local control

That’s no moon…

House Bill 2127 has been approved by the state House and Senate, and Gov. Greg Abbott is expected to sign it any day.

Crafted by state Rep. Dustin Burrows (R-Lubbock), the bill aims to create a statewide, uniform set of regulations for businesses, which Burrows says have been hurt by a patchwork of local rules.

Broadly speaking, the bill would achieve that goal by wiping out local governments’ ability to set rules beyond what the state already specifies on issues related to agriculture, business and commerce, finance, insurance, labor, occupations, property, local government and natural resources.

Thursday’s [San Antonio City Council] committee meeting offered a first glimpse at how HB 2127 might play out for cities that could soon be responsible for its implementation.

Required breaks and other heat-related mandates some council members want to create in San Antonio for construction workers are exactly the kind of regulations HB 2127 was intended to stop, after city-led efforts like paid sick leave ordinances became popular in recent years. Labor groups have labeled the pending legislation the “Death Star Bill” because they consider it so wide-ranging and powerful.

The bill’s supporters cite other progressive-led city initiatives HB 2127 would have also thwarted, such as bans on plastic bags, which other municipalities have sought to implement. The legal concept under which such laws are applied is known as preemption.

The legislation marks the latest incursion in a years-long effort by the Republican-dominated Texas Legislature to chip away at the ability of Democratic-led big cities to govern themselves.

Unlike narrower past efforts, however, city officials are not yet sure how far-ranging the effects of HB 2127 will be and how much of their past work will be undone.

“If the bill [becomes law] … [does] that mean that everything we’ve done [on this committee], including, for instance, proactive apartment inspection … would be out the door?” Rocha Garcia asked Assistant City Attorney Jameene Williams, who said she could not yet provide an answer.

[…]

Since HB 2127’s initial committee hearing, which featured testimonies from San Antonio, Houston and Dallas officials, begging lawmakers to use caution on such a dramatic change, proponents of the bill say it’s been tweaked to mitigate cities’ confusion and angst.

One amendment added during the Senate floor vote added language saying cities can recoup their legal fees if they’re sued for maintaining an ordinance in conflict with the law and the lawsuit is deemed frivolous. Another removed language saying city officials could be held liable for violations of the law, in addition to the municipalities.

Other amendments proposed by Senate Democrats aimed at labor protections failed.

The number of state codes that would be preempted by the bill has also changed, from six in the initial draft to a total of nine.

“As [with] most bills that are so controversial when they first get started, there was a little bit tweaking here and there,” said Rod Bordelon, a regulatory attorney and scholar for the conservative Texas Public Policy Foundation, which supports HB 2127. “But substantively, I think the bill as passed … is pretty closely related to what was filed originally.”

State law gives cities explicit authority over many issues within the codes the bill seeks to preempt — authority that cities would maintain even if the bill becomes law. For example, the local government code gives cities permission to regulate fireworks, zoning and law enforcement.

That means cities would still be able to regulate many issues within the nine codes the legislation preempts, but city attorneys would need to examine all new and existing ordinances on a case-by-case basis to ensure they wouldn’t violate the new law.

“It’s the subject matter within that code that we’d have to look at,” Williams told the council committee Thursday. “So it’s not an automatic preemption of all of our ordinances that fall under that particular code. We’d have to look at the substance of the ordinances.”

While city leaders say that’s an overwhelming burden on their resources, proponents of the bill say they’re simply shifting the burden of compliance to the city instead of businesses.

“If the City of San Antonio issues an ordinance and that seems to be in conflict with state law or other ordinances around the state, then [private businesses] are having to sit down with their lawyers and compliance specialists and figure out what do they need to do in each one of these jurisdictions,” said Bordelon.

See here for some background. The short answer to all this is that it will be sorted out, over the course of years, by the courts. There may be revisions made to this law, if certain aspects of it are found to be unworkable or not what the authors intended, in a future legislative session. Maybe someday, in a Democratic Texas, it will be repealed, or at least largely rolled back. Until then, every city is going to have to ask these questions and get their lawyers to do this research before they take action on a whole host of things. And that, I assure you, was the point.

A tale of two Propositions A

May 8th, 2023

by Charles Kuffner.

1 comment

I usually write my own sentence or two to introduce the article I’m linking to and commenting on, but honestly I can’t do any better than the lede of this story.

Proposition A, the wide-ranging police reform measure also known as the Justice Charter, went down in flames Saturday night, with a wide margin of voters casting a ballot against the measure.

Opponents began celebrating just minutes after early vote totals posted.

“The defeat of Prop A is a victory for local families, for local businesses and our quality of life,” wrote San Antonio SAFE PAC Co-Chairs Eddie Aldrete and April Ancira in a statement. “San Antonio is one of America’s unique, great cities and today our citizens professed with a loud and unequivocally clear voice we want to keep it that way.”

Ananda Tomas, executive director of ACT 4 SA, which gathered more than 38,000 signatures to get the measure on the ballot, said Saturday night she thought it would be a tighter contest — early vote totals came in with more than 75% against Prop A.

With all 251 vote centers reporting, election day voters had reduced that lead to just under 72%.

But the “grassroots effort” was no match for the police union’s money and political reach, Tomas said. “It’s just big, monied interest and misinformation that’s out there.”

The Current adds on.

In addition to decriminalizing abortion and low-level pot possession, Prop A would have codified cite-and-release for Class C misdemeanors such as petty shoplifting and vandalism. Additionally, it would have codified SAPD’s current ban on police choke holds and no-knock warrants.

Prop A’s backers were outspent 10-to-one by opponents including the powerful San Antonio Police Officers Association and deep-pocketed business interests.

Indeed, Prop A’s fatal flaw may have come down to the difficulty explaining exactly what it would do amid a barrage of ads depicting it as a step toward rampant crime and violence in the streets.

“We still have to do a lot of public education. We’ve been doing it for several years and we’re going to continue,” Ananda Tomas, executive director of police reform group Act 4 SA, told reporters at the Prop A watch party. “We know when we’re at the doors and we break all of these things down, that folks are with us.

High-profile leaders including San Antonio Mayor Ron Nirenberg and most of city council also declined to back Prop A. Proponents accused the mayor of backpeddling on his prior support of cite-and-release.

“The challenge with Proposition A is that I think it mischaracterizes what cite-and-release was about,” Nirenberg previously told the Current. “Cite and release has always had officer discretion. Prop A effectively removes officer discretion, and again, theft and property damage are not victimless crimes.”

Tomas said she was disappointed with the the mayor’s decision to campaign against Prop A. However, she said that she and fellow progressives aren’t giving up in their fight for criminal justice reform.

I had mostly described San Antonio’s Prop A as being about marijuana decriminalization, but it was a lot more than that, I think to its detriment. I get the appeal of trying to address these things systematically, but this is one of the downsides of that approach (see also: Obamacare and Build Back Better), in which the more controversial and less popular aspects of the package are weaponized against it. It also may be the case that the electorally successful marijuana reform referenda from 2022 benefitted from being more under the radar, while this effort was regularly topline news. I don’t think most of the individual components of Prop A are any less popular on their own – marijuana decriminalization, not pursuing abortion-related prosecutions, banning choke holds, that sort of thing. It’s just that proponents of them will need to strategize further in advancing them. (How many of them will be to a city or county’s discretion following this legislative session is another matter.)

Meanwhile, it was a different story in Austin.

The May 6 election made it clear: Austin is ready to dramatically expand civilian oversight of police.

With about 78,000 voters turning out for the May 6 election on two police oversight propositions with the same name (Austin Police Oversight Act), the progressive Prop A got approval from a resounding 70% of voters, per unofficial voting numbers. Prop B, which copy-pasted language from Prop A and then edited it to reduce oversight powers, received support from only 20% of voters.

As we observed from early voting numbers, turnout overall was not spectacular. In 2021, when a GOP-aligned PAC Save Austin Now was able to get a measure on the ballot to increase police staffing, roughly twice as many people cast a vote (and the police association-backed measure lost). A little more than 10% of Austin voters showed up this election, which is not atypical for a May election without high profile offices on the ballot.

Still, the passage of Prop A – which seeks to grant the Office of Police Oversight a whole lot of freedoms, including greater access to Austin Police Department’s internal affairs investigations – marks a huge stride for the city, and possibly the beginning of litigation over the legality of some of the measure’s language. If a court does eventually throw certain elements of the measure out, the undisputed parts of the ordinance will still stand.

I was vaguely aware of Austin’s referenda, but saw much less news of them than I did the props in San Antonio, for whatever that’s worth. I’m not saying this is the only way forward – indeed, as I have said before, what we really need is a better state government, because even this path forward is increasingly narrow and hostile – but what was tried in San Antonio didn’t work, and seem unlikely to be viable elsewhere. Let’s learn what we can from what happened and make the best of it going forward.

House passes bill to outlaw cities

Apr 19th, 2023

by Charles Kuffner.

Comments are off for this post

That’s not literally what this does, but it may as well be.

In a major escalation of Republicans’ efforts to weaken the state’s bluer cities and counties, lawmakers in the Texas Legislature are advancing a pair of bills that would seize control of local regulations that could range from worker protections to local water restrictions during droughts.

A bill backed by Gov. Greg Abbott and business lobbying groups, House Bill 2127, would bar cities and counties from passing regulations — and overturn existing ones — that go further than state law in a broad swath of areas including labor, agriculture, natural resources and finance. It received initial approval Tuesday in the Texas House by a 92-55 vote but must come back before the chamber for a final vote.

The bill’s backers argue it’s needed to combat what they call a growing patchwork of local regulations that make it difficult for business owners to operate and harm the state’s economy. Texas’ economic growth and jobs are overwhelmingly concentrated in the state’s urban areas.

“We want those small-business owners creating new jobs and providing for their families, not trying to navigate a byzantine array of local regulations that twist and turn every time” they cross city limits, said state Rep. Dustin Burrows, the Lubbock Republican carrying the bill in the House.

HB 2127 is one of several bills that Republicans filed this session to prevent cities and counties from enacting new progressive policies. For example, the bill would block local ordinances designed to provide more benefits to workers such as mandatory paid sick leave — though the state’s courts have already halted such city rules — and eliminate mandated water breaks for construction workers in Austin and Dallas.

The bill’s opponents — which include Democrats, local leaders, advocates for low-income workers and environmental groups — see a major power grab in the making that would prevent local officials from responding to their communities’ needs.

Rep. Chris Turner, a Grand Prairie Democrat, blasted the bill as “unconstitutional” as House lawmakers debated it Tuesday.

“Texas is unique and our communities are diverse,” he said. “A cookie-cutter, one-size-fits-all approach simply does not work for our vast and complex state.”

Labor leaders blasted Tuesday’s vote — with Rick Levy, head of the Texas AFL-CIO, calling the bill a “radical attack on our democracy and on the voices of local voters across our state” and a “strong message to workers … that they don’t deserve even the most basic protections.”

“Local leaders, who are best suited to pass policies that reflect the needs and values of their communities, have provided this protection,” Levy said. “Today, the Legislature got one step closer to stripping that all away.”

Critics argue the legislation would have far-reaching consequences and prevent cities and counties from combating predatory lending, responding to excessive noise complaints, enforcing nondiscrimination ordinances, creating invasive-species programs and more.

Gutting city regulations entirely instead of considering them individually short-circuits the democratic process, opponents said.

“The idea that we should, instead of having those debates, cut them off at the root and upend our democratic process to win fights that we aren’t even having is an affront to democracy,” San Antonio Mayor Ron Nirenberg said.

Because the bill is so broad, no one really knows the full extent of what it would do. Months after Burrows unveiled the first draft of the legislation, opponents still fear they’ve only scratched the surface of its potential impacts. Democrats on Tuesday sought explicit carve outs for local laws including nondiscrimination ordinances and protections against workplace sexual harassment but those measures failed. They warn of a flood of lawsuits against local governments should the bill — or its counterpart, Senate Bill 814, carried by Conroe Republican Brandon Creighton — become law.

“We’re just going to have to go to the courts to figure this out,” said Luis Figueroa, chief of legislative affairs at the left-leaning nonprofit Every Texan. “There’s going to be lawsuits filed all over the place.”

Everything I said about the slate of anti-LGBTQ+ bills applies here. I’m at a loss for what to do, and I feel like I’ve said everything I could say a dozen times. I have a hard time even writing this small amount because I just feel so demoralized by all this. I’m an optimist and a hopeful person by nature, and I’m having a hard time with that right now. I don’t know what else to say.

A brief but dismal legislative update

Apr 6th, 2023

by Charles Kuffner.

3 comments

Just a few recent news stories, to give you an idea of what’s happening in the Legislative session, and why I have been avoiding it.

Item 1:

Republican Texas senators on Monday reversed themselves and voted against allowing transgender kids currently being treated with puberty blockers and hormone therapy to continue receiving such care.

That reversal essentially expanded Senate Bill 14’s proposed ban on transition-related care to include all transgender children — as outlined in the legislation’s original version. The chamber voted 19-12 along party lines Tuesday to give final approval to the broader version of the bill, which is priority legislation for Lt. Gov. Dan Patrick. SB 14 will now advance to the House.

Monday’s vote to expand the restrictions and advance the legislation came days after the GOP-controlled Senate agreed to allow kids already on puberty blockers and hormone therapy by early June to keep their access to those treatments. Major medical groups approve of such care and say it lessens higher rates of depression and suicide for trans youth.

Item 2:

The Texas Senate on Wednesday approved two bills aimed at restricting drag performances that children attend or see. One of them, Senate Bill 1601, would defund public libraries where drag queens are allowed to read to children. The other, Senate Bill 12, bars kids from drag shows if the performances are overly lewd and lascivious.

SB 1601 was approved in a 19-10 vote. SB 12, which is a priority for Lt. Gov. Dan Patrick this session, was approved in a 20-11 vote. Both bills now head to the House.

Item 3:

A bill intended to rein in district attorneys who decline to pursue certain cases passed the Senate on Wednesday. The bill, a priority for Lt. Gov. Dan Patrick, is part of a larger effort to limit the power of elected prosecutors, especially in Texas’ largest, left-leaning counties.

Some district and county attorneys in Texas have said they will not prosecute people accused of violating the state’s near-total abortion bans. There’s also conflict over whether prosecutors will pursue allegations of election fraud, as well as cases involving first-time drug offenders or low-level theft.

Prosecutors have wide latitude to decide what cases their office will pursue. But conservative lawmakers have filed more than 30 bills intending to limit this “prosecutorial discretion.”

“Unfortunately, certain Texas prosecutors have joined a trend of adopting internal policies refusing to prosecute particular laws,” Sen. Joan Huffman, a Republican from Houston who authored the bill, said Tuesday. “These actions set a dangerous precedent and severely undermine the authority of the Legislature.”

Senate Bill 20, which passed the Senate in a 20-11 vote on Wednesday, is the first such bill to pass either chamber. Huffman and Sen. Tan Parker, R-Flower Mound, authored the legislation.

SB 20 would prohibit prosecutors from adopting or enforcing a policy “under which the prosecuting attorney refuses to prosecute a class or type of criminal offense.” Such a policy would qualify as “official misconduct”; if a jury finds a prosecutor guilty of misconduct, a district judge can order them removed from office.

Currently, only a county resident can bring an allegation of misconduct against an elected prosecutor. But both chambers are considering separate legislation that would allow residents and prosecutors in neighboring counties, and the attorney general, to file charges of official misconduct.

Other bills would enable the attorney general to take on any cases rejected by a county prosecutor — or sue for tens of thousands of dollars for every day a prosecutor has a policy against pursuing certain cases.

The Texas District and County Attorneys Association has raised concerns about these bills, noting on their website that there is already a system in place for residents of a county to raise issues with their prosecutor — either through bringing misconduct claims or by voting them out at the next election.

State lawmakers trying to override prosecutorial discretion is “another attempt to exert statewide control over a traditionally local function,” Sandra Guerra Thompson, a professor of criminal law at the University of Houston Law Center, told The Texas Tribune. “We’re seeing a lot of that these days.”

Any or all of these bills could fail in the House, or get amended to be less awful. I wouldn’t count on it, but it could happen. Just note that these are among the top priorities of Dan Patrick.

And finally, speaking of Dan Patrick, Item 4:

During a Senate floor debate Tuesday supposedly about “protecting children,” Lt. Gov. Dan Patrick rebuked Sen. Roland Gutierrez for repeatedly mentioning gun violence. Sen. Gutierrez thought gun violence might be relevant to “protecting children,” especially since his Uvalde district is still recovering from the trauma of the school massacre that took the lives of 19 children and two adults.

The reason for the public rebuke? This debate about “protecting children” wasn’t about guns or violent crime. It was about the dangers of – drag shows. Sen. Bryan Hughes, R-Mineola, has proposed legislation that would bar minors from attending drag shows.

When Hughes argued that his law, Senate Bill 12, would help “protect children,” Gutierrez countered: “Man, I’ll tell you, I’ve been all about this session about protecting children, my friend, and we haven’t done a whole lot of protecting children when it comes to guns and ammunition,” said Gutierrez.

The Senate gallery, which is open to the public, could be heard cheering, according to KVUE

Sen. Hughes looked “rattled” during the exchange, according to the Quorum Report.

But Lt. Gov. Patrick was quick to offer protection from the volley of words and came to Hughes’ rescue. Patrick scolded Gutierrez and announced that he would not be recognized to speak on the floor going forward if he could not limit his queries to the topic of protecting children (from drag shows).

“I appreciate your interest in protecting kids,” Sen. Gutierrez responded. “I sure would, could, use your support in protecting kids that are killed by gun violence in this state.”

As the Senate gallery cheered again, Lt. Gov. Patrick banged his gavel and warned that he would order the gallery cleared if there were another outburst.

“Sen. Gutierrez, I’m going to give you one more warning. That’s the last time,” Lt. Gov. Patrick said. “Stick to the topic, to the issues you’re asking questions on, or you will not be recognized in the future.”

Yes, how dare the Senator that represents Uvalde talk about guns in the context of protecting children? What was he thinking?

That’s your dismal legislative update for today. I hope to not have to provide more of these on other days.

Watch out for your electric bill

Mar 22nd, 2023

by Charles Kuffner.

Comments are off for this post

Noting this for the record.

As Texans continue paying off the costs of the deadly 2021 winter storm, state lawmakers are considering a Republican-backed proposal that would allow for more frequent rate hikes and prevent cities from challenging the increases.

Supporters of Senate Bill 1015 say it would help bolster the power grid, making it easier for utilities to recover the costs of building poles and wires to transmit electricity across growing cities.

For years, cities have negotiated settlements with electric utilities over these proposed rate hikes, securing lower costs for residents and businesses if they can show the increase is excessive.

While electric utilities have to go before the Public Utility Commission every four years to justify what they charge overall, they have also been allowed since 2011 to periodically hike rates to cover new distribution lines and any related costs. As of now, companies can do a distribution-related increase only once a year, and only if an existing rate isn’t under review by the PUC.

SB1015 would let utilities seek two distribution rate hikes a year, including when they have a rate case pending. And it would make the PUC, not cities, responsible for reviewing and challenging the hikes.

Critics say the bill would cost ratepayers millions. It would amount to “utility self-regulation,” with “the potential of multiple, sizable increases to ratepayers over a very short period,” argued Tina Paez, director of Houston’s Administration and Regulatory Affairs Department.

“The current law strikes a good balance between the utility that makes the capital investment and the ratepayers that fund it,” Paez told a panel of Senate lawmakers this week. “But the proposed bill would eliminate that balance, tipping the scales entirely in the utilities’ favor.”

The bill’s author, state Sen. Phil King, said the measure “is about trying to bring consistency and efficiency” to the process of recouping costs.

Aside from distribution costs, utilities are allowed to seek rate hikes up to twice a year for work on transmission lines, which carry electricity from power stations to substations (as opposed to from substations to homes and businesses). King said his bill would apply the same standard to both transmission and distribution lines.

The Weatherford Republican also said he wants to reduce the legal fees that utilities pay when cities challenge their interim rate hikes. Utilities are entitled to pass those litigation costs on to ratepayers.

“At the end of the day, whatever we do to streamline the administrative process, the review process, theoretically reduces attorneys fees, reduces other costs involved, and that ultimately saves the person paying the bill a lot of money,” King said.

The proposal comes as CenterPoint Energy, the regulated utility that distributes most of the electricity in the Houston area, prepares to recoup $200 million it spent to lease mobile power generators during emergencies.

I don’t know enough about this to say with any confidence what the effect of SB1015 would be. But I do know that I don’t trust Phil King, I fear the Republican attacks on cities’ authority, and any bill involving regulation of utilities that doesn’t come with the support of stakeholders like cities and consumer groups is automatically suspicious to me. Your mileage may vary, but that’s my perception of this one.

SCOTx denies pre-election challenge to San Antonio marijuana reform referendum

Mar 18th, 2023

by Charles Kuffner.

4 comments

First the voters will vote, then as needed the lawsuits will happen.

The Texas Supreme Court ruled Friday that any legal challenges to a proposed charter amendment on policing reforms must wait until after voters weigh in on the measure in the May municipal election.

While the court did not expressly deny the idea that the charter amendment could violate a state law prohibiting multi-subject charter amendments, Justice Jane Bland wrote that “voters injured by an election irregularity have remedies to address their injury after the election.”

The proposal brought forth by Act 4 SA and other progressive groups seeks to decriminalize marijuana and abortion, ban police chokeholds and no-knock warrants, expand the city’s cite-and-release program for nonviolent, low-level offenders, and create a city justice director to oversee the implementation of those changes.

The measure will be on the May 6 ballot as Proposition A.

Bland also suggested that an effort by three Northside councilmen to skip the City Council vote approving the measure for the ballot could have an impact on its future. Manny Pelaez (D8), John Courage (D9) and Clayton Perry (D10) left the dais shortly before the pro forma vote in February, viewing the measure as unenforceable.

“Sufficient post-election remedies exist that permit the voter to challenge any infirmity in the proposed amendment and its placement on the ballot — after the voters have had their say,” Bland wrote.

[…]

Council approved the ballot 7-0 in the absence of the three council members.

That move triggered a second challenge from TAL’s lawyers, which petitioned the court to remove the charter amendment from the May ballot on the grounds that the San Antonio City Charter prescribes a 10-day delay for ordinances that pass with fewer than eight votes to go into effect. That deadline was Feb. 17, a day after the council vote.

“Our role is to facilitate elections, not to stymie them, and to review the consequences of those elections as the Legislature prescribes,” Bland wrote. “We can readily do so in this instance through a post-election challenge.”

A dissenting opinion from Justice Evan Young pointed to the decision of the three councilmen who were absent from the vote as a pivotal move.

“None of the Court’s stated reasons apply here because they all depend on the same mistaken premise: the existence of a lawfully ordered special election,” Young wrote.

Young noted that in order to hold a special election, a city council must order it at least 78 days beforehand.

“The city council clearly failed to follow that binding legal requirement here,” wrote Young, who was joined by Justices John Devine and Jimmy Blacklock.

In a written response to TAL’s petition, outside lawyers for the San Antonio City Council argued that the city’s 10-day delay doesn’t apply to putting the Justice Charter on the ballot because Texas Election Code supersedes the city’s authority on the matter. The election code doesn’t stipulate the margin by which measures setting an election must be approved, the lawyers wrote.

See here and here for the background. I believe this was the correct ruling, and I agree with Justice Bland’s reasoning. I also think this proposition will face some significant legal headwinds if it does pass, but that’s a fight for another day. Until then, we’ll see how it goes in May. The Current has more.

AG argues for separating that San Antonio criminal justice reform proposition into multiple questions

Feb 17th, 2023

by Charles Kuffner.

1 comment

Not a surprise, but an aggressive position to take.

Attorney General Ken Paxton’s office is urging the Texas Supreme Court to side with opponents of a proposed charter amendment that seeks to decriminalize marijuana and abortion, as well as enact a host of other police reforms.

Solicitor General Judd Stone submitted a letter to the court Wednesday calling the proposal a “grab-bag of provisions” that “flagrantly violates” a state law prohibiting multi-subject charter amendments.

Stone urged the court to grant a petition filed by the anti-abortion group Texas Alliance for Life Inc. (TAL) requesting that the city reject the proposed ballot language, and instead require a vote on each provision individually.

“While the substance of this proposed charter amendment conflicts with multiple substantive provisions of state law, this mandamus proceeding concerns a procedural problem: the charter amendment plainly violates Texas law’s longstanding prohibition on municipal charter amendments that ‘contain more than one subject,’” Stone wrote.

[…]

City Attorney Andy Segovia told reporters last week he believed most of the charter amendments’ provisions were at odds with state law and therefore unenforceable by the city even if they’re approved by voters.

Stone’s letter agreed with that assessment and accused San Antonio officials of “abuse[ing] their discretion by certifying and including this charter amendment on the ballot.”

In a written response to TAL’s petition Tuesday, Segovia defended his decision to place the amendment on the ballot as written because city officials “plausibly read the proposed charter amendment language to encompass only ‘one subject’ as required by statute.”

Segovia added that opponents should challenge the validity of the amendment after the election, not before.

Stone’s letter disagreed, and asked the Texas Supreme Court to take swift action against the proposal in its entirety. He suggesting the court has long favored stopping such charter amendments before they’re voted on, something that’s still possible if it can prevent San Antonio from including it on the ballot this week.

“When there is an opportunity to correct a ballot before the election, waiting to address the issue through a post-election contest and, potentially another election, is not an adequate remedy,” Stone wrote. “Because respondents can correct the ballot now, [TAL’s] mandamus is appropriate.”

See here for the background. I still think, based on past history, that SCOTx would prefer to not get involved at this time, but I’m somewhat less confident of that now. Both sides of this argument are defensible, so it really is a question of whether SCOTx wants to step in now or just wait for the inevitable lawsuit later. For sure, if this passes it will be a quick matter before they have to rule on a temporary restraining order one way or the other about enforcement. Breaking it up into its components means there will be multiple lawsuits instead of one. I don’t know what they’ll do, but as I said before, we’ll surely find out quickly. San Antonio City Council approved it for the ballot as is, which was also as expected. Now we wait to see what if anything SCOTx does. The Current has more.

San Antonio marijuana decriminalization referendum already facing a legal challenge

Feb 14th, 2023

by Charles Kuffner.

1 comment

Don’t think this one will work, but after that who knows.

Opponents of the so-called Justice Charter have filed an emergency petition asking the Texas Supreme Court to require separate votes for each of its provisions, including decriminalizing marijuana and abortion and banning police chokeholds and no-knock warrants.

Progressive groups last month submitted roughly 38,000 petition signatures to get the proposed charter amendment included on the May municipal election ballot, a move San Antonio City Attorney Andy Segovia signed off on last week.

On Friday the anti-abortion group Texas Alliance for Life Inc. (TAL) filed a petition requesting that the city reject the proposed ballot language, which it says violates a state law prohibiting multi-subject charter amendments, and require each issue to be listed and voted on separately.

“Respondents have no discretion to force voters to approve or reject, all or nothing, charter provisions dealing with issues as varied as theft, graffiti, or prohibiting cooperation with state agencies regulating abortion providers,” wrote attorney Eric Opiela, a former executive director of the Republican Party of Texas.

City Council is expected to order that the ballot proposition appear on the May 6 ballot Thursday, a formality they don’t get to exercise judgment over. The deadline for setting the May ballot is Friday.

“Once Friday’s deadline passes, it is impossible for Respondent, San Antonio City Council to add additional measures to the May 6, 2023, ballot, preventing the separation of the proposed charter amendments into their separate subjects as required by law,” Opiela wrote.

“The tens of thousands of residents who signed this petition understood that each of these police reforms are part of a comprehensive approach to public safety, and we expect to vote on them in the same way they were presented — as one unified package,” Act 4 SA Executive Director Ananda Tomas said in a statement Sunday night.

Segovia said the city would defer to the amendment’s authors.

“We have until noon on Tuesday to respond to the Texas Supreme Court. Our position remains that the Council will put the petition on the ballot as one Justice Policy proposal because that was the way it was presented to those who signed the petition,” Segovia said in an email Sunday.

See here for the previous entry. I Am Not A Lawyer, but I don’t know offhand of any successful recent efforts to split up a ballot proposition like this. These are all criminal justice reform measures, and if the law is usually interpreted broadly then I don’t think there’s a leg to stand on. I also think that SCOTx would prefer to wait until the voters have their say, as then they have a chance to duck the question. If they’re going to act I’d expect it to happen before SA City Council votes to put the measure on the ballot on Thursday. So we’ll know soon enough. TPR has more.

Marijuana decriminalization and other police reform proposals get closer to the ballot in San Antonio

Feb 12th, 2023

by Charles Kuffner.

1 comment

This will be the most interesting election on the May ballot.

A proposed City Charter amendment that seeks to ban police from using no-knock warrants and chokeholds, as well as expand the city’s cite-and-release policy for low-level, nonviolent crimes, has enough certified signatures supporting it to appear on the ballot in San Antonio’s May municipal election.

However, City Attorney Andy Segovia told reporters Wednesday the most of the provisions are inconsistent with state law and could not be enforced if even if they’re approved by voters.

Segovia said that if the amendment is approved, the city would not be able to make any other changes to its charter until the November 2025 election, thanks to a state law restricting the frequency of charter amendments. Mayor Ron Nirenberg had been assembling a charter review committee to explore other potential changes in the coming year.

As written the proposal, called the Justice Charter by its proponents, would ostensibly eliminate police enforcement of certain levels of marijuana possession, eliminate police enforcement of abortion-related crimes. It would also ostensibly ban the use of chokeholds by police, ban the use of no-knock warrants, create additional requirements to obtain a search warrant, and remove the officers’ discretion in whether to issue a citation or arrest for some low-level crimes.

With the exception of one provision calling for the creation of a city justice director, Segovia said the proposal’s elements “are all inconsistent with state law.”

“Therefore, even if the public does adopt the charter amendments, the charter amendments as written will not be enforceable,” he said.

See here and here for some background. The Current has a rebuttal to the “unenforceable” argument.

Mike Siegel — co-founder of progressive group Ground Game Texas, which backed the proposal — told the Express-News that the Texas Constitution grants municipalities the right to so-called “home-rule” authority.

Ground Game Texas championed a similar proposal approved by Austin voters last May that decriminalized weed in that city. Months later, Texas Attorney General Ken Paxton has yet to sue to stop it.

“We know that Ken Paxton loves to sue Austin, loves to make an example of Austin elected officials and has not done so,” Siegel told the daily. “And to me, that’s the strongest indication that the state attorney general himself has determined that cities do have this discretion, that it is firmly grounded in the home-rule authority that’s guaranteed by the Texas Constitution, and this is something that cities can decide for themselves.”

Well, sure, but the Republicans in the Lege, as well as the state courts, have not been shy about limiting cities’ authority in various matters, so I don’t know how confident I’d be in that position. For sure, if this passes, it will be litigated, and there is the possibility of a pre-emptive bill being passed against this even before then. Again, I want to stress, the goals that Act4SA and Ground Game Texas are advocating are good and laudable and I support them. I just don’t think this is going to work, and I have zero reason to believe that the Republicans will just let this slide if it passes. Restraint and tolerance for any kind of dissent are not in their playbook. I hope I’m wrong, and I’m confident we’ll find out if this does pass. SA’s City Council has to vote on it next week, and from there it’s off to the campaigns. If you’re in San Antonio, I’d love to hear from you about this, so please send an email or leave a comment.

A brief 11th Street update

Jan 31st, 2023

by Charles Kuffner.

2 comments

From the latest Woodland Heights Civic Association newsletter:

11th Street Safety Improvements: Project Update

The WHCA board hosted City officials (David Fields, Lauren Grove, and Colin Lupold) at the January 10th general meeting. We had around 50 or so on the Zoom call, and feedback from neighbors was positive about the project generally, except with some discrete concerns that the City addressed. Here is a brief recap:

Timeline. The project is on track to be completed by the end of February.

Hogg Middle School. The City has heard various reports of problems with pick-up and drop-off. They have met with Hogg officials multiple times, including earlier on Jan 10th. They did not share specifics but they are working on it.

Signal Lights. They understand that some of the traffic on 11th Street is due to old configuration of the traffic signals. The light signals will be changed at the very end of the project—they can’t do that until all striping and signage is in. So help is on the way.

Visibility. Several neighbors asked about increased visibility on the curbs and islands. The officials discussed several options and limitations, but will work on it.

Cut-Through Traffic. Finally, we discussed examples of increased cut-through traffic. The City re-affirmed its commitment to work with the neighborhoods after the project to minimize negative impacts. But these issues are addressed best after construction is complete.

Next Steps: the City will attend our next general meeting in March to follow up on these matters, and we will be communicating with them in the meantime as needed.

The last pre-construction update I had was from June. In September the planning was finalized and initial work was getting set to begin, and around Halloween I first noticed signs on the street announcing the imminent changes. There probably isn’t that much more to do – this stretch of 11th Street is now one car lane each way with a turn lane in place for much of it. The segregated bike lanes are there, some of those pedestrian islands are there, the “No Left Turn” signs at Heights Blvd are there, and any resurfacing that needed to be done was done early on.

And I have to say, for the most part the effect on traffic has been pretty minimal, as the city said it would be. I take this stretch of West 11th several times a week, all around 4 PM, as part of the kid-carpool thing, and other than having to wait longer at the Shepherd light, it’s really no different. I’m rarely tempted to cut over to 10th Street, and from my normal travels around the neighborhood I have not noticed more cars on the side streets. (*) I haven’t noticed a lot of bike traffic, but I have ridden it myself (just once as of this writing, but there will be more) and it’s great. I had always avoided riding on 11th Street in the past, and having a segregated lane makes all the difference. I’m glad to see from this newsletter update that this change has been positively received, because I definitely approve of it. I hope this means there will be more like this elsewhere in the city.

One more aspect of this, as you can see from the embedded image, is on Michaux, which connects 11th to Stude Park and the White Oak and MKT bike trails. The only changes on Michaux have been the addition of “Bike Trail” street signs and bike lane-type painting on the street itself. I’ve got a plan to do a ride along the whole route and take some pictures in the near future, so you can see that later. They also added a pedestrian island on White Oak at Michaux, so you can’t make a left turn from Michaux southbound onto White Oak, or continue through onto the one extra block of Michaux before it runs into Stude Park. That has made me redo how I get to the I-10 entrance and points south from Watson, either by taking Norhill and turning left onto White Oak from there or turning left to get to Watson before I reach Michaux. I’ve seen a driver or two get caught by surprise by that and do some ill-advised things to compensate, but I expect that will decrease over time.

Anyway. From where I sit this has been a success, and I’ve not seen any kind of response from the opponents of the project. I can’t wait until the Durham/Shepherd project catches up and you can really get places on your bike. I also need to hop over to North Main and see how that project is coming along. If you’re in this area, what has your experience been with the changes to West 11th Street?

(*) I grew up on Staten Island, New York, where everyone drove on the side streets because the main roads, which were often one lane each way and had bus routes and street parking and no protected left turns, were basically undriveable. So I know from taking side streets. If there’s any increase in side street traffic resulting from the changes to West 11th, I can’t see it.

San Antonio will vote on marijuana decriminalization

Jan 13th, 2023

by Charles Kuffner.

Comments are off for this post

We’ll see how it goes.

Progressive groups celebrated on the steps of City Hall Tuesday afternoon before delivering the boxes of signed petitions needed to get a measure in front of voters that would decriminalize both cannabis possession and abortion.

Ananda Tomas, executive director of police reform group ACT 4 SA, told reporters that her group and its allies collected 38,200 signatures in favor of the San Antonio Justice Charter. That’s well above the roughly 20,000 required to put it on the ballot for May’s citywide election.

If passed, the charter also would codify the ban the San Antonio Police Department’s current leadership has placed on police chokeholds and no-knock warrants.

“I’ve been frustrated working within the system and working in City Hall to try to get things like this done,” District 2 City Councilman Jalen McKee-Rodriguez told charter supporters. “I think this is a demonstration that when the people will it, it will happen.”

Although the petition garnered support from McKee-Rodriguez and an array of progressive groups from around the state, it’s likely to face stiff resistance from others. Danny Diaz, head of San Antonio’s powerful police union, said his organization will work to defeat the measure, which he said ties officers’ hands.

See here for some background and here for an earlier version of the story. The San Antonio Report adds some details.

The City Clerk’s office has 20 business days, until Feb. 8, to verify the signatures.

“We’re ready,” City Clerk Debbie Racca-Sittre said inside City Hall as she and a colleague sealed and time stamped four boxes filled with more than 5,000 pages of petition signatures.

City Council will call for the election, which will include council district seats and other local elections, during its Feb. 16 meeting.

Voters will likely see just one item on the May 6 ballot to make the batch of changes to the City’s Charter — but city officials could split them up into separate votes, Tomas said. “The intent is for it to be one single proposition. I think that that’s still going to be a conversation with City Council.”

[…]

The charter changes would essentially direct the police department not to spend resources pursuing most abortion and low-level marijuana possession cases.

A provision in the Texas Constitution states that “no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”

Whether the charter rules, if approved, violate that provision may ultimately be left up to legal challenges — but “this is entirely legal,” Mike Siegel, political director and co-founder of Ground Game Texas, told the San Antonio Report.

“Every day, police departments decide what they’re going to enforce and what they’re not going to enforce, and this represents the people of San Antonio saying: these are not our priorities for our scarce public dollars,” Siegel said. “The roots of the Texas Constitution are in local self control [and] self determination. So that’s why we have charter cities that have this authority to adopt their own charters and decide their own laws.”

It will be up to opponents of the charter changes to decide whether they want to challenge it, he said.

I would expect this to pass, as similar referenda has done in other cities. Whether it will get a similarly chilly reception from City Council or Commissioners Court remains to be seen. Unlike some other counties, the Bexar County District Attorney is on board with the idea, as noted in this Texas Public Radio story, so they have that going for them. On the other hand, the Lege is out there as well, with a giant hammer to wield against cities and counties that do things the Republicans don’t like. Sometimes I don’t necessarily mind Houston being a bit behind the activism curve. If six months or a year from now this ordinance is in place and being complied with, I’ll be delighted and looking to our city to follow suit. If not, I’ll be disappointed but not surprised. Stay tuned.

Trying again in Harker Heights

Jan 2nd, 2023

by Charles Kuffner.

1 comment

I admire the determination.

Cannabis reform advocates are pushing back against the city council of the Central Texas city of Harker Heights, which recently rejected a voter-approved ballot measure decriminalizing low levels of pot possession there.

Harker Heights was one of five Texas municipalities in which voters during the November midterms approved decriminalization initiatives. While at least two other of those votes received blowback from local officials, Harker Heights is so far the first to reject voters’ approval outright.

Voter mobilization group Ground Game Texas, which championed Harker Heights’ original ballot initiative, said it’s launched a new petition drive to override the council ordinance, which passed Nov. 22. Some 64% of voters in the city of 34,000 people approved the decriminalization initiative.

“By voting to repeal Prop A, the Harker Heights City Council sent a clear message to their constituents that they don’t respect the will of the voters or the democracy they participate in,” Ground Game Texas Executive Director Julie Oliver said in a news release. “These antidemocratic politicians are trying to throw away the votes of more than 5,000 Harker Heights residents — but we won’t let them. With this new referendum, Ground Game Texas will ensure the will of voters isn’t trampled on by their local elected officials.”

See here and here for the background. I consider what Harker Heights City Council did to be defensible, but I would not feel the same way if this effort succeeds and they override it again. At this point, the opponents of this proposal on City Council can make their case directly to the voters, so there’s no question about conflicting mandates. Whatever happens, this should be the last word, until and unless the state gets involved.

On a related note:

Organizers have gathered more than 26,000 signatures so far for a petition that would give San Antonio voters in May the opportunity to decriminalize marijuana possession, end enforcement of abortion laws, establish a city “justice director” position, ban police from using no-knock warrants and chokeholds and expand the city’s cite-and-release policy for low-level, nonviolent crimes.

The local police reform advocacy group ACT 4 SA aims to collect 35,000 signatures — anticipating that some won’t be verified — to submit to the City Clerk before the early January deadline.

But even if they miss that goal, voters can expect to see the slate of proposed changes, collectively known as the “Justice Charter,” to the city charter on the November 2023 ballot because the signatures collected are valid for six months.

“Two-thirds of the people I talked to sign [the petition],” said Ananda Tomas, executive director of ACT 4 SA, which launched the petition effort in October. “They’re either for the initiatives or they just want to put it up to a vote because they think that this is something we should vote on.”

San Antonio’s police union has criticized the Justice Charter as an overreach into police policies as well as violations of state and federal law. Union President Danny Diaz has pointed out that chokeholds and no-knock warrants already are prohibited, while enforcement policies for marijuana and abortion are determined at the state level.

San Antonio had previously passed an ordinance that “recommends that no local funds be used to investigate criminal charges related to abortions”. I assume this would go further than that, but it’s not clear to me exactly how the referendum differs from the existing ordinance. It’s clear that opinions differ about the legality and enforceability of the marijuana-related measures, and I’d say the same would be true for the abortion one. I strongly suspect we’ll be hearing from the Legislature on the latter, and quite possibly on the former as well. Be that as it may, I will be very interested to see how this turns out, and whether something similar happens in Houston.

Kirk Watson again elected Mayor of Austin

Dec 15th, 2022

by Charles Kuffner.

Comments are off for this post

Party like it’s 1997, y’all.

Kirk Watson

In a tight race, Austin voters picked a familiar face Tuesday night to guide the capital city over the next two years as the region deals with skyrocketing housing costs and explosive growth.

In a contest between two Austin Democrats, former state Sen. Kirk Watson narrowly prevailed over state Rep. Celia Israel and retook the seat he last held more than two decades ago.

“I’m as grateful today as I was 25 years ago to be entrusted with this job,” Watson said at a watch party in Austin’s Rosedale neighborhood. “It means a lot to me to know that Austinites in every part of this city still want the kind of leadership that I’ve tried to deliver both as mayor and as your state senator.”

Miles away at a watch party in North Austin, Israel conceded to Watson — while ruefully acknowledging Austin’s growing unaffordability, the race’s defining issue.

“Our campaign was founded on a very simple idea: The people who built this city and who continue to build this city, who dress our wounds, who teach our kids, who drive our buses, who answer our 911 calls … they deserve the respect and the compassion that a progressive city can give them,” Israel said.

The race to lead Texas’ fourth-largest city was a squeaker. Israel beat Watson in Travis County, which contains almost all of Austin, by 17 votes. But Watson built a lead of 881 votes in Williamson County and 22 votes in Hays County, according to unofficial election night tallies — delivering him the mayor’s seat.

[…]

On top of the city’s housing crisis, Watson will have to deal with the state’s Republican leadership, which has grown increasingly hostile to Austin and Texas’ bluer urban areas.

Within the past two years, Austin cut the city’s police spending in the wake of George Floyd protests and rolled back a ban on homeless encampments in public areas — moves that Republican lawmakers in the Texas Legislature later rebuked by passing new laws reining in those measures and restricting other major Texas cities from following in Austin’s steps.

During the campaign, Watson pitched himself as a veteran of the Legislature who could build a working relationship with state GOP leaders — or at least avoid their unfriendly gaze.

“When we choose to work together, we will heal old divides and solve old problems,” Watson said Tuesday night. “When we choose to work together, Austin’s future will get brighter and brighter and brighter, I promise.”

Congratulations to Mayor-elect Watson, who at least should have a pretty good idea of what he’s getting into. I liked both candidates but might have had a preference for Celia Israel, as I tend to see the big city Mayors as potential future statewide candidates (we need to get them from somewhere), which was Watson himself in 2002. Maybe she’ll give that some thought for next go-round anyway. As for dealing with the Lege, I’m pretty sure not having to put up with Dan Patrick’s bullshit was a proximate cause of Watson’s departure for UH a couple of years ago in the first place. Speaking as a resident of a city with a former Legislator as its Mayor and another who hopes to succeed him, I hope that sentiment works for you, but I’d keep my expectations very, very modest. The Austin Chronicle has more.

A thousand days of the COVID disaster declaration

Dec 11th, 2022

by Charles Kuffner.

Comments are off for this post

Happy COVID Disaster Declaration Thousand-Day Anniversary to all who celebrate.

Thursday marks 1,000 days that Texans have been living under Gov. Greg Abbott’s public health disaster proclamation — an era of unprecedented gubernatorial authority for the state’s chief executive, triggered by the March 2020 scramble to contain the COVID-19 pandemic that continues to kill Texans every day.

The entire nation remains under a federal public health emergency at least through the winter season, which experts say could bring another wave of infections as families gather indoors for the holidays, immunity dips or virus variants sidestep older vaccines.

But after more than 92,000 deaths and 8 million confirmed COVID-19 cases in Texas in the 32 months since the declaration was made, the state remains one of less than a dozen still under a statewide declared disaster or public health emergency.

The proclamations give executive branches more power to quickly respond to disaster situations that are too urgent to wait for the usual bureaucratic wheels to grind into action.

In Texas, the disaster declaration gives Abbott’s executive orders — normally nonbinding — the weight of law.

Using them, he has the ability to suspend any regulatory statute or state agency rule without legislative approval, transfer money between agencies without legislative oversight, commandeer private property and use state and local government resources, evacuate populations and restrict the movement of the people, among other things.

[…]

The declaration was first made on March 13, 2020, and has been renewed 32 times since.

“Declaring a state of disaster will facilitate and expedite the use and deployment of resources to enhance preparedness and response,” the proclamation read.

At the time, 80 Texans had confirmed or suspected cases of COVID-19. No deaths had been reported yet.

Under the public health disaster order, Abbott has made several unilateral decisions in response to the pandemic.

He extended the length of early voting in 2020 to help thin out Election Day crowds. He enacted mask mandates; directed state agencies to offer work-from-home options to employees; closed bars, gyms, nail salons and other businesses during one of the early surges; banned elective surgeries; limited long-term care visits; and capped venue occupancy until later removing those limits and banning cities from enacting them.

In his entire tenure as governor, Abbott has issued 42 executive orders. Most of them — 35 so far — are COVID-related and carry the weight of law. Only seven of them, none of which were binding, came in the four years before the pandemic hit.

His most enduring actions under the disaster declaration are a ban on cities and counties from enacting mask ordinances, vaccine mandates and occupancy restrictions — a provision that seems popular with most Texas Republican lawmakers and one of the main reasons Abbott’s office says he keeps renewing the disaster declaration.

There’s more so read the rest. As noted above, the main effect of this order has been to greatly increase Abbott’s executive powers, which he has used in part to wage his war on cities and Democratic counties. Some of those actions he has taken, specifically in regard to mask mandates, are still being litigated, with initial rulings going against Abbott but with the Supreme Court still to weigh in. Some of his actions have been helpful; the story cites an extension of emergency food assistance for needy families without additional oversight as an example. The Legislature could codify or rein in Abbott on any or all of these things, but they haven’t – you may recall the calls for a special session on various COVID-related topics that went unheeded – and they won’t. But I bet they would have if Beto had been elected Governor.

Abbott’s current COVID disaster declaration – we have to be specific here, as we are also under disaster declarations for the drought, the school shooting in Uvalde, the situation at the Texas-Mexico border and wildfires – ends on December 1, and it seems a likely bet that he will extend it again. He’s got a good thing going, no one will stop him, and yes, we may face another surge this winter for which such a declaration would be routine. It might even be a good idea in the hands of a better Governor. That’s not what we have here, but it’s probably going to be what we get.

Ken Paxton keeps trying to kill the SAISD vaccine mandate

Sep 20th, 2022

by Charles Kuffner.

2 comments

On brand, always on brand.

Texas Attorney General Ken Paxton has filed another petition seeking to reverse a Bexar County judge’s decision that rejected the state’s bid for a temporary injunction to block the San Antonio Independent School District’s staff vaccine mandate.

Even though SAISD’S vaccine mandate remains on pause despite the court’s ruling in its favor, Paxton said he will “continue fighting for medical freedom.”

“Nobody should be bullied, coerced, and certainly not fired because of their COVID-19 vaccination status,” said Paxon in his announcement, adding the decision is not only an affront to individual liberty, but “illegal under Texas law.”

“The governor’s executive order specifically protects workers from the type of mass firings that San Antonio ISD is seeking, and I will continue to fight in court to defend GA-39 and Texans’ medical freedom,” he said.

The petition was filed Sept. 7 with the Texas Supreme Court.

An SAISD spokeswoman said in a statement that the vaccine mandate remains suspended and that no employee was ever disciplined for refusing to get the vaccine.

See here and here for the previous updates. There’s a recitation of the long history of this legal saga in the story if you want that. I remind you that this mandate was never enforced and remains on pause, not that these things matter to Ken Paxton. The appellate court ruling that Greg Abbott doesn’t have the power he claimed to have when he forbade these mandates seems pretty clear to me, but you never know what SCOTx will do. Now we wait to see if they’ll take this up.

Republicans for Collier

Sep 7th, 2022

by Charles Kuffner.

1 comment

Two of them, anyway.

Mike Collier

Tarrant County Judge Glen Whitley, one of Texas’ most prominent Republican local leaders, is backing Lt. Gov. Dan Patrick’s Democratic challenger.

“The one person who I’ll support statewide that will get me a little in trouble: Mike Collier for lieutenant governor,” Whitley said on Y’all-itics, a WFAA politics podcast.

Whitley and Patrick have frequently clashed, and on the podcast Whitley slammed Patrick for waging “war on local elected officials.”

Just days after Whitley made the endorsement that crossed party lines, an out-going Republican state senator from Amarillo has followed suit. Kel Seliger plans to vote for Collier in November, a spokesperson for Seliger told The Texas Tribune. Seliger is one of the most senior Republicans in the upper chamber, but has also famously been at odds with Patrick. Neither Whitley nor Seliger are running for reelection.

At the center of Whitley’s disdain for Patrick is a bill shepherded by the lieutenant governor in 2019 meant to slow the growth of Texans’ property tax bills. The bill requires many cities, counties and other taxing units to hold an election if they wish to raise 3.5% more property tax revenue than the previous year, not counting the growth added by new construction.

But Whitley said the bill put Tarrant County in a tight position because property taxes are a major source of revenue for local governments. Meanwhile, Whitley said Tarrant County jails are housing more than 700 inmates that should be in state custody without additional funding from the state. The COVID-19 pandemic and the inability to make jail transfers contributed to state inmates being held in county jails, Community Impact reported.

“We’re paying 20 million plus a year because the state is not paying anything and yet they’re sitting down there talking about all the cash that they’ve got,” Whitley said.

For Seliger, his vote against Patrick this November comes after years of tensions with the lieutenant governor. Seliger is rare among Republicans in the upper chamber for his occasional willingness to go against Patrick. He has said he’s been punished for voting against a pair of the lieutenant governor’s top priorities in 2017, a bill aimed at restricting local governments’ abilities to raise property taxes and a program that would have subsidized private school tuition and home-schooling expenses. In the following session, Patrick stripped Seliger of his title as chair of the Senate Higher Education Committee. During a 2021 redistricting session, Seliger also voiced concern that Patrick was drawing his district to favor Seliger’s competitor.

[…]

Whitley said he is backing Collier because of Collier’s experience controlling budgets. Collier, an accountant and auditor from the Houston area, is a self-described “numbers guy.” Collier also worked as a landman for Exxon, which Whitley said indicated the Democratic nominee understood the oil business.

“And I just think he’s someone who understands local control. And that’s what I’m looking for,” added Whitley, who as county judge is the county’s top elected official and administrator. “We do everything. We’re the front door for basically all the federal and the state services that the state and the federal government passed laws for us to do.”

This is all nice to see, as is Dan Patrick’s little temper tantrum in response. I’ve said before (many, many times) that nothing will change until Texas’ government changes, and the fastest way for that to happen is for enough people to change how they’ve been voting. I generally don’t believe that endorsements move a lot of votes, but they can move a few, and they can also signal that something is in the air. We’ll know soon enough if this makes any difference – if nothing else, we’ll see what if any effect there is in the precinct data – but I’ll say this much: If Dan Patrick’s political demise can be traced even in part to a fight over local control and bad blood over redistricting, there’s not enough sugar in the world to emulate how sweet that would be. The Chron has more.

UPDATE: And today, outgoing Sen. Eddie Lucio endorses Dan Patrick. I am so glad we are seeing the last of that jackass.

Dallas passes its ordinance to protect abortion access

Aug 11th, 2022

by Charles Kuffner.

1 comment

Good job.

Dallas City councilmembers almost unanimously passed the “Grace Act,” an ordinance aimed at deprioritizing investigations into abortions by local police departments.

[…]

This new resolution prevents city resources from being used to create records for a person seeking an abortion, or to provide governmental bodies or agencies about pregnancy outcomes or to conduct surveillance to determine if an abortion occurred.

Investigations or prosecutions of abortion allegations will also be the lowest priority for law enforcement under the “Grace Act.”

Dallas Police Chief Eddie Garcia was in attendance for the City Council meeting and was asked before the ordinance passed how the Dallas Police Department would enforce the resolution while complying with their sworn oath to enforce state law.

“We don’t know yet,” Garcia said plainly. “Myself and other chiefs in other cities don’t know exactly how this is going to look.”

Once DPD gets some direction from other cities or the state, Garcia said he would work with the city manager to figure out what standard operating procedures will be with the new resolution in mind.

“Having a policy that says you will not enforce a law on the books would be a violation of our police officer’s oath,” Garcia said. “Using discretion is different than saying you will not enforce a law in the State of Texas.”

See here for some background. As we know, Austin, Denton, and San Antonio have already taken similar action. We’re still waiting for Waco, and I have no idea if this is on the radar for Houston. Only Mayor Turner can put it on the Council agenda, and I have not seen any quotes from him about his thinking on the matter. I’ve no doubt such an ordinance would pass, but so far I don’t know if one will be introduced. If you have some insight on this, I’d love to hear it.

San Antonio passes its abortion access ordinance

Aug 4th, 2022

by Charles Kuffner.

Comments are off for this post

Good.

With a 9-2 vote, San Antonio City Council approved a resolution on Tuesday that condemns Texas’ abortion ban and recommends that no local funds be used to investigate criminal charges related to abortions.

“By passing this resolution, the City of San Antonio is committing to not using any city funds or data to sell out persons seeking out a safe abortion,” said Councilwoman Teri Castillo (D5), who spearheaded the resolution. “Furthermore, council is communicating to our governmental relations team that … protecting persons seeking an abortion is a priority heading into the state legislative session.”

More than 100 people signed up to speak during the raucous, nearly five-hour meeting. The speakers offered impassioned, often emotional testimony in favor and opposed to the resolution and the right to choose. Mayor Ron Nirenberg paused the meeting briefly after shouting erupted during testimony.

“While the legal authority over reproductive health policy lies with the state and federal governments, we do refuse to stand idly by and watch an important constitutional right, be taken away without speaking on behalf of our constituents,” Nirenberg said. “As federal and state law changes in the future, we must do all we can to support and gain ground for reproductive freedom.”

The resolution makes exceptions for investigations into instances where “coercion or force is used against the pregnant person, or in cases involving conduct criminally negligent to the health of the pregnant person seeking care.”

Several proponents of the resolution asked that more specific language be added to direct police to “deprioritize” abortion investigations.

The resolution does not prevent local law enforcement from investigating criminal cases of abortion, because the council cannot tell police departments how or whether to investigate criminal cases, according to state law and the city’s charter. Council can only make recommendations.

The resolution “does not decriminalize” abortion, City Attorney Andy Segovia said. “It does articulate a policy recommendation from the council.”

Bexar County District Attorney Joe Gonzales has said he doesn’t plan on prosecuting abortion providers under the ban.

See here for the background. As we know, Dallas and Waco are also in the queue for similar action. As yet, I haven’t seen any response to ordinances like this one and the one passed by Austin from the likes of Abbott or Patrick or Paxton; they may just be talking on their channels and it hasn’t gotten to the regular news yet, or maybe they’re just keeping their powder dry for now. It’s just a matter of time, I’m sure. The Current has more.

Dallas joins the abortion decriminalization queue

Aug 2nd, 2022

by Charles Kuffner.

1 comment

Good for them.

The Dallas City Council could consider a resolution in August aimed at blunting the impact of the Texas Legislature’s trigger law that will go into effect following the Supreme Court’s decision that overturned Roe vs. Wade.

Dallas’ measure would direct city staff—which includes the Dallas Police Department—to make investigating and prosecuting accusations of abortion “the lowest priority for enforcement” and instructs City Manager T.C. Broadnax to not use “city resources, including … funds, personnel, or hardware” to create records regarding individual pregnancy outcomes, provide information about pregnancy outcomes to any agency, or to investigate whether an abortion has occurred, a draft copy of the resolution obtained by D reads.

“I would say that it technically really does accomplish the decriminalization here locally,” said Dallas City Councilman Adam Bazaldua, who worked on the resolution and chairs the committee that will consider the matter before it goes to the full Council. “Being the lowest priority, … there’s not much of an investigation that could be done if there’s no resources that are able to be allocated.”

The measure does not apply to instances where law enforcement officials might need to investigate cases of criminal negligence by a practitioner in the care of a pregnant person, or where force or coercion is used against a pregnant person.

The resolution will be introduced in a special-called meeting of the council’s Quality of Life, Arts, and Culture Committee Tuesday. If approved by the committee, he aims to have it before the full Council at its Aug. 10 meeting. If it passes, Dallas would join many cities that have sought restrictions with similar resolutions, including Denton, Waco, and Austin. The San Antonio City Council will vote on its resolution Tuesday.

Yes, Denton and Waco. You knew about San Antonio and Austin, now you can add these three to the list.

Bazaldua said he knows the city can do little about the law itself, but he hopes this resolution would provide a measure of protection for healthcare providers who could face felony charges if suspected of providing an abortion. Pregnant people would also have similar protections, he said.

“There’s only so much that can be done at the local level and this is about as much as we can get,” he said, adding that after the resolution is passed, ideally the city would begin working with nonprofit and private-sector partners to help people locate resources if they need to travel to another state for an abortion.

He also doesn’t see this resolution endangering the city when it comes to another recently passed law that would penalize cities that “defund” their police departments. He argues that funding isn’t being reduced.

“What can they do? Punish a city for saying this should not be a priority of ours?” he said. “When we have violent crime that’s going on, that we should be focusing our resources and funding on?”

I mean, I wouldn’t put anything past Ken Paxton or the forced-birth fanatics in the Lege, but on its face that’s a strong argument. It’s also consistent with the earlier advice we saw about what cities can do on their end. I don’t know how this will play out – I cannot overemphasize how much effect the November elections could have in blunting the worst possible effects of the new anti-abortion laws and preventing the creation of new ones – but it feels good to do something, even if it may be transient. One has to wonder when there will be some action in Houston on this front. Is there a campaign going on about this that I haven’t seen yet?

San Antonio will make its statement for abortion rights

Aug 1st, 2022

by Charles Kuffner.

2 comments

More symbolic than anything, but it still has meaning.

Five San Antonio City Council members and the mayor stood in support of a largely symbolic measure Wednesday that would attempt to “decriminalize” abortion locally.

Council is expected to approve a resolution during a special meeting called for Tuesday that would essentially condemn Texas’ abortion ban and recommend that no local funds be used to investigate criminal charges related to the ban.

“Women and individuals who are seeking access to abortion need to know that their elected officials are standing by them and will not allow city resources to be used to collect any data to potentially criminalize or prosecute them,” Councilwoman Teri Castillo (D5), who drafted the resolution and held the press conference outside City Hall, told the San Antonio Report after the event.

The resolution cannot prevent local enforcement from investigating criminal cases of abortion, Castillo acknowledged, because the council cannot tell police departments how or whether to investigate criminal cases, according to the city’s charter.

“But it’s a step in the right direction and it’s a step to build upon and implement additional policy,” she said.

Castillo didn’t elaborate on what additional policies council might consider, but said she was looking forward to hearing ideas from the community and her colleagues.

Castillo and Mayor Ron Nirenberg were joined by council members Mario Bravo (D1), Phyllis Viagran (D3), Melissa Cabello-Havrda (D6) and John Courage (D9); together, the six represent a majority of council.

The resolution is similar to the GRACE Act that the Austin City Council approved this week. That, too, was a symbolic policy recommendation, as Austin’s charter has similar rules around the direction of law enforcement.

See here for some background on Austin’s actions, about which you know what I think. I’m curious at this point to see how many other Texas cities follow in these footsteps. If it’s still relevant next year, – if there hasn’t been a federal law passed to reinstate abortion rights, and if the Lege hasn’t passed some crazy law to shut this down, and if this cause hasn’t been taken up yet here – I’ll be asking every candidate for Mayor and City Council that I interview what they think about doing the same thing in Houston. Texas Public Radio and the Current have more.

SAISD vaccine mandate upheld again

Jul 29th, 2022

by Charles Kuffner.

1 comment

Also still on hold, but the state loses again at the appellate level.

A state appellate court upheld San Antonio Independent School District’s authority Wednesday to mandate its workers get vaccinated against COVID-19, almost a year after the district instituted the requirement for all staff to help stem the spread of the virus.

The 4th Court of Appeals on Wednesday denied Texas Attorney General Ken Paxton’s request to overturn a Bexar County judge’s decision not to grant the state a temporary injunction to block the staff vaccine mandate. Judge Mary Lou Alvarez of the 45th District Court issued that ruling in October, allowing SAISD to continue enforcing the mandate.

The court also ordered that the costs of the appeal be assessed against the state.

Paxton filed a lawsuit against SAISD in September, after first suing the district over the mandate in August because the vaccine had not been approved by the federal Food and Drug Administration. The August lawsuit was dropped after the FDA approved the Pfizer COVID-19 vaccine.

The lawsuit has wound its way through the state court system over the past year. Paxton’s office appealed Alvarez’s ruling to the 4th Court of Appeals and also requested the appellate court temporarily block the mandate while it considered Paxton’s appeal. The attorney general then requested the state Supreme Court step in and halt the mandate, which it did in mid-October.

The Texas Supreme Court’s ruling forced SAISD to stop enforcing the mandate while the 4th Court of Appeals considered the state’s appeal of the temporary injunction that Alvarez denied.

[…]

Paxton’s lawsuit argued that SAISD’s vaccine mandate violated Gov. Greg Abbott’s executive order prohibiting governmental entities from implementing COVID-19 vaccine mandates, which the governor claimed he had the authority to do under the Texas Disaster Act. Attorneys for SAISD challenged that reasoning, contending the Act does not give the governor the power to suspend all state laws.

Wednesday’s ruling by the 4th Court of Appeals determined that the Texas Disaster Act does not give Abbott the authority to suspend parts of the Education Code that allow school districts to issue vaccine mandates.

“The Texas Disaster Act expressly limits the Governor’s commander-in-chief authority to state agencies, state boards, and state commissions having emergency responsibilities,” the ruling states. “The District is not a state agency, a state board, or a state commission. Rather, the Texas Disaster Act defines the District as a ‘local government entity.’”

See here for the previous update. This sounds like a solid ruling, one that SCOTx ought to uphold, though who knows what they’ll actually do. It would also be written on sand to some extent, in that if the Republicans retain full control of government next year they’ll just amend the Texas Disaster Act to make it cover school districts and/or explicitly exclude anything having to do with vaccinations. In the meantime, even though the policy remains on hold during the litigation, it’s surely the case that the mandate got some holdouts vaccinated during the period while it was in effect. That will always be a win, no matter what happens from here.

Austin takes its shot at protecting abortion access

Jul 24th, 2022

by Charles Kuffner.

Comments are off for this post

I wish them great success. I don’t think the fanatics in the Legislature will let them achieve it, but we’ll see.

Austin City Council unanimously (in the absence of lone Republican Mackenzie Kelly) approved four items on Thursday, July 21 that aim to provide people within the city some legal protection should they seek or perform an abortion.

The special meeting was called following the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Org. last month, which overturned its prior Roe v. Wade and Casey v. Planned Parenthood decisions guaranteeing a constitutional right to terminate a pregnancy. In Texas, 2021’s Senate Bill 8 already made those providing or “aiding and abetting” abortion care after about six weeks (before many people know of their pregnancies) liable to civil lawsuits that can be filed by anybody.

[…]

The item most likely to have immediate impact is known as the GRACE Act (Guarding the Right to Abortion Care for Everyone), a measure introduced by Council Member Chito Vela which directs the Austin Police Department to “deprioritize” investigations into criminal offenses related to abortion.

Effectively, that means Council is asking APD (technically, they’re asking City Manager Spencer Cronk to ask APD Chief Joseph Chacon) not to devote any financial resources or labor to investigating cases related to abortions. Exceptions in the measure include instances where an abortion is being coerced, or when a provider is accused of negligence.

For now, APD has not indicated how it will respond to the GRACE Act. Chacon will have to work with his executive team and the city’s Law Department on implementation, but have not provided insight into what that might look like or how long it might take. In response to questions from the Chronicle, an APD spokesperson said, “We are working through the resolution and we’ll present next time when we come back to Council.”

The unanimous Council (Kelly missing the meeting due to a previously scheduled surgery) also approved an ordinance initiated by CM Vanessa Fuentes to protect people who’ve received “reproductive health actions” from discrimination in housing, employment, or access to public services. The other two resolutions adopted at the meeting were both from Mayor Steve Adler and related to “long-term birth control,” including vasectomy. One directs Cronk to explore a public education campaign about birth control options and to ensure that city employees’ health insurance covers “low-cost birth control.” (From an insurer’s perspective, vasectomy and tubal ligation are lower-cost than ongoing hormonal or barrier birth control.) Cronk is expected to report back to Council no later than Sept. 30.

Adler’s second resolution asks staff to recommend budget provisions that would enable city employees to have “reasonable access to reproductive health care services that are no longer lawfully available in Texas.” This resolution does not include a report-back date, but presumably staff would need to offer recommendations soon if they are to be adopted along with the city’s fiscal year 2023 budget on Aug. 17.

Rockie Gonzalez, deputy director of the Austin Justice Coalition and founder of the Frontera Fund, which has organized around abortion access in the Rio Grande Valley since 2014, told the Chronicle that she was encouraged by the items Council passed. “The most important thing for advocates right now is to get decriminalization measures and protections in place for folks seeking abortions, those providing abortions and those helping other folks to get the abortion care that they need.”

The GRACE Act does not protect organizations, like the Lilith Fund in Austin, that had been helping individuals coordinate and pay for access to abortions. Depending on how APD implements the direction, however, it could protect someone who decides to help a friend or family member access an abortion. Still, Gonzalez said, the measures will help abortion care advocates in Austin because they will not have to focus as much on the criminalization of abortion in Texas.

“Locally, impact on abortion advocates is going to be a little bit of wiggle room and protection to do the advocacy work that we need to continue to do,” Gonzalez told us. “In Austin, at least, we won’t need to focus as much on creating bail funds and securing legal support for folks who might be criminalized” for seeking an abortion. She also hopes advocates can work together to pass similar measures in other cities throughout Texas.

See here and here for some background. If the Austin PD is amenable to this, then there ought to be some decriminalization benefit, at least in the short term. We know the forced-birth caucus in the Legislature will find ways to shut this down, but it’s still something for now.

The bigger problem in the meantime is the threat of SB8, the vigilante bounty hunter law, which hasn’t been used yet but is being prepped for weaponization as we speak. There’s not only nothing that the city of Austin can do to prevent those attacks, the city may find itself on the wrong side of SB8-enabled lawsuits as a result of these actions. Again, I hate to sound like a doomsayer, but these people aren’t subtle and they won’t hold back. The only way to really fight back is at the state and federal level, where the levers available to take action are much more powerful. I wish this kind of ground-level resistance could be successful. My fear is that it will be steamrolled. I hope I’m wrong. The Texas Signal has more.

Is there one last twist in the West 11th Street saga?

Jun 25th, 2022

by Charles Kuffner.

1 comment

This was posted as an update to the change.org petition in support of the West 11th Street project:

The opposition to making 11th street safer is asking TXDOT to stop the project-we need your help!

The group that has organized against making 11th street safer is not giving up after the mayor’s decision to move forward. Instead, they are asking TXDOT to intervene and stop the project, which the state has done before in Houston.

Please consider emailing your state representative (https://wrm.capitol.texas.gov/home) and the governor (https://gov.texas.gov/apps/contact/opinion.aspx) to express your support for the city’s plan to make 11th street safer.

See here for the previous update, which includes a comment making the same claim, that opponents of the project are going to TxDOT to try to stop it. I inquired about the reference to TxDOT stepping in on a project before in Houston, and I think that may have been said in error. There is the recent example of TxDOT taking control of a stretch of Broadway in San Antonio, which scuttled that city’s plans for a redesign that included a “road diet”. That piece of Broadway had previously been a part of the state highway system and was transferred to San Antonio a few years ago; TxDOT acted to rescind that transfer.

As far as I know, West 11th Street has only ever been a city of Houston street, so TxDOT would not have the same ability to intervene. That said, sticking it to cities is now a core component of Republican ideology, and making a similar move here would be politically consistent. I don’t know how to evaluate anything outside of a political lens these days. What I’m saying is that while I, a mostly normal person, don’t see a means for TxDOT to step in, that doesn’t mean it can’t or won’t happen, not if Greg Abbott decides it’s a good idea. Another possibility would be for the Republicans in the Legislature to pass a bill in 2023 that limits or bans “road diets” in some fashion, thus potentially stopping this project before it could be completed. Given the legislative calendar and the fact that construction is scheduled to start in the next couple of months, that seems less likely to be effective.

I really don’t know how the opponents can succeed here. There’s no clear path for them. But given everything we’ve seen and experienced recently, I’m hesitant to say it can’t happen. Go ahead and contact your legislators and the Governor’s office with your support. It can’t hurt.

There’s only so much that Austin (or any other Texas city) can do to protect abortion rights

Jun 4th, 2022

by Charles Kuffner.

5 comments

I appreciate this, I really do, but it’s important to remember that it can only ever be a band-aid, and very likely a temporary one.

The city of Austin is attempting to shield its residents from prosecution under a Texas law that would criminalize almost all abortions if Roe v. Wade is overturned — the first push by a major city in a red state to try to circumvent state abortion policy.

Councilmember Chito Vela is proposing a resolution that would direct the city’s police department to make criminal enforcement, arrest and investigation of abortions its lowest priority and restrict city funds and city staff from being used to investigate, catalogue or report suspected abortions.

“This is not an academic conversation. This is a very real conversation where people’s lives could be destroyed by these criminal prosecutions,” said Vela, who shared the details of the resolution first with POLITICO. “In Texas, you’re an adult at 17. We are looking at the prospect of a 17-year-old girl who has an unplanned pregnancy and is seeking an abortion [being] subjected to first-degree felony charges — up to 99 years in jail — and that’s just absolutely unacceptable.”

[…]

The new resolution doesn’t explicitly decriminalize abortion but rather directs police to make it their lowest enforcement priority in an effort to skirt conflict with state law, Vela said. But it highlights the tension between red state and the blue cities, where a new front in the battle over abortion rights is opening as the Supreme Court prepares to issue a decision on Roe in the coming weeks.

A city of Austin spokesperson said in a statement that “the city is prepared to take the steps necessary to implement this resolution upon passage by City Council.” The council passed a similar measure in 2020 that effectively decriminalized marijuana by ending arrests and fines for low-level possession, which the police department has followed.

Vela said he is having “ongoing conversations” with Austin Police Chief Joseph Chacon about the proposal and hopes the department will comply with the directive. A department spokesperson did not respond to a request for comment.

“The police do not want to be in the middle of this controversy. The police right now in Austin are struggling with staffing,” Vela said. “I don’t think the police want to dedicate resources to these types of, what I would call, ‘political crimes.’”

A spokesperson for state Attorney General Ken Paxton did not respond to a request for comment. Paxton, a Republican, has been at the vanguard of restricting abortion access in Texas, which has been in the spotlight since the state’s six-week abortion ban, enforced through a private right of action, took effect in September 2021.

Austin’s proposal, which aims to protect both patients and providers, comes as an extension of the city’s efforts to preserve abortion access despite the state’s restrictions. The city has, for instance, provided logistical support for abortion access, including transportation, lodging and child care, since 2019 — a model St. Louis is now looking to replicate.

More cities in Texas could be next. Julie Oliver, executive director of Ground Game Texas, a group that pushes for progressive, local ballot measures, said they are looking at pushing similar measures in San Antonio, Houston and Dallas. If that isn’t successful, the group plans to turn to the local ballot initiative process.

“Home rule charter cities have a tremendous amount of leeway and self-governance, and part of that is deciding which laws you’re going to prioritize,” Oliver said. “And so, because you have a finite number of resources in a finite budget, cities are constantly deciding which laws they’re going to enforce and which ones they are not.”

I support the idea and I love the creativity, as we have discussed what progressive cities can do to protect abortion rights. That includes proactive measures to thwart prosecution, which is very much in a city’s purview. The problem with this approach is simply that as long as the state is run by Republicans, they will pass laws to prevent cities from taking these measures and will punish them for even trying. I’m sure I don’t have to recite to you the long list of attacks on local control lately, but we have already seen reporting to say that the Briscoe Cain uterus-invasion caucus will file bills in 2023 to allow other counties to pursue prosecution of anyone who violates the new forced-birth laws if the local DA refuses. It’s not at all far-fetched to imagine state troopers being given the authority to investigate these claims, which I’d bet will come with a bunch of money to hire more staff specifically for that purpose. I’m sure there will be more private vigilante bounties included as well, to help fund the effort. If recent history is any indicator, they will go much farther than anything Austin tries to do, to send a clear message that they will not tolerate any dissent. Do we really want to test that hypothesis?

Please note that I am not saying that any action on our part is pointless and we should just give up. Not at all! I am just saying – again, and again, and again – that we need to win some statewide elections. The Republicans can only do this as long as they are in control, and they will only be incentivized to do this as long as they perceive there’s no price to pay for it. The antidote for that is obvious. I’m not saying it’s easy, and I’m certainly not saying that this will be an opportune year to do it. I’m just saying that as clever and well-intentioned as these ideas sound, they’re sand castles against the tide. The problem is bigger than anything a city can do. We have to solve it at that level if we want to get anywhere. Reform Austin, KVUE, and Daily Kos have more.

Appeals court upholds school district mask mandates

Mar 19th, 2022

by Charles Kuffner.

Comments are off for this post

Maybe not the most timely ruling ever, but still nice.

An appellate court on Thursday sided with Texas school districts in their dispute with state officials over mask mandates, which numerous school systems have already lifted as pandemic conditions have eased.

The state’s the 3rd Court of Appeals affirmed a trial court’s orders that granted school districts temporary injunctive relief from the enforcement of an executive order from Gov. Greg Abbott prohibiting mask mandates.

In its opinion Thursday, the appellate court pointed to its opinion in a similar challenge involving Harris County. In that case, the court considered whether a disaster act gave the governor the authority to stop local government entities from implementing COVID-19 safety measures viewed by the governor as “more restrictive than necessary,” according to the opinion.

“For the reasons previously set forth in our opinion in Harris County, we again conclude that the Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by governmental entities and officials,” Thursday’s opinion read.

Many, if not all, school districts that defied Abbott’s order have lifted their mask mandates, including Houston, Dallas, Spring and Aldine ISDs, which were among the plaintiffs.

[…]

With the opinion, the court confirmed the state Education Code gave districts the authority to decide.

“We conclude that the Education Code provisions granting broad authority to local school districts and community college districts to govern and oversee public schools within their districts do not prescribe ‘the procedures for conduct of state business,’” the opinion stated. “In sum, the Texas Disaster Act does not grant the Governor absolute authority to preempt orders issued by local governmental entities, such as school districts, and the provisions of the Education Code relied on by the school districts in issuing their respective facecovering requirements are not subject to suspension under … the Act.”

See here for the background, and here for a copy of the opinion. As noted before, the Supreme Court has yet to take up this question, though at this point maybe they just won’t since it’s not currently at issue. (That could of course change.) Ken Paxton is never one to take an L so I suspect he’ll continue to pursue this. I also strongly suspect that a top item on the agenda for the 2023 Lege, assuming no changes in the power structure, will be to amend the Education Code to explicitly prohibit school districts from making this policy without the permission of the Governor first. Have I mentioned that this is an important election coming up? Just checking. The San Antonio Report has more.

More school districts dropping mask mandates

Mar 5th, 2022

by Charles Kuffner.

Comments are off for this post

Unsurprising.

Some of Texas’ biggest school districts are lifting mask mandates for students just weeks before spring break.

Houston Independent School District, the state’s largest district, and Dallas ISD announced Monday that they would not require students to wear masks. Austin ISD announced Wednesday it would stop requiring masks.

The move comes after the Centers for Disease Control and Prevention announced that coronavirus infection rates were slowing.

“It does give people hope for this spring,” said Dallas ISD superintendent Michael Hinojosa.

All three districts enacted mask mandates in early August amid the delta variant surge and in defiance of Gov. Greg Abbott’s May executive order that says Texas schools can’t require masks.

At the time, dozens of school districts went against the governor’s order, and some were sued.

[…]

Candice Castillo, executive officer of student support services in Houston ISD, said recent data points to a dramatic downturn. In a district with about 195,000 students, there are 46 active cases, a 90% decrease in cases from the peak of omicron.

The district’s decision comes after Harris County Judge Lina Hidalgo lowered Harris County’s COVID-19 threat level from “severe” to “significant.”

“This is the right moment for us to make this decision,” Castillo said.

In Austin ISD, the district has seen a 97% decrease in cases over the last six weeks, and the current number of active cases represents less than 1% of the total student and staff population.

Stephanie Elizalde, Austin ISD superintendent, said Wednesday during an Austin ISD board meeting that the district is abiding by the CDC’s recommendations, but to keep in mind that the fluidity of the pandemic means that the mandate can come back when necessary.

See here for more on HISD lifting its mask mandate. You can feel however you want about this – I know a lot of people are still very apprehensive about easing off on precautions like masking, and I totally understand. I’m still masking in public indoor spaces, and likely will continue for the foreseeable future. But the point is, the districts got to make the decisions they thought were best, based on the status of the pandemic and the advice and guidance from the CDC. That more than anything is what we wanted and deserved. The fact that they managed to hold out in defiance of Abbott and Paxton for all this time is a victory. It could be a transient one – for sure, someone is going to file a bill next session to force school districts to bend the knee to the governor – but at least we have an election first that can affect that action. Again, that’s all we can reasonably ask for at this time.

On the matter of the still-unresolved litigation over the mandates and Abbott’s executive order banning them in the schools:

.
In today’s orders, Texas Supreme Court again takes no action on cases involving Gov. Abbott’s ban on mask mandates.
Kind of a “nothing to report” report, but this week I had a few reader questions on where things stand.
Background: https://statesman.com/story/news/2022/02/21/texas-supreme-court-mask-mandate-decide-power-greg-abbott-local/6705858001/ via @statesman

— Chuck Lindell (@chucklindell) 9:15 AM – 4 March 2022

I Am Not A Lawyer, but my best guess is that SCOTx will eventually take this opportunity to decline to intervene on the grounds that there’s no longer a reason for them to get involved. I suppose they could order the lawsuits to be dismissed, but here’s where my non-lawyerness comes to the fore, because I don’t know if that’s a thing they normally do. Be that as it may, the stars have aligned for them the sidestep a politically charged case, and that I know is a thing they like to do.

Two new polls of the Governor’s race

Feb 1st, 2022

by Charles Kuffner.

Comments are off for this post

One is in the news.

Beto O’Rourke

Republican Gov. Greg Abbott is running 11 percentage points ahead of Democrat Beto O’Rourke in this year’s race for Texas governor, according to a Dallas Morning News-University of Texas at Tyler poll released Sunday.

Buoyed by 2-to-1 support among whites and a growing number of voters who identify as Republican, Abbott leads O’Rourke in a hypothetical matchup, 47%-36%. He even holds a narrow lead over O’Rourke among Hispanics, 40%-39%.

Registered voters are not in a great mood about Texas’ current direction: 50% say things are on the wrong track, compared with 49% who say the state is headed in the right direction.

Still, Abbott dodges much of the blame. His job rating has held at a respectable net approval, 50%-45%. While he’s still underwater with independent voters, with only 37% of them approving of how he’s performing, he draws unfavorable views from just 38% of all voters.

President Joe Biden is viewed unfavorably by 57% of Texans. That may be one factor weighing down O’Rourke, who in November was only six percentage points behind the incumbent. Abbott also has been linking the former El Paso congressman and presidential candidate to Biden, saying in ads that O’Rourke is too liberal and untrustworthy to lead Texas.

The poll, conducted Jan. 18-25, surveyed 1,082 adults who are registered voters and has a margin of error of plus or minus 3.5 percentage points.

Abbott increased his lead over O’Rourke, which in November stood at just 45%-39%, with modest, “single-digit shifts” among various constituencies, said UT-Tyler political scientist Mark Owens, the poll’s director.

You can see the poll data here and the previous DMN/UT-Tyler poll here. That result was from late November, and it was followed by terrible Quinnipiac result a couple of weeks later. This polling outfit has been eccentric at times, and definitely wasted a lot of energy on ridiculous McConaughey hypotheticals, but it’s a data point and we haven’t had one of those in awhile. They also polled the various primaries, and I would not pay much attention to any of it. Not because of them, but because polling primaries is extremely random, especially given how few people really pay attention to them. Look at the individual race numbers yourself, and you’ll see what I mean.

The results that are of greater interest, as others have noted, are on the issues that voters say are of interest to them:

As a public policy issue for this year, should it be a higher priority to strengthen of the electricity grid or secure the Texas-Mexico border?


Strengthen The Electricity Grid 50%
Secure the Texas-Mexico border  41%
I am not concerned about either  8%

Should it be a higher priority to enforce regulations to stop the spread of the coronavirus or secure the Texas-Mexico border?


Reduce coronavirus infections   52%
Secure the Texas-Mexico border  42%
I am not concerned about either  6%

Are you more likely or less likely to support an elected official if they supported a mask mandate during the pandemic or do you not care?


More likely     45%
Less likely     22%
Absolutely not  10%

Some school districts have mandated masks be worn in school and others have not. Should masks be required in all K-12 classrooms, allow school districts to decide, or no mandates at all?


Required                41%
Allow schools to decide 28%
No Mandate              25%

Do you support or oppose local governments requiring people to wear masks or face coverings in most public places?


Support  57%
Oppose   35%

Do you support or oppose employers requiring vaccination or weekly testing from their employees?


Support 52%
Oppose  39%

In terms of the issues, this is not a bad place for Beto to be. We’ve talked a lot about how what people say they want in polls and what they actually vote for often diverges, and this may be another example of that. But the driving factor in the polls we’ve seen before is that the numbers are the result of Dems and Republicans being polar opposites, while independents modestly favor the Dem position. Here, while Republicans all fall more on the Abbott side of things, they are fairly evenly divided on the mask questions. Indies are less passionate about most of these than the Dems, and are just barely in favor of employer vaccine mandates, but they are strongly in favor of the other things, with majority support for most. Again, maybe this doesn’t do much to move votes, but these are things Beto is talking about, and it’s way more fun to be on the majority side of questions like these.

There is one other poll we can talk about:

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The results vary a bit between “all primary voters” (those who said they plan to vote in the March primary) and “almost certain primary voters”

— Jasper Scherer (@jaspscherer) 4:20 PM – 28 January 2022

.
Among likely registered voters “who indicated that they are likely to vote” in November:

Abbott 48
O’Rourke 43
Tippetts (L) 2
Barrios (G) 1
Unsure 6

Survey finds O’Rourke up 51-39 among Latino voters, Abbott up 45-17 among independents.

— Jasper Scherer (@jaspscherer) 4:29 PM – 28 January 2022

I can’t find anything on the UH Hobby School page, but after looking all weekend I finally found a tweet that pointed me to their polling data. As noted, Beto does better with Latinos in this sample, and the partisan numbers (91-5 for Beto among Dems, 89-3 for Abbott among Rs) make more sense to me than what DMN/UT-Tyler has (72-14 among Dems for Beto, 74-10 for Abbott among Rs). But as always, it’s one result and we shouldn’t read too much into it. They have numbers for each primary race as well – it’s the main focus of the poll – which should be taken with the same large grain of salt. I suspect we’ll start seeing more general election polling going forward.

Back to Code Red

Jan 11th, 2022

by Charles Kuffner.

Comments are off for this post

Hopefully not for too long.

Harris County Judge Lina Hidalgo on Monday moved the county again to its highest COVID-19 threat level, her office said.

The announcement should be old hat for Hidalgo, who has moved to Level Red each of the past three calendar years.

“Unfortunately, today we find ourselves crossing a threshold we don’t want to cross,” Hidalgo said at Booker Elementary School in Spring ISD. “We are in the midst of another COVID-10 tsunami.”

She cited an explosion of new COVID-19 cases. She expounded on the dangers of the new Omicron variant. She pointed out that virus hospitalizations are increasing at a higher rate than ever.

Twenty-one months into the pandemic, a question looms: How many people are still listening?

Schools are back in session. Restaurants, bars, theatres and sports arenas are open to capacity. There are no county- or state-wide mask rules. Moving to Level Red does not change any of that; instead, it urges unvaccinated residents to stay home and avoid unnecessary contact with others. The decree is not enforceable.

[…]

Hidalgo has made warning the public about COVID-19 central to her messaging since the pandemic reached Texas in March 2020. For more than a year, she and county public health officials have cajoled, implored, exhorted, implored, advised, recommended, begged and even bribed residents to get vaccinated.

Hidalgo tried to remain optimistic, reasoning that getting more residents inoculated is the way to retreat from Level Red and never return.

“We can break that habit,” Hidalgo said. “I don’t want this always to be bad news.”

Growth of the county’s rate of vaccinated residents has slowed significantly. It now stands at 59.8 percent, up just 3.3 percent since before Thanksgiving. At this rate, 70 percent county of county residents would not be vaccinated until July.

See here for the previous time the threat level was raised. It’s a fair question whether anyone is still listening. I never really stopped wearing masks for indoor things like grocery shopping and ordering at restaurants – I eat outside if at all possible – but now I’m wearing KN95s instead of cloth masks. In my observation, we’re nowhere close to the levels of mask wearing we had a year ago, and few places are doing much about it. I guess we’re going to got for a low-rent version of herd immunity, at least for the short term. Better hope that the “milder” part of this strain holds up. More here from the Chron.

Third Court of Appeals upholds Harris County mask mandate

Jan 8th, 2022

by Charles Kuffner.

1 comment

Savor the win, for it’s off to SCOTx next.

A state appeals court on Thursday upheld a lower-court injunction that allowed Harris County to impose mask requirements despite Gov. Greg Abbott’s executive order banning such mandates.

The Austin-based 3rd Court of Appeals rejected arguments by Abbott and Texas Attorney General Ken Paxton, who claimed state law lets the governor overturn local health mandates imposed to mitigate the spread of a dangerous virus.

Abbott hasn’t budged:Texas parents pleaded for Gov. Abbott to allow mask mandates in schools

“The Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by local governmental entities or officials that contradict his executive orders,” said the opinion, written by Justice Chari Kelly.

The appeals court also said the disaster act does not allow, as Abbott and Paxton argued, the governor to suspend state public health laws that give local leaders the power to impose safety rules during declared emergencies.

“(The disaster act) does not give the governor carte blanche to issue executive orders empowering him to rule the state in any way he wishes during a disaster,” Kelly said in an opinion joined by Chief Justice Darlene Byrne and Justice Gisela Triana. All three justices are Democrats.

[…]

The appeal before the 3rd Court hinged on whether language in the Texas Disaster Act empowered Abbott to ban local rules enacted to protect public health.

Paxton and Abbott argued that the act:

• Designates the governor as “commander in chief” when addressing statewide disasters.

• Says local officials act as the governor’s designated agents during emergencies.

• States that executive orders issued under the act have the “force and effect of law.”

The appeals court, however, said Paxton and Abbott took the act’s provisions out of context.

The disaster law designates the governor as commander in chief of “state agencies, boards and commissions having emergency responsibilities” — not counties, Kelly wrote. In addition, nothing in the law limits the authority of county and local officials to respond to local disasters or public health crises, Kelly said.

“Even a statewide disaster may have distinct and disproportionate impacts in each of the state’s 254 counties and that, as a result, some measures for addressing a disaster in some counties may not be necessary or even appropriate in other counties,” Kelly wrote.

What’s more, she wrote, the disaster act lets the governor suspend “regulatory” laws that pertain to conducting state business. But Abbott sought to suspend a state law that lets local officials set public health rules in emergencies, and that law is not regulatory, the appeals court concluded.

“The Act empowers and recognizes that the Governor may issue statewide disaster declarations and that certain local officials may also issue local disaster declarations,” Kelly wrote.

“Nothing in the Act, however, suggests that these authorities are mutually exclusive,” she added.

As noted, the Third Court upheld a ruling issued in August by a Travis County district court. Note that there’s a second case, involving HISD and some other school districts, that was not part of this appeal. In this case, the three justices made the same points in the opinion that plenty of people, myself included, have been making all along about the Governor’s powers. Those judges are Democrats, and the judges on the Supreme Court are not, so we can’t just expect them to employ such thinking. Maybe they will, you never know, but you sure can’t assume it. For now, at least, the good guys have won. And even if SCOTx reverses this opinion, it’s still the case that Abbott and Paxton, by their own admission, don’t have the power to enforce Abbott’s no-mask mandate. Let’s not forget that.

HISD will not lift its mask mandate

Dec 28th, 2021

by Charles Kuffner.

1 comment

Seems like an easy call at this point.

The Houston Independent School District will maintain its mask mandate and offer free COVID testing at campuses for students and staff in 2022, Superintendent Millard House II announced last week.

House previously said the district would review the mandate after the holidays. The largest public school district in the state, HISD remains one of the few school systems regionally with a mask requirement.

“In light of the surge of COVID-19 cases in Houston and the surrounding areas, HISD continues to prioritize safety, including providing additional vaccination and COVID testing opportunities,” House said in an email to parents.

The ongoing spread of the omicron variant, which has proven capable of evading some immunity from vaccines, has triggered a steep surge in cases nationwide. The average number of daily cases has more than doubled since Nov. 29, from 80,680 to 201,330, according to the New York Times COVID data tracker. The numbers are also climbing in Texas, which reported 10,600 confirmed new cases last Thursday, the highest total since Oct. 6.

HISD data only shows confirmed cases up to Dec. 17. The district reported 143 positive cases on that day, up from 22 on Dec. 10.

Starting in January 2022, the district will offer free COVID-19 PCR tests on campuses to HISD students and staff. A one-time consent is required for testing and can be filled out at the following link https://bit.ly/HISDC19Test.

See here and here for some background, and here for a copy of Superintendent House’s email. It was reasonable, back in November when things were looking good and Harris County was lowering its threat level to consider whether the mask mandate was still needed after the holidays. For obvious reasons, things have changed since then, and it would be more than a little unwise to take other action. If omicron burns itself out quickly, if the kid vaccination rate skyrockets, the district can consider the question again later. For now, there was no other call to make.

And by the way, isn’t it nice how HISD called Greg Abbott and Ken Paxton’s bluff on their mask mandate ban and threats to sue over HISD’s totally correct action? That has paid off in spades, and brings with it the extra zest of knowing we beat them fair and square. A whole lot more districts should have followed this path.

Our year in COVID

Dec 23rd, 2021

by Charles Kuffner.

Comments are off for this post

It was bad. How it is next year is at least partially up to us.

Speaks for itself (Source: DSHS)

Texas recorded a 35 percent increase in COVID-19 deaths in 2021, compared to the first year of the pandemic, even though vaccines have been available for all adults since March.

The climbing toll, public health experts said, is almost entirely driven by people who are unvaccinated. From mid-January through October, just 8 percent of Texas virus deaths were among inoculated residents.

Memorial Hermann Chief Physician Dr. James McCarthy said it makes sense there would be more virus deaths in 2021, the first full year of the pandemic, though the highly transmissible delta variant coupled with a low vaccination rate and the decline of safe practices made fatalities worse than they otherwise would have been. And as the ultra-contagious omicron variant spreads rapidly in Houston, the pattern could continue.

“The real reason it’s worse this year is we stopped all the mask-wearing protection activities we had with a large portion of the population still unvaccinated and vulnerable to infection, hospitalization and death,” McCarthy said.

Texas this year had recorded 42,100 virus deaths through Dec. 13, according to data from the state health department, compared to 31,309 in 2020. The pandemic was declared in March 2020.

The share of fully vaccinated Texans is 56 percent, the 29th-highest rate in the country. Its large population means Texas has more unvaccinated residents — 12.8 million — than any state except California.

Four of the six deadliest months of the pandemic in Texas were in 2021. The most populous cities and counties have had the most virus deaths.

[…]

At this pace, Texas would not reach 70 percent until late May of 2022, the Centers For Disease Control and Prevention projects.

Harris County is outperforming the state average vaccine rate. Through Dec. 16, 59 percent of county residents were fully inoculated.

In other words, there’s still a lot of room for the next surge to rip through and infect, hospitalize, and kill unvaccinated people. Vaccinated people will also get sick, but they will be far less likely to get sick enough to be in danger.

We’re not going to get any help from the state government. The federal government is making more tests available and has ordered vaccine mandates, which really will do a lot to improve things, but of course our state leaders are fighting them as if they had stock in COVID itself. I don’t have anything original to say, but do go read the Department of State Health Services report that provided a lot of these numbers. And do what you need to do to protect yourself and your family.

How’s that city push to get its employees vaccinated going?

Dec 6th, 2021

by Charles Kuffner.

9 comments

Not bad, actually.

Nearly three months after Mayor Sylvester Turner signed an executive order requiring Houston’s 21,000 city employees to get the COVID-19 vaccine, receive a medical or religious exemption, or submit COVID-19 test results every two weeks, compliance with the order varies widely among departments.

Just over 60% of Houston firefighters had either been vaccinated, submitted test results or received an exemption as of Nov. 15 — the lowest rate of any city department.

That’s according to city data released to Houston Public Media, which also revealed Houston police, waste management and health staff at the bottom of the list of those who have complied with Turner’s order.

Just 74% of police officers were in compliance with the mandate, along with 74% of Solid Waste Management employees and 74% of Health and Human Services employees.

The city secretary’s office, which has just seven employees, is 100% compliant with the mayor’s order. The legal department with 185 employees and the city I.T. department’s 180 are next on the list with about 98% compliance each as of Nov. 15.

The mayor’s own office is 90% compliant with his executive order as of Nov. 15, 13th on the list of 25 departments.

[…]

The city’s Nov. 15 compliance data was the most recent available. Houston Public Media has requested a more recent report, which was not available as of Thursday afternoon.

On Sept. 8, the date Turner issued his order, 342 city employees had active cases of COVID-19, including 129 police officers.

Fourteen city employees have died of COVID-19 since the start of the pandemic, according to the mayor’s office.

Turner had previously mandated face coverings for all city employees in August, after Gov. Greg Abbott’s executive order prohibiting local governments from such mandates. Abbott then banned COVID-19 vaccine mandates statewide on Oct. 11, preventing any employer from requiring vaccination. That order is still making its way through state courts, but his mandate ban could nonetheless stymie the mayor’s efforts.

But Turner’s executive order doesn’t require workers to get vaccinated. Instead, it offers unvaccinated employees two alternatives: Either submit COVID-19 test results every two weeks or file a medical or religious exemption.

Under the order, employees were required to submit test results on the first and 15th of each month, beginning on Oct. 15. Employees who don’t comply could be subject to “corrective action up to and including indefinite suspension or termination,” the order states.

“A failure to adhere to the policy will result in disciplinary action and could even cost you your job,” Turner told city council at a meeting where he announced the order.

In a statement Thursday, the mayor’s office didn’t specify how Turner plans to address employees who aren’t complying with the order, but said the city’s Human Resources department is continuing to educate employees on the requirements.

“By implementing the executive order, our goal is save more lives, prevent illness throughout city departments and reduce costs for everyone,” the mayor’s office wrote. “The City intends to enforce the Executive Order and follow the steps outlined to ensure compliance.”

See here for the background. There’s a table in the story showing compliance rates for each department, though it should be noted that the actual numbers may be higher for at least some of them. The president of the Houston Police Officers Union was quoted saying their numbers are better than what was represented, for one. Even without that, the city’s efforts have nudged the vax numbers upward, which is exactly what you want. I thought at the time that Abbott and Paxton would not stand for this workaround on the city’s part, and I’m delighted to be proven wrong. Now let’s see what enforcement there is for the holdouts. No excuses at this point, get on board or say goodbye.

HISD will keep its mask mandate

Dec 4th, 2021

by Charles Kuffner.

Comments are off for this post

This is in response to that recent Fifth Circuit ruling about mask mandates in schools and whether Greg Abbott’s ban on them violated the Americans with Disabilities Act.

The Houston Independent School District will keep its mask mandate in place, district officials said Thursday, despite a federal appeals court ruling halting an injunction on Gov. Greg Abbott’s order prohibiting such requirements.

“The ruling does not impact the requirement that students, staff, and visitors must wear masks while on HISD property. This mandate remains in place for HISD schools,” the district said in a statement. “While we are heartened that we have maintained the lowest rate of active COVID-19 cases in the state and vaccinations are now available for our youngest students, HISD’s mask mandate will remain in place for students, staff, and visitors in all HISD schools, buildings, and buses regardless of vaccination status.”

HISD plans to review the mandate at the end of its semester after the holidays, Superintendent Millard House II said last month.

House implemented HISD’s mandate shortly before the start of the school year and the board of trustees voted to express support for it.

The district, by and large, has avoided significant backlash from individuals opposing the mandate, outside of a handful of parents who have addressed House and trustees at board meetings and during a recent series of community forums.

The district’s statement noted that HISD and other districts sued over the governor’s order in state district court. The lawsuit, it said, is based on state law regarding the authority of Texas school districts to make health and safety decisions for their students. It remains in litigation.

See here for more on the Fifth Circuit ruling. As noted, Superintendent House did say that HISD would consider lifting its mask mandate after the holidays if conditions continue to improve; who knows what will happen now that the omicron variant is out there. The federal lawsuit really didn’t have much bearing on HISD anyway, since they were among the plaintiffs that had sued Abbott in state court over his mandate ban, and won an injunction that as far as I know is still in place; besides, Abbott and Paxton don’t have any authority to enforce it anyway. The district and the Superintendent are doing the right thing. Keep on keeping on. The Press has more.

Appeals court upholds Dallas mask mandate

Nov 27th, 2021

by Charles Kuffner.

1 comment

There’s still mask mandate litigation going on, and Greg Abbott keeps getting his ass handed to him.

Clay Jenkins

Mask mandates will be allowed in the State of Texas. The Fifth Court of Appeals in Dallas issued the ruling during the late night on November 22.

The decision is the latest chapter in the fight between Governor Greg Abbott and Dallas County Judge Clay Jenkins over how to handle the COVID-19 pandemic.

Jenkins had argued he had the right to issue a local mask mandate if it means protecting public health and that he had the power to do so under the Texas Disaster Act.

Abbott had asserted that he had the authority to issue a statewide order banning the mandates. His attorneys argued it was a matter of law and that the governor was given the power under the Texas Disaster Act.

On Monday, an appeals judge issued a temporary injunction against the governor’s ban saying, “…Abbott lacks legal authority to act as he attempted. Instead, by endeavoring to exercise power beyond that given to him in the Disaster Act, he attempted to infringe on Jenkins’s powers.”

[…]

After a district judge issued a temporary injunction supporting Jenkins in August, the governor’s office sought a higher ruling from the district court of appeals.

Neither the governor’s office nor the Texas Attorney General’s office have commented on the ruling, but they could choose to appeal it to the Supreme Court of Texas.

“We’ll have to see what the attorney general and the governor want to do, but I’m not tired and I will continue to stand for your public health against any other elected official,” said Jenkins.

In the meantime, Jenkins says, don’t let all the legal back and forth confuse you.

“Don’t listen to what people tell you is legal. Listen to what doctors tell you is safe,” he said.

See here for the previous entry, and here for the opinion. Note that this is a state lawsuit about what cities and counties can do, and has nothing to do with the federal lawsuit that the Fifth Circuit Court of Appeals was meddling in. Different Fifth Courts – believe me, I know, it’s confusing.

Beyond that, not a whole lot of coverage when I went looking for stories, which I knew to do because I saw this tweet from Judge Jenkins. Maybe that’s a holiday week problem, I don’t know. As I said, there’s a ton of lawsuits out there over the Abbott executive order that banned mask mandates by cities and counties and school districts, and so far the plaintiffs have mostly won. That may all come crashing to a halt at the Supreme Court, but until then the leaders who have been bold and exercised actual leadership have been rewarded for it. Gotta enjoy those victories while you can.

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