to Collin County. Wice argued that Paxton’s legal team had waited until the presiding judge, Gallagher, of Tarrant County, had moved the case out of Collin County to bring up his expired term with the appeals court. Wice asked the full appeals court to reconsider the panel’s decision and determine whether Paxton’s legal team knew of Gallagher’s expired term earlier in the case.

The court’s majority denied that request.

See here, here, here, and here for the background. I had previously said that the First Court had granted the request for an en banc hearing, but all they had done at the time was ask for a response from Team Paxton to that request. I’ve always said I was not a lawyer, now you know why. Now we wait once again for the CCA process to play out.

Another catastrophe averted, for us

Sooner or later our luck is going to run out.

If Hurricane Ida had veered west and hit Galveston, its 15-foot storm surge could have devastated the city and plowed up the Houston Ship Channel, smashing into residential communities and industrial facilities; its 150 mph winds could have left much of the Houston area without power for weeks, experts said.

The region dodged yet another bullet last Sunday when Ida made landfall in Louisiana, inflicting catastrophic damage on its residents, property and oil-driven economy.

But Houston’s streak of relatively good luck since Hurricane Harvey four years ago is unlikely to last as climate change is expected to bring about more destructive hurricanes and sea level rise. A Category 4 hurricane such as Ida — which brought a triple threat of wind, storm surge and torrential rainfall — would have wreaked havoc on the Bayou City.

Unlike New Orleans, which strengthened its levee system after Hurricane Katrina in 2007, Houston hasn’t completed any substantial projects to protect the region against surge from a major hurricane such as Ida. The stakes are high: The Houston area is home to 7.1 million residents, one of the busiest shipping ports in the country and the nation’s largest concentration of critical oil and gas facilities.

“We are sitting ducks right now for a storm,” said Bill Merrell, a Texas A&M University professor who began advocating for an “Ike Dike” coastal barrier system years ago that has yet to get congressional approval.

If Ida had hit Galveston instead of Port Fouchon, La., the hurricane could have caused devastating damage across the Houston region, meteorologists said.

Ida’s 15-foot storm surge would have been smaller than Hurricane Ike’s 22-foot storm surge, the worst of which hit Bolivar Peninsula and parts of Chambers County in 2008. The Port of Houston’s facilities, which are built 20 feet above sea level, likely would have survived.

[…]

Bob Stokes, president of the Galveston Bay Foundation, said hurricane mitigation efforts should go beyond the barrier project. While the Ike Dike could help stop an Ida-like storm surge, the barrier system isn’t designed to withstand winds from a Category 4 or 5 hurricane or prevent major flooding inland from rain. Harris County has undertaken a number of projects since Hurricane Harvey to increase storage capacity for and conveyance of rainfall; a separate Corps project looking at addressing rainfall is still in the planning phase.

Just as power plants should be ordered to weatherize their equipment for winter freezes, Houston leaders should be urging the oil and gas industry to shore up thousands of chemical storage tanks along the Gulf Coast, which are vulnerable to spills in the event of storm surge and extreme winds. And more homes along the Ship Channel should be bought out or elevated, Stokes said.

“Even if you think the coastal barrier is a great solution, it shouldn’t be the end solution,” Stokes said. “Even if you had all the money in hand, it will take decades to build. We can be doing more in the short term that could make a big difference.”

This story is an advertisement for building the Ike Dike, but as it and this other story make clear, there has to be more. The Ike Dike is necessary but not sufficient. We have done some things in the Houston area, with the 2018 referendum helping out even as it has had its problems, but as always there is more to do.

I tend to look at problems like this through a cybersecurity lens. Anyone in that business will tell you that you cannot fully eliminate your risk – indeed, in the context of a large business network, it’s guaranteed that you will experience breaches and infections – but there are many things you can do to mitigate them. No one thing covers all scenarios, but the various solutions overlap and complement each other, with the idea being that if one thing doesn’t work then something else will, and if all else fails you can detect and respond to the situation quickly. It’s called “defense in depth”, and it’s sturdier and more resilient than any single solution, because if you just rely on one thing to keep you safe and that one thing fails in some way, you’re hosed. We need the Ike Dike and we’ve needed it for a long time, but even as we finally move towards getting it, we will continue to need more than that. The more we can do right now to bolster and complement the future Ike Dike, the better off we will be.

Three more lawsuits filed against the voter suppression law

It’s a law now, and the legal machines are humming to do something about it.

Though delayed by Democratic quorum breaks, Texas has officially joined the slate of Republican states that have enacted new voting restrictions following the 2020 election.

Gov. Greg Abbott on Tuesday signed into law Senate Bill 1, sweeping legislation that further tightens state election laws and constrains local control of elections by limiting counties’ ability to expand voting options. The governor’s signature ends months of legislative clashes and standoffs during which Democrats — propelled by concerns that the legislation raises new barriers for marginalized voters — forced Republicans into two extra legislative sessions.

SB 1 is set to take effect three months after the special legislative session, in time for the 2022 primary elections. But it could still be caught up in the federal courts. Abbott’s signature was both preceded and followed by a flurry of legal challenges that generally argue that the law will disproportionately harm voters of color and voters with disabilities.

On top of two federal lawsuits filed last week, three new lawsuits, including one in state district court, were filed Tuesday shortly after it became law.

[…]

The law already faces two legal challenges from Harris County and a coalition of community and advocacy groups that argue SB 1’s rewrite of Texas voting laws creates new hurdles and restrictions that will suppress voters and violates the U.S. Constitution and numerous federal laws.

Abbott’s signature Tuesday drew three more lawsuits that also argue the changes to elections in SB 1 are unlawful because they will disproportionately burden voters of color and voters with disabilities.

“SB 1 is an arduous law designed to limit Tejanos’ ability to exercise their full citizenship,” said Maria Teresa Kumar, CEO of Voto Latino, which is a plaintiff in a federal lawsuit filed in Austin on Tuesday. “Not only are we filing suit to protect the right to vote for all people of color, and the additional 250,000 young Latino Tejanos who will reach voting age in 2022, but to protect every Texan’s right to vote.”

Another legal challenge was filed in state district court in Harris County and raises claims that the law runs afoul of the the Texas Constitution, including its protection against racial discrimination.

[…]

As it worked toward getting the legislation across the finish line, the House also made changes Democrats had been pushing for, including requiring training for poll watchers. Republicans also ditched controversial provisions that would have restricted Sunday voting hours and made it easier for judges to overturn elections — both of which they tried to walk away from after Democrats first derailed the legislation in May during the regular legislative session.

Even with some of those changes, a group of plaintiffs in another federal lawsuit filed Tuesday in San Antonio, including Houston Justice and the Arc of Texas, say the legal intervention was needed to “ensure that the State does not continue to erect barriers” that have both the “intent and effect” of suppressing the votes of marginalized Texans.

“These provisions will harm all Texas voters, but consistent with Jim Crow era tradition, the burdens will be disproportionately borne by Black and Latino voters and voters with disabilities,” the plaintiffs said in their complaint. “S.B. 1 intentionally targets and burdens methods and opportunities of voting used by and responsive to the needs of voters of color, particularly Black and Latino voters, and other vulnerable voters, as evidenced by the 2020 elections.”

There are also questions on whether the U.S. Department of Justice will sue Texas over the new law, as it did Georgia earlier this year after lawmakers there passed a new law to tighten elections.

It remains unclear what, if any, Congressional action could affect the new law.

See here for more on the first two lawsuits. Before I get to the others, let me just say that if the John Lewis Act doesn’t have any effect on the new law, then either the authors of the bill are incompetent or the federal courts really have it in for us. But that assumes the damn thing can overcome the stupid filibuster, so let’s put that question off for later.

For the other lawsuits, here are the basics:

– The first lawsuit referenced is here, and it’s probably best just to print the announcement about it for the relevant details.

Minutes after Gov. Greg Abbott (R) signed voter suppression bill Senate Bill 1 into law on Tuesday, voting and civil rights groups sued to challenge the bill’s most disenfranchising provisions. The complaint, filed by LULAC Texas, Voto Latino, Texas Alliance for Retired Americans and Texas AFT, alleges that the new law imposes an undue burden on the right to vote in violation of the First and 14th Amendments, purposely intends to limit minority voters’ access to the ballot box in violation of Section 2 of the Voting Rights Act (VRA) and disproportionately impacts voters with disabilities and limited language proficiencies in violation of Section 208 of the VRA. The suit asks the court to prohibit the suppressive provisions from being enforced. This is the third lawsuit challenging S.B. 1, as two cases were filed last Friday before the bill was even signed into law.

The provisions challenged in this lawsuit include: criminalizing public officials’ efforts to encourage the submission of absentee ballot applications; additional ID requirements for absentee voting; the effective elimination of drop boxes, drive-thru voting and 24-hour early voting; new obstacles for voters to receive assistance to vote absentee or in person; and the empowerment of partisan poll watchers.

The complaint argues that the passage of S.B. 1 is in direct response to increased voter turnout in the 2020 election, particularly among voters of color, and is meant to “stem the growing tide of minority voter participation.” The lawsuit argues that “by surgically targeting election practices employed in Texas’s largest and most diverse jurisdictions—methods on which the State’s Black and Hispanic populations disproportionately rely—the [challenged provisions] were intended to disproportionately restrict access to the franchise for Black and Hispanic voters.” Furthermore, the suit alleges that certain provisions place an undue burden on the right to vote for elderly voters, voters with disabilities and voters with limited language proficiencies.

Read the complaint here.

All that is courtesy of Democracy Docket, which had promised litigation the minute that SB1 passed in the House.

– The other federal lawsuit comes from the NAACP Legal Defense and Educational Fund:

Today, the NAACP Legal Defense and Educational Fund, Inc. (LDF)Reed Smith LLP, and The Arc filed a federal lawsuit on behalf of the Houston Area Urban League, Houston Justice, Delta Sigma Theta Sorority, Inc., and The Arc of Texas challenging S.B. 1, a new Texas law targeting voting rights.  S.B. 1 includes a series of suppressive voting-related provisions that will make it much harder for Texas residents to vote and disenfranchise some altogether, particularly Black and Latino voters and voters with disabilities.The lawsuit, which was filed in the United States District Court for the Southern District of Texas, argues that S.B. 1 violates the First, Fourteenth, and Fifteenth Amendments of the United States Constitution and Section 2 of the Voting Rights Act by intentionally targeting and burdening methods and means of voting used by voters of color.

The Plaintiffs also claim that the law violates the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Section 208 of the Voting Rights Act by imposing voting barriers that will discriminate against voters with disabilities and deny people with disabilities full and equal opportunities to participate in the state’s voting programs.

The lawsuit challenges multiple provisions in SB 1, including:

  • Limitations on early voting hours and a ban on 24-hour voting.
  • The elimination of drive-thru voting centers.
  • The prohibition of mail-in ballot drop-boxes.
  • Limitations on the distribution of mail-in ballot applications.
  • Limitations and possible penalties for voter assistants, including criminal felonies.

Read the lawsuit challenging S.B. 1.

You can read the press release for statements from the plaintiffs.

– The state lawsuit comes from another group we’ve heard from before.

The Texas State Legislature’s SB 1 legislation violates provisions of the Texas Constitution that protect the right to vote, the right to freedom of speech and expression, the right to due process, and the right to equal protection under law, according to a lawsuit filed Tuesday by civil rights advocates against Gov. Greg Abbott, Attorney General Kevin Paxton, Deputy Secretary of State Joe Esparza, and the future secretary of state, once that position is filled.

Despite the hardships of voting during a global pandemic, during the 2020 general election, Texas saw one of its highest voter turnouts in decades, particularly among Black voters and other voters of color.  SB 1 was passed on the heels of the successful 2020 election, with the intent to suppress these votes. The legislation includes provisions that expand the power of partisan poll watchers, limit county election officials’ discretion to adopt safe and secure methods of voting, make it more difficult for voters to receive assistance, and place restrictions on absentee ballots, ballot drop boxes, and early voting.

The lawsuit, Texas State Conference of the NAACP et al. v. Abbott et al., was filed in state district court in Harris County, Texas. The Lawyers’ Committee for Civil Rights Under Law and Dechert LLP are representing the Texas State Conference of the NAACP, Common Cause Texas, three election judges, one voter assistant, and one registered voter in Harris County.

“The scourge of state-sanctioned voter suppression is alive and well, and Texas just became the most recent state to prove it,” said Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “With the passage of this bill, Texas legislators know exactly what they are trying to do – use brazen tactics to disenfranchise Black voters, Latinx voters, and other voters of color who are a growing part of the electorate and who turned out and made their voices heard in 2020. This bill violates Texas’ own state constitution and does not advance any legitimate state interests that would justify this wide-ranging attack on the right to vote.”

SB 1 expands the power of partisan poll watchers by instituting criminal penalties for election officials who obstruct their actions, stripping local election officials of the power to take executive action in emergency situations, and exposing voter assistants to increased surveillance and administrative complexities. Furthermore, the legislation restricts nearly every method of voting overwhelmingly used by voters of color in 2020: It limits early voting and ballot drop boxes, curbs how absentee ballots can be distributed and who can vote by mail, and bans drive-thru voting. While the provisions of SB 1 will hinder the ability of all Texans to vote, these new restrictions intentionally and disproportionately impact communities of color.

“Texas’s new voting restrictions targeting voters of color are an affront to our democracy,” said Neil Steiner, partner with Dechert LLP. “We remain committed to ensuring that all eligible voters have a true opportunity to participate in our elections by casting a ballot safely, securely and conveniently, with confidence that their votes will be counted.”

I have only given a brief glance to each of these lawsuits – as you know, I Am Not A Lawyer, I just occasionally try to interpret lawyer-y things on the Internet for other non-lawyers. All of them are quite long and will take me some time to try to understand. I do not offhand know why this one was filed in state court, or why that might be a more promising avenue for redress. That has been a successful tactic in some other states, mostly but not entirely for the battle against partisan gerrymandering, but as far as I know it has not been used in this context here before, other than the unsuccessful challenges to Texas’ age restrictions for voting by mail in the runup to the 2020 election. It’s worth a shot – let a thousand flowers bloom and all that – but I cannot articulate a reason why this way and not that way. If someone else can, I’d love to hear it. I will make an effort to read through these documents and try to answer that myself, but you know how that goes. The Current, the Texas Signal, and the Chron have more.

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.

Plaintiff in Constable Precinct 1 lawsuit responds

She’s not having it with the dismissal of Constable Alan Rosen as a defendant from the lawsuit.

Constable Alan Rosen

The booze-fueled undercover hotel operations were bad. Felecia McKinney’s worst moment at the Precinct 1 Constable’s Office, however, came two years ago, during an undercover sting at a Massage Heights near the Texas Medical Center.

Another Precinct 1 employee had been assaulted at the business. Her bosses wanted her to pose as a customer, wait to see if he acted again, and then give a signal to bust him and take him down.

When she emerged from the spa, a superior told her to drive herself to the hospital to get a sexual assault examination while Constable Alan Rosen held a celebratory news conference in the business’ parking lot, she said at a press conference Friday.

[…]

After the spa sting, McKinney and Erica Davis — the Precinct 1 employee whose assault led to the investigation of Massage Heights — sued the establishment, saying the budget spa chain, its employee, owner and franchisor were negligent in training and supervision. Davis agreed to a monetary settlement in the case but McKinney’s complaint is still pending. Criminal charges against Wenjin Zhu, the massage therapist accused of sexually assaulting Davis and McKinney on the massage table two days apart, are also still pending. Zhu is detained in the county jail.

Though her lawyers have described her experience in court filings, McKinney had never addressed the public about her sexual assault in August 2019 until her brief remarks to reporters at her attorney’s office Friday morning.

“He knows what happened to me,” McKinney said of Rosen. “He intended it. He ordered it. And to hear him claim victory — and that he wouldn’t be held personally accountable for something he’s admitted to doing makes me feel attacked, unheard, and very alone.”

What angered her the most, she said, was reading comments from Rosen’s defenders that the constable should never have been included in the lawsuit in the first place.

“This case was never about money for me. It was about exposing the truth and holding people accountable,” she said, her voice catching. “When I read his comments and his attorney’s comments, I felt really victimized in ways I never expected. …When I saw the claim that he never should have been in the lawsuit, after ordering an operation that I go in to be sexually assaulted, I broke down.”

See here for the previous entry. I don’t know if the decision to remove Rosen as a defendant was a good one or not – I presume it can be appealed, but regardless of that the lawsuit itself if still ongoing. The allegations still refer to things that happened under Constable Rosen’s watch. I’m still far from convinced that any of the undercover actions were a good use of law enforcement resources, whether or not the deputies in question were put in needless danger. I don’t know what will come of this case, but we need to hear what Ms. McKinney and her fellow plaintiffs have to say.

New felony court coming

Your 2022 ballot is about to get longer.

A new Harris County felony court will open Sept. 1 after decades of population growth and no new criminal district judges.

The addition comes as judges, prosecutors, administrators and defense attorneys battle a massive backlog in the criminal courts, with almost 98,000 docketed cases near the end of July. Almost 54,000 of those cases were felonies, according to the Harris County District Attorney’s Office.

The 22 existing felony judges are each juggling an average of 2,392 cases on their dockets, county data shows.

Gov. Greg Abbott on June 18 signed the existence of the 482nd district court into law. He has not yet selected a judge, and the 11th Administrative Judicial Region of Texas will make a jurist available until an official appointment takes place, said Harris County district court administrator Clay Bowman.

All of the current felony judges are elected Democrats, meaning Abbott could appoint a lone Republican to the bench.

“Will appoint a Republican”, you mean. That person will very likely be voted out next November. There are already going to be a lot of contested Democratic primaries for the judicial positions. This one will surely draw a crowd as well, it just won’t be against a Democratic incumbent.

First two lawsuits filed against the voter suppression bill

No time wasted.

The top elections official in Harris County and a host of organizations that serve Texans of color and Texans with disabilities have fired the opening salvos in what’s expected to be an extensive legal battle over Texas’ new voting rules.

In separate federal lawsuits filed in Austin and San Antonio, the coalition of groups and Harris County sued the state over Senate Bill 1 before it was even signed into law, arguing it creates new hurdles and restrictions that will suppress voters and unconstitutionally discourage public officials and organizations from helping Texans exercise their right to vote.

The lawsuits claim the legislation violates a broad range of federal laws — the Voting Rights Act, the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973 — and the First, Fourteenth and Fifteenth Amendments.

“Egregiously, SB 1 takes particular aim at voters with disabilities, voters with limited English proficiency — who, in Texas, are also overwhelmingly voters of color — and the organizations that represent, assist, and support these voters,” the plaintiffs in the Austin lawsuit wrote in their complaint.

The plaintiffs in the San Antonio lawsuit,, which includes Harris County, also raise claims that lawmakers intentionally discriminated against voters of color in pushing the legislation.

[…]

The plaintiffs attack head on the lack of evidence that fraud is a widespread problem in Texas elections.

In the San Antonio lawsuit, they argue SB 1’s “additional burdens and restrictions” cannot be justified by invoking “unspecified and unproven voter fraud” when there is no proof that it occurs “beyond the very few examples already identified through Texas’s pre-existing processes and procedures.”

“Rather … SB1 is a reaction to Texas’s changing electorate, which is now more racially diverse and younger than ever before,” they wrote in their complaint.

The claims raised collectively in both lawsuits are as expansive as the legislation is far-ranging.

They include claims on SB 1’s new restrictions on voter assistance, including the help voters with disabilities and those with limited English proficiency are entitled to receive. The plaintiffs point to the reworked oath that a person assisting a voter must recite, now under penalty of perjury, that no longer explicitly includes answering the voter’s questions. Instead, they must pledge to limit their assistance to “reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.”

As part of its claims of intentional discrimination, the lawsuit that includes Harris County as a plaintiff also calls out SB 1’s prohibition on the drive-thru and 24-hour voting initiatives used by the diverse, Democratic county in the 2020 election — both of which county officials said were disproportionately used by voters of color.

SB1 also makes it a state jail felony for local election officials to send unsolicited applications to request a mail-in ballot. Several counties proactively sent applications to voters 65 and older who automatically qualify to vote by mail, but Harris County attempted to send them to all 2.4 million registered voters last year with specific instructions on how to determine if they were eligible.

In outlawing those voting initiatives, Republican lawmakers made it clear they were targeting the state’s most populous county, even though other counties employed similar voting methods.

“My first and only priority is to educate and help voters to lawfully cast their ballots,” Harris County Elections Administrator Isabel Longoria said in a statement. “Voting by mail is not simply another method to vote — for many senior voters and voters with disabilities, it’s their only option to vote. SB1 makes it a crime for me to encourage those who are eligible to vote by mail to do so, effectively making it impossible to fulfill my sworn duty as Elections Administrator.”

Both lawsuits also argue the constitutionality of a section of SB 1 that creates new a “vote harvesting” criminal offense, which it defines as in-person interactions with voters “in the physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for a specific candidate or measure.” The lawsuits argue the language in that section — and the criminal penalties attached to it — are unconstitutionally overbroad and vague and could serve to quash legitimate voter turnout initiatives.

The lawsuits also challenge provisions of SB1 that bolster protections for partisan poll watchers inside polling places, and new ID requirements for voting by mail.

You can see copies of the lawsuits here for Austin and here for San Antonio. I note that Isabel Longoria, the Harris County elections administrator, is a defendant in her official capacity in the Austin lawsuit and a plaintiff in the San Antonio lawsuit. I assume there’s a technical reason why a county elections administrator is named as a defendant in these actions, but I have no idea what algorithm is used to decide which county and administrator. (The Austin lawsuit also includes Dana DeBeauvoir from the Travis County elections office as a defendant, while the San Antonio lawsuit picks the Medina County admin. Go figure.)

I’m not going to speculate on the merits or chances of these lawsuits, which I assume will eventually get combined into a single action. I expect that they have a strong case, and we know from past performance that the Republicans in the Lege tend to be shoddy and indifferent in their work when they pass bills like these, but none of that really matters. What matters is what if anything the Fifth Circuit and SCOTUS deign to find objectionable. For obvious reasons, I’m not going to get my hopes up. I expect the Justice Department to get involved on the side of the plaintiffs, and there’s always the specter of passing the John Lewis Act and making this way easier on everyone. In the meantime, settle in for the long haul, because we know this will take years to come to a resolution. Look to see what happens when (I feel confident saying “when” and not “if”) a temporary restraining order is granted.

A rough start to the school year

For some districts more than others.

Angleton and Livingston ISDs announced this week they temporarily were shutting down their schools, the first Houston-area districts to halt all in-person learning amid rising numbers of COVID-19 cases among students and staff, but possibly not the last.

With reported cases increasing rapidly since schools in the Houston region reopened last month, some districts are discussing contingency plans for closing campuses and, in some cases, shifting to online learning.

Already a handful of districts temporarily have shuttered individual classrooms or entire schools, prompted by the number of student infections, the number of kids having to quarantine or staff shortages caused by illness or quarantines.

With little guidance from the Texas Education Agency on metrics and thresholds that should trigger closures, school districts are making those calls on their own or relying on local health authorities. Among the factors being considered are rates of infection, teacher staffing — including the availability of substitutes — and student absences.

According to TEA, many districts have built time into their calendars in “anticipation that a temporary shutdown due to COVID” may be necessary.

“The agency has been coordinating with (districts) experiencing the need to close to ensure they have the information necessary to plan, adjust, and prepare to provide the required minimum of 75,600 operational minutes,” the agency said in an emailed statement.

[…]

Elsewhere in the state, Connally ISD in central Texas closed its five campuses near Waco for the week after two teachers died of COVID, as have a handful of east Texas districts and others in rural areas of the state.

Area districts that are mandating the use of face masks by students and staff, including Houston, Spring and Texas City ISDs, said they are not in talks about shutting down schools and are focusing on keeping in-person learning safe.

“We do not anticipate school closures,” reads Houston ISD’s COVID protocols. “However, should conditions change and an HISD school or building need to close, the determination will be made on a case-by-case basis by the superintendent in consultation with HISD Health and Medical Services and the Houston Health Department.”

Well, HISD still has a mask mandate, and I figure that has to be helping. I don’t want to get obnoxious about it since the Delta variant is terrible and pride goeth before a fall, but I’ll put better odds on HISD than on a district that isn’t taking the minimal steps to protect its students and teachers and staffers. According to the Trib, “At least 45 small school districts across Texas have been forced to temporarily stop offering in-person classes as a result of COVID-19 cases in the first few weeks of the new school year”. I’m willing to bet none of them had a mask mandate; the story didn’t specify but it did say at the end that at least one of these small districts is thinking about it in defiance of Abbott. The total number of student COVID cases that have been reported is up 90% over the previous week, which needless to say is a trend that needs to stop quickly or else. I don’t know how long we can go on like this, but I do know that whatever happens it’s on Greg Abbott. Keep all of these folks in your thoughts.

Constable Rosen removed from sexual harassment lawsuit

Good news for him, but the suit continues.

Constable Alan Rosen

Harris County Precinct 1 Constable Alan Rosen has prevailed in a legal effort to be removed from a lawsuit accusing department supervisors of sexual misconduct against female subordinates in an undercover anti-prostitution unit.

In a five-page ruling, U.S. District Judge Kenneth M. Hoyt on Monday ruled Rosen could not be personally sued for the misconduct allegations that several current and former deputies and another employee had made about conduct within the unit. Plaintiffs can continue to pursue their lawsuit against Harris County and Assistant Chief Deputy Chris Gore and Lt. Shane Rigdon, the judge ruled.

Hoyt explained his ruling by saying he’d concluded that the plaintiffs’ allegations against Gore and Rigdon were “enough to raise a right to relief” but that the plaintiffs had not made any claims that would support Rosen’s individual liability under civil rights law.

Rosen touted the ruling in a news release in which he said he had “full faith in the Court’s review” of the motion.

“I thank the court for its considered review of the law as it pertains the motion to dismiss me from this matter,” he said, “and for granting that dismissal such that my full focus can remain on the needs of the residents of Precinct 1.”

Lawyers for the female deputies said they were undeterred, pointing to Hoyt’s decision to allow the suit to proceed against Harris County and against Gore and Rigdon.

“While Alan Rosen has been able to protect his personal financial interests, his conduct is still very much a part of the lawsuit,” attorneys Cordt Akers and Bill Ogden said, in a written statement.

See here, here, here, and here for the background. You can see a copy of the ruling in the story. While this is good news for Constable Rosen personally, the lawsuit is still active – this was a motion to dismiss, and it was denied for the other two defendants. For that reason, ignore this:

Rosen attorney Ben Hall said Wednesday that his client “should never have been in the lawsuit in the first place.”

He said believed Rosen was added to the lawsuit to tarnish his political viability.

“I think the fact the judge dispensed (with this matter) so quickly will at least remove this stain,” Hall said, “So he can move down the road. And if it is his fate to be sheriff, I think he’d be a fabulous sheriff.”

Sorry, but this still happened on his watch. He may not be legally liable for damages, but he’s still responsible. Maybe if the remaining defendants are cleared we can talk about his future ambitions, but until then let’s cool our jets. This is far from over.

I-45 remains in the funding plan

For now. Ask again in 90 days.

Interstate 45 still is on a road to rebuild after Texas transportation officials on Tuesday kept the controversial project in the state’s 10-year construction plans, but warned that failing to get federal highway officials to remove their hold on it could halt the plan altogether later this year.

The Texas Transportation Commission on Tuesday approved the state’s 2022-2031 unified transportation program, keeping the I-45 project listed in it. The unified program is the guidepost for freeway construction in Texas, as only projects included can receive state funding.

That approval, however, is contingent on settling a dispute between the Texas Department of Transportation and the Federal Highway Administration. Federal officials told TxDOT in March to stop work on the project until concerns related to its impacts on minority and low-income communities and how TxDOT addressed those effects is completed.

“It is not the local support that’s the problem. It’s Washington, D.C., (that) is the problem, impeding our ability to go forward with this project,” Texas Transportation Commission Chairman Bruce Bugg said.

Federal officials did not immediately respond to a request for comment.

“We will give FHWA 90 days and we will come back and revisit this,” Bugg said. “After the 90 days have expired we will discuss what to do with the project.”

He said if the issues have not made progress, the commission could start the process of removing the project from the long-term plan. TxDOT Executive Director Marc Williams said removing the project would require another 60-day public comment process.

Williams said discussions with federal officials are constructive and continuing, but he would not speculate whether it is practical or possible for federal officials to operate on the commission’s timeline.

[…]

As part of the UTP public comment process, TxDOT received 12,700 comments, 8,170 of them related to the I-45 project. The response, which included an online poll, was a record-breaking amount of public engagement for a TxDOT program, officials said.

Of those comments related to I-45, TxDOT said 5,529 — around two-thirds — supported keeping the funding in place.

Critics, however, questioned the process TxDOT used to solicit comments. The online poll, opponents said, set up a “take it or leave it” choice of either TxDOT’s vision or nothing at all.

“It is your responsibility as stewards of taxpayer dollars to engage the public in productive ways and you have failed to do so,” said Ines Siegel, interim executive director of LINKHouston.

See here, here, and here for some background; the version of this story from before the meeting is here. I might suggest that the issue here is not with the FHWA and its timelines, but if we had agreement on that point we probably wouldn’t be here right now. Not much else to say here, we’ll see where we’re at after we catch up with that can we just kicked.

More injunctions against the mask mandate bans

Keep ’em coming.

Concluding that Gov. Greg Abbott exceeded his authority by banning mask mandates in Texas, an Austin judge ruled Friday that school districts in Travis County can enforce face coverings as a COVID-19 precaution.

State District Judge Catherine Mauzy’s order also applied to 19 school districts that represent about 1 million students — including Austin, Dallas, El Paso, Fort Worth and Houston — as well as Austin Community College, which also sued Abbott.

However, Texas Attorney General Ken Paxton quickly appealed, automatically blocking enforcement of Mauzy’s temporary injunction — though the Austin-based 3rd Court of Appeals can be asked to reinstate the judge’s order while Paxton’s challenge proceeds.

In her ruling, Mauzy concluded Abbott’s ban on mandatory masks — contained in a July 29 executive order — was unlawful and exceeded his authority in violation of the Texas Constitution.

Mauzy found that the school officials and parents who challenged Abbott’s order made “a sufficient showing” to establish that Abbott was not authorized to declare “by executive fiat” that school districts are prohibited from requiring masks to be worn.

Without court intervention, Mauzy added, Abbott’s ban leaves school officials unable to mandate masks to control the spread of COVID-19, “which threatens to overwhelm public schools and could result in more extreme measures such as the school closures that have already begun in several Texas school districts.”

In a separate ruling, Mauzy also granted an injunction sought by Harris County to allow a mask mandate to continue for Houston-area school districts, said Christian Menefee, county attorney.

“Gov. Abbott is misusing the Texas Disaster Act to make this pandemic worse,” Menefee said, calling the ruling an important step in reining in the governor.

But in a third challenge, the judge declined to issue a statewide injunction, requested by the Southern Center for Child Advocacy, that would have allowed mask mandates in all Texas school districts. Mauzy’s one-page order gave no reason for the denial.

It’s hard to keep track of all of these, but see here for the original ruling in the Harris County case, and here for the original ruling in the SCCA case; the filing of their lawsuit was noted here. I have so many of these posts, some of which combine stories from multiple lawsuits, so I can’t find (and may not have) a post about the original Austin lawsuit, but the famous SCOTx demurral of the emergency request by Paxton and Abbott to block a TRO was related to the Austin/Travis County lawsuit. I note that the Harris County case and the SCCA case were originally in Judge Jan Soifer’s courtroom, so I am assuming that a bunch of similar lawsuits were combined into one and that’s how they all wound up before Judge Mauzy.

The injunction may be on hold because of the appeal (there’s some fancy legal term for this that I have encountered before but forgotten by now), but the plaintiffs can and surely will ask for it to be reinstated by the Third Court of Appeals. That will force another reckoning with the Supreme Court, thanks to the recent order in the Bexar County case. In a sense all of this is just sound and fury since Abbott and Paxton can’t enforce the mask mandate bans anyway, but the ritual must be observed. I feel like I should get a CLE credit for all of this blogging. HISD Superintendent Millard House’s statement about the ruling is here, and KXAN and the Trib have more.

Voter suppression bill passes the House

It was always to be, it was just a matter of when.

After months of drama and political resistance, the curtain has lowered on Democratic attempts to stave off a far-reaching rewrite of the state’s voting laws coveted by Republicans seeking to retain their hold on power in a changing Texas.

One week after finally regaining enough members to conduct business, the Texas House slogged through a 12-hour floor debate Thursday before signing off on a slightly revised version of the Republican legislation that first prompted Democrats to stage a nearly six-week absence from the Capitol. The late-night 79-37 initial vote on Senate Bill 1 moved the state closer to enacting new voting restrictions, including limits on early voting hours and other measures opponents say will raise new barriers for marginalized voters, especially voters of color, who tend to vote Democratic, and those with disabilities.

The House returned Friday to give the bill final approval, 80-41, leaving the House and Senate to resolve their differences before the legislation heads to Gov. Greg Abbott.

“You largely did what you wanted in this bill. You kept changing the bill in the dark, and you backed off agreements we had from time to time that you made with some of us,” state Rep. Senfronia Thompson, D-Houston, told the chamber’s Republicans before the Friday vote. “But make no mistake this is your bill, your idea, and you will be responsible for the consequences.”

Unlike in the spring regular legislative session, the two chambers are much more aligned in their proposals, with the House legislation embracing proposed restrictions it had not included in its previous version of the bill. On Thursday, it further amended various sections of the bill to more closely match the Senate’s version.

You can read the rest for the gory details. One hopes that a whole bunch of crap that was never debated or vetted will not be crammed into the conference committee version of the bill, as it was during the regular session, but as I’ve said before, Dan Patrick gets to have a say in that. There will be litigation, there will be hard questions and hard feelings for the Dems who came back and created the quorum, which was always going to happen eventually but which could and should have been done in a consensus manner, and there will be hope that the filibuster fanatics in the US Senate will figure out the existential nature of this crisis and pass the John R. Lewis Voting Rights Advancement Act, which would offer a strong bulwark against this kind of assault. That’s where we are, and now we get to try and stop the rest of the Greg Abbott Primary Campaign Agenda. Have a nice weekend. The Texas Signal has more.

Abbott admits he can’t enforce his mask mandate ban

So what are we even doing here? Just make your mandate and move on.

Gov. Greg Abbott has been embroiled in court battles with Texas cities, counties and public schools that have defied his ban on local mask mandates. But in the urban areas where those battles are being waged, the local officials Abbott needs to enforce his ban aren’t playing ball.

Even as Abbott and Attorney General Ken Paxton vow to punish local government and school district officials who flout the governor’s executive order, they conceded in court documents that they actually have no power to enforce the ban.

“Neither Governor Abbott nor Attorney General Paxton will be enforcing” the order, Paxton argued in a Monday court filing in Dallas.

Since the pandemic began, Abbott has issued a flurry of executive orders, the most prominent of which have limited cities and counties from enacting measures intended to slow the spread of COVID-19, like mask mandates and occupancy restrictions on businesses like restaurants and retailers.

Cities, counties and school districts in the state’s major urban areas have responded with a flood of lawsuits challenging Abbott’s executive order prohibiting them from enacting mask mandates amid a surge of COVID-19 cases and hospitalizations.

In a bid to convince judges to toss out those legal challenges, Abbott and Paxton claim in recent court filings that they’re not the right target because it’s up to local prosecutors to enforce Abbott’s orders.

“The Governor’s executive orders, having the full force and effect of law, are enforceable by state and local law enforcement,” spokesperson Renae Eze said in a statement.

But in the state’s urban counties, those district attorneys are mostly Democrats who are unlikely to sue fellow local officials for violating Abbott’s order banning mask mandates.

“[Abbott is] saying, ‘Well, it’s not enforceable, only the DA can do it,” said Randall Erben, an adjunct law professor at the University of Texas at Austin. “Well, the DAs in Travis, Harris and Dallas are not going to prosecute anybody for violation of the executive order.”

In the state’s most populous county, Harris County District Attorney Kim Ogg doesn’t anticipate enforcing Abbott’s executive order because it’s not a criminal matter, a spokesperson said.

Abbott’s legal argument — tucked into court documents in at least five lawsuits challenging his order — has prompted some lawyers representing local governments and public schools to call out the governor and Paxton for saying one thing in public and another in the courtroom.

Yeah, Harris County Attorney Christian Menefee was one of those people. This is, as the article notes later on, one hundred percent Abbott and Paxton beating their chests for the rubes. Again, never believe a word Ken Paxton says.

Two points to consider. One is that while those of us fortunate enough to live in a sufficiently enlightened county can now put whatever pressure we want on our mayors and county judges and school boards to move forward with their mask mandates, since there won’t be any criminal consequences for them and in that sense all of the ongoing litigation doesn’t really matter. But if your city or school district is not in such a place, then you really do care about what the Supreme Court will ultimately say, because your Mayor or Superintendent will be in the crosshairs otherwise. Even with a favorable SCOTx ruling, Abbott has ratcheted up the political pressure enough that it may not be worth it to them regardless. The harm they’re doing for the sake of winning the support of a depraved bunch of Republican primary voters is incalculable.

And two, this is now another example of Abbott and Paxton making “you can’t sue me” a key point of their governance. The “heartbeat” abortion ban atrocity is perhaps the highest-profile example, but Paxton’s claims that he’s exempt from the state’s whistleblower laws because he’s not a “public employee” are another, and it’s just as pernicious. It’s all about wielding power without responsibility or constraint. If trends hold to form, look for bills introduced by Republicans in the next Lege to include clauses about why the state can’t be sued by anyone who claims to have been harmed. At least, that will be the case until we have Democrats in the executive offices. At that point, it will be game on for limiting what they can do. But for now, we’re not supposed to sue them for anything because…well, just because.

Bexar mask mandate put on hold again

SCOTx has entered the chat, again.

The Texas Supreme Court has temporarily blocked San Antonio and Bexar County’s mask mandate, marking the latest update in a flurry of court battles over mask requirements statewide.

The decision comes after an appellate court earlier this month allowed the local mask mandate to stand, despite Gov. Greg Abbott’s executive order barring public entities from instituting such requirements. The new ruling is a win for the governor and Attorney General Ken Paxton, who had asked the high court earlier this week to step in and stop local officials.

[…]

In the order, the high court noted that the lawsuit does not consider whether people should wear masks or whether government officials should compel them to do so. Rather, the justices said, the case concerns which levels of government can make those decisions.

“The status quo, for many months, has been gubernatorial oversight of such decisions at both the state and local levels,” they wrote. “That status quo should remain in place while the court of appeals, and potentially this court, examine the parties’ merits arguments to determine whether plaintiffs have demonstrated a probable right to the relief sought.”

The court has yet to make a final decision on the matter, which could take weeks or months. Several similar but separate lawsuits, including two in Dallas and Houston, are also currently being litigated.

See here, here, and here for some background. This only affects the Bexar County case – the litigation in Harris and Dallas and other places have not yet been taken to the Supreme Court. It seems likely that they would go the same way, but as noted so far SCOTx is not inclined to let Abbott and Paxton jump the line on this, so they have to go through the process first. Also, this is a stay of the temporary restraining order, which means that if and when the judge in Bexar County issues a temporary injunction, as the judge in Dallas County just did, the SCOTx stay will become moot and Abbott and Paxton will have to go through the process again, to get another stay while that ruling is appealed. Isn’t this fun?

Also, as a friendly reminder, never believe a thing Ken Paxton says:

I know you didn’t need to be told that, but it never hurts to say. The Trib and the Current have more.

The financial incentive

At this point, whatever works.

A week after public health officials in Texas’ most populous county started handing out $100 cash cards to locals getting their first COVID-19 shot, the number of daily vaccinations has shot up to six times its previous rate, Harris County Judge Lina Hidalgo said Tuesday.

“We had an inkling that something was going right when I started my announcement [about the incentive] at noon, and by the time I was done, 30 minutes later, there was a line of cars waiting to receive the vaccine,” Hidalgo said. “We haven’t seen those lines for months.”

To accommodate and encourage the increased demand, the county will be opening an additional mass vaccination site and expanding its mobile vaccine program, Hidalgo said.

“You have to be creative, and we’re seeing the results and we’re doubling down on it,” Hidalgo said.

Harris County officials began the incentive program last Tuesday in a bid to jumpstart stalled vaccinations in Houston and surrounding areas, and to provide relief to the region’s stressed hospitals during what health officials say is the worst surge of infections the area has seen since the pandemic began last year.

For the three weeks before the program started, Hidalgo said, Harris County Public Health was administering an average of 431 first doses per day. The day the announcement was made, the number jumped to 914. The next day, 1,596 people sought the first doses from public health providers.

On Saturday, four days into the program, some 2,700 people got their first injection, Hidalgo said.

“This is an incredible achievement,” she said.

As the story notes, more vaccination sites are being opened to accommodate what I hope will be a sharp uptick in demand. The FDA approval of the Pfizer shot, and more companies telling their employees to get vaxxed may help push the numbers up as well. I honestly don’t care what the cause is, as long as it happens. And it needs to happen at a higher rate than this – even with the uptick statewide, we’re at less than 30% of the shots-per-day peak in April. Let’s get closer to that, and then we’ll really have something.

Dallas County gets its injunction

Another big win.

Clay Jenkins

A district court judge has sided with Dallas County Judge Clay Jenkins in his dispute with Gov. Greg Abbott over the county’s mask mandate, allowing the mandate to stay in place.

Judge Tonya Parker issued a temporary injunction Wednesday on Abbott’s order that public entities such as cities, counties and schools can’t issue mask requirements or mandates. The injunction allows Jenkins’ mask order — and the mask requirements of local school districts — to continue, for now.

Parker in her ruling said that Jenkins has shown that Dallas County residents “will suffer probable imminent and irreparable injury through County Judge Jenkins being precluded from exercising his authority” to require masks in public.

The judge noted that the highly transmissible delta variant threatens to overwhelm the healthcare system and has increased hospitalizations and death in Dallas County.

“Each of these bases for probable imminent and irreparable injury independently supports the issuance of the requested temporary injunction,” the ruling said.

The temporary injunction will return Jenkins to “the position he was in” before Abbott’s executive order that barred face mask requirements, the ruling said.

Parker set a hearing for Jan. 10 to review the temporary injunction, though attorneys for the state could file an appeal to Parker’s ruling sooner than that.

See here for the background. A copy of the ruling is here, and you can see Judge Jenkins doing a media call about this here. This will be appealed, of course – one presumes that Paxton and Abbott have learned their lesson and will go through the appellate courts first – and we’ll see how long that takes. It may be that at the least SCOTx is less inclined to grant emergency relief. We’ll know when it gets to them. For now, a win for the good guys.

On a related note, Harris County Attorney Christian Menefee sent out an interesting press release that notes some differences between what Ken Paxton says in public about mask mandate bans and what he’s been saying in court about them.

In GA-38, the Governor banned school districts and local officials from mandating masks, and stated local officials who issue such safety measures would be subject to a “fine up to $1,000.” In response to recent mask mandates imposed by local officials, Attorney General Ken Paxton has stated publicly—and repeatedly—that his office will enforce Governor Abbott’s mask mandate ban. He and Governor Abbott joined together in stating that “any school district, public university, or local government official that decides to defy [the Governor’s mask mandate ban] will be taken to court.”[1] His office has compiled a list of “government entities unlawfully imposing mask mandates,” designed to intimidate those entities into compliance.[2] He has sent letters to many on that list, threatening them with enforcement.[3] He has tweeted several times he intends to sue these entities, most recently saying “I will defend TX Law & sue every entity that violates it. We will win!”[4]

Despite these public statements, the Attorney General admitted to the courts hearing the lawsuits brought by local officials and school districts that his office does not and cannot enforce GA-38, nor can he seek the $1,000 fine provided in the order. His office has stated plainly that “[n]either Governor Abbott nor Attorney General Paxton will be enforcing GA-38.”[5] Instead, the Attorney General acknowledges that only local district attorneys can enforce GA-38—he has claimed that entities like Harris County, other counties/cities, and certain independent school districts cannot sue the Governor and the Attorney General because they have “alleged no credible threat of prosecution by local district attorneys, who would be the ones enforcing GA-38.”[6]

Menefee added: “I presume the Attorney General is telling the truth in his court filings. He should be telling everyone else the same thing and letting local governments and school districts continue doing what they can to stop the spread of COVID-19, especially among our children.”

Go view the document to see the footnotes; the last two refer to the AG’s own filings in the cases involving Harris County and others. I mean, it’s not like anyone should have expected the truth from Ken Paxton, but it’s still bracing to see it laid out like that.

Back to SCOTx for the mask mandate ban

Brace yourselves.

Following an unfavorable outcome at an appellate court, Gov. Greg Abbott asked the Texas Supreme Court to block the mask mandate in San Antonio and Bexar County.

A Bexar County district judge issued a temporary order on Aug. 16 allowing the city and county to require masks in city and county buildings and public schools. That order keeps the mask mandates in place until December, when a trial is set for the case. Attorney General Ken Paxton, on behalf of the state, appealed that order immediately to the 4th Court of Appeals, but a panel of judges upheld the local mask mandate last Thursday.

Paxton took that decision to the Texas Supreme Court on Monday, arguing in the filing that the 4th Court of Appeals’ ruling adds to the confusion over mask requirements in Texas, and asked for “urgent” action.

Paxton wrote that the 4th Court’s action “upends, rather than preserves, the status quo. The court of appeals’ decision thereby compounds the widespread confusion over mask mandates in Texas and frustrates the state’s ability to cohesively address the pandemic.”

The 4th Court of Appeals had judged keeping a local mask mandate maintains the status quo, as a previous temporary restraining order granted on Aug. 10 first put the mandates in place in San Antonio and Bexar County.

Paxton also argued that the state’s high court must take quick action because other cities and counties are being granted their own temporary orders allowing them to require masks despite the governor’s executive order prohibiting that.

See here and here for some background. The 4th Court of Appeals issued its order denying the request for a stay on the same day that the Supreme Court batted back the request it had received in the Harris County case. They could act quickly or they could sit on this and wait for action from other courts, because Lord knows there’s a ton of litigation out there.

Speaking of other litigation

A Dallas County judge today will decide whether Texas Gov. Greg Abbott has the authority to prevent local officials from imposing public health measures like mask mandates. It’s the latest in a dramatic and fast-moving court battle over the issue in the state.

At today’s hearing, the judge will likely hear evidence and testimony about the pandemic’s impact and the efficacy of mask-wearing to stop the spread of the COVID-19 delta variant as well as legal arguments about the Texas Disaster Act.

Dallas County Judge Clay Jenkins and his legal team, who are requesting a temporary injunction against Abbott’s order, say mask-wearing is the best way to save lives and slow the pandemic while they wait for people to get the vaccine. They’ll also argue that Jenkins, the county’s chief administrator who has emergency management powers, has the legal authority to issue executive orders to mandate such rules.

“We need protection for citizens in Dallas County, we need protection for the economy of Dallas County,” Charla Aldous, one of Jenkins’ attorneys, said at the hearing Tuesday morning. “The bottom line: We are here because Judge Jenkins wants to do his job.”

Abbott and Texas Attorney General Ken Paxton say the governor’s executive order, GA-38 — which bans mask mandates — is legal because the Texas Disaster Act gives him the power to ban Jenkins and other local officials like school districts from requiring masks.

Benjamin Dower, a lawyer with the Texas Attorney General’s Office, said the state would produce no witnesses and that the testimony from Jenkins’ witnesses weren’t relevant to temporary injunction hearing.

“None of this is actually relevant to the matter the court has to decide,” Dower said. “This is really a question of law, not fact.”

Judge Tonya Parker, of the 116th Civil District Court, will decide today whether to grant a temporary injunction barring the governor’s order. She previously granted a temporary restraining order doing just that.

The restraining order hearing was to prove whether there would be harm if Abbott’s ban were enforced. The temporary injunction hearing scheduled for this morning is to decide whether the decision should be more permanent. The judge will hear evidence on the matter, but Jenkins’ legal team must still prove immediate harm from Abbott’s order.

See here and here for some background; yes, all of this litigation is hard to keep track of. This post is likely to be already out of date by the time it publishes in the morning. I’ll update it then. Hold onto your butts in the meantime.

UPDATE: No news on the Dallas case yet. Maybe by this time tomorrow.

A look ahead to Commissioners Court redistricting

As we know, the Census redistricting data is out, and that means a whole lot of map-drawing is in our future. The main focus on this will be in Austin where the Congressional and legislative maps are re-drawn, but those are not the only entities that have this job to do. Harris County will be redrawing its Commissioners Court map, and this time for the first time in decades it will be done with a Democratic majority on the Court. What might be in store? Benjamin Chou with the Texas Signal provides an advance look at the possibilities.

Over the course of the last decade, population in Harris County boomed, growing by over 630,000 residents from 4.1 million in 2010 to 4.7 million today. Most of the population growth occurred in Precincts 3 and 4, which are also the same precincts currently held by the two Republicans.

In this round of redistricting, the Court will need to tweak the districts so that the four precincts have relatively similar population numbers. For this year’s sake, that means increasing the population in Precinct 2 and decreasing the population in Precincts 3 and 4. To do so, the Democratic-majority can attempt a range of actions that can be simplified into 3 main results: maintain the same 3–2 Democratic majority or increase their majority to 4–1.

The current Commissioners Court map was drawn a decade ago, by the then 4–1 Republican majority. At that time, Republicans held Precincts 2, 3, 4 and the county judge position. The map was drawn with the intent to solidify the Republican 4–1 majority by increasing Republican voters in those three precincts, particularly Precinct 2. The court did so by replacing Hispanic Democratic voters with Anglo Republicans.

They were successful through much of the decade. In the high-Republican turnout year of 2014, Republicans crushed Democrats. Republican Governor Greg Abbott won Precinct 2 by more than 16% of votes and Precincts 3 and 4 by more than 20% each. Even in 2018, when Beto O’Rourke lifted Democratic performance to its most competitive level in a generation, the Republican majority barely crumbled. County Judge Hidalgo, the only one of the five members of the court to be elected county-wide, won by less than 2%. Commissioner Garcia won Precinct 2 by 1%. Last year, when Democrats had a chance to flip Precinct 3, the Democratic candidate lost by 5%.

When considering how to redraw the map, the new Democratic majority will likely keep Precinct 1 solidly Democratic while shoring up Precinct 2 for Commissioner Garcia. The question is whether the court makes Precincts 3, 4, or neither more Democratic so a future challenger has a better chance of ousting the Republican incumbents.

The problem with choosing neither means the Republicans have a chance of flipping the current Democratic 3–2 majority in the event Democrats lose the County Judge position. Similarly, if the Court decides to make only Precinct 3 more Democratic, there remains a risk that Republicans win control because Precinct 3 is not up for election until 2024. Because Precinct 4 is up for election in 2022, the safest bet for Democrats to retain uninterrupted control will be to redraw Precinct 4 more Democratic.

Chou goes on to draw three potential new maps, one that just makes Precinct 2 more Democratic, which would end up with the same Court if Judge Hidalgo wins re-election, and one that shores up Precinct 2 while also turning a radically redrawn Precinct 4 Democratic as well. I’ll let you have a look and see what you think. You can also review this tweet from Hector DeLeon to see the Census population figures for each of the four precincts.

It’s a good writeup, and it captures the choices well. A couple of things that were not directly addressed: One, the Latino drift towards Trump in 2020, which we have discussed before multiple times. We saw that manifest here, though perhaps not as much as in South Texas, but in areas that would affect Precinct 2. Biden carried Precinct 2 in 2020 by a tiny margin, while other Dems generally fell short; in 2018 Beto won Precinct 2 by seven points, while other Dems generally carried it by four or five. For a variety of reasons we don’t know how this will play out in 2022, but we should start with the assumption that Latino voters are a little softer than we’d like, so that we don’t overestimate our position.

Two, we can’t just shove Anglo Republicans into Precinct 1 as a way to aid Precinct 2, because the Voting Rights Act is still more or less in effect, and retrogressing its Black population would be a violation of the VRA. Yes, the thought of a Republican plaintiff filing a VRA lawsuit over this is ironic to the point of causing nosebleeds, but care must still be taken.

Three, as Harris County continues to grow and change demographically, Precinct 3 as it is now will likely become more Democratic in time for the 2024 election without much else being done. Betting on that does entail the risk that the Court could swing Republican in 2022, either via Commissioner Garcia losing or Judge Hidalgo losing. I’m less worried about the latter, and the former can certainly be mitigated against, but this would allow for the possibility of getting to 4-1 without a complete redesign of the county map, which might be controversial politically in ways that are not currently apparent.

It should also be noted that redrawing the Commissioners Court map does the same for the HCDE Trustees map. As it happens, due to resignations and appointments, Dems have a 6-1 majority on that body right now, with all three At Large seats plus the Precincts 1, 2, and 3 positions in their column. I’m certain this will be a lower priority for consideration by the mapmakers, but it is worth keeping in mind.

Beyond that, we’ll see. Commissioners Court is under the same time constraints as the Lege, in that they need to get a new map in place in time for the 2022 primaries, whenever they wind up being. Assuming that will take place in May, and the filing period will be pushed back commensurately, they have a couple of months. Expect to see some action soon – if this is like last time, they’ll hire a consultant to do the actual work, with their specifications, and they will formally approve it once it suits their needs and the public has a chance to weigh in. I will of course be keeping an eye out for this.

HISD starts its year

Good luck, kids. You too, parents.

For the second straight year, Houston ISD is set to welcome back nearly 200,000 students in the midst of a pandemic.

The similarities between last year and Monday’s reopening end there, however.

HISD entered the 2020-21 school year with COVID-19 infections and hospitalizations in Harris County on a downward slope. Nonetheless, the district began the year online and did not open its campuses until October. Nearly half its students finished the school year learning remotely even as case numbers had waned toward the end. Those who returned to campus remained masked up, socially distanced, and in some cases, behind plexiglass.

This year, the district is plunging right in, offering limited remote learning to vulnerable kids, requiring face masks but relaxing social distancing requirements while the number of COVID cases and hospitalizations are rising higher than ever, driven by the highly contagious delta variant and a lagging vaccination rate in Harris County.

Many of those cases involve young people, including some under 12 unable to be vaccinated. Eighteen percent of all the new cases in the Texas Medical Center this month have been children, President and CEO Bill McKeon said.

A look at COVID numbers in the surrounding districts, most of which have been open for less than two weeks, provides a glimpse into what the largest school district in the state could face when it opens its doors Monday.

A week and a half into the school year, Conroe ISD reported 1,487 students and 143 employees were isolated with symptomatic or test-positive COVID-19. Fort Bend ISD disclosed 536 total cases among students and staff. At Spring ISD, officials had 139 active student cases on the seventh day back.

On Friday, HISD had 157 active cases. The district finished last year with 2,037 total cases among students and another 1,600 among staff, according to state figures.

“We are really shoveling water out of the boat as we go because the cases are going up. The cases are jumping into the boat while we are shoveling them out of the boat,” HISD Superintendent Millard House II said of the region’s surge. “We are doing the best job we can, being as strategic as we can — keeping students and staff first in every decision that we make.”

It is what it is at this point. I forget where I saw it, but I came across the observation that HISD and other school districts were planning over the summer to emphasize making up for lost ground this year, and instead they’re having to deal with another form of the pandemic. The school year starts as the case rate is as high as it’s been since February, young kids still can’t be vaccinated, and the district is fighting to be able to enforce its mask mandate. I’m happy with the way Superintendent House has handled this so far, and I’m cautiously hopeful that we can get through the worst of this and be in a good place when we do. If you have schoolkids like I do, good luck and stay safe.

Voter suppression bill passes out of House committee

Here we go again.

A Texas House committee on Monday advanced the GOP-backed voting restrictions bill that first prompted Democrats to stall legislative work during a weekslong quorum break.

The 9-5 party-line vote on the revived legislation, Senate Bill 1, is part of a third bid to enact proposals that would outlaw local efforts to make it easier to vote, ratchet up vote-by-mail rules and bolster protections for partisan poll watchers. It comes just days after the House regained enough Democrats to restart business following a nearly six-week exodus over the minority party’s opposition to the voting legislation.

With the second special legislative session past the halfway mark, the House Select Committee on Constitutional Rights and Remedies opted to replace the Senate’s bill with language from its own bill, House Bill 3. That means the House is essentially starting over with the same exact proposals that instigated a stalemate in the chamber following Democrats’ departure to Washington, D.C., in early July.

State Rep. Andrew Murr, the Junction Republican authoring the legislation, indicated he could “foresee” at least some changes to the legislation when it reaches the House floor, though it remains unclear how expansive those amendments could be.

“We’re picking up right where we left off from and so those changes are yet to come,” Murr told the committee.

He had faced questions from Democrats over possible revisions in light of an overnight hearing last month that garnered more than 12 hours of deliberations and public testimony, largely against the legislation, during which there seemed to be some tenuous consensus, including on possibly mandating training for poll watchers.

[…]

As they returned to the Capitol in larger numbers Monday, Democrats indicated they remained optimistic about successfully fighting the bill during the House’s floor debate. State Rep. Rafael Anchía, D-Dallas, pointed to Democrats’ ability to cut a deal on what was a pared down version of the bill during the regular legislative session. After the House approved that version in May, lawmakers reshaped the bill behind closed doors so that it swelled beyond what each chamber initially approved.

That reworked version of the bill instigated Democrats’ first quorum break at the end of the regular legislative session; it also served as the blueprint for the current legislation under consideration.

“We had a version of what was SB 7 leave this House in far better shape than it got here,” Anchía said. “We expect to be part of the process just like we were during the regular session.”

I mean, I dunno, maybe. It might take a little of the sting out of the restoration of the quorum, or at least provide the argument for doing so. Maybe this time they’ll at least listen to what all the advocates for the disabled community were saying about how the bill harms them. I just know that Dan Patrick is still going to get a say in what the final bill looks like, and there’s no reason to be optimistic about that. But the train has left the station, and all we can do is try to keep it from going off the rails.

The status of the mask mandate lawsuits

The Chron does a roundup.

Texas courtrooms have become a busy place this August, with Attorney General Ken Paxton battling school districts, cities, counties and nonprofits to defend Gov. Greg Abbott’s ban on local mask mandates aimed at preventing the spread of COVID-19.

Tracking the status of lawsuits can be dizzying.

“The way I like to think about it is there are four big buckets of cases and then there are some little minor cases out there,” said Harris County Attorney Christian Menefee, whose county has sued both Paxton and Abbott over the ban on mask orders.

Those buckets include Harris County’s lawsuit; one brought by a group of school districts; one from Bexar County and San Antonio; and one from Dallas County. Those cases are the furthest along in the legal process, Menefee said, and he expects a final decision on Abbott’s mask order rules to come from one of those cases.

Harris County’s lawsuit and the school districts’ are proceeding along the same track, Menefee said. Local officials cheered a ruling late Thursday by the state Supreme Court, on a procedural question, that allowed the county’s mask mandate to stay in place for now.

The all-Republican high court could have ruled on the merits of the question, but chose not to, instead punting it to a lower court. This signals that the court isn’t yet prepared to offer a final decision on whether or not mask mandates across the state will be allowed to remain in place, he said.

“They could rule whenever. The fact that they haven’t issued a ruling I think is encouraging because I think that means they’re thinking about it,” Menefee said. “If they do that, that’s going to be the law of the land for Texas,” applying to all cases.

[…]

In Bexar County and San Antonio’s case, local officials won a temporary injunction from an appeal, allowing their mask mandates to remain in place while their case is pending. A trial is scheduled for December. Paxton’s office is likely to appeal that to the state Supreme Court.

Meanwhile, Dallas County is fighting for a temporary restraining order to allow it to keep the mask mandate in place for the short term, a step that precedes arguments over a temporary injunction. That decision would last longer, months rather than weeks.

The stragglers, as Menefee described them, include a Fort Bend County case and a lawsuit from the Southern Center for Child Advocacy over many of the same issues.

A Fort Bend County district judge on Thursday granted the county a temporary injunction it its legal challenge to Abbott’s ban on mask mandates. County Judge KP George said it “removed the hurdles that have prevented our municipalities and school districts from taking the same action to protect their communities and the children…”

Thursday’s ruling should remain in place until the issue goes to trial in at least 45 days. Or Paxton could appeal the lower court’s decision to the state Supreme Court, as he has others, leaving it up to them to decide.

Hope that helps a little. And as a reminder of the legal questions, Erica Greider talks to an expert.

Steve Vladeck, a professor at the University of Texas School at Law, reckons that local officials still face an uphill battle in their legal battles.

The Supreme Court of Texas, he explained, didn’t side against the state on the substantive question. It simply concluded that Paxton had skipped a step in the legal process, meaning that the statewide restraining order against Abbott’s executive order remains in effect while Paxton retraces his steps.

The TEA guidance on masks, similarly, isn’t a policy change on the agency’s part; rather, it’s a recognition that a temporary restraining order issued by Travis County District Judge Jan Soife blocking the enforcement of Abbott’s latest executive order remains in effect, while litigation is pending.

“The real bottom line is that Judge Soifer’s TROs are still in effect today, but they may not be tomorrow,” Vladeck said.

Vladeck thinks it’s more likely than not that the state’s highest court will eventually side with Abbott; after all, he noted, it previously issued stays against local mask mandates issued in Dallas and Bexar County — that’s “more than nothing, when it comes to reading tea leaves.”

At the heart of the case, Vladeck continued, are genuine substantive questions about the scope of the governor’s powers under the Texas Disaster Act of 1975.

“I think we can safely say they’re broad,” Vladeck said. “The problem is they’re surely not limitless.”

Judge Soifer, you may recall, ruled in both the Harris County case and the Southern Center for Child Advocacy case. As we have seen, there is a range of opinion on this litigation from the legal community. I tend to think Vladeck is right about what will happen – however subtle some of the legal questions are, there’s also the politics of it, and the Supreme Court is much more likely to give Greg Abbott what he wants than not – but it’s not an obvious question to answer. We should know more pretty quickly.

The mask rebellion

Sweet, sweet music to the ears.

The local mask rebellion, coupled with the fresh threat of legal action from President Joe Biden’s administration, poses the most serious challenge yet to [Gov. Greg] Abbott’s emergency powers, which he has wielded in unprecedented ways that have drawn intense criticism both from Democrats and from some conservatives.

[…]

Many school boards and superintendents are stuck between conflicting requirements from the governor and their local health departments, while others feel that masks are essential and that they have the authority to control their own schools, regardless of the governor’s wishes.

“I don’t think the governor has an MD next to his name,” said Conrado Garcia, superintendent of West Oso Independent School District in Corpus Christi. “We’re just trying to help our kids, and maybe what’s missing is some of that kind of thinking.”

West Oso is one of 58 school districts deemed “noncompliant” with Abbott’s order by Attorney General Ken Paxton, who is publishing a list of the rogue government entities.

At last count, the list also included three charter school groups, one city and eight counties — Bexar, Cameron, Dallas, Harris, Hays, Hidalgo, Nueces and Travis — for a total of 70 entities. Paxton, who is also suing to overturn some of the local mandates, encouraged the public to notify his office of any “violator” that was not included on the list.

Garcia said he hopes Abbott will come around on the local mask mandates.

“Our intention is not to fight the governor, our intentions are that he will realize that there’s so many parents, and the list is growing of the number of school districts that are passing more and more resolutions,” Garcia said. “So I think eventually, somewhere, somehow, common sense dictates to me that if you’re hearing from that many people, I hope that he will compromise and let us continue with our work.”

The cases pose a new legal test for Abbott, whose emergency orders withstood early challenges from the right, filed by conservative groups that argued against business closures and the governor’s own mask mandate.

The Texas Supreme Court decided last year that it didn’t have standing to take up those cases, though Justice John Devine nonetheless issued an opinion in which he critiqued a portion of state law that allows the governor to suspend certain laws and rules during emergencies.

“I find it difficult to square this statute, and the orders made under it, with the Texas Constitution,” Devine wrote, noting that only the Legislature — not the judiciary or executive branches — has constitutional power to suspend laws.

In the latest mask challenges, local officials are citing the same portion of state law, but with the opposite intent: to stop Abbott from blocking local action aimed at blunting the spread of COVID. In cases involving San Antonio’s and Dallas’ mask mandates, local officials have argued that Abbott may suspend only local orders that would “in any way prevent, hinder or delay necessary action in coping with a disaster.”

Ron Beal, an attorney and former administrative law professor at Baylor University, sided with the local officials in an amicus brief submitted to the state Supreme Court on Monday.

“It is wholly inconsistent with the legislative intent for the governor to consciously and knowingly not meet or prevent the dangers, but to enhance them,” Beal said. “There is simply no language in the statute that empowers the governor to give citizens permission to prolong the disaster. It is thereby void.”

[Dale Carpenter, a constitutional law professor at Southern Methodist University], said the case raises difficult constitutional questions for the conservative jurists on the court.

“That cuts a number of ways in this case, both for and against the governor, because he’s acting in a way that many conservatives believe is reinforcing individual rights to choice, choice about wearing masks specifically,” Carpenter said. “But I think the court certainly doesn’t want to issue an opinion that says the governor’s the commander-in-chief and he can do what he wants, and not qualify that opinion a lot.”

[…]

Paris ISD, in Northeast Texas, has taken a novel approach to its own mask mandate. While other districts have argued that health data or conflicting local requirements required them to ignore Abbott’s order, Paris ISD’s board simply amended its dress code to include a mask.

The lawyer for the district, Dennis Eichelbaum, argues that so long as the state’s education law remains in place, school districts have the exclusive right to govern themselves. Unless Abbott decides to use his emergency powers to suspend that law, Eichelbaum argues, school districts can institute mask mandates.

“We’ve always had dress codes. It’s very common in Texas. And this is no different, really, than saying we’re requiring our students to wear shoes,” he said. “I can’t explain why other law firms weren’t as creative, but it seems pretty simple to me.”

Eichelbaum argued that Abbott’s executive order is vague and inconsistently enforced, pointing to requirements that students wear face masks during welding class or that baseball catchers and football players wear face protection. Amending a dress code to include masks to protect against COVID is no different, Eichelbaum said.

Obviously, I am delighted by the resistance to Abbott’s shameful demagoguery on this issue. Abbott, who has made a career out of defying federal laws and directives he doesn’t like, deserves no sympathy for any of this. I don’t know what the Supreme Court will do, though their refusal to just call an end to all the litigation is moderately heartening, and I appreciate the legal analysis in this story. There’s at least a chance that common sense can prevail, and that’s more than we’ve had around here in awhile.

I will say, it’s been this kind of resistance to Abbott’s anti-mask mandate, which as noted has come from some red areas as well as the cities, that makes me give some credence to that Spectrum/Ipsos poll. Abbott may only care about the most fervid of Republican primary voters, but mayors and school boards have to answer to a broader electorate, and some of them will be facing that music this year. Maybe one of the HISD Trustee candidates, especially one in a district formerly held by a Republican, will base their campaign on an anti-mask platform, but if so I haven’t seen any evidence of it yet. If nothing else, this is a big campaign issue for next year, when we finally get a candidate for Governor out there.

A few words from the CEO of the Medical Center

From an interview he did with Lisa Gray.

What we’re seeing, sadly, is more of the same, only with more intense numbers. The number of people who are testing positive in our community continues to escalate month over month. The test positivity rate is now at 15.1 percent.

But probably the most accurate reflection is our hospitalizations. We just reached an all-time high: 421 people were admitted to our hospitals for COVID yesterday.

Step back for a second and look at that relative to the entire pandemic. Back in June and July, we had two weeks where the average number of hospital admissions was over 300. That was in the second wave.

Fast forward to wave three: We had four weeks that averaged over 300.

Now we are into our second week with no slowing the pace. At 421 today, we are seeing the highest peak of all of the pandemic going back 18 months now.

It’s largely a pandemic of the unwilling — people unwilling to be vaccinated. Now 44% of Houstonians are unvaccinated. Those are the vast majority of the people that are showing up in our emergency rooms and and in our ICUs. They’re very sick.

Many people thought that they were young, and therefore their immune system would be strong enough to protect them. That is not the case with this deadly delta variant, which is three times more transmissible than the earlier alpha variant.

Our hospitals’ staffs are 18 months into this. They’re exhausted.

And we have far fewer nurses than we used to have. They’re being recruited to other states, like Florida, that are even worse off than Texas.

The saddest fact is, 18 percent of all the new cases so far in August are children.

With the alpha variant, everyone thought, “OK, it’s 65 and older.” So we went after the nursing homes, and we did a brilliant job at protecting the elderly population and those who are immunocompromised.

But now, that vulnerable population is children under 12, who are not able to be vaccinated. We are predicting a mess in our schools. With nearly 20 percent of new cases being children, now we’re going to huddle them together in schools? Some may have masks. Some may not. It’s a recipe for disaster.

You can read the rest or give it a listen, but his answer to the first question tells you most of what you need to know. Hospitals around the state have been facing a similar crisis. I keep harping on this because it needs to be harped on, as we have a governor who can’t follow his own dictum about “responsible behavior”, a felonious Attorney General who’s soliciting snitches so he can go after rogue mask mandates, and a Legislature that wants to ban mask mandates forever. This is what we’re up against.

I don’t know if I’d call this “good news”, but the projections say we can see the beginning of the end from here.

While hospitalization numbers are nearing the heights they reached during the state’s most fatal surge in January, public health projections indicate that the latest wave will result in fewer deaths — mostly because senior citizens are widely vaccinated and hospital patients are now much younger. Still, state health officials are preparing for the worst, preemptively ordering a fleet of five mortuary trailers from the federal government in case infections spiral.

Public health experts still expect at least some increase in coronavirus deaths over the coming weeks, as fatalities are a lagging indicator — cases rise first, then hospitalizations, then intensive care usage, then deaths.

Now, the state is averaging about 100 daily deaths, a number not expected to exceed 150 over the next month before tapering off. That’s nowhere near the 350 COVID deaths per day that the state saw in January.

“We’ll go up some, but again, not to the levels that we saw back in January,” said Dr. David Lakey, the vice chancellor for health affairs and chief medical officer at the University of Texas system, referencing the forecasts.

Still, the precipitous rise in hospitalizations is a cause for concern. More than 12,000 Texans were in the hospital with the virus on Wednesday, with dozens of Texas hospitals running out of ICU beds (during the winter surge, hospitalizations peaked at just over 14,000). Patients are younger than they were in the first two waves of the virus, and almost everyone facing severe illness is unvaccinated.

[…]

Projection models following Texas’ daily COVID case and hospitalization counts anticipate a rise in deaths in the near future. By mid-September, a model offered by the U.S. Centers for Disease Control and Prevention estimates that the Lone Star State will see about 790 deaths per week, or roughly 113 per day.

Another model, produced by researchers at the Institute for Health Metrics and Evaluation at the University of Washington, projects about 125 deaths per day by mid-September in a worst-case scenario. In both forecasts, it appears that the state has already seen the brunt of its COVID deaths.

That’s largely because the vast majority of Texas’ over-65 population — those most vulnerable to the coronavirus — have received at least one dose of the vaccine, experts said.

“Those that were most at risk of having severe disease have some protection, and that’s good protection because of the vaccine,” Lakey said.

While a spike in hospitalizations and ICU bed usage does portend fatalities, the relationship between those data points will be less “linear” during the third wave, he said. It remains to be seen whether young patients will have other, long-term side effects of the virus — what some are calling “long COVID.”

Deaths will also decrease as more people become vaccinated or recover from the illness, said Dr. Ali Mokdad, a professor of health metric science at the University of Washington’s Institute for Health Metrics and Evaluation. The institute’s researchers estimate that about 74 percent of Texans will be immune to the delta variant, either through infection or vaccination, by Dec. 1.

“The virus is running out of people to infect,” he said.

The forecasts should not be interpreted as an assured outcome, though. Public buy-in on safety precautions, including mask-wearing, will ultimately determine the trajectory of the third wave.

In other words, don’t expect a best-case outcome, because we’re not allowed to do the things we need to do to make this less awful. Note also that while extensive vaccinations among older folks will help to limit fatalities, there will still be an excess of deaths in the coming weeks because of the overfilled hospitals – people with other serious conditions will die as a result, as was the case in the previous waves. Now is a very bad time to have a heart attack or be in a car crash.

At least there is a rise in the rate of people getting vaccinated, now that the threat is so much higher. Some of that is the result of mandates and restrictions on unvaccinated people, some is due to pressures and enticements from employers, and some is due to straight up financial rewards. Whatever it takes, whatever it takes.

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.

Using the dress code to skirt the ban on mask mandates

Brilliant!

The Paris school district found a loophole in Texas Gov. Greg Abbott’s executive order preventing mask mandates across the state.

Paris ISD’s board of trustees voted to alter the district’s dress code to include masks, according to its website.

The school district, which is located about 100 miles northeast of Dallas, has nearly 4,000 students across eight campuses, according to the National Center for Education Statistics.

“The Texas Governor does not have the authority to usurp the Board of Trustees’ exclusive power and duty to govern and oversee the management of the public schools of the district,” Paris ISD said in a release posted on its website. “Nothing in the Governor’s Executive Order 38 states he has suspended Chapter 11 of the Texas Education Code, and therefore the Board has elected to amend its dress code consistent with its statutory authority.”

[…]

“The Board of Trustees is concerned about the health and safety of its students and employees,” the Paris ISD release says. “The Board believes the dress code can be used to mitigate communicable health issues, and therefore has amended the PISD dress code to protect our students and employees.”

Pretty damn clever, if you ask me. I’m sure Ken Paxton will file a writ of mandamus with the Supreme Court to stop them, and who knows what happens after that, but I hope other school districts are looking at this and thinking about it. By the way, Paris TX is in Lamar County, which voted about 80% for Trump in 2020. Not exactly a big liberal city taking this action here, is what I’m saying.

And sigh speaking of Paxton:

Paxton asked the Texas Supreme Court on Tuesday to overrule a Travis County judge who over the weekend allowed mask mandates to proceed in any school district in the state.

State District Judge Jan Soifer issued temporary restraining orders against Gov. Greg Abbott’s ban on mask mandates, clearing the way for Harris County and eight school districts to enact their own mask-wearing rules. Soifer also barred Abbott from enforcing his order “against Texas independent school districts.”

[…]

“The ongoing disregard of the law by certain local officials is causing mass confusion in Texas, necessitating intervention by this Court to provide clarity and statewide uniformity,” Paxton’s office wrote to Supreme Court justices Tuesday.

Abbott and Paxton have had some legal victories — albeit short-lived ones. The high court sided with Abbott and Paxton on Sunday and temporarily shut down mask mandates in Bexar and Dallas counties. But the court allowed legal challenges to continue playing out.

If I’m reading this correctly, this filing goes after both the Harris County temporary restraining order and the Southern Center for Child Advocacy TRO, both of which were handed down by Judge Soifer. As the story notes, while SCOTx has obliged the request to stay the TROs, it has not as yet put a halt to any of the lawsuits that have been filed, which Paxton has been asking for. As such, with one exception in Fort Worth no school district that has put forth a mask mandate has been barred from doing so, at least so far.

In the meantime, school districts are doing what they can do to keep the kids safe, which means keeping masks on.

Houston ISD is among those taking a hardline approach to enforcing their mask mandates, with threats of being sent home and disciplinary action for students who refuse to cover their faces. Other districts said they have no such plans and are hopeful that all students and staff members will abide by the face covering requirement without stirring up drama.

Keyhla Calderon-Lugo, a spokeswoman for Edgewood ISD in San Antonio, said the only students who showed up on campus without masks on Monday, the first day of school, did so by accident.

“We have surveyed our parents and have been in continuous communication with them,” Calderon-Lugo said. “For us, our community has been cooperating greatly with the guidelines and safety protocols established by the district.”

\Many school administrators think mask-reluctant children may just need a nudge. Almost across the board, districts with mandates in place have provided schools with extra masks and instructed staff to offer them to students who show up on campus without a face covering.

“We’re assuming that they didn’t have one, not that they don’t want to wear one,” said Sheleah Reed, a spokeswoman for Aldine ISD. “Our hope is that we keep students in class. Our goal is not to send them home. We’ve worked really hard to get all 67,000 of our students back to in-person learning.”

Where school districts diverge is when students refuse to wear masks after being offered one.

North of Austin, Pflugerville ISD is “certainly not denying any student access to school,” said spokeswoman Tamra Spence, who added that she was “not aware of any specific instances where a resolution hasn’t been reached” with children who have arrived unmasked since classes resumed Monday.

Some districts say they will segregate the unmasked students from those with masks.

At Houston ISD schools, students who refuse to wear masks will be “placed in a separate area” and their parents or guardians contacted. Those who continue to refuse will be told to stay home, marked absent and offered temporary online learning, according to district guidance.

Dallas ISD, meanwhile, is working with its schools to provide separate rooms where students who decline to follow the mask mandate will continue to receive instruction, Superintendent Michael Hinojosa said Sunday. He described Dallas ISD’s approach to enforcing its mask requirement as “nice but firm,” and noted that the district had not had any problems since its mandate took effect Aug. 10.

“We’re going to be benevolent. We’re going to work with people. We’re going to offer masks,” Hinojosa said. “But we’re going to be firm. We have to protect the health and safety of our students.”

This could all be a lot simpler, and we could genuinely be doing our best to keep kids and teachers and staffers safe, if Greg Abbott would allow it. He is the reason for the confusion, and he deserves all of the defiance he is getting.

SCOTx confirms quorum-busting Dems can be arrested

I thought this had been settled already, but I guess not.

Texas House Democrats who refuse to show up to the state Capitol in their bid to prevent Republican lawmakers from passing a voting restrictions bill can be arrested and brought to the lower chamber, the Texas Supreme Court ruled Tuesday.

The all-Republican court sided with Gov. Greg Abbott and House Speaker Dade Phelan — and ordered a Travis County district judge to revoke his temporary restraining order blocking the civil arrest of Democratic lawmakers whose absences have denied the chamber the number of present members needed to move any legislation.

“The legal question before this Court concerns only whether the Texas Constitution gives the House of Representatives the authority to physically compel the attendance of absent members,” Justice Jimmy Blacklock wrote in the court’s opinion. “We conclude that it does, and we therefore direct the district court to withdraw the TRO.”

The state Supreme Court already has blocked court rulings in Travis and Harris counties to shield the quorum-busting Democrats from arrest — but Tuesday’s ruling signified that it’s legal under the state Constitution for House leaders to compel members to be physically present in the House, even if it means their arrest.

See here and here for the background that I had. I feel like I must be missing another story or two, but there’s been so much news the past couple of weeks who can even tell? Anyway, to me the question remains will any law enforcement officer actually do this? It’s not just the arresting part, it’s the transporting them to Austin part. I know that things like “norms” and “precedent” are basically meaningless these days, and that we have all been experiencing too many things we once thought could never happen, but I still have a hard time believing this. One way or another, I guess we’ll find out.

SCOTx does what SCOTx does

Room service, as always.

The Texas Supreme Court on Sunday temporarily blocked mask mandates in Dallas and Bexar counties, marking a pivotal moment in the showdown between state and local government as coronavirus cases and hospitalizations surge in Texas.

The ruling comes after several school districts and a handful of counties across the state defied Gov. Greg Abbott’s executive order that restricted local entities from instituting mask mandates. On Friday, the 4th Court of Appeals in San Antonio upheld a lower court ruling that permitted Bexar County to require mask-wearing in public schools. Shortly after, the 5th Court of Appeals in Dallas upheld a more far-reaching order from Dallas County Judge Clay Jenkins that required masks in public schools, universities and businesses.

In a petition for a writ of mandamus to the Texas Supreme Court, Texas Attorney General Ken Paxton’s office said the Texas Disaster Act of 1975 gives the governor power to act as the “‘commander in chief’ of the state’s response to a disaster. Attorneys representing cities and counties that have sued Abbott over his executive order have argued that his orders should not supersede local orders.

“Let this ruling serve as a reminder to all ISDs and Local officials that the Governor’s order stands,” Paxton said in a tweet on Sunday after the ruling.

Abbott’s response to the decision was less pointed, specifying that his executive order does not prohibit mask-wearing.

“Anyone who wants to wear a masks can do so,” Abbott said in a tweet.

See here and here for the background. Abbott’s tweet is pathetic in its misrepresentation of the issue. Masking only works if the people who are sick – whether they know it or not – are in compliance. That means that the people who are most likely to be sick – unvaccinated adults and unvaccinated children, which is all children under the age of 12 – especially need to be masked, and as we very well know, that first group and their children are not ever going to do that voluntarily. My mask doesn’t protect me from you (unless I’m wearing an N-95), it protects you from me. If you’re not reciprocating, it’s not doing us any good. The problem with Greg Abbott is not that he doesn’t understand this, it’s that he values the opinion of the largely unvaccinated and completely indifferent Republican primary voters more than anything else. And so here we are.

As for Paxton, he’s wrong in two ways. First:

And second:

Austin Mayor Steve Adler and Travis County Judge Andy Brown last week required face coverings to be worn inside public schools and government buildings to deal with a surge in local COVID-19 infections. Both insisted the orders remained in effect because Sunday’s court action did not involve local rules.

“While we await a final decision, we believe local rules are the rules,” Adler said on Twitter. “Regardless of what eventually happens in the courts, if you’re a parent, please keep fighting to have everyone in schools masked. We stand with you.”

[…]

A number of other mask mandates rely on trial court orders not yet before the Supreme Court, including restraining orders issued Friday in Travis County for Harris County and a half-dozen South Texas school districts.

Harris County Attorney Christian Menefee said Sunday’s Supreme Court action did not affect his county, and he plans to move forward toward an expected injunction hearing like Dallas and San Antonio.

The Chron story makes the same point. To be sure, Paxton can pursue the same kind of writ against Harris and Austin and those other school districts – several others that have as far as I know not been involved in litigation yet have implemented mask mandates – and when SCOTx issues a final ruling it can and likely will encompass all of the other jurisdictions in its order. But until then, no one other than Dallas and Bexar Counties are directly affected. And for what it’s worth, it’s not clear to me what would happen if they just decide to tell Abbott and Paxton and SCOTx to go pound sand. They haven’t yet, and they may never, but don’t throw out the possibility. The San Antonio Report has more.

UPDATE: Interesting:

I mean, he’s not wrong. And this is what I’m saying about the state’s ability to enforce this. As above, Paxton could go after DISD and make them comply. But until and unless he does, what’s stopping them from continuing on as they had planned?

UPDATE: This too:

At this point it’s not clear to me that anyone truly feels bound by this SCOTx order.

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.