Off the Kuff Rotating Header Image

August 12th, 2021:

Fort Bend joins the lawsuit parade

Come on in, the water’s fine.

As the Delta variant drives a pandemic surge, Fort Bend County officials on Wednesday filed a lawsuit against Gov. Greg Abbott’s executive order banning local government from implementing public health mandates.

“I’ll do all I can to protect the public health, and the people of Fort Bend County,” Judge KP George tweeted. “I hope others will join me in following the science and listening to local doctors and the CDC to act swiftly and decisively.”

The county filed a lawsuit in district court requesting a temporary restraining order to challenge the Republican governor’s order. George, a Democrat, and other county leaders had scheduled a news conference for Wednesday afternoon.

County commissioners met in a closed special session at 3 p.m. Wednesday to deliberate with an attorney and discuss potential responses to rising COVID-19 infections, according to the meeting agenda.

The story has no further detail, so I will just assume this is along similar lines as the others so far.

We now have our first official response from the powers that be, and as one might expect, it’s arrogant and jerky.

Attorney General Ken Paxton said Wednesday he plans to appeal a pair of rulings by judges in Dallas and San Antonio that allow local officials in those cities to issue mask mandates, with possible decisions from the Texas Supreme Court by the end of the week.

The temporary rulings override Gov. Greg Abbott’s May executive order that bars local officials from requiring face coverings. They came in response to legal challenges from top elected officials in the Dallas and San Antonio areas, who argued Abbott overstepped his emergency powers by preventing the local mandates. The rulings also pointed to a rapid ongoing rise in COVID hospitalizations across the state, particularly in large cities.

Paxton said Wednesday he expects a quick ruling in his favor from the state’s top civil court.

“I’m hopeful by the end of the week or at least early next week we’ll have a response from the Texas Supreme Court,” Paxton told conservative radio host Dana Loesch. “I’m going to tell you right now, I’m pretty confident we’re going to win that.”

[…]

Paxton argued on the talk show Wednesday that the Texas Legislature had granted Abbott the power to ban local COVID restrictions, including mask mandates, through the sweeping Texas Disaster Act of 1975. He also downplayed the early court win by Jenkins.

“The reality is, he’s going to lose,” Paxton said. “He may get a liberal judge in Dallas County to rule in his favor, but ultimately I think we have a Texas Supreme Court that will follow the law. They have in the past.”

We’ll see about that. For what it’s worth, there was one Republican district court judge in Fort Bend who wasn’t challenged in 2018, so there’s at least a chance that he could preside over this case. The crux of the argument here is that it’s Greg Abbott who isn’t following the law. I agree with Paxton that the Supreme Court is going to be very inclined to see it Abbott’s way, but I’d like to think they’ll at least take the plaintiffs’ arguments into account.

Later in the day, we got the first words from Abbott as well.

“The rebellion is spreading across the state,” Bexar County Judge Nelson Wolff said.

Abbott — under intense pressure from some on his right to hold the line against local officials who want to require masks — now is trying to quell that rebellion.

Hours after Jenkins signed his mandate, Abbott and Attorney General Ken Paxton announced they would go to court to block Dallas County’s top official — asking the 5th Court of Appeals to overturn the state district judge’s decision that allowed Jenkins to move forward. The two men threatened to sue any government official who defies Abbott’s order.

“The path forward relies on personal responsibility — not government mandates,” Abbott said in a statement.

Yeah, that’s what has gotten us to this situation in the first place. I will confess that I’m surprised it has taken this long for Abbott to speak up. He’s never been shy about quashing dissent, and as this story notes the right wing scream machine has been fulminating about his lack of action. Those days are clearly now over.

We got another peek at the state’s response in this story about the larger revolt by cities and school districts against Abbott’s mask mandate ban.

At a hearing Tuesday afternoon before state District Judge Antonia “Toni” Arteaga, a city attorney argued that Abbott had exceeded the bounds of the Texas Disaster Act of 1975, which the governor cited in suspending local authority to impose COVID restrictions.

“The Texas Legislature has given cities and counties broad authority within the Texas Health and Safety Act,” said Assistant City Attorney Bill Christian. “Only the Legislature has the authority to suspend laws.”

Kimberly Gdula, a lawyer with the Texas Attorney General’s Office, pointed to an appellate court ruling last November that upheld Abbott’s ban on local business restrictions. She also argued that the city and county were asking the court to improperly “throw out” parts of the Disaster Act.

Interesting, but I don’t know how to evaluate it. When there are some actual opinions and not just temporary restraining orders pending the injunction hearings, we’ll know more.

It’s possible there may be another avenue to explore in all this.

President Joe Biden says the White House is “checking” on whether he has the power to intervene in states like Texas where Republican leaders have banned mask mandates.

Asked whether he has the power to step in, Biden responded: “I don’t believe that I do thus far. We’re checking that.”

“I think that people should understand, seeing little kids — I mean, four, five, six years old — in hospitals, on ventilators, and some of them passing — not many, but some of them passing — it’s almost, I mean, it’s just — well, I should not characterize beyond that,” Biden said.

[…]

White House Press Secretary Jen Psaki said Wednesday the administration is “looking into ways we can help the leaders at the local level who are putting public health first continue to do their jobs.” She said those include efforts to “keep students safe and keep students in school” and that the U.S. Department of Education “and others” are working on it.

Insert shrug emoji here. I don’t know what this might look like, but I believe they will be creative in looking for a possible point of leverage.

Finally, on a side note, Fort Worth ISD implemented a mask mandate on Tuesday. We are still waiting for HISD to vote on the request by Superintendent Millard House to implement one for our district. The Board meeting is today, I expect this to be done with little fuss from the trustees.

The Alvarado filibuster

Wear comfortable shoes, Senator.

Sen. Carol Alvarado

The GOP voting restrictions push that left the Texas House scrambling to round up absent Democrats also shut down work in the Texas Senate on Wednesday evening as state Sen. Carol Alvarado launched into a filibuster against the GOP’s priority voting bill.

“I rise today to speak against Senate Bill 1,” Alvarado said, beginning her filibuster just before 5:50 p.m. as the chamber approached a final vote on the target of the Houston Democrat’s efforts.

Though Democrats are outnumbered in the chamber, they are occasionally able to foil legislation by speaking on it indefinitely — usually ahead of a key deadline or the end of the legislative session. Alvarado’s filibuster, however, likely will end up being more of a symbolic gesture than a credible attempt to block passage of the bill. The Legislature is on just the fifth day of a 30-day special session, called as Democrats have left the House without enough members present for the Republican majority in that chamber to pass legislation.

“Senate Bill 1 slowly but surely chips away at our democracy. It adds rather than removes barriers for Texas seniors, persons with disabilities, African Americans, Asian and Latino voters from the political process,” Alvarado said at the start of her filibuster. “[President Lyndon B. Johnson] said the Voting Rights Act struck away the last major shackle of the fierce and ancient bond of slavery. Senate Bill 1 is a regressive step back in the direction of that dark and painful history.”

Ahead of her filibuster, Alvarado told The Texas Tribune she would be using a “tool in our box that is a Senate tradition” just as House Democrats were using their quorum break to block the bill and vowed to keep going “as long as I have the energy.”

“I’m using what I have at my disposal in the Senate,” Alvarado said, acknowledging the bill would eventually pass in the Senate. “The filibuster isn’t going to stop it, but a filibuster is also used to put the brakes on an issue — to call attention to what is at stake — and that is what I am doing.”

To sustain the filibuster, Alvarado must stand on the Senate floor, without leaning on her desk or chair, and speak continuously. If she strays off topic, her effort can be shut down after a series of points of order.

I trust we all remember that from the Wendy Davis filibuster of 2013. As the Chron story reminds us, Davis talked for 11 hours, which wound up being just enough. Of course, the omnibus anti-abortion bill she stalled out wound up passing in a subsequent special session, so “victory” in these matters is somewhat ephemeral. The longest filibuster, according to that same story, was 43 hours. Maybe we could get a few more Senators to follow her in doing this? I don’t know what the rules allow. In any event, I wish Sen. Alvarado all the best with this, I appreciate what she is doing, and I hope her fellow Democrats are there to support her.

Meanwhile, over in the House:

State Rep. Gene Wu is expected to temporarily avoid arrest after he legally challenged a warrant for his apprehension, also issued to 51 other House Democrats absent from the special session in protest of voting restrictions legislation.

The rare action over a civil warrant led to some head-scratching Wednesday in the 230th Criminal District Court, including from presiding Judge Chris Morton. After a brief recess, he determined that he did have jurisdiction to grant a “writ of habeas corpus” in the case, essentially trumping the state’s civil warrant for Wu and releasing him from potential custody until the court determines the legality of the warrant.

Wu’s attorneys added that they are part of a group of lawyers across the state who came together to fight for the right to vote. Harris County District Attorney Kim Ogg surmised that she also expects to see more cases like Wu’s appear in local courts.

“This is a reminder to Gov. Abbott that we still live in a democracy,” Wu said after his court appearance. “We will do everything we can to make sure the right to vote is protected for all Texans.”

When asked whether he has any plans to return to Austin, Wu responded, “Hell no.”

[…]

Morton on Wednesday acknowleged the unusuality of the case before him. He questioned whether he has jurisdiction in a criminal court, and whether his court had jurisdiction over the sergeant-at-arms who distributed the arrest warrants to the 52 Democrats’ offices Wednesday at the Capitol.

He also told Wu’s attorneys that they should have contacted the Texas Attorney General’s Office, and his decision could change depending on their response.

“This is a novel issue to say the least,” Morton said.

Ogg on Wednesday represented her office at the hearing, where she said she didn’t oppose any sort of bond or continuance in the case. But, she made clear that she doesn’t believe this is a criminal issue.

“We don’t believe that the courts, the criminal courts, should be a place where political differences are litigated,” she said.

She added later that she personally supports what the Democrats have done related to the voting legislation.

Attorneys Stan Schneider, Romy Kaplan and Brent Mayr additionally asked for a personal bond to be issued for Wu in the event he was arrested. Morton did not grant a personal bond because he said Wu hasn’t been charged with a crime.

The trio hoped that eventually Morton would take up the issue of the warrant’s constitutionality. The Republicans’ actions on Tuesday were illegal, they said, because they did not have a quorum.

“We have an oppressive order from a tyrannical king,” Mayr said to the judge. “And we are asking you to say no.”

Schneider added Wednesday that Wu’s case should be in criminal court because “an arrest is an arrest,” even if it’s labeled as a civil one.

I don’t know what to make of all this, but unprecedented situations can and do lead to weird questions arising. Also, Rep. Wu was an assistant DA before he was elected to the Lege, so he has some insight into this, and I’m sure filed this writ with some strategy in mind. But we’ll see what comes of it.

A legislator’s view of the mask-ban mandate

State Rep. John Turner pens an op-ed that sums up the arguments for defying Greg Abbott’s executive order banning mask mandates.

Rep. John Turner

The governor’s attempted ban on local decision-making is set out in his most recent executive order of July 29. That document not only purports to prohibit requiring masks in schools, but also to suspend any existing laws that would allow any local entity or official to make this decision. The governor ostensibly relies on the Texas Disaster Act of 1975, which gives a governor the ability to declare a state of disaster and then assume certain extraordinary powers to respond to that disaster.

But is prohibiting local action on masking in schools within the governor’s powers, even under the Disaster Act?

The text and structure of the Disaster Act strongly suggest that the special powers the governor has during a disaster declaration must be exercised to actually respond to the declared disaster. The act allows a governor to suspend certain statutes, for example, only if compliance with the statute “would in any way prevent, hinder, or delay necessary action in coping with” the disaster.

Here, the declared disaster is the COVID-19 pandemic. At least in this legislator’s view, it is hard to see how a law or rule that allows masking mandates by local entities is preventing or hindering necessary action in coping with that disaster. In fact, the opposite is true: the scientific consensus is that mask requirements help control the spread of this deadly virus. At a minimum, statewide prohibition of mask requirements is not “necessary action” to counter COVID-19.

It is true that, earlier in the pandemic, courts held that certain statewide COVID-19 measures ordered by the governor could override conflicting local rules adopted by cities or counties. But even if those cases were correctly decided, they came at a time when the governor himself was ordering meaningful measures in response to the crisis, such as occupancy limits for businesses and restrictions on gatherings. Schools were also requiring masks.

Then, the governor was arguably attempting to standardize a statewide response to the pandemic. Today, that is no longer the case — unless one considers preventing others from responding to be a response.

It might be reasonable for a governor to seek to impose some uniformity on disaster measures. But the Disaster Act shouldn’t be read to allow a governor to declare a disaster, only to focus his newly acquired powers on preventing local governments from dealing with that disaster.

This is basically the argument that have been made so far in the various lawsuits filed so far challenging the mandate ban in the executive order, as well as my own intuition. Some form of “the governor doesn’t actually have the authority to do that”, based in turn on “the law he’s using to justify his actions doesn’t say what he claims it says” is what you’d expect. Turner also notes that school districts across the state impose all kinds of requirements on students for what they can and cannot wear, generally without controversy, so why would including a face mask in those requirements be any different?

All this sounds sensible, but it will come down to what the courts do and don’t accept. That could hinge on a specific word or phrase in the law, or the omission of a specific word or phrase, or it could just be what the courts say that the law says. Really, I just mean one court, the Supreme Court, because that’s ultimately where all this is going. At least we have some idea of what they’ll be fighting over.

Texas blog roundup for the week of August 9

The Texas Progressive Alliance is way out of patience with anti-vaxxers as it brings you this week’s roundup.

(more…)

Abbott flails about on the COVID surge

He remains committed to the bit.

Gov. Greg Abbott announced new moves Monday to fight the coronavirus pandemic as it rages again in Texas, including asking hospitals to again put off certain elective procedures to free up space for COVID-19 patients.

Still, the governor did not back down on his refusal to institute any new statewide restrictions on businesses or to let local governments and schools mandate masks or vaccines.

Instead, Abbott announced he had written to the Texas Hospital Association asking hospitals to “voluntarily postpone medical procedures for which delay will not result in loss of life or a deterioration in the patient’s condition.” As coronavirus was consuming the state last summer, Abbott took a more restrictive approach and banned elective surgeries in over 100 counties before ending the prohibition in September.

Abbott also announced Monday he was asking state agencies to open additional COVID-19 antibody infusion centers that aim to treat COVID-19 patients with therapeutic drugs and keep them from requiring hospitalization. And he said the Department of State Health Services “will be utilizing staffing agencies to provide medical personnel from out-of-state to Texas health care facilities to assist in COVID-19 operations.”

That is a reversal for the state. In July, the state told cities and counties it would not send additional health care workers to aid hospitals with the latest surge of COVID-19 patients, like it had earlier in the pandemic. Instead, state officials said, city and county leaders should dip into $10.5 billion worth of federal stimulus dollars to pay for those workers should hospitals need them.

[…]

As part of Monday’s announcement, Abbott’s office said he was directing state agencies to “increase vaccination availability across the state” but did not provide further details.

“Texans can help bolster our efforts by getting vaccinated against COVID-19,” Abbott said in the news release. “The COVID-19 vaccine is safe and effective, and it is our best defense against this virus.”

Well, some hospitals had already taken the step of halting elective procedures, so way to be out in front on that, bro. Part of this “plan” includes recruiting more nurses from out of state to help us with the shortage we are now experiencing. I presume this means he’ll be trying to lure them from states that have COVID under a greater degree of control, probably places where the Governors in question made an actual effort to get people vaccinated and didn’t kneecap local leaders’ attempts to keep their people safe. I have no idea why any of them would want to come here now, but God bless ’em if they do. I guess we should be thankful that Abbott is doing something other than literally fiddling while the state burns, but color me a little too grumpy to care about such crumbs.