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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.

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7 Comments

  1. C.L. says:

    Sucks to be Abbott right about now… he’s put himself in a no-win position.

  2. Kibitzer Curiae says:

    Re: “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.”

    — Huh?

    Paxton had already sued Jenkins when he filed his plea in intervention in Koch v. Jenkins. The district judge granted Jenkins’ application for a TRO, rather than Paxton’s. They were already in court – albeit via eFile and a hearing held on Zoom – and they lost in Round 1.

    And the purported appeal is not an appeal, but a petition for writ of mandamus against the District Judge, Tonya Parker. Paxton also filed a motion for emergency relief, which is under consideration as we watch in anticipation.

    That’s standard Paxton Playbook now, based on the modus operandi developed last year. If he doesn’t get his way immediatetly, he will next file a mandamus in the Texas Supreme Court, with predictable results.

    The docket for the Round 2 proceeding is here:
    https://search.txcourts.gov/Case.aspx?cn=05-21-00687-CV&coa=coa05

    SLOUCHING TOWARD AUTHORITARIANISM

    The issue isn’t just the masking, but the grand principle that the Abbott gets to run the plantation and crush the local overseers when they dare get out of line as he draws it. If asserting dominance means using Disaters Act powers to emasculate local leaders and prevent them from fighting the distater, so be it. Preposterosity won’t constrain Abbott’s Court.

    On an additional point of etiquette: Paxton’s petition neuters the black female judge to an “it” while referring to the would-be dictator gender-conformingly as a “he”.

    Note that in a mandamus proceeding of this nature the opposing party against whom relief is sought in the higher court is the trial court judge. The adversary in the trial court (here Jenkins) is the real party in interest.

    Issues Presented

    Whether the respondent clearly abused its discretion in enjoining the enforcement of Governor Abbott’s Executive Order GA-38 issued pursuant to his authority
    under the Texas Disaster Act.

    Lots of Little Dictators vs. the Big Lone Star Loco

    Speaking to Lubbock radio host Chad Hasty, Paxton predicted the Texas Supreme Court would hear the case by the end of the week.

    “If we have local officials who just defy law because they feel like they know better, then we end up with little dictators all over the state and we don’t have any rule of law and we lose our representative government that we vote for,” Paxton told Hasty.

    [Source: Joshua Fechter and Partrick Svitek over at the Trib.]

    Reminder: The rule of law is whatever the judicial Republicans on the SCOTX say it is.

  3. Bill Daniels says:

    “SLOUCHING TOWARD AUTHORITARIANISM

    The issue isn’t just the masking, but the grand principle that the Abbott gets to run the plantation and crush the local overseers when they dare get out of line as he draws it.”

    Plantation Master to Overseers: “You are not permitted to whip the slaves, not permitted to deny their food rations, and definitely not permitted to work them longer than usual. You are not permitted to chain them, or force obedience collars upon them. You are likewise not permitted to stop the slaves from congregating to worship, or fellowship, and are not permitted to refuse education to the slave children.”

    Overseers: “This is unfair! It’s a usurpation of our authority to be as cruel as we want to the slaves. They work for us! We can treat them just as badly as we want!”

    If it helps you, think of Abbott as a benevolent dictator in this instance, protecting the individual liberty of his subjects, even though he doesn’t have to.

    “Reminder: The rule of law is whatever the judicial Republicans on the SCOTX say it is.”

    Reminder:

    Immigration law is whatever we say it is. Enjoy your millions of undocumented immigrants, y’all!

    Love,

    Uncle Joe

  4. policywonqueria says:

    MIGRANT ACCOUNTING

    Bill, if there is a problem with undocumented immigrants, there is an obvious solution: Document them. Which is presumably being done already. Not to mention that such record-keeping would be useful to correct for double- and triple- et seq. counting, i.e. same individual, multiple entries/exits, and resulting overstatement of the true size of the migrant population.

    Good data is critical to good public policy, but not a sufficient condition.

  5. D.R. says:

    So if ruled in Abbott’s favor this means a governor could essentially ban curfews in the event of a disaster such as a hurricane. Clearly this was not the intent of the law and it seems anything that is not a mitigation effort should be scrutinized. But I’m sure courts will rule in favor of Abbott because the GOP owns all courts.

  6. Bill Daniels says:

    Wolf,

    Here’s your logic:

    If there’s a problem with the SCOTX decisions, simply have them document those decisions using small, easy to understand words, with lots of pictures. The problem isn’t what the SCOTX actually did, it’s just a paperwork issue. Obvious solution is obvious.

    And now, here’s my Devil’s Advocate question of the day. Let’s say that Abbott simply declares the emergency over and withdraws his edict. Poof. Gone.

    Can the various localities and political subdivisions mandate masks, vaccinations, vaccine passports, and whatever else is being thought about, if there is no state declared emergency?

  7. Kibitzer Curiae says:

    EMASCULATING THE FIRE FIGHTERS

    County judges can and did issue disaster declarations of their own at the local level, and get to exercise the disaster-fighting powers of the Governor as emergency managers at the local level. And they have.

    This was expositioned at the Zoom hearing. You can find the statute cites in the pleading somewhere, no doubt. And there is no express pre-emption clause or tie-breaker provision in the Texas Disaster Act that says that the Governor can countermand the local emergency managers and stop them from saving lives in a local disaster.

    Paxton’s perverse argument is that Abbott can invoke disaster powers (i.e., emergency power he doesn’t otherwise have) and use them to stop the local leaders from fighting the disaster as they best know how in their own jurisdictions.

    At the risk of stating the obvious, this is anti-thetical to the Act and it’s essential purpose. Its called Diaster Act for a reason. And that reason is to cope with disasters and mitiagate their deadly and otherwise harmful impacts, not preventing others from doing so, and fining them if they do what needs to be done in a crisis.

    What we have here is an invocation of emergency powers to promote the spread of COVID like a wildfire by taking the firehoses away from the local fighterfighters.

    Orwelling really. Possibly a sign of cognitive dysfunction or neural pathology.

    LAPS OF LOGIC, COGNITIVE DYSFUNCTION?

    GA-38 alone on its face provides a prime-face indication that Abbott should seek appropriate professional help and undergo a cognitive assessment.
    See –> Contradictio in terminis.

    Here is Jenkins’ pleading and TRO request once more, for all the world to peruse, including the medical expert’s affidavit and accompanying data charts:

    https://www.dallascounty.org/Assets/uploads/docs/covid-19/press-releases/2021/august/080921-Final-Jenkins-v-Koch-Supplemental-Counterclaim.pdf

    Document title: Dallas County Judge Clay Jenkins’s First Supplemental Counterclaim, Request for Declaratory Judgment, and Request for Temporary
    Restraining Order and Temporary Injunction.

    Case info: JJ Koch v. Clay Jenkins v. Greg Abbott, Cause No. DC-21-10101, pending in the 116th District Court of Dallas County, Texas.